ARTICLE 19
GLOBAL CAMPAIGN FOR FREE EXPRESSION
reviewed, and to the extent necessary, amended or repealed to be brought in line with the aim
of realising the right to freedom of information.
However, Section 2 of the draft Policy, which is entitled “Existing Framework for Managing
Information Held by Public Organizations” merely describes the existing legal framework
without stating any intention to reform or review it. We are concerned that this is not
sufficient.
We are strongly of the view that if the right to freedom of information is to be realised in
Kenya, a thorough review needs to take place of the entire existing legal framework. Such a
review should aim to eliminate any existing access restrictions that are incompatible with the
guarantee of freedom of information, and amend existing rights of access to certain categories
of documents so as to provide for a unified access regime. The Official Secrets Act, the
Statistics Act and the Public Archives and Documentation Act, to name but a few, all contain
serious restrictions on disclosure that are not compatible with the right of access to
information. These need to be amended, or where necessary abolished altogether, to be
brought in line with the exceptions regime in new access to information legislation. The
existing legal framework also includes legislation that provides a right of access to certain
categories of documents. For example, the Registered Land Act allows for public inspection
of certain public registers. Legislation such as this should be brought under the umbrella of
freedom of information legislation in order to provide for a unified access regime. If this is
not done, a confusing legal situation might arise in which access is guaranteed through two
potentially conflicting regimes.
Ideally, the process to amend and repeal existing legislation should take place alongside the
consideration of the freedom of information bill in parliament.
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Effective freedom of information legislation should be introduced in parliament as a
matter of urgency, and the draft Policy should be reworded to provide a detailed strategy
for the implementation of that legislation.
The draft Policy should be reworked to provide real and effective guidance to public
authorities on the implementation of the right of access to information.
The existing legal framework for access to information should be reviewed and amended
and repealed to the extent necessary, alongside the consideration of freedom of
information legislation in parliament. This review should aim to eliminate access
restrictions that are incompatible with the guarantee of freedom of information, and
amend existing rights of access to certain categories of documents to provide for a unified
access regime.
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