Strengthening Access to Information (KE0038)

Brief Description of the Commitment

The commitment seeks to ensure the effective implementation of the Access to Information Act, No. 31 of 2016, for the realization of citizens’ right of access to information. It further seeks to strengthen the existing regulatory framework on Access to Information and leverage technology to enhance disclosure of information and promote effective records management.

Problem Definition

The Development of the National Access to Information Policy seeks to provide legislative guidance for the effective implementation of the Access to Information Act, No. 31 of 2016 ( ATI Act, 2016). The ATI Act was not sponsored by the Executive and therefore its development was not preceded by a Policy as is the norm in the majority of legislative instruments initiated by the Executive. The importance of developing a policy framework first is intended to amongst other salient features allow the executors to determine a clear road map, conduct an assessment of the problem and possible solutions, and define the opportunity to be embraced and the modalities or approaches to realize the benefit prior to proposing the necessary legal framework. This is essential to ensure that the law is properly understood, uniformly applied, and effectively promotes transparency and accountability. Other challenges brought by the lack of a national ATI policy include inconsistency and incoherency in government policies on information disclosures, inadequate resource allocation, and lack of enabling procedures and infrastructure. The challenge affects citizens, civil society organisations, and government officials ability to exercise the right of information as well as fulfill statutory duties on the part of government officials.

The adoption of the model Access to Information Law by at least Four Counties targeting OGP Local Counties), seeks to decentralize the national access to information framework and encourage its awareness, adoption and effective implementation at the local level. Communities, media, local organizations, and government officials in the selected counties will benefit from a strengthened access to information framework allowing citizens access to relevant information about their lives, critical services and will facilitate their participation in governance while holding the county governments to account.

The Development of Reporting Guidelines for Public and Private Entities on ATI The ATI Act obligates public entities and relevant private bodies to provide the Commission with reports required under the Act with respect to the implementation thereof. The Act additionally under Section 23(7) confers on the Commission the power to develop and publicize guidelines in consultation with the public detailing the reporting requirements including the manner, means and timeframes that apply to public entities and relevant private bodies. The objective of this milestone to guide public entities and private bodies (duty bearers) in compliance with their reporting obligations under the Act, provide for modalities of submitting annual reports to the Commission and administrative sanctions to be met by the Commission for non-compliance with reporting obligations and to provide for feedback mechanisms by the Commission to public entities & relevant private bodies upon assessment and evaluation of the reports. All these will serve to enhance the Commission’s capacity to implement the ATI Act.

Strengthening administrative action by the media to effectively use the Access to Information Act for the delivery of accurate information, combating misinformation and disinformation and creating public awareness of OGP. This milestone aims to empower journalists and media practitioners to effectively use the Access to Information Act to seek and deliver accurate information, combat misinformation and disinformation, and also raise public awareness about the Open Government Partnership (OGP). Journalists, media organizations, and the general public are affected by the spread of misinformation and disinformation, particularly during critical events like elections, pandemics, natural disasters, etc. The problem of false information has intensified with the advent of the digital age, requiring a proactive approach to mitigate it. In addition, diminishing trust in media and shrinking media freedom aggravate the problem.

The Development of a Framework for the Digitization of Public Records under Section 17 of the ATI Act. The provision seeks to modernize record-keeping and information management within the public sector, making government data more accessible and manageable in line with Kenya’s National Digital Master Plan 2022-2032. The problem of outdated and inaccessible public records, including challenges with the inefficiency of info management, retrieval and sharing among inter-agency has been persistent and has hindered effective access to information including that which concerns matters of life and liberty. These can be improved for efficiency in task load. To address these challenges, we will develop a framework that will provide national standards for the computerization of public records in line with the Web Content Accessibility Guidelines (WCAG) and in international best practice as envisioned in Section 17 of the ATI Act. Citizens, government officials, and organizations relying on public records will greatly benefit from this initiative.

Increase Awareness and uptake of the Access to Information Course at the Kenya School of Government and Broaden the Base of Participants to include Private Sector Information Officers. The Commission in partnership with the Kenya School of Government developed an ATI curriculum targeting public officers involved in processing of access to information requests in public entities to equip them with knowledge, skills and competences to implement the legal framework on access to information. By broadening the base of participants to include private sector information officers, this milestone aims to enhance the understanding and application of the Access to Information Act which mandates both public and relevant private entities to proactively disclose information to the citizens. The lack of awareness of their role and mandate in providing this information has been a major hindrance due to a strong culture of secrecy and ignorance of the law amongst duty bearers. The problem of limited knowledge and capacity to utilize the Act has impacted both those seeking access to information and information officers.

Enhancing Proactive Disclosure of Information by Key Stakeholders across the Electoral Cycle to address a recurring problem related to political transparency, accountability and public participation. Kenya’s electoral process has often been a charged affair, marred by concerns over credibility, transparency, accountability coupled with inadequate information infrastructure, and a lack of willingness by key actors to provide relevant information for accountability purposes. Since the adoption of the 2010 Constitution, Kenya has conducted three general elections—in 2013, 2017 (including a repeat presidential poll), and 2022. These elections have been marked by significant legal disputes and varying levels of civil conflict sparked by allegations wanting credibility, transparency, and accountability. The inadequate information infrastructure to manage the electoral process, and an unwillingness by state actors to provide information for those seeking accountability has resulted in public trust deficit and unrest. The crucial role of transparency and the right to information in safeguarding peace, security, and stability within the electoral context, therefore, is undeniable.

What are the causes of the problem?

● Culture of Secrecy: A significant factor contributing to the issue is the entrenched culture of secrecy within the government. Public officials habitually withhold information that should be accessible to the public. This culture of secrecy prevents citizens from holding the government accountable and participating in governance, even though the Access to Information Act mandates public entities to proactively disclose information. The root cause here is a historical and systemic lack of transparency and openness within government institutions, perpetuating a culture of secrecy that impedes progress.
● Lack of Structure and Standards: The absence of structured processes and standards for digitizing government records is another critical issue. This deficiency hinders the effective organization and accessibility of information. The root cause can be traced back to an absence of comprehensive policies and standards for managing government records in a digital age.
● Low Awareness of ATI: There is a lack of awareness among both public officials and citizens regarding their rights and obligations under the Access to Information Act. When both parties are unaware of their roles and responsibilities, the public's right to access information is impeded. This lack of awareness stems from limited educational efforts and the historical disregard for the importance of open government practices.
● No Uniform Government Approach: Inconsistencies in the government's approach, processes, and procedures for disclosing information exacerbate the problem. The absence of uniformity in government information disclosure protocols results from a lack of comprehensive guidelines, which can be attributed to a lack of emphasis on standardization in the past.
● Inconsistent Policies and Inadequate Resources: There are inconsistencies and incoherencies in government policies on information disclosure. The problem is compounded by inadequate resources, lack of enabling procedures, and infrastructure, resulting from a historical failure to prioritize information management and transparency.
● Challenges During Elections: During elections, limited access to online spaces further complicates the issue. Root causes include inadequate digital infrastructure and barriers to online access during critical electoral periods.
● Low Trust in Media: The diminishing trust in media and shrinking media freedom aggravate the problem. The historical issues related to media credibility and freedom within Kenya's socio-political context are the root causes of this challenge.
● Limited Awareness and Implementation of Accessibility Guidelines: Limited awareness and implementation of accessibility guidelines, such as the Web Content Accessibility Guidelines (WCAG), indicate the need for comprehensive awareness standards and regulatory enforcement, with the root cause being a historical lack of emphasis on digital accessibility.

Commitment Description

The promulgation of Kenya’s constitution in 2010 opened a new chapter for Access to Information in Kenya. Article 35 of the ‘new’ constitution now guaranteed every citizen the right to access information. However, it was until September 21, 2016, that life was breathed into this article through the enactment of the Access to Information Act and the subsequent Gazettement of ATI Regulations. Since then, there have been concerted multi stakeholder efforts geared at socializing this constitutional provision. These have included the development and the roll-out of the Curriculum on Access to Information for Journalists in Eastern Africa in 2022 in addition to the ATI Curriculum for public officers entrenched at the Kenya School of Government in 2020. There have also been innovative programs like the development of the Model County law on ATI and the simplification of ATI Toolkits for media and citizens. Capacity building and awareness creation initiatives of ATI amongst duty bearers and rightsholders have also been progressed. The most recent development has been the finalization of the National ICT Policy in 2019 and the Gazettement of the Standards on Accessibility of ICT Products in 2022.

Proposed Solutions

● Overarching policy framework on ATI
● Enhanced capacity building on ATI for government, private sector, media and citizens
● Inclusion and strengthening the capacity of media to help them fulfill their role of providing quality and reliable information.
● Enhanced accountability framework for public entities and private bodies in reporting
● Broadened base of stakeholders meaningfully participating in OGP and open government processes
● Enhanced electoral integrity and citizen access of digital spaces during elections

Desired Results

Proactive disclosure of information by government and relevant private institutions Empowered citizens to obtain information held by public bodies Available and easily accessible information to citizens to enhance their participation in governance issues Enhanced oversight and enforcement capacity of the oversight institution on access to information Digitization of government records to facilitate access to information and to act as a catalyst to the digital transformation of government processes.

Commitment Analysis

1. How will the commitment promote transparency? Access to information will foster evidence-based engagement between the government and citizens. It will also oblige the government to make public data regarding the utilization of public funds readily accessible for scrutiny.

2. How will commitment help foster accountability? Since citizens can easily access information from public entities, they can hold public entities accountable based on the information they get Citizens will have the leeway to interrogate/scrutinize the government based on the information that government provides especially in the utilization of public funds through projects, processes and development programs and in the process enhance accountability.

3. How will commitment improve citizen participation in defining, implementing, and monitoring solutions? Ensuring information and services are accessible to all, including those with disabilities or from marginalized communities, thereby enhancing inclusive and broadbased participation. Overall, this commitment creates an ecosystem of transparency, awareness, and engagement. Citizens will be better equipped to participate in defining solutions that align with their needs, actively engage in the implementation process, and monitor the progress made.

Commitment Planning (Milestones | Expected Outputs | Expected Completion Date)

Development of a National Access to Information Policy | National ATI Policy Developed | 31st May 2027

The adoption of the Model County Access to Information Law by the 4 OGP Local Counties | County Access to Information Laws passed in three counties | June 2027

The Development of Reporting Guidelines for Public and Private Entities on ATI | Reporting Guidelines for Public and Private Entities Developed | June 2027

Development of a Framework for Digitization of Public Records under Access to Information. | Framework for Digitization developed | June 2027

Strengthen the capacity of journalists to effectively utilize Access to Information (ATI) to address misinformation and disinformation concerns, promote citizen engagement and facilitate informed public participation in the OGP process | Number of Journalists sensitized | June 2027

Increase awareness and uptake of the Access to Information Course at the Kenya School of Government and broaden the base of participants to include private sector information officers. | Reviewed Curriculum Number of cohorts trained

Strengthening media capacity to effectively use the Access to Information Act for the delivery of accurate information, combating misinformation and disinformation and creating public awareness of Open Government Partnership | Number of Journalists and media practitioners sensitized | January 2027

Enhancing democracy through proactive disclosure of information by key stakeholders across the electoral cycle to address a recurring problem related to political transparency, accountability and public participation. | A report on timely release of information by stakeholders in the electoral cycle | December 2026

Action Plan Review

Commitment 7. Access to Information

Commitment 7: Access to Information
[Commission on Administrative Justice, Article 19 Eastern Africa]

For a complete description, see Commitment 7 in Kenya’s 2023–2027 Action Plan.

Context and objectives

Right to information is enshrined in Article 35 of the 2010 Constitution and the 2016 Access to Information (ATI) Act, passed under a previous OGP action plan. The act establishes government responsibility to respond to requests for information and proactively publish certain categories of information. ^[123] Reformers have advanced implementation of the act across previous action plans spearheaded by the Access to Information OGP Cluster co-led by the Commission on Administrative Justice (CAJ) and Article 19.

Progress thus far includes an Electronic Records and Data Management Standard, drafted ATI regulations, and an ATI course in the Kenya School of Government. [124] However, the delayed passage of regulations to operationalise the act has left the framework for digitisation of records, recordkeeping, and proactive disclosure fragmented. ^[125] An absence of allocated budget has also prevented the completion of a central digital repository for government records and data. ^[126] Meanwhile, a lack of policy has led to an inconsistent approach for disclosing information and digitising government records. Further, an entrenched culture of secrecy within the government and diminishing media credibility contribute to a lack of openness within government institutions.

This commitment aims to further implement the ATI Act through development of a National ATI Policy, reporting guidelines for Public and Private Entities, and a framework for digitisation of public records. It also seeks adoption of the Model County Access to Information Law by OGP Local counties and increase awareness and uptake of the Access to Information course. The commitment specifically seeks to strengthen journalists’ capacity to use ATI to combat mis/disinformation and to ensure proactive and timely release of election related information. As access to information is a cornerstone of open government, implementation of this reform would support other commitments in the action plan, such as Commitment 1 on climate action transparency and Commitment 3 on open data.

Potential for results: Substantial

This commitment holds significant potential to address gaps in implementation of the ATI Act and strengthen Kenyan’s right to information. By continuing to address legislative and capacity gaps, this commitment promises to improve the government’s ability to publish information proactively and reactively. Notably, this iteration of the commitment includes a focus on proactive publication of election data and addressing mis/disinformation. These critical components can help to address public distrust in government and election credibility. As written, some milestones are limited in scope (2), have already been achieved (1), or could be more specific (8). However, interviews indicate that implementers intend to go above and beyond the stated activities to achieve the commitment’s objectives.

Milestone 1 commits to developing a National ATI Policy. The ATI Act was not preceded by a policy as is usual due to pressure to pass the act by the five-year timeframe set by the constitution. This has resulted in gaps in the implementation of the act. At the time of writing, a draft policy had already been developed by the Ministry of ICT and CAJ but remains subject to cabinet ratification. It offers directions, priority areas, objectives, and strategies for ATI in Kenya. Therefore, the IRM recommends that this milestone be updated to focus on finalisation and implementation of the policy. [127] In addition to this policy, the ATI regulations were gazetted in 2023 and came into force in March 2024. [128] The implementation of the ATI regulations and policy have notable potential to standardise and expand implementation of the ATI Act.

The CAJ commits to developing reporting guidelines for public and private entities on ATI (Milestone 3) which will set expectations for public and private entities to report on their compliance with the act. Currently, the CAJ synthesises information submitted by institutions on their ATI compliance into annual reports. However, a lack of sanctions for non-reporting under the ATI Act has resulted in incomplete information. The commission intends to use their mandate under the Performance Contracting Framework to include ATI reporting as an aspect of their performance contracting review. This has the potential to increase entities’ reporting to the commission as the review findings can have budget implications. [129]

Under Milestone 4, the CAJ and the Ministry of ICT commit to developing a framework for the digitisation of public records under the ATI Act, which requires digitisation of records, particularly analogue and historical documents. As the provisions are vague, the framework will provide minimum standards for digitisation in keeping public records and preserving information. [130] The CAJ and Article 19 aim to refresh and expand participation in the ATI course offered by and alongside the Kenya School of Government under Milestone 6. This will be done through awareness raising and inclusion of private sector information officers, which will be informed by a study that was underway at the time of writing on what institutions had information officers and their training needs. As the course has only been available for a few years, there has not yet been a study on its impact for ATI compliance. However, implementers noted that such a study could take place in the latter half of the implementation period. [131]

Milestone 2 seeks the adoption of the model ATI law in four counties participating in the OGP Local programme. Kenya’s four OGP Local members have expanded to six since the action plan was developed, which include Elgeyo Marakwet, Makueni, Nandi, Nairobi, Machakos, and Kakamega. [132] Of these counties, only Makueni has an ATI Law. [133] Given the action plan’s four-year timeline, the CAJ and Article 19 are encouraged to support all six OGP Local members to adopt ATI laws. This can include supporting the members to develop and implement ATI commitments in their county action plans. Implementers noted that work will extend beyond the four counties noted in the action plan and have already carried out advocacy to 16 counties. ^[134]

Under this action plan, the CAJ aims to create a framework for counties’ adoption of the law. The County Government Act requires counties to pass ATI laws, with a model ATI law for counties developed by the CAJ with support from GIZ. Kwale and Embu counties adopted ATI laws before the national ATI Act was passed, [135] while Kisumu and Laikipia counties had bills at advanced stages. The CAJ is currently prioritising support for counties that express interest in passing a county ATI law, such as Nyamira, although counties with ATI laws still require support to understand their ATI obligations and implement the laws. The CAJ will begin with advocacy to gain support for ATI laws among county leadership and then support counties to understand the content and adapt the law to avoid a ‘copy and paste’ approach of the model law without understanding its implications. After a county ATI law is passed, the CAJ and Article 19 will support implementation. ^[136] Implementers noted that this commitment’s milestones also apply to the county level, ^[137] which indicates that this milestone is more ambitious than written.

Using access to information to deliberately support democratic processes is a new objective in Kenya’s ATI OGP commitments. To do so, reformers aim to train the media on using ATI to combat mis/disinformation (Milestone 7). The CAJ, Article 19, and partners also intend to engage relevant bodies to ensure proactive and timely release of election related information (Milestone 8). Kenya’s next general elections will take place in 2027, at the end of this action plan cycle. While generally free and fair, Kenya’s elections are politically charged and have been characterised by civil unrest and demands for greater transparency and credibility. [138] As elsewhere, Kenya’s elections have been increasingly impacted by mis/disinformation. [139] This commitment provides a runway to strengthen supply, demand, and use of government-held information for informed public debate and transparent election processes in 2027.

Kenya’s compliance with the African Commission on Human and Peoples' Rights’ guidelines on access to information and elections was assessed for the 2022 general elections. [140] These findings will inform training to Kenyan election stakeholders to ensure publication of election information throughout the cycle. [141] The report calls for adoption of ATI regulations and the regulatory framework for social media evaluated to balance protecting human rights while also addressing mis/disinformation. It includes specific recommendations on where bodies such as the Independent Electoral and Boundaries Commission and Officer of the Register of Political Parties can increase proactive publication of election information, such as comprehensive, timely, and accessible information on vote counts, results, and complaints. [142] Improving the proactive publication of accurate and timely election information can address critical challenges to peaceful and credible elections in Kenya. Additionally, addressing mis/disinformation can help to reduce inappropriate foreign and domestic influence on public date. At the midpoint, the IRM recommends the addition of further details as to how election bodies are being engaged and which types of information are targeted for publication.

Opportunities, challenges, and recommendations during implementation

Civil unrest during elections and other pivotal moments indicates the potential to improve trust between Kenyans and the government. Tensions have been fuelled by the spread of mis/disinformation in the absence of credible information from the government. Comprehensive implementation of the ATI Act, particularly during election periods, has the potential to strengthen trust and facilitate informed public debate and participation.

Political resistance has stalled passage of the ATI Act and regulations in the past. High-level officials’ recognition of ATI’s role in restoring public trust may support the implementation of this commitment. Political support at the county level, such as working with the Council of Governors, will be essential for ATI progress at the local level. ^[143] Previously, high-level officials have turned their attention to ATI when incentivised by international loans and agreements.

The CAJ has championed ATI implementation despite a limited budget under government austerity measures. This reform benefits from strong support from the CAJ Commissioner and a newly created ATI Department. Close partnership with civil society has helped to fill funding gaps and carry out activities, such as sensitisation of civil servants and the public. The CAJ and Article 19 report that they were strategising to fund the implementation of this commitment. ^[144]