Using right to information to fight graft

Kenya is still considered one of the more democratic countries in Africa. A closer look at the contemporary Kenyan situation reveals a citizenry that is largely free to speak their minds and passionate to boot.

Criticisms of senior politicians on social media sometimes teeter towards insults, or what would be considered illegal in neighbouring countries. During the 2019 Anti-corruption Conference, President Uhuru Kenyatta advised the Chief Justice, David Maraga, not to take online insults and criticisms too seriously. He advised him to get used to it and move on as he had done.

The situation is not the same in other countries. Three girls in Burundi were recently arrested and charged for defacing a picture of the President. In Tanzania, many journalists, bloggers and academics have been arrested, charged, imprisoned or fined for criticising the head of state, since the Cybercrime Act was passed into law in 2015. Even WhatsApp groups are monitored in Tanzania and private messages can be a foundation of prosecution.

Article 33 of the Constitution guarantees every Kenyan the right to freedom of expression including the right to seek, receive and impart information or ideas. What does this mean? This right help in tackling corruption?

The right to impart information is of little purpose in the absence of the right to seek and receive it; and also, that the scope of ‘sending or receiving’ is directly conditioned by the extent of what is imparted.

In other words, the right to freedom of expression involves two sides of the same coin: Producing messages and consuming them – neither of which makes sense without the other.

INSTRUMENTALITY OF THE RIGHT

Freedom of expression is a right of high significance to other rights because it is through seeking, receiving and imparting information that we can know and understand our rights and claim them in that receiving and imparting information is a tool used to secure other rights.

For instance, government services and entitlements mean very little to a citizen who firstly, does not know they exist, they are entitled to it, and secondly, how to access them.

Courts in Kenya have not been shy to affirm the constitutional safeguards of free speech under the new constitutional order. Last year, the High Court didn’t hesitate to suspend the Computer Misuse and Cybercrimes Act for containing provisions similar to those in Tanzania, which have greatly shrunk democratic space and, specifically stifled free speech online and offline.

Earlier, the courts declared criminal defamation and laws criminalising undermining authority of public officer unconstitutional.

Courts have internalised that we should be free to circulate information without state censorship on the one hand, and the state should be open to the scrutiny of the society on the other hand.

FREE PRESS AND RIGHT TO INFORMATION

A free and independent media also plays a crucial role in securing a truly free, open and democratic society. The democratic space Kenya enjoys can largely be attributed to the vibrant nature of electronic and print media, and social media, which has essentially turned every citizen into a publisher and expanded information gathering and public participation and made it instantaneous.

The continuing conversation and agitation on rampant corruption and abuse of power by the political class can be attributed to Kenya’s free press and free speech.

Freedom of information can be generally defined as the right to access information held by public institutions. It is required to ensure that citizens can exercise their civic duties in an informed way and that they can hold their governments accountable through public scrutiny. This right is anchored under Article 35 of the Constitution and the Access to Information Act of 2017.

The connections between free expression and access to information are strongly linked to the right to public participation by citizens. However, a major obstacle to open access to information is an overreach in governmental secrecy, usually because of national security reasons.

For instance, Kenyans know very little about government spending on internal security and military purposes. Ideally, information from administrative and executive authorities, concerning, for example, laws and public expenditure, should generally be accessible to everyone.

When citizens and media practitioners are empowered to use RTI laws to request information they deem relevant, the situation can potentially bring hidden information to light that can amplify their potential to enhance the accountability by the state and its institutions.

This, in turn, buttresses the fight against corruption by exposing underhand dealings and instances where decisions were made motivated by reasons other than the public interest and efficiency.

An information request demanding information regarding the design, budget, who made approvals and materials procured for the Kenya-Somalia border wall would shed light into whether the whole idea was a corruption scheme from the word go and who was involved. It would explain how a whopping 3.4 billion Kenya shillings was used to construct a meagre 10 kilometres of the controversial ‘wall’.

Human rights lawyer

[email protected] Twitter: @kipdemas