LAW 319
INTERNATIONAL HUMAN RIGHTS LAW
SEMINAR FOUR: TOWARDS A TRANSPARENT SOCIETY-THE RIGHT OF ACCESS TO
INFORMATION
Access to information is fundamental in a society that is governed by the rule of law. For a
reason the reason that governments hold information in trust on behalf of citizens, it follows
that citizens have the right of access to the information held by the State. Article 35 of the
constitution together with section 96 of the County Government Act, 2012 provide for the right
to access information. Article 35(1) particularly guaranteed all Kenyan citizens the right to
access any information held by the state or information held by the state or information held by
another person and required for the exercise or protection of any right or fundamental
freedom.
Access to information gives citizens the right by law to access facts and data concerning the
exercise of any public authority, as well as on the misuse of any public funds as well as in
participating effectively in the democratic processes in any democratic society. Access to
information fosters openness and transparency in decision-making. Right to decision is not only
a human right, but an essential tool that empowers citizens to demand accountability from
governments, participate in public life and to fight corruption through knowledge. Providing
access to information to citizens ensures transparency in matters affecting society. In Uganda,
access to information is understood having in mind equitable gender participation in the
context of good governance. However, this has not been effected as access to information is
gender insensitive thus leading to bad governance. Women are regarded as inferior who limits
their access to information which should facilitate both men and women to ensure their
participation on governing Ugandan citizens.
The case of Nairobi Law Monthly v Kenya Generating Company & Others (13 May 2013)
presents us with a scenario where the petitioner sought access to full information which he
believed would be enough to unearth a grand corruption leading to the respondents
convictions of criminal charges. The person seeking information should make request for such
information. A violation of the right to information cannot be alleged before a request for
information has been made. However, the same court made observations that even though the
right to information implies entitlements to the citizen to information, it also imposes a duty on
the State with regard to provisions of information. Thus the state has a duty not only to
proactively publish information in the public interest- this, I believe, is the import of Article
35(3) of the Constitution of Kenya which imposes an obligation on the State to publish and
publicize any important information affecting the nation’, but also to provide open access to
such specific information as people may require from the State.
Freedom of Information is achieved only where government records are well managed do we
find that freedom of information is achieved. Accesses rights are of limited value if information
cannot be found when requested or, if found, cannot be relied on as authoritative, or the
arrangements for their eventual destruction or transfer to an archives, are inadequate. It is
increasingly being recognized that governments hold information not for themselves but,
rather, on behalf of the public and that, as a result, public bodies should provide access to
information laws that have been adopted around the world, as well as the numerous
authoritative international statements on the issue.
Right to information is not only a human right, but an essential tool that empowers citizens to
demand accountability from governments, participate in public life and to fight corruption
through knowledge. In the court acknowledged the importance of the right to information in
determining appropriate damages for the petitioner. However, in Family Care Limited v Public
Procurement Administrative Review Board &Another, the court ruled that Article 35 only
applies to Kenyan citizens and not to foreigners and further that the right of access to
information can only be enforced by natural citizens and not legal persons. In conclusion, access
to information aids in the realization of transparency and leads to good governance since in a
democratic society, the free flow of information is critical, and it is only when the public
interest is served should the flow of information be limited.
