Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
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The High Court of Kenya held that the salaries and allowances of Armed Forces personnel are not private or confidential and must be disclosed to the requester and the Court.
The petitioner, a former Commander of the Kenya Air Force, alleged that he had suffered inhumane treatment amounting to torture and breach of his fundamental rights following his arrest, imprisonment and conviction after an attempted coup in 1982. Following his release, the petitioner instituted proceedings for declarations and reliefs for the purpose of which he applied for employment records and salary details including those of comparable officers.
Court reasoned that the petitioner had a constitutional right to the information requested under section 35 of the Constitution and that it was “completely unacceptable for the Attorney-General” to insinuate that the records requested could not be disclosed.
This case analysis was contributed by Right2Info.org.
Peter Kariuki, a former Commander of the Kenyan Air Force, was relieved of his duties, arrested, detained, and eventually tried and convicted after a 1982 attempted coup.
He brought a suit to challenge the conditions of his detention as violating his fundamental rights. In connection with this legal challenge, Mr. Kariuki sought from the Department of Defense employment records, payment vouchers, and current salary records for officers of similar rank.
The Court ordered the Department of Defense to produce the information, but the Department of Defense refused, asserting that salaries and allowances of Armed Forces personnel are confidential and personal.
The Court ruled that the Defense Forces are subject to the Constitution, pursuant to Articles 3 and 10. Article 10 stipulates transparency and accountability as among the national values binding all state organs. The Court further ruled that Article 35, on the right to information, grants Mr. Kariuki the right of access to the information requested from the Department of Defense.
The Court therefore rejected the Attorney-General’s assertion that defense salary and allowance information is confidential, and compelled the Department of Defense to provide this information to the Commander and to the Court. The Court stated that “records regarding salaries and benefits payable to public officers cannot be classified as private or confidential.” The Court noted as relevant that the underlying case related to serious alleged violations of constitutional rights .
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