- Omtatah had sued the Ministry for refusing to provide information on how they reached the decision to recommend a tax waiver on the merger.
- In a judgement delivered on Friday, Justice Lawrence Mugambi ruled that the Lands CS at the time violated the Constitution and National Legislation by denying Omtatah access to information and documents that he requested.
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Lands CS Zacharia Njeru has been ordered to immediately furnish Busia Senator Okiya Omtatah with information on how the ministry recommended a tax waiver on the NIC and CBA Bank merger.
In the case, Omtatah had sued the Ministry for refusing to provide information on how they reached the decision to recommend a tax waiver on the merger.
In a judgement delivered on Friday, Justice Lawrence Mugambi ruled that the Lands CS at the time violated the Constitution and National Legislation by denying Omtatah access to information and documents that he requested.
“A mandatory order directing the Lands CS and Physical Planning to provide the information sought by the Petitioner through his letter of 20/1/2020,” the court ruled.
He ruled that the refusal to allow access to the recommendations containing the reasons for the tax waiver shows a state organ sprinting away from public accountability for its actions.
Justice Mugambi held that the state violated both the Constitution and the relevant statutory provisions by withholding the information that Omtatah requested.
He further ruled that the decision was a blatant disregard of the law for which no attempt has been made even to this day to explain the lapse.
“Consequently, by failing to provide information to Omtatah on matters relating to the tax waiver, not only was Article 35 violated but also other Constitutional provisions that directly advocate for transparency and accountability,” the judge ruled.
The court said that the information sought was public information that did not enjoy private privilege or confidentiality more so, because it related to matters of public finance where openness, accountability and public participation are constitutionally commanded.
He dismissed the argument and defence by the state that the information being sought was privileged.
The state in its submissions insisted that the information sought is protected information pursuant to information relating to National Security falling under the category of Section 6 (2) (j).
Section 6(2)(J) states that Information should be provided to a State Organ, independent office or constitutional commission when conducting investigations, examinations, audits or reviews of the performance of its functions.
However, the judge said this claim came through submissions from the bar and was not backed by any evidence that indicated that there was an evaluation which was done by the Ministry and the conclusion arrived.
The judge wondered how citizens would exercise their right to hold public entities to account if the information is not provided.
He further said that the information that Omtatah wanted relates to a matter where the decision that was made is expressed to have been done ‘in public interest’ meaning that it was for the benefit and the protection of the public.
“Why would the State Agency concerned then conceal such crucial information on a matter of public finance made for the benefit of the public by shielding it away from the eyes of the same public it is to benefit?” the court posed.
The court said that withholding such information runs contrary to Article 201 (a) which provides that ‘there shall be openness and accountability including public participation in financial matters'.