The Right to Access to Information under the Constitution can only be enforced by Natural Persons
Nairobi Law Monthly Company Limited v. Kenya Electricity Generating Company (KENGEN) & 6 others
Petition No. 278 of 2011
High Court at Nairobi
Constitutional and Human Rights Division
Mumbi Ngugi, J.
May 13, 2013
Reported by Nelson K. Tunoi & Beatrice Manyal
Nairobi Law Monthly Company Limited is a limited liability company registered in Kenya and the publisher of the Nairobi Law Monthly magazine, which deals with topical legal issues. Conversely, Kenya Electricity Generating Company (Kengen) is a public listed company in which the Government of Kenya has a 70% stake in it.
The petition before the High Court concerned a demand for information by the Nairobi Law Monthly Company Limited (the petitioner) from Kengen (1st respondent) and its Chief Executive Officer, Mr. Edward Njoroge (2nd respondent) regarding certain contracts entered into by Kengen and other companies for the purpose of drilling geothermal wells. The petitioner alleged that there has been a violation of its constitutional rights under articles 33 and 34 of the Constitution as a consequence of the failure by the 1st and 2nd respondents to furnish it with the information it alleged was necessary for it to publish articles in its publication on corrupt dealings in the 1st respondent. The petitioner had also made a demand for provision by the Kenya Revenue Authority (2nd Interested Party) with information pertaining to the selection of Commissions to the 2nd Interested Party.
Issues for determination by the court:
1. Whether a public entity, in failing or refusing to avail the information demanded by a corporate body violates the latter’s constitutional rights.
2. Whether a public entity has a constitutional obligation under article 35(1)(a) and (b) of the Constitution of Kenya, 2010 to provide information to a citizen.
3. 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.
Constitutional law - fundamental rights and freedoms - right to access to information - right of access to information limited to citizens - whether a corporate body was a "citizen" for purposes of enforcement of the right to access to information - duty of public entities to provide information to citizens - whether a public entity had a constitutional obligation under the Constitution to provide information to citizens - whether a public entity, in failing or refusing to avail the information demanded by a corporate body violated the latter’s constitutional rights - whether the petition had merit - Constitution of Kenya, 2010, articles 2, 10, 19, 20, 21, 22, 23, 33(1)(a), 34(1), 35(1)(a) & (b), 40, 232 (2), 258, 259, 260; State Corporations Act (cap 466) section 2; Public Procurement and Disposal Act (Act No. 3 of 2005) section 3
1. The right to information is at the core of the exercise and enjoyment of all other rights by citizens. It has been recognized expressly in the Constitution of Kenya 2010 and in international conventions - article 19 of Universal Declaration of Human Rights (UDHR); article 19(2) of the International Covenant on Civil and Political Rights (ICCPR); and article 9 of the African Charter on Human and Peoples Rights. These international conventions form part of Kenyan law by virtue of article 2(6) of the Constitution of Kenya, 2010.
2. The recognized international standards or principles on freedom of information, which should be included in legislation on freedom of information, include maximum disclosure: that full disclosure of information should be the norm; and restrictions and exceptions to access to information should only apply in very limited circumstances; that anyone, not just citizens, should be able to request and obtain information; that a requester should not have to show any particular interest or reason for their request; that ‘information’ should include all information held by a public body, and it should be the obligation of the public body to prove that it is legitimate to deny access to information.
3. The scope of exceptions to disclosure of information should be limited, and such exceptions should be clear, narrow and subject to strict ‘harm’ and ‘public interest’ tests, and to the rights and interests of others.
4. As State organs or public entities, the 1st respondent (KENGEN) and the 2nd Interested Party (Kenya Revenue Authority) had a constitutional obligation to provide information to citizens as of right under the provisions of article 35(1)(a) and the relevant legislations with regard to the information and reports that they should provide.
5. Article 35 (1) (b) states that ‘Every citizen has the right of access to information held by another person and required for the exercise or protection of any fundamental right or freedom.’ In order to enforce this right, a citizen claiming a right to access information must not only show that the information is held by the person from whom it is claimed; the citizen must go further and show that the information sought is required for the exercise or protection of another right.
6. While acknowledging the linkage between the right to access information and the right to freedom of expression and of the media, the court disagreed with the petitioner’s interpretation of article 35(1)(b) implying that ‘another person’ other than the State, had an obligation to give a journalist or media outlet whatever information (s)he or it demanded in order to exercise the freedoms under articles 33 and 34. Put differently, such a reading implied, not just the negative obligation not to interfere with the exercise by the media of its freedoms under the two articles, but a positive obligation on everyone to give it whatever information it sought in order to enable it publish stories and information.
7. If the petitioner’s interpretation of article 35(1)(b) of the Constitution were to be accepted, it would totally blur the distinction clearly intended by the Constitution in making the two distinct provisions in article 35(1). It would imply that a journalist or media house was entitled not only to all information held by the State as provided in article 35(1)(a), but also to information from any other person as of right, in order to exercise freedom of expression and of the media.
8. Article 259(1)(a) requires that the Constitution should be interpreted in a manner that ‘promotes its purposes, values and principles.’ To interpret the provision in the manner advanced by the petitioner would be an improper interpretation of the Constitution and would lead to an invasion and violation of the rights of others guaranteed by the same Constitution.
9. The intention in article 35(1) was clearly to create two distinct situations with regard to the right of access to information: one in which the citizen was entitled as of right to information held by the State; the other in which a citizen could access information from another, a private person, for the exercise or promotion of another right or freedom.
10. The Constitution of Kenya, 2010 has certain in-built limitations to the exercise of the right to freedom of information. The right to freedom of information is limited under article 35, to "citizens". Under article 35(1)(a) citizens are entitled as of right to information held by the State, while information held by "another person" is limited by article 35(1)(b) to those instances where the citizen shows that the information is required for the exercise of protection of a fundamental right or freedom.
11. The denial of information by the respondents was not a violation of the rights of the petitioner under articles 33, 34 and 35(1)(b) of the Constitution.To hold otherwise would be to give the media a special status that elevates it above other entities in the State.
12. While the importance of the media in promoting transparency, accountability and good governance in a free and democratic state cannot be over-emphasized, a balance has to be struck with the rights of others. This cannot be done where the media asserts, as of right, an entitlement to information from ‘another person’ other than the State or State entities as a prerequisite for exercise of freedom of expression and freedom of the media under articles 33 and 34 of the Constitution. The petitioner could not allege that it required information from the respondents under article 35(1)(b) for the protection of its rights under articles 33 and 34 of the Constitution. Therefore there was no violation of the petitioner’s rights under articles 33, 34 and 35(1)(b) of the Constitution by the respondents.
13. While the petitioner is a Kenyan company and its directors and shareholders are Kenyan citizens, the petitioner itself is a legal person created under the provisions of the Companies Act. As a legal ‘person’, it may enjoy the rights conferred by Article 35 (2), which are conferred on all ‘persons’ but it is not a ‘citizen’ that may have a right of access to information as contemplated under article 35(1). Thus the petitioner is a company with Kenyan nationality, but not Kenyan citizenship.
14. The court adopted the ruling in Famy Care Limited v. Public Procurement Administrative Review Board & 5 others  eKLR that a body corporate or a company is not a citizen for the purposes of article 35(1) and is therefore not entitled to seek enforcement of the right to information as provided under that article.
15. A natural person who is a citizen of Kenya is entitled to seek information under article 35(1)(a) from the respondent, and the respondent, unless it can show reasons related to a legitimate aim for not disclosing such information, is under a constitutional obligation to provide the information sought.
16. While Kenya has recognized the importance of the right to information and underpinned it in the Constitution, Parliament is yet to enact legislation governing this right and the circumstances under which it can be enforced. State parties to the International Convention on Civil and Political Rights (ICCPR) have an obligation to give effect to the rights contained in article 19 of the ICCPR in their domestic legislation, and the enactment of such legislation in Kenya is long overdue.
Petition succeeds only to the extent that the 1st respondent has an obligation, on the request of a citizen, to provide access to information under article 35(1)(a) of the Constitution. No order as to costs.
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CASE OF THE WEEK 2
Court finds the Republic of Uganda in breach of The Treaty to the Establishment of the East African Community and the East Africa Common Market Protocol on the free movement of persons
Samuel Mukira Mohochi V the Attorney General of the Republic Of Uganda
Reference No 5 of 2011
East African Court of Justice, at Arusha
(First Instance Division)
Johnston Busingye, PJ, John Mkwawa, J Isaac Lenaola, J.
May 17, 2013
Reported by Linda Awuor
Background to the case
The Applicant travelled to Uganda from Kenya on 13th April 2011 on a Kenya Airways flight. He was part of a 14-member-delegation of the International Commission of Jurists- Kenya Chapter (ICJ Kenya) scheduled to meet The Chief Justice of Uganda, the Honourable Mr Justice Benjamin Odoki, on the 14th April 2011. The whole delegation was on the same flight. On arrival at Entebbe International Airport, at 9.00am the Applicant was not allowed beyond the Immigration checkpoint in the Airport.
The Applicant alleged that he was arrested, detained and confined by airport immigration authorities. The Immigration authorities however maintained that that they handed him to Kenya Airways who took him into their custody. The Applicant was subsequently served with a copy of a "Notice to Return or Convey Prohibited Immigrant" addressed to the Manager, Kenya Airways by the Principal Immigration Officer, Entebbe International Airport, bearing his (the Applicant) names as the prohibited immigrant. That same day, at 3.00 pm, he was put on a Nairobi bound Kenya Airways flight and returned to Kenya. The immigration authorities did not inform him, verbally or in writing, why he had been denied entry as well as why he had been declared a prohibited immigrant and subsequently returned to Kenya. The immigration authorities maintained that they owed him no such duty, under the law.
The Applicant contended that these actions were violations of his legal rights and Uganda’s obligations under the Treaty, the Protocol and The African Charter on Human and Peoples’ Rights and filed a reference in the East Africa Court of Justice seeking redress.
It was the Applicant’s contention that it was unlawful on the part of the Respondent not to subject him to any legal or administrative process before the decisions of declaration of status of prohibited immigrant, denial of entry and deportation back to Kenya were taken. He contends that he had committed no immigration or criminal offence against the laws of Uganda or the East African Community to warrant the denial of entry into Uganda and deportation back to Kenya.
The Respondent denied that the Applicant was arrested, restrained or detained by immigration authorities and stated, instead, that the Applicant was validly denied entry in accordance with Article 7 (5) of the Protocol, that the Respondent was under no legal obligation to give the Applicant reasons for the denial of entry and that the Applicant was handed over to Kenya Airways, with instructions to take him into its custody and ensure that he was removed from the non-permissible area and returned to Kenya on its first available flight.
1. Whether the Reference was properly before the Court;
2. Whether the Treaty establishing the East African Community and the East African Common Market Protocol take away the sovereignty of Uganda to deny entry to unwanted persons who are citizens of Partner States of the EAC;
3. Whether the Applicant was detained at Entebbe International Airport and whether the actions complained of, of the Republic of Uganda, were in conformity with Articles 6 (d) and 7(2) of the Treaty on the fundamental and operational principles of the East African Community;
4. Whether the actions of the Republic of Uganda were in conformity with Article 104 of the EAC Treaty and Article 7 (6) of the Common Market Protocol on the free movement of persons;
5. Whether the Provisions of section 52 of the Uganda Citizenship and Immigration Act were inconsistent and in violation of Articles 6 (d), 7 (2) and 104 of the Treaty and Article 7 of the Protocol;
6. Whether the Applicant was entitled to the prayers sought.
International law – jurisdiction – jurisdiction of the East Africa Court of Justice – whether the actions complained of by the applicant were breaches of obligations under the Treaty or human rights violations – whether the Court had jurisdiction to hear the matter – Treaty for the Establishment of the East African Community Article 27(1)
International law – fundamental and operational principles of the East African Community – where the Applicant was detained at Entebbe International Airport - whether the actions complained of, of the Republic of Uganda, were in conformity with Articles 6 (d) and 7(2) of the Treaty
International law –sovereignty of member states – application of domestic laws vis a vis Community laws – whether community law takes precedence over domestic law – whether domestic law can be overridden by community legal provisions - Whether the Provisions of section 52 of the Uganda Citizenship and Immigration Act were inconsistent and in violation of Articles 6 (d), 7 (2) and 104 of the Treaty and Article 7 of the Protocol
International law – Treaty for the Establishment of the East African Community and the East African Common Market Protocol –free movement of persons – where the applicant was denied entry entry into Uganda and deported back to Kenya without disclosure of the reasons, due process of law or any form of administrative process being carried out – whether this amounted to violation of the Applicant’s fundamental rights and freedoms - Article 104 of the EAC Treaty and Article 7 (6) of the Common Market Protocol
Words & Phrases
Definition of "due process" – definition according to the Black’s Law Dictionary
Definition of "principle" as applied under article 6 of the Treaty for the Establishment of the East African Community
Article 6 of the Treaty for the Establishment of the East African Community on Fundamental Principles of the Community provides:
The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include:
(a) Mutual trust, political will and sovereign equality;
(b) Peaceful co-existence and good neighborliness;
(c) Peaceful settlement of disputes;
(d) Good governance including adherence to the principles of democracy, the rule of law, account ability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protect ion of human and peoples right s in accordance with the provisions of the African Charter on Human and Peoples’ Rights;
(e) equitable distribution of benefits; and
(f) co-operation for mutual benefit.
Article 7 of the Treaty for the Establishment of the East African Community provides:
Operational Principles of the Community
1. The principles that shall govern the practical achievement of the objectives of the Community shall include:
a) people-centered and market-driven co-operation (b) the provision by the Partner States of an adequate and appropriate
b) enabling environment , such a s conducive policies and basic infrastructure;
c) the establishment of an export oriented economy for the Partner
d) States in which there shall be free movement of goods, persons,
e) labour, services, capital, information and technology;
f) the principle of subsidiarity with emphasis on multi-level
g) participation and the involvement of a wide range of stake- holders in the process of integration;
h) the principle of variable geometry which allows for progression in
i) co-operation among groups within the Community for wider
j) integration schemes in various fields and at different speeds;
k) the equitable distribution of benefit s accruing or to be derived from
l) the opera t ions of the Community and measures to address economic
m) imbalances that may arise from such operations;
n) the principle of complementarity; and
o) the principle of asymmetry.
Article 7 of the East African Common Market Protocol provides:
Free Movement of Persons
1. The Partner States hereby guarantee the free movement of persons who are citizens of the other Partner States, within their territories.
2. In accordance with paragraph 1, each Partner State shall ensure non‐discrimination of the citizens of the other Partner States based on their nationalities by ensuring:
(a) the entry of citizens of the other Partner States into the territory of the Partner State without a visa;
(b) free movement of persons who are citizens of the other Partner States within the territory of the Partner State;
(c) that the citizens of the other Partner States are allowed to stay in the territory of the Partner State; and
(d) that the citizens of the other Partner States are allowed to exit the territory of the Partner State without restrictions.
3. The Partner States shall, in accordance with their national laws, guarantee the protection of the citizens of the other Partner States while in their territories.
4. The free movement of persons shall not exempt from prosecution or extradition, a national of a Partner State who commits a crime in another Partner State.
5. The free movement of persons shall be subject to limitations imposed by the host Partner State on grounds of public policy, public security or public health.
6. A Partner State imposing a limitation under paragraph 5, shall notify the other Partner States accordingly.
7. The Partner States shall effect reciprocal opening of border posts and keep the posts opened and manned for twenty four hours.
8. The movement of refugees within the Community shall be governed by the relevant international conventions.
9. The implementation of this Article shall be in accordance with the East African Community Common Market (Free Movement of Persons) Regulations, specified in Annex I to this Protocol.
1. The Treaty is neither a Human Rights Convention nor a Human Rights Treaty as understood in international law. It is rather a Treaty to govern the widening and deepening of, inter alia, the political, economic, social, cultural, research, technology, defence, security, legal and judicial cooperation between the Partner States. However, it is not the violation of human rights under the Constitution and other laws of Uganda or of the international community that is the cause of action in the Reference, rather the cause of action is constituted by allegations of infringements of specific Treaty provisions by the Ugandan Government.
2. The Treaty provisions alleged to have been violated have, through Uganda’s voluntary entry into the EAC Treaty, been scripted and transformed into several principles, obligations and treaty guarantees stipulated in, among others, Articles 6(d), 7(2), 104 of the Treaty and 7 of the Protocol, breach of any of which by Uganda would give rise to infringement of the Treaty. It is this alleged infringement which, through interpretation of the Treaty under Article 27(1) constitutes the cause of action in the Reference, and consequently, establishes the legal foundation of the jurisdiction of this Court.
3. Article 6 of the Treaty provides the six Fundamental Principles of the Community. Black’s Law Dictionary defines "Principle" as "a basic rule, law or doctrine. Our understanding of "Fundamental Principles" as used in this Article, aided by the above definition, is that these are rules that must be followed or adhered to by the Partner States in order that the objectives of the Community are achieved.
4. These principles are foundational, core and indispensable to the success of the integration agenda, and were intended to be strictly observed. Partner States are not to merely aspire to achieve their observance, they are to observe them as a matter of Treaty obligation. All the six principles in the Article were carefully thought out, negotiated, appropriately weighted, individualized and crafted the way they are for a particular effect. Integration depends on each of them singly and collectively.
5. The Treaty defines persons, formerly foreign nationals as between the individual EAC states prior to entry into force of the Treaty, as nationals or citizens of Partner States. The Treaty accorded these persons wide ranging, preferential and superior treatment and rights in terms of movement, establishment, residence and working within the Partner States. With specific regard to the Republic of Uganda, her sovereignty regarding the movement of the citizens of partner states in and out of the Partner States started to be defined and governed by the Treaty, the Protocol and the Citizenship and Immigration Control Act, provisions of the former taking precedence in case of conflict.
6. By accepting to be bound by the provisions of the Treaty, with no reservations, Uganda also accepted that her sovereignty to deny entry to persons, who are citizens of the Partner States, becomes qualified and governed by the same and, therefore, could no longer apply domestic legislation in ways that make its effects prevail over those of Community law.
7. The Sovereignty of the Republic of Uganda to deny entry to unwanted persons who are citizens of the Partner States is not taken away by the Treaty and the Protocol but, in denying entry to such persons, the Republic of Uganda is legally bound to ensure compliance with the requirements of the relevant provisions of the Treaty and the Protocol. Sovereignty cannot act as a defence or justification for non-compliance, and neither can it be a restraint or impediment to compliance.
8. The Court adopted the definition of due process as provided by the Black’s Law Dictionary to mean "The conduct of legal proceedings according to established rules and principles for the protection of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case".
9. Based on Article 54 of the Protocol and the decision of the European Court of Justice in State v Royer Case 48/75, the immigration officials had an obligation to strictly apply the limitations of the freedom of movement, given its importance to the East African Community Common Market in particular, and integration in general
10. The actions of denial of entry, detention, removal and return of the Applicant, a citizen of a Partner State, to the Republic of Kenya, a Partner State, were illegal, unlawful and in violation of his rights under Articles 104 of the Treaty and 7 of the Common Market Protocol.
11. Detention is deprivation of liberty. When it is illegal it is not only an infringement of the freedom of movement, but also an act that undermines one’s dignity. Furthermore, when a citizen of a Partner State is illegally detained in another Partner State, with no right to be informed why or to be heard in his defence, and the reasons cannot be disclosed, even in a court of law, it is not just a violation of the Treaty, it is a threat to integration.
12. The denial of entry into Uganda of the Applicant, a citizen of a Partner State, without according him the due process of law was illegal, unlawful and a breach of Uganda’s obligations under Articles 6(d) and 7 (2) of the Treaty.
13. The obligations voluntarily entered into by the Republic of Uganda, and the rights acquired by the citizens of the Partner States, under the Treaty and Protocol, in respect of the movement of citizens of the Partner States, within Uganda, carried with them a permanent limitation against which a provision of existing or subsequent national law incompatible with the Treaty and Protocol, by the Republic of Uganda, cannot stand.
14. On matters pertaining to citizens of the Partner States, any provisions of Section 52 of Uganda’s Citizenship and Immigration Control Act formerly inconsistent with provisions of the Treaty and the Protocol were rendered inoperative and have no force of law, as of the respective dates of entry into force of the Treaty and the Protocol as law applicable in the Republic of Uganda.
Judgment for the applicant, each party to bear its costs