The right to access government information faces a reality check to date

The Senate building [File]

The new constitution brought about access to information while providing new framework in which information is disseminated to the public and the limitation that is accompanied with it.

We reflect on the journey into the evolution of access to information under the new constitution the gains it has come up with and the misses that we are encountering as a nation.

The 2010 constitution made a fundamental constitutional promise that citizens would no longer have to treat public information held by the state as privilege granted at the discretion of public officials.

It established article 35 that changed relationship between citizens and information where citizens were given right to access information held by the state and in certain circumstances held by other person that may be of public interest.

It further gave a right to seek correction or deletion of untrue or misleading information affecting them while also requiring the state to publish and publicize important information on matters affecting the nation.

Before 2010 constitution access to government information was often viewed through the lens of official secrecy but the new constitution highlighted the need for government information to be made accessible to the masses.

Article 35 placed access to information within the Bill of Rights. This was a significant departure because it transformed access to information from an administrative convenience into a constitutional right.

The significance of this transformation is captured by Boniface Harrison, Executive Director, MuemAction Post and a communication practitioner, who says he is “Proud of the fact that the constitution makes access to information under bill of rights for every citizen to access information.”

He further explains the practical significance of this constitutional guarantee: “By us having a provision of the constitution that mandates the government, the state to provide an environment for access to information creates a background under which citizens can seek information if it is not given to them.”

The right therefore provides citizens with a basis upon which they can demand information and pursue remedies where that information is not provided. As Harrison notes, “They can even go to court. We have seen citizens going to the office of the Ombudsman to go and seek information.”

The constitution has also created institutions and obligations intended to make this right meaningful. Harrison observes that “The constitution has also established such offices which are mandated to provide information to Kenyans.” Institutions have also been mandated to publish public information about spending and development projects. “That is something that is being done, although it is not being done to the scale that would allow many citizens to participate.”

It also recognized something equally important that information can cause harm when it is false or misleading. Article 35(2) provides a right to the correction or deletion of untrue or misleading information affecting a person.

The constitutional framework therefore contains two ideas that are increasingly important in the digital age that intersects between access to information and protection against harmful information.

In 2016, Parliament enacted the Access to Information Act to give effect to Article 35. The law established a framework for requesting information and placed obligations on public entities to facilitate access to information and proactively disclose information.

The access to information further than requiring government to respond questions asked by the public it requires public entities subject to law of exemption to disclose important information about their functions, decision making processes and public contracts.

It further requires information to be disseminated in ways that take into account factors such as disability, cost, language and most effective means of communication in relevant areas.

The access to information has provided journalists, civic organizations and other interested parties with public information with a constitutional foundation to demand information from public institutions thus enhancing accountability and transparency in matters of public interest.

According to Harrison this constitutional recognition of the right has also created a stronger environment in which information can be gathered, produced and shared.

“It has also provided an environment through which as a creator of information and a communication practitioner, I have a mandate to inform Kenyans about many things,” he stated.

He adds that constitutional recognition has changed how information creation and sharing is perceived stating “Because when it is legalized, it tends to transform its perception.” For information creators, this constitutional backing provides what Harrison describes as “a softer landing because the constitution allows us to share information.”

This legal framework also provides independent institution that has oversight on the use of access to information and the roles for the commission on administrative justice including investigating complains, reviewing decisions and promoting public education on the right to access information.

The gains however, have not been without challenges. The right may exist in law but citizens do not always experience access to information at the scale or ease that the Constitution envisaged.

Harrison points to “Hesitation by government institutions to share information because some information may be used to hold them accountable, so some institutions do not really share sufficient information.”

The language used in government communication can also become a barrier. He highlights “Jargon that is used in some government communication, which makes it inaccessible to many citizens.”

There are also concerns around the cost of exercising the right. Harrison points to “Instances of the cost of accessing information from the government”, noting that sometimes citizens seeking information from institutions such as IEBC may be required to pay.

He further notes situations where citizens are required to purchase storage devices from institutions in order to receive information, saying, “They cannot transfer their information to your flash disk; you have to purchase their flash disk, which is overpriced.”

These are some of the areas where the constitutional promise and the lived experience of citizens do not always fully meet.

Despite these gaps, the transformation brought by the 2010 Constitution remains significant. Access to information moved from the realm of administrative discretion and official secrecy and became a right protected under the Bill of Rights, backed by institutions, legislation and avenues for redress.

However, sixteen years on the information environment in which this right operates has changed. The digital age has transformed how information is produced, disseminated and consumed, creating new challenges that the framers of the 2010 Constitution could not have fully anticipated.

As Harrison puts it, “The promulgaters of the constitution were not ahead of to time catch up with technology. Technology has moved faster than the law.”

This presents a new question for a right that has already undergone a profound transformation on how to balance access to information with the evolving digital world where information disorders are on the rise while still upholding the necessary rights?

Harrison argues that “as much as we advocate for freedom of access to information then we also have to regulate information landscape because something like disinformation is an organized crime, we cannot treat that as something that we should operate on guidance and counselling on.”

The challenge is ensuring that regulation does not undermine the freedom that the Constitution sought to protect.

“The only balance has to be laws but we should not enact laws that prevent sharing truthful information that is what is wrong. Having laws that counter crime is much welcomed.”

The next phase of the access to information journey is to protect the gains made since 2010 and to respond to the challenges created by an increasingly digital information environment.

According to communication practitioners such Harrison, “It is like the right to life we cannot enact laws that deny people the right to life but we must enact laws that helps people to live better.”

The constitutional gains must therefore remain at the center of any response to emerging information disorders while protecting the vision of the access to information act.

“The protection of constitution would be the sanctity that we must keep the truth and factual information safe but we must counter legally malinformation and information that is spread wrongfully intentionally.”

The journey of access to information under the new Constitution is a transformation that placed information within the Bill of Rights, an achievement that has given citizens and information creators a stronger basis to demand, access and share information and unfinished work to ensure that this right is accessible, affordable, understandable and protected in an increasingly digital age.