ARTICLE 19
GLOBAL CAMPAIGN FOR FREE EXPRESSION
In January 2007, the Kenyan Ministry of Information and Communications published a “draft
Freedom of Information Policy”, designed to “provide a framework for the implementation of
the Freedom of Information Bill and review of existing laws, regulations and procedures”.1
The Policy follows a draft Government Bill published in 2005,2 as well as a draft Freedom of
Information Bill developed by the Kenyan Section of the International Commission of Jurists
(ICJ) in 2006.3 The ICJ Bill has since been presented to parliament by Professor Prof.
Anyang’ Nyong’o, but has not yet been discussed;4 the status of the government bill is
unclear.
We welcome the fact that the process to introduce freedom of information legislation in
Kenya is moving forward. We recall that access to information is a fundamental human right,
recognised in numerous international human rights treaties that Kenya is party to.5
International bodies including the African Commission on Human and Peoples Rights and the
UN Special Rapporteur on Freedom of Opinion and Expression have urged States to adopt
and implement freedom of information laws.6 The right of access to information is also a
central tool in the fight against corruption; the United Nations Convention against
Corruption,7 which Kenya has ratified,8 requires States to ensure “that the public has effective
access to information.”9
At the same, time, the draft Policy now published raises a number of important questions and
concerns. A key concern in this regard is that as yet, there is no legislation to implement; but
at the same time the draft Policy states its aim as ‘implementing freedom of information
legislation’. With both a private members initiative and a government bill on the cards, clarity
is needed as to how the government intends to proceed. Other concerns include that the draft
Policy is, in many places, insufficiently detailed to provide for real and effective
implementation of the right to freedom of information; and that the draft Policy insufficiently
addresses the need to review existing legal restrictions on access to information to allow for
the realisation of the public’s right to know. The following paragraphs discuss these concerns
in more detail.
1
The draft Policy is available from the ministry’s website: http://www.information.go.ke/.
The draft Bill is no longer available through the Ministry of Information’s current website, but can still be
accessed through the web archive: http://web.archive.org/web/20060307182011/http://www.information.go.ke/.
3
This Bill can be downloaded from http://www.icj-kenya.org/publications/bill_information_06.pdf.
4
Professor Anyang’ Nyong’o, a member of parliament, introduced a Procedural Motion “Seeking leave to
introduce a Bill for an Act of Parliament entitled the Freedom of Information Bill” on 4 October 2006. See:
http://www.bunge.go.ke/motions_tracker.php.
5
See primarily Article 19 of the International Covenant on Civil and Political Rights, New York, 16 December
1966, acceded to by Kenya 1 May 1972; and Article 9 of the African Charter on Human and Peoples’ Rights,
adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986,
ratified by Kenya 23 January 1992.
6
See the Commission’s Declaration of Principles on Freedom of Expression in Africa, October 2002, Principle
IV; and the Special Rapporteur’s Annual Report to the UN Human Rights Commission, E/CN.4/2000/63, 18
January 2000, paragraph 44.
7
Adopted by United Nations General Assembly Resolution 58/4 of 31 October 2003.
8
Kenya ratified the Convention on 9 December 2003.
9
Article 13(1)(b).
2
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