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Public’s long wait to access classified State information

By By Juma Kwayera | July 29th 2012

By Juma Kwayera

Hopes that the eagerly anticipated declassification of State secrets is unlikely to materialise after stakeholders failed to speed up the enactment of the Freedom of Information Bill.

The Bill is critical to the actualisation of the integrity and leadership provisions that set the benchmarks to be met by public office seekers. In the absence of the Bill, there are fears the credibility of leaders cannot be ascertained, as crucial information is inaccessible.

Renewed interest in the Bill comes on the back of allegations by a former advisor of Prime Minister Raila Odinga on coalition affairs, Miguna Miguna, in his memoirs. Peeling Back The Mask: A Quest for Justice in Kenya makes allegations touching on the integrity of the PM’s office that can only be laid to rest if laws in freedom of information as provided for in the Constitution are enacted.

Until the freedom of information law is enacted, which would automatically declassify State secrets and any other information in Government custody, such records would remain inaccessible by the public, according National Archives Curator Angote Atsangu.

Mr Atsangu says the law is critical in laying the truth bare and would inform vetting of public officers and laws on data protection and intellectual property rights.

Former Subukia MP Koigi Wamwere says the laws are urgent as records of a number of activists detained under past regimes need to be made public to avoid confusion about the aspirations of the revolutionaries and ordinary criminals.

Political pluralism

Says Koigi: “In the circumstances under which we fought for political pluralism, it is likely we have broken the law. But freedom of information laws should be enacted so that the public can access intelligence records and determine whether we had dictatorships in Kenya or not. The public needs to differentiate between heroes and villains. These are patriots who broke the law to fight for the freedoms and civil liberties the country enjoys at present.”

The group that incurred the wrath of successive Kanu regimes include Raila, Chief Justice Willy Mutunga, former Butere MP Martin Shikuku, former Kitutu Masaba George Anyona and Lands minister James Orengo.

Sought to shed light on the status of the Freedom of Information Bills, Attorney-General Githu Muigai, Justice Minister Eugene Wamalwa, his Assistant William Cheptumo and CIC chairman Charles Nyachae would neither answer calls nor respond to text messages.

But a member of parliamentary Constitutional Implementation Oversight Committee George Nyamweya laments: “We have made everything technical to the point some of the laws being hurriedly enacted are in conflict with the Constitution.” Nyamweya wants the process to be slowed down until “we get the basics” right.

The Freedom of Information Bill is deemed as critical in the application of Chapter Six of the Constitution, which prohibits individuals with a criminal past or have served a jail term from holding a public office. In the same vein, says Koigi, people deemed to have played a role in subversion of State security face the risk of being prevented from holding public offices.

Out of reach

The controversy touched off by Miguna has taken the dimension similar to the furore that accompanied the publication of the PM’s own autobiography, Raila Odinga: An Enigma in Kenyan Politics, which sensationally discusses his role in 1982 coup de tat. Like a lot more information in State custody unless the relevant laws are enacted by Parliament, the information will remain out of reach of the public. Similar allegations are contained in It’s Our Time to Eat by British journalist Michela Wrong and former Ethics and Integrity PS John Githongo in records he spirited out of Government custody. In all the instances, the public has no means of independently verifying the truth.

Constitutional lawyer Haron Were Olando of Olando Udoto and Okello Advocates agrees in principle that the public has the right to information in State custody, except in circumstances where that information is injurious to the public good.

Olando argues that every person is entitled to rights and civil liberties as in the Bill of Rights, but activist face disqualification on account of treason for attempting to overthrow the Government through armed struggle.

Conversely, he says information about malfeasants such as Goldenberg, Anglo Leasing or political assassinations need to be made public as means of erasing doubts in the minds of ordinary people.

At National Archives, information deemed having ‘matured’ for declassification is available to the public. Atsangu says enactment of the Freedom of Information Bill is critical as it contains provisions that would compel the Government or its ministers, agencies and departments to provide information for public consumption. Followed by the repeal of the State Secrets Act and enactment of a data protection law and privacy that would provide a framework within which wananchi would easily access information.

National Archives are the custodians of declassified information, but at the moment, it has to make do with laws that should have been rendered obsolete with the coming into being of the new Constitution.

Written law

Section 6 of the Public Archives and Documentation Service Act says information in custody of the State can only be made public after 30 years. “Subject to any written law prohibiting or restricting the disclosure of information obtained from the public and to the provisions of this section, public archives which have been in existence for a period of not less than 30 years may be made available for public inspection and it shall be the duty of the director to provide reasonable facilities as such times...” In the case of information on national security, the law currently provides that such information declassified 55 years from the time the file ceased to be active.

Consequently, Atsangu says, sensitive information such as details of the 1982 coup, detentions without trial, the Wagalla Massacre and extra-judicial killings by the military during the campaign against the Sabaot Land Defence Force militia, among others will not be released for public inspection any time soon.

“Our rulers have a lot of skeletons in their closets. The electorate have no information about the current leaders. Some of them have committed heinous crimes but the truth is buried under official State secrets,” say Koigi, who wants the Bill on freedom of information moved fast to buttress Chapter Six of the Constitution on Leadership and Integrity that lays out criteria for entrusting one with a public office.

To date, the country has not resolved mysteries surrounding the assassinations of Pio Gama Pinto in 1967, Tom Mboya in 1969, JM Kariuki in 1975, Robert Ouko in 1992.

The recent deaths of Internal Security Minister George Saitoti and his assistant Orwa Ojode too have raised eyebrows.

Without relevant legislation to invoke, says Koigi, it becomes difficult to prosecute criminal justice just as it is to verify sensational claims leaders make in their memoirs.


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