Pauline Nyamweya, Thande Mugure, David Kipyegomen Kemei
High Court at Nairobi (Milimani Law Courts)
Legal Advice Centre t/a Kituo Cha Sheria & 33 others v Cabinet Secretary, Ministry of Education & 7 others
Legal Advice Centre t/a Kituo Cha Sheria & 33 others v Cabinet Secretary, Ministry of Education & 7 others (Petition 104 of 2019)  KEHC 390 (KLR) (Constitutional and Human Rights) (26 November 2021) (Ruling)
Disclosure of information contained in reports by security agencies on the Garissa University terrorist attacks was in the public interest
On April 2, 2015, Kenya experienced a tragic and devastating terrorist attack, which took place at the Garissa University. A total of 148 people died and 79 were injured. The petitioners filed the instant petition seeking among others orders that the court direct the 7th and 8th respondents to furnish it and the petitioners with the reports that they held touching on the Garissa University terrorist attack case.
According to the petitioners, the right to information was a constitutionally guaranteed right and access to the information and reports regarding the Garissa University terrorist attack would enhance accountability by State officers and boost confidence in the Government. The petitioners contended that the ability of the petitioners to demand their rights and seek their protection would be enhanced by accessing the requested information in order to prove complacency and laxity by State and other office bearers in the Garissa University terrorist attack.
The petitioners further argued that the withholding of information by the 7th and 8th respondents did not outweigh the public interest in accountability by the State and the right to information and fair hearing. The petitioners claimed that the information they sought did not compromise national security.
- Whether disclosure of information contained in reports by security agencies concerning terrorist attacks was in the public interest.
- What were the conditions to be met before a right or fundamental freedom could be limited?
- What was the test for determining whether a restriction was appropriate?
Relevant provisions of the law
Access to Information Act, 2016
Section 6 - Limitation of right of access to information
(2) For purposes of subsection (1)(a), information relating to national security includes
- military strategy, covert operations, doctrine, capability, capacity or deployment;
- foreign government information with implications on national security;
- intelligence activities, sources, capabilities, methods or cryptology;
- foreign relations;
- scientific, technology or economic matters relating to national security;
- vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security;
- information obtained or prepared by any government institution that is an investigative body in the course of lawful investigations relating to the detection, prevention or suppression of crime, enforcement of any law and activities suspected of constituting threats to national security;
- information between the national and county governments deemed to be injurious to the conduct of affairs of the two levels of government;
- cabinet deliberations and records;
- information that should be provided to a State organ, independent office or a constitutional commission when conducting investigations, examinations, audits or reviews in the performance of its functions;
- information that is referred to as classified information in the Kenya Defence Forces Act; and
- any other information whose unauthorized disclosure would prejudice national security.
1. The constitutional and legal provisions set out in article 35 of the Constitution of Kenya, 2010 (Constitution)) and the Access to Information Act demonstrated that unless there was good reason, a citizen should not be impeded from accessing information that was in the possession of the State or a State entity that was needed for the advancement or protections of a right. Therefore, a purposive interpretation of those provisions leant towards a conclusion that their dominant objective was the promotion of access to and disclosure of information by the State and State agencies, which should be the normal course, and that withholding of information was only in exceptional circumstances.
2. Article 24 of the Constitution provided for limitations of rights and fundamental freedoms. There were two conditions that had to be met before a right or fundamental freedom could be limited:
- There had to be a law in place on the limitation.
- The limitation had to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including those enumerated in article 24 of the Constitution.
- promote accountability of public entities to the public;
3. The burden on justifying the limitation on the right to access information rested on the person resisting disclosure, as provided in article 24(3) of the Constitution which stated that the State or a person seeking to justify a particular limitation should demonstrate to the court, tribunal or other authority that the requirements of the article had been satisfied. The 7th and 8th respondents had confirmed that they indeed held the reports in question. Accordingly, the burden had shifted to and rested with them to demonstrate to the court why the reports ought not be released. That was also stipulated in principle 4 of the Global Principles on National Security and the Right to Information (Tshwane Principles).
4. Although the right of access to information was not absolute, to satisfy the requirements set out under article 24 of the Constitution, the respondents had to demonstrate that the limitation imposed on a constitutional right was fair, reasonable, necessary and justifiable in a democratic society, and that it fell within the exceptions provided in the Access to Information Act.
5. The test for determining whether a restriction was appropriate should be one of proportionality. A proportionality test was appropriate as it preserved rights, provided a framework for balancing competing rights and enabled other important public concerns, such as national security and public order, to be duly taken into account.
6. The 7th respondent was established under the Independent Policing Oversight Authority Act. Its mandate included inter alia, to hold the police accountable to the public in the performance of their functions; give effect to the provision of article 244 of the Constitution, that the Police should strive for professionalism and discipline and should promote and practice transparency and accountability; ensure independent oversight of the handling of complaints by the Service. In line with its mandate, the 7th respondent conducted investigations into the conduct of the security operation by the National Police Service and made recommendations in respect of gaps that were identified.
7. The 8th respondent was a commission established under the Commission on Administrative Justice Act. Its mandate as set out in section 8 of the Act included investigating any conduct in State affairs, or any act or omission in public administration by any State organ, State or public officer in National and County Governments that was alleged or suspected to be prejudicial or improper or was likely to result in any impropriety or prejudice. The mandate also included investigating complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct within the public sector. The 8th respondent conducted its own investigations of the terror attack in the interest of the public.
8. Under principle 4 of the Tshwane Principles, it was not sufficient for a public authority seeking to withhold information to simply assert that there was a risk of harm but such authority was under a duty to provide specific, substantive reasons to support its assertions. The exceptions should apply only where there was a risk of substantial harm to the protected interest and where that harm was greater than the overall public interest in having access to that information.
9. Section 6(2) of the Access to Information Act stipulated the nature of information relating to national security that could not be disclosed. The information sought by the petitioners in the reports by the 7th and 8th respondents related to the Garissa University terrorist attack which took place on April 2, 2015. The court took judicial notice of the fact that Kenya had been a target of terror attacks since the 1998. Prevention of terrorism was not an event, but a continuous process of activities by security agencies. Standard operating procedure operations were reviewed and lessons learnt and implemented in the process. The information contained in the reports was clearly in the nature of information covered in sections 6(2)(a)(b)(c)(f)(g)(j)(k) and(l) of the Act.
10. Under section 6(4) of the Access to information Act the court could require a public entity or private body to disclose information where the court formed the opinion that public interest in disclosure outweighed the harm to protected interests. In considering the public interest, section 6(6) of the Act required particular regard to be had to the constitutional principles on the need to
- ensure that the expenditure of public funds was subject to effective oversight;
- promote informed debate on issues of public interest;
- keep the public adequately informed about the existence of any danger to public health or safety or to the environment; and
- ensure that any statutory authority with regulatory responsibilities was adequately discharging its functions.
11.Article 238(1) of the Constitution defined national security as the protection against internal and external threats to Kenyas territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests. The Government of Kenya through its various agencies was under an obligation to protect its people and territory against internal and external aggression. To achieve that, the security agencies engaged in military strategy and other operations as more particularly set out in section 6(2) of the Access to Information Act.
12. Just as terrorism impacted on human rights and the functioning of society, so too could measures adopted by States to counter terrorism. Terrorism had a serious impact on a wide range of fundamental human rights, and States therefore had not only a right, but a duty to take effective counter-terrorism measures. Such measures and the protection of human rights were complementary and mutually reinforcing objectives, which had to be pursued together as part of States duty to protect individuals within their jurisdiction. Specifically, with regard to the limitation on the right to disclosure of information on terrorism related activities strategies and sources, that limitation served a legitimate purpose of safeguarding national security, public safety, public order, and the human rights and freedoms of others.
13. The programs and activities employed to address the internal, foreign and defence security interests and concerns, were of necessity confidential and information relating thereto was highly sensitive. The disclosure of such information, including the identity of security agents or informants, or details of a sensitive investigative technique could harm national security by putting sources of information and security strategies at risk. That was the reason why the 7th and 8th respondents maintained that any information or activities relating to the terrorist attack at Garissa University be kept out of the publics eye, in the interests of national security.
14. Given the impact of terrorism on human rights, security and the functioning of various aspects of international and domestic societies, countering of international and domestic terrorism was an important objective. That objective not only permitted the limitation of certain rights, but also entailed a greater public interest that outweighed the disclosure of sensitive information collected in the process. The public interest sought to be achieved by the limitation of disclosure of information on terrorist related strategies and activities, was the effective and timeous thwarting of actual or potential threats of terrorism against the State and its citizens.
15. The court took judicial notice of the fact that the threat of terrorism across the world and in Kenya in particular was very real. Due to that threat, and being mindful that Kenya had been a target on several occasions, release of the reports would pose a threat to national security and prejudice public interest. To direct the 7th and 8th respondents to release reports which contained the strategies employed by the security agencies in combating the threat to terrorism was likely to put Kenya and the lives of its citizens, in jeopardy.
16. On a balance of probabilities, the substantial harm to the overall public interest far outweighed the right of the petitioners to access the information sought. The petitioners had already been supplied with the abridged version of the report for their purposes. Accordingly, the application and threshold for limitation of disclosure of the subject reports had been demonstrated and met by the 7th and 8th respondents.
17. Rule 3(8) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provided that nothing in the Rules should limit or otherwise affect the inherent power of the court to make such orders as could be necessary for the ends of justice or to prevent abuse of the process of the court. The court was thus expressly given powers to call a witness and evidence, on its own motion if such witness and evidence would assist the court in coming to just decision.
18. Even though there was no specific law on disclosure to the courts of information which fell within the limitation under article 24 of the Constitution and section 6 of the Access to Information Act, 2016, the court had jurisdiction and discretion under article 165 of the Constitution to employ a procedure that would achieve substantive justice.
19.The duty of the court in any matter was to determine the issue in controversy with finality. Even though the threshold of limitation had been met, the court had power and discretion to establish whether the information sought to be withheld on grounds of national security was confidential as alleged.
20. An in-camera inspection of the reports was not appropriate in the circumstances therein, and also not necessary, given that the petitioners already had in their possession, an abridged version of the same. That was particularly pertinent in light of the provisions of section 6(5) of the Access to Information Act, which provided that a public entity was not obliged to supply information to a requester, if that information was reasonably accessible by other means.
21. [Obiter]In conclusion, we note that there is no law in place on the procedures for confirmation of sensitive and confidential information for purposes of its disclosure, and we have had to look to other jurisdictions for guidance. There is therefore need for a law to be enacted setting out the necessary procedures and protocols on disclosure of confidential and sensitive information, including information touching on national security.