Case Summary and Outcome

The High Court in Nairobi held that a Kenyan NGO’s right of access to information had been violated by a state agency’s failure to provide it with certain details about a government advertising campaign. The NGO had requested the information in August 2017 but received no response to the request. In September 2017, the NGO approached the High Court claiming that its constitutional rights had been violated. The High Court cited comparative and international law in support of the position that the right of access to information was fundamental to constitutional democracy, accountability, responsiveness and openness. The High Court also noted that all “citizens” held the right of access to information, and that recent legislation had defined “citizen” as including “any private entity that is controlled by one or more Kenyan citizens” (such as the NGO in the case). The High Court concluded that the NGO had a right to receive the information it sought and ordered that the public entity disclose that information.

Facts

In August 2017, the Katiba Institute (Katiba), a Kenyan organization that works on policy and litigation relating to rights under the 2010 Constitution, sought information from a state body about a government advertising campaign. According to Katiba, the Presidential Delivery Unit (PDU) published various advertisements in the media, on billboards, and through social media. Katiba requested information from them on how many advertisements had been published, through what media, schedules and dates when it was done, copies of the documents advertised, costs incurred, and the government agency that met the cost.

Katiba made its request pursuant to the Constitution and the Access to Information Act 2016 (Act), and also referred to section 14(2) of the Elections Offences Act “which prohibits government from advertising in print or electronic media or by way of banners or hoardings in public places its achievements during election period”. [para. 8]

In September 2017, Katiba approached the High Court after the PDU failed to produce the requested information. Before the High Court, Katiba sought, among other things, a declaration that the PDU’s failure to provide the information sought and to publicize the information was a violation of the right to freedom of expression under Article 35 of the Constitution, as well as a violation of Article 10 of the Constitution which stipulates that the values of the country include the “rule of law, participation of the people, human rights, good governance, transparency and accountability”.

Decision Overview

Judge Mwita delivered the judgment of the High Court in Nairobi. He characterized the central issues for determination as (i) whether the PDU had violated Katiba’s right of access to information, and (ii) whether the PDU should be compelled to provide the information sought.

Katiba submitted that it had not received any information in response to its request, and that Article 35(1) of the Constitution “grants a citizen the right to seek and have information from a State or State organ”. It argued that because the PDU was a public body, it was bound by Article 35 of the Constitution. In their submissions, Katiba also referred to Kenyan and South African jurisprudence on access to information, as well as international instruments such as the International Covenant on Civil and Political Rights.

The PDU argued that Article 35 of the Constitution applied only to “citizens who are natural persons but not [Katiba], a juristic person”. [para. 10] It also submitted that the information that Katiba sought was freely available from the Auditor General and Parliament as those bodies were “constitutionally mandated to [oversee] public expenditure”. [para. 10] The PDU also argued that the information was exempted from disclosure under sections 6(1) and 6(2) of the Act, which provided for an exemption if the information sought would undermine national security.

Judge Mwita set out the constitutional and legislative framework under which the case would be determined. Article 35(1) of the Constitution protects the right of access to information and states that “[e]very 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”. Article 35(3) states that “[t]he State shall publish and publicise any important information affecting the nation”. Judge Mwita explained that this article does not place any conditions on the access to state information and that “once a citizen places a request to access information, the information should be availed to the citizen without delay”. [para. 31] In this context, he emphasized that the right to information was not affected by the reason why a citizen sought the information or even what the public officer perceived to be the reason for seeking the information. Judge Mwita also noted that the Act was enacted to give effect to Article 35 of the Constitution.

He went on to observe that the constitutional and legislative framework made it clear that “the right to access information is inviolable because it is neither granted nor grantable by the state”. [para. 34] Judge Mwita concluded that, under Article 35 of the Constitution, the State has an obligation to proactively publish information in the public interest and to provide access to such information.

He also referred to comparative and international law in his judgment. He cited two South African cases (President of the Republic of South Africa v. M & G Media and Brummer v. Minister for Social Development) to highlight the “importance of the right to access information as a founding value of constitutional democracy” and its role in forming a “basis for accountability, responsiveness and openness”. [paras. 37 and 38] He quoted Article 19 of the Universal Declaration of Human Rights, Article 19(2) of the International Covenant on Civil and Political Rights, and Article 9(1) of the African Charter on Human and Peoples’ Rights. [para. 39] He stated that, by virtue of article 2(5) of the Constitution, these international instruments – which had been ratified by Kenya – were part of Kenyan law.

Turning to the merits of the case, Judge Mwita did not accept the argument put forward by the PDU that Katiba was a juristic person and so could not access information pursuant to the Constitution. He noted that section 2 of the Act defined a citizen, for the purpose of exercising the right to access information, as “any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens.” [para. 43] Katiba fell into the latter category and was, thus, entitled to “seek and have information as a citizen”. [para. 45]

With regard to the PDU’s argument that the information sought was exempted by section 6(1) and 6(2) of the Act, Judge Mwita held that it was up to the PDU to show how the information sought affected state security. He observed that the information sought concerned the nature of the advertisements, dates of publication and their cost, and reasoned that that information “cannot be information that affects state security”. [para. 47] It was for the respondents to demonstrate why access was denied in access to information cases, and the PDU had not discharged this burden in the present case. Judge Mwita went on to endorse the position that any limitations to the right of access to information should “apply only where there is a risk of substantial harm to the protected interest and where that harm is greater than the overall public interest in having access to the information”. [para. 51]

In light of the above, Judge Mwita held that the government had violated Katiba’s rights “under the Constitution and the law”. [para. 56] He added that “[w]e must appreciate as a nation that the right to access information is not a fringe right to other rights in the Bill of rights. It is integral to the democracy conceptualized by our Constitution in that it encourages public participation, abhors secrecy in governance and above all seeks to ensure that public power delegated to leaders is not abused”. [para. 57] Judge Mwita granted the declaratory relief sought, and ordered that the PDU provide the information Katiba sought.