requested the information from the state or state agency concerned and that request
rejected. Coercive orders of the court should only be used to enforce Article 35 where a request has
been made to the state or its agency and such request denied. Where the request is denied, the court
will interrogate the reasons and evaluate whether the reasons accord with the Constitution. Where
the request has been neglected, then the state organ or agency must be given an opportunity to
respond and a peremptory order made should the circumstances justify such an order.” In Andrew
Omtatah Okoiti v Attorney General and 2 Others (Supra), Musinga J., stated that, “Before an
application is made to court to compel the state or another person to disclose any information that is
required for the exercise or protection of any right or fundamental freedom, the applicant must first
demonstrate that a request for the information required was made to the state or to the other
person in possession of the same and the request was disallowed. The court cannot be the first port
of call. The petitioner herein did not demonstrate that he requested the JSC to avail to him any
information that he considered necessary and the same was not granted. In that regard, prayer 4 of
the applicant’s application is rather premature.” There may well be circumstances where the Court
may be required to make an order in the first instance but I think the Court should not exercise
coercive power before the State organ, institution or body is given an opportunity to meet its
constitutional obligation to provide the information. The right to information is not an absolute
right. Each institution or person is entitled to assert any limitations consistent with Article 24 of the
Constitution.”
61. In the instant case, there is no evidence that the applicant directly sought for the
information. He however contends that he sought for the same through the CAJ. I have
perused the CAJ’s letter dated 19th June, 2014. Nowhere in the said letter was a request
made for disclosure of the names of the selection panel. Instead what was sought was the
reason why the applicant’s name was not published as required under section 6B of the Act.
In my view, the letter by the CAJ cannot be construed to have been a request for
information relating to the names of the Selection Panel.
62. From the provisions of section 6B aforecited, it comes out clearly that where a vacancy
arises in the Board, within 14 days of that vacancy arising an advertisement is to be made in
the Gazette and on the Ministry’s official website page declaring the vacancy and inviting
applications for the same. Within the same period a selection panel is to be convened for
the purpose of selecting suitable candidates for the Chair or Membership of the Board. At
the first meeting of the Panel it is expected to elect its chairperson and vice-chairperson who
are to be from opposite gender. An application for the vacancy is to be made within 7 days
of the publication of the notice. In this instance, the public notice which appeared in the
daily newspaper appeared on 10th April, 2014 and the applicants were given till 15th April,
2014 to submit their applications, which was within the said 7 days.
63. Within 7 days of the deadline for submission of the applications, the panel is supposed to
consider the applications, shortlist and publish the names and qualifications of all the
applicants and those shortlisted by the panel in the Gazette and on the official website of
the Ministry. The 1st respondent was therefore expected to consider the applications,
shortlist and publish the names and qualifications of all the applicants and those shortlisted
by the panel in the Gazette and Official website of the Ministry by latest 22nd April, 2014. The
said names were however published in the Gazette dated 28th April, 2014. It was however
contended that the Easter holidays fell in between and were celebrated between 18th April,