Katiba Institute v Presidents Delivery Unit,Andrew Wakahiu,Nzioka Waita & Joseph Kinyua
Katiba Institute V Presidents Delivery Unit & 3 Others  eKLR
Circumstances under which a Body Corporate may be considered as a Citizen for the Purpose of Actualizing the Right to Access Information
Katiba Institute v Presidents Delivery Unit & 3 others  eKLR
Constitutional Petition 468 of 2017
High Court of Kenya at Nairobi
E C Mwita, J
November 8, 2017
Reported by John Ribia and Njeri Mweha
Constitutional law - fundamental rights and freedoms - right to access to information - right of access to information limited to citizens - whether a corporate body is a “citizen” for purposes of enforcement of the right to access to information under article 35 of the Constitution of Kenya, 2010 and under the Access to Information Act. – Constitution of Kenya 2010 article 35; Access to Information Act section 2.
Constitutional Law – fundamental rights and freedoms - duty of public entities to provide information to citizens - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the corporate body’s right to access information - whether a public entity had a constitutional obligation under article 35(1)(a) and (b) of the Constitution of Kenya, 2010 to provide information to citizens - Constitution of Kenya, 2010, article 35; Access to Information Act sections 2, 4, 5 and 8.
Constitutional Law – national values and principles of governance – rule of law – participation of the people – human rights – good governance – transparency – accountability - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the values of rule of law, participation of the people, human rights, good governance, transparency and accountability – Constitution of Kenya, 2010 article 10.
Constitutional Law – leadership and integrity – obligations imposed on public entities and State officers – responsibilities of leadership – conduct of state officers - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the obligations imposed on public entities by articles 73(1) and 75(1) of the Constitution of Kenya, section 3 of the Leadership and Integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act – Constituion of Kenya, 2010 articles 73(1) and 75(1);Leadership and Integrity Act section 3; Public Officers Ethics Act sections 8, 9 and 10.
On diverse dates in 2017, the 1st Respondent published advertisements in the media, through billboards and in business messaging or tags named ’GoK Delivers’ and #Jubilee Delivers. The Petitioner in pursuit of its right to access information, wrote to the 1st Respondent seeking information on how many advertisements had been published through what media schedules and dates when it was done, copies of the documents advertised, total cost incurred and information on the relevant government accounting office(r) and the individual or government agency that met the cost. The information sought was to cover the period between May 25, 2017 to August 16, 2017.
The letter was delivered but no response was received from the Respondents. That forced the Petitioner to file the instant petition to compel the Respondents to furnish it with the information.
Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the corporate body’s right to access information.
Whether a corporate body is a “citizen” for purposes of enforcement of the right to access to information under article 35 of the Constitution of Kenya, 2010 and under the Access to Information Act.
Whether a public entity had a constitutional obligation under article 35(1) (a) and (b) of the Constitution of Kenya, 2010 to provide information to a citizen.
Whether article 35 of the Constitution and section 5 of the Access to Information Act set out conditions for accessing information.
Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the values of rule of law, participation of the people, human rights, good governance, transparency and accountability provided under article 10 of the Constitution.
Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the obligations imposed on public entities by articles 73(1) and 75(1) of the Constitution of Kenya, section 3 of the Leadership and Integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act.
Whether the jurisdiction of the High Court to determine petitions that sought to challenge the violations of the right to access information was pegged on the condition that a report had to be made before the Commission on Administrative Justice.
Relevant Provisions of the Law
The Constitution of Kenya 2010
Access to Information
(1) Every citizen has the right of access to—
(a) information held by the State; and
(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.
(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
Access to Information Act
"citizen" means any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens.
"exempt information" means information that may be withheld by a public entity or private body in accordance with section 6;
“public entity” means—
(a) any public office, as defined in Article 260 of the Constitution; or
(b) any entity performing a function within a commission, office, agency or other body established under the Constitution
Right to information
(1) Subject to this Act and any other written law, every citizen has the right of access to information held by—
(a) the State; and
(b) another person and where that information is required for the exercise or protection of any right or fundamental freedom.
(2) Subject to this Act, every citizen's right to access information is not affected by—
(a) any reason the person gives for seeking access; or
(b) the public entity's belief as to what are the person's reasons for seeking access.
(3) Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost.
(4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6.
(5) Nothing in this Act shall limit the requirement imposed under this Act or any other written law on a public entity or a private body to disclose information.
Disclosure of information by public entities
(1) Subject to section 6, a public entity shall—
(a) facilitate access to information held by such entity and which information may include—
(i) the particulars of its organization, functions and duties;
(ii) the powers and duties of its officers and employees;
(iii) the procedure followed in the decision making process, including channels of supervision and accountability;
(iv) salary scales of its officers by grade;
(v) the norms set by it for the discharge of its functions;
(vi) guidelines used by the entity in its dealings with the public or with corporate bodies, including the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; and
(vii) a guide sufficient to enable any person wishing to apply for information under this Act to identify the classes of information held by it, the subjects to which they relate, the location of any indexes to be inspected by any person;
(b) during the year commencing on first January next following the first publication of information under paragraph (a), and during each succeeding year, cause to be published statements updating the information contained in the previous statement or statements published under that paragraph;
(c) publish all relevant facts while formulating important policies or announcing the decisions which affect the public, and before initiating any project, or formulating any policy, scheme, programme or law, publish or communicate to the public in general or to the persons likely to be affected thereby in particular, the facts available to it or to which it has reasonable access which in its opinion should be known to them in the best interests of natural justice and promotion of democratic principles;
(d) provide to any person the reasons for any decision taken by it in relation to that person;
(e) upon signing any contract, publish on its website or through other suitable media the following particulars in respect of the contract entered into—
(i) the public works, goods acquired or rented, and the contracted service, including any sketches, scopes of service and terms of reference;
(ii) the contract sum;
(iii) the name of the service provider, contractor or individual to whom the contract has been granted; and
(iv) the periods within which the contract shall be completed.
(2) Information shall be disseminated taking into consideration the need to reach persons with disabilities, the cost, local language, the most effective method of communication in that local area, and the information shall be easily accessible and available free or at cost taking into account the medium used.
(3) At a minimum, the material referred to in subsection (1) shall be made available—
(a) for inspection by any person without charge;
(b) by supplying a copy to any person on request for which a reasonable charge to cover the costs of copying and supplying them may be made; and
(c) on the internet, provided that the materials are held by the authority in electronic form.
(4) Subsection (1) (a) shall come into operation twelve months after the commencement of this Act.
Application for access
(1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the
public officer or any other official to understand what information is being requested.
(2) Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability,
the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs.
(3) The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request.
(4) A public entity may prescribe a form for making an application to access
information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form.
Processing of application
(1) Subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty one days of receipt of the application
(2) Where the information sought concerns the life or liberty of a person, the information officer shall provide the information within forty-eight hours of the receipt of the application.
(3) The information officer to whom a request is made under subsection (2) may extend the period for response on a single occasion for a period of not more than fourteen days if—
(a) the request is for a large amount of information or requires a search through a large amount of information and meeting the stipulated time would unreasonably interfere with the activities of the information holder; or
(b) consultations are necessary so as to comply with the request and the consultations cannot be reasonably completed within the stipulated time.
(4) As soon as the information access officer has made a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester, indicating—
(a) whether or not the public entity or private body holds the information sought;
(b) whether the request for information is approved:
(c) if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and
(d) if the request is declined, a statement about how the requester may appeal to the Commission";
(5) A public officer referred to in subsection (1) may seek the assistance of any other public officer as the first mentioned public officer considers necessary for the proper discharge of his or her duties and such other public officer shall render the required assistance.
(6) Where the applicant does not receive a response to an application within the period stated in subsection (1), the application shall be deemed to have been rejected.
The right to access information was a right that the individual had to access information held by public authorities acting on behalf of the state. It was an important right for the proper and democratic conduct of government affairs, for these right enabled citizens to participate in that governance.
Successful and effective public participation in governance largely depended on the citizen’s ability to access information held by public authorities. Where they did not know what was happening in their government and or if actions of those in government were hidden from them, they could not be able to take meaningful part in their country’s governance. In that context, the right to access information became a foundational human right upon which other rights must flow. For citizens to protect their other rights, the right to access information became critical for any meaningful and effective participation in the democratic governance of their country.
The importance of the right to access information was fully appreciated by the drafters of the Constitution of Kenya, 2010 and they dutifully included article 35 to make the right attainable as the foundation for an open, responsive, accountable and democratic government and its institutions. The Constitution granted citizens’ access to information as a constitutional right and only the same Constitution could limit that access.
The Constitution was clear that information held by the State was accessible by citizens and that information was available on request. What that meant was that once a citizen placed a request to access information, the information was to be availed to the citizen without delay.
Article 35 of the Constitution did not in any way place conditions for accessing information. On the other hand, section 5 of the Access to Information Act (the Act) further provided that a public entity should facilitate access to information held by it. Under section 8 of the Act, a citizen who wanted to access information had to do so in writing with sufficient details and particulars to enable the public officer to understand what information was being requested. The Act was also sufficiently clear that the information should be given without delay and at no fee, notwithstanding why the citizen wanted to access information. Section 9 of the Act stated that a decision on the request to access information should be made and communicated within 21 days. The communication should include whether the public entity had the information and whether it would provide it.
The right to access information was inviolable because it was neither granted nor grantable by the State. It was a right granted by the Constitution and was protected by the same Constitution.
State organs or public entities had a constitutional obligation to provide information to citizens as of right under the provisions of article 35(1)(a) of the Constitution. They could not escape the constitutional requirement.
The right to access information was a basis for accountability, responsiveness and openness. To give effect to the values of accountability, responsiveness and openness, the public had to have access to information held by the state.
The right to access information was also founded on International instruments. Article 19 of the Universal Declaration of Human Rights, article 19(2) of International Convention on Civil and Political Rights and article 9(1) of Africa Charter on Human and Peoples Rights also made the right to information imperative. These international instruments were ratified by Kenya and by virtue of article 2(5) of the Constitution, general rules of international law and any treaties or conventions ratified by Kenya formed part of the law of Kenya.
The State had constitutional obligation, without qualification, to allow citizens access information and they could not be denied that right by the state.
In the case of Nairobi Law Monthly Company Limited V Kenya Electricity Generating Company & 2 Others  eKLR the Court stated that the right to access information was only available to citizens and in arriving at that conclusion, the Court relied on the decision of Famy Care Limited v Public Procurement Administrative Review Board & another & 4 others  eKLR. Both of the above decisions were made before the enactment of Access to Information Act, in 2016. Section 2 of the Act defined a citizen as any individual who had Kenyan citizenship, and any private entity that was controlled by one or more Kenyan citizens. From the definition, a juristic person whose director(s) was a citizen was considered a citizen for purpose of exercising the right to access to information under article 35(1) (a) of the Constitution as read with section 4 of Access to information the Act.
The Petitioner, by virtue of having Kenyan directors, though a juristic person, was a citizen for purposes of article 35(1)(a) as read with section 4 of Access to information Act and was entitled to seek and have information as a citizen.
It was up to the Respondents to show how the information sought affected state security and therefore, fell within section 6 of the Act. From the letter dated August 17, 2017, the information sought was about dates, nature of advertisements and copies thereof, the cost of advertisements and who met that cost.
Dates when advertisements were done, nature and copies of advertisements, cost of advertisements and who met the cost of those advertisements could not be information that affected state security. Where a party alleged, like the Respondents had done, that information sought affected state security, it was the duty of that person to show to the satisfaction of the Court that indeed that was the case. It was not enough for a party to merely allege without showing how, that disclosure of information would affect state security.
There was greater responsibility given the nature of the Constitutional obligation the State, State officers or public bodies had for disclosure. The exercise of the right to information should not require individuals to demonstrate a specific interest in the information. Where a public authority sought to deny access to information, it was to bear the onus of justifying the refusal at each stage of the proceedings. The Access to Information Act was also absolutely clear that information should be disclosed free of charge, the reason for seeking information notwithstanding.
In the instant case no clear legal provision notwithstanding, no access to information was given or reason given; either that the respondents did not have the information or that they would not disclose the information and give justification for it. The Respondents’ contention that the information sought was limited by section 6(1) (a) and 6(2)(j) of the Access to Information Act could not be accepted. The Respondents did not demonstrate the rationale for that contention given the fact that article 35 had no limitation to the right to access information. They were also under duty to show that the purported limitation fell within the ambit of article 24(1) of the Constitution and that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account the importance of the right in the citizens’ quest for public participation in the democratic governance of Kenya.
There was no provision in the Access to Information Act that made a report to the Commission on Administrative Justice (CAJ) a condition precedent to triggering the jurisdiction of the High Court to deal with petitions filed that sought to challenge violations of the right to access information under article 35 of the Constitution. The High Court had unlimited jurisdiction under article 165(3)(b) to determine the question whether a right or fundamental freedom in the Bill of Rights had been denied, violated, infringed or threatened. The Respondents’ contention that the petition was premature was unsustainable.
The Petitioner sought information in exercise of its constitutional right under article 35 of the Constitution. Even though the law required the public entity to respond to the request within 21 days on whether or not it was in possession of the information and would or would not disclose, the Respondents ignored the law. The Respondents were under both a constitutional and legal obligation to allow the Petitioner to access information in their possession and held on behalf of the public. That was an inviolable constitutional right and that was clear from the language of article 35 of the Constitution. Any limitation had to meet the constitutional test and only then could one raise limitation as a ground for non-disclosure.
Rights have inherent value and utility and their recognition, protection and preservation is not an emanation of state largesse because they are not granted, nor are they grantable, by the State. They attach to persons, all persons, by virtue of their being human and respecting rights is not a favour done by the state or those in authority. They merely follow a constitutional command to obey.
The Respondents were under obligation to obey the law and allow the Petitioner access information or where not possible give reasons for that. They failed in both instances thus violated the Petitioner’s rights under the Constitution and the law.
The right to access information was not a fringe right to other rights in the Bill of Rights. It was integral to the democracy conceptualised by the Constitution of Kenya, 2010 in that it encouraged public participation, abhorred secrecy in governance and above all sought to ensure that public power delegated to leaders was not abused.
The Respondents violated the Petitioner’s right of access to information .No effort was made to justify the violation.
Declaration issued that the failure by the 1st and 2nd Respondents to provide information sought under article 35(1) of the Constitution and also to publicise the information in accordance with article 35(3) thereof on the basis of the Petitioner’s request dated August 17, 2017 was a violation of the right to access information.
Declaration issued that the failure by the 1st Respondent to provide information sought under article 35(1)(a) of the Constituion and also publicise the information in accordance with article 35(3) thereof on the basis of the Petitioner’s request dated August 17, 2017 was a violation of article 10 of the Constitution specifically the values of the rule of law, participation of the people, human rights good governance transparency and accountability.
Declaration issued that failure by the 2nd, 3rd and 4th Respondents to provide information sought under article 35(1) (a) and also to publish the information in accordance with article 35(3) thereof was a violation of the obligations imposed on the Respondents by chapter 6 of the Constitution, specifically articles 73(1) and 75(1) of the Constitution, section 3 of the leadership and integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act.
Order of mandamus issued that compelled the 1st and 2nd Respondents to provide at the Respondents cost, information sought by the Petitioner in their letter to the Respondents dated August 17, 2017.
Costs awarded to the Petitioner.