(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) The State shall publish and publicise any important information affecting the nation.
49. This provision is a reflection of Article 19(2) and (3) of the International Covenant on Civil
and Political Rights which provides:
2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in wring or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:
a. for respect of the rights or reputations of others;
b. for the protection of national security or of public order, or of public health or morals.
50. Similar provisions appear in Article 19 of the Universal Declaration of Human Rights (UDHR)
and Article 9 of the African Charter on Human and People’s Rights (The Banjul Charter).
51. Article 2(5) and (6) of the Constitution provide:
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this
Constitution.
52. Article 35(1)(a) of the Constitution does not seem to impose any conditions precedent to the
disclosure of information by the State. I therefore agree with the position encapsulated
in ThePublic’s Right to Know: Principles on Freedom of Information Legislation – Article 19 at
page 2 that the principle of maximum disclosure establishes a presumption that all
information held by public bodies should be subject to disclosure and that this presumption
may be overcome only in very limited circumstances and that public bodies have an
obligation to disclose information and every member of the public has corresponding right
to receive information. Further the exercise of this right should not require individuals to
demonstrate a specific interest in the information. Where therefore a public authority seeks
to deny access to information, it should bear the onus of justifying the refusal at each stage
of the proceedings. I also endorse the definition of public bodies to include all branches and
levels of government including local government, elected bodies, bodies which operate
under a statutory mandate, nationalised industries and public corporations, nondepartmental bodies or quasi-non-governmental organisations, judicial bodies, and private
bodies which carry out public functions.
53. The rationale for right to access information was explained by Majanja, J in Nelson O Kadison
vs. The Advocates Complaints & Another NBI HC Petition No. 549 of 2013 as follows: