Implement Access to Information Act (KE0029)

We seek to ensure the effective implementation of the Access to Information Act (ATI Act) for the realization of citizens’ right of access to information. We will leverage on technology to enhance the practice of proactive disclosure and promote effective records management. An area where information is sorely needed, and the commitment will seek to address, relates to Kenya’s public debt sustainability.

Objective To operationalize Article 35(1) and the Access to Information Act 2016. Access to information is the bedrock upon which open governance is founded. When people are informed, they can participate fully in public life and contribute to determining priorities on policies and public spending. The public is also able to meaningfully participate in ensuring the government is accountable, responsive and transparent.

Status quo Kenya passed the Access to Information Act on 31st August 2016. The law gives Kenyan citizens the right of access to information held by public entities and relevant public bodies. The Act came into force and is being implemented at both national and county levels of government. Effective implementation is hampered by the lack of regulations which would better articulate the processes through which information is provided to citizens. Lack of a proper monitoring framework on proactive disclosure ensures that no clear standards are applied by the public institutions in disclosure of information making it difficult to assess whether the objectives of the Access to Information Act are being met. Further, non-digitization of records as required by the Act has hindered access to information held by public entities.

Ambition The commitment will help put focus on the adoption of the Access to Information regulations which will ensure better implementation of the Act by giving clarity on process issues. The digitization of records will help ensure better record keeping practices and in turn improve proactive disclosure standards of public entities, thereby ensuring maximum disclosure of information, a principle of ATI. The development of a county ATI law will ensure that the most requisite principles of access to information and best practices are adhered to when counties draft their own ATI laws.

No. Verifiable and measurable milestones to fulfill the commitment Status of milestone Start Date End Date 1. Passing of Access to Information Regulations. New January 2021 December 2021 2. Completion and roll out of the Access to Information (ATI) at the Kenya School of Government New January 2021 December 2021 3. Develop a framework for the adoption of the model Access to Information Law by counties New January 2021 December 2022 4. Implementation of a reporting framework on proactive disclosure for public institutions New January 2021 December 2022 5. Enforcement of digitization of records held by public institutions New January 2021 December 2022 6 Open and accessible public debt register New January 2021 June 2022

Action Plan Review

Commitment 6. Access to Information

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Substantial

Lead institutions: Commission on Administrative Justice (CAJ); Ministry of ICT; Kenya National Archives & Documentation Service (KNADS); Public Debt Management Office; and the National Treasury

For a complete description, see Commitment 6 in Kenya’s 2020–2022 action plan at: https://www.opengovpartnership.org/documents/kenya-action-plan-2020-2022/.

Context and Objectives

Access to information in Kenya has seen proactive participation and advocacy by CSOs such as Article 19, the International Commission of Jurists-Kenya Section, Transparency International and the Katiba Institute. Over the years, the push for access to information came largely from CSOs and was given a major boost with the promulgation of the 2010 Kenyan Constitution, Article 35. The government promoted access to information by establishing the Commission on Administrative Justice (CAJ) [36] in 2011. During cocreation, this commitment was a priority for both government and CSOs.

Access to information (ATI) is a constitutional right in Kenya. The (ATI) law grants citizens access to information held by both public and private entities, but it is citizen driven, meaning citizens must know and exercise their right for the law to be effective and yield outcomes in transparency and the fight against corruption. Several legal cases ^[37] have demonstrated challenges Kenyans face in accessing information, despite the law. Similarly, the International Commission of Jurists (Kenya Section) has previously decried the limited and inconsistent publication of information by public health institutions, ^[38] and highlighted the right of citizens to access information in extractive sector, noting one consequence of being an impasse in Turkana County regarding the Early Oil Pilot Scheme. ^[39]

In the 2016–2018 national action plan, Kenya committed to enhancing the right to information by strengthening record management and access to information. This NAP also supported passage of the Access to Information Act in September 2016, which supports citizens’ right to access information, and links ATI with record management. Further, the IRM’s 2016–2018 end-of-term report noted that the CAJ mainstreamed ATI training for public officials through a performance contracting system, and sensitized public bodies on their duties and obligations. Further, the government established an online portal under CAJ for submitting ATI requests. The ICT’s Authority’s Electronic Records and Data Management Standard was approved in August 2016, effective January 2017. However, the ATI regulations were not put in place, nor was a central digital registry for government records and data established. [40]

As detailed in the current NAP, effective implementation of the ATI Act has been challenged by a lack of guidelines on how public institutions should disclose information, poor monitoring frameworks, and non-digitization of records. According to CAJ, ^[41] the nonexistent regulations and guidelines have resulted in opacity in institutions’ disclosures and citizen access to information. However, NAP does not continue work on establishing a digital registry for government records and data.

The aim of this commitment is to implement the ATI Act by passing regulations and creating frameworks for enforceable implementation by state entities. This will be achieved through:

i. passing regulations to unpack and operationalize the main ATI law;

ii. beginning an ATI training program for public officers but also open to the private sector;

iii. setting up mechanisms for adoption of ATI laws by local governments;

iv. enforcing disclosure by public institutions through a reporting framework; and

v. digitizing records.

Implementing this commitment could support other commitments such as open contracting, where there are nondisclosures by procuring entities and the procurement portal data is not OCDS-compliant. ^[42] If fully implemented, the commitment will address the barriers to ATI highlighted in the 2018–2020 IRM design report. ^[43]

The commitment is relevant to the OGP values of transparency, civic participation (through public participation in developing the regulations), and accountability (through redress mechanisms for government agents who do digitize and publish data).

Potential for results: Substantial

Access to information is vital for civic participation and accountability; failure to provide access to information prevents citizens from making informed decisions and holding actors accountable. The IMF notes that the full implementation of the ATI act, with regulations and proactive disclosures, is vital to enhancing transparency and accountability. ^[44]

Through this commitment, the government promises to address the major hindrances to ATI. The commitment pledges to pass the ATI regulations, involving public input, which will allow full implementation of the ATI law. Digitization of records will aid organizations in meeting the standards for publishing information, which will aid implementation of other initiatives such as open contracting and compliance with ATI requirements as under the Memorandum of Economic and Financial policies provided to the IMF.

ATI training will build capacity of state officers to publish all necessary information in appropriate formats and will promote effective responses to citizen requests for information. The Kenya School of Government ^[45] builds officials’ capacity for efficiently providing public services and can conduct continued training of public officers in ATI. This training is crucial for resilience as the course can be held every year with attendance by different public officers and organizations. The training will also target the members of county assemblies, which might ease the process of translating the national law to the county level. ^[46]

Regarding Milestone 6, information on public debt has been extensively provided on the websites of the Central Bank ^[47] and National Treasury. ^[48] These include the public debt registers, debt sustainability analysis, and annual debt management reports. However, this information is not in a machine-readable format, nor is it in real time. While the Central Bank data is machine-readable, it does not contain underlying information as provided by the National Treasury. Although the milestone does not detail its activities, the government point of contact, Phillip Thigo, ^[49] explained that the commitment will upgrade all available registers to real time, machine-readable data. Once the register is upgraded, open, and accessible, it will disclose treasury and other public institutions’ information in compliance with ATI law, which will be monitored through Milestones 4 and 5.

Opportunities, challenges, and recommendations during implementation

Enacting ATI laws and regulations is the beginning of a wider scope of activities. Even with the significant steps promised in this commitment, there is room to advance ATI in Kenya. The IRM suggests the following:

● Coordinate regulations: The government and its co-implementers should coordinate different ATI regulations to prevent conflicts between the Access to Information Act, the Data Protection Act, and the Official Secrets Act. ^[50] The government should collaborate with this commitment’s stakeholders so that all ATI interests can coexist.

● Develop a systemic and sustainable support system for citizen engagement with published data: The public debt register comes amidst public outcry on the debt situation in the country. Kenyans are dissatisfied with the rising debt ^[51] and suspect the debt could be higher than reported. ^[52] Despite the government providing public debt information, citizens still lack adequate information. Making the data machine-readable is critical for open government and open data, and directly influences how citizens and other entities can use the information. While an open and accessible public debt register could increase the usability of the data provided, Milestone 6 could go further in ensuring citizens can adequately use the published information. For example, the government should facilitate citizen interaction with the register so they might make inquiries or provide feedback. Additionally, CSOs could be engaged to promote awareness and use of the public debt register to influence citizens’ decision making.

Results Report

Commitment 6. Access to Information

[Commission on Administrative Justice (CAJ)]

Context and Objectives
Under this commitment, the government undertook to operationalize Article 35 (1) of the 2010 Constitution of Kenya and the Access to Information (ATI) Act. [65] This commitment was vital to implement key legislation and enable public access to information held by the state and other citizens. This commitment was prioritized by both the government and CSOs during co-creation, [66] given its fundamental role for open government. It builds on Kenya’s 2016–2018 OGP action plan, under which the government passed the ATI Act and commenced implementation. [67]

Did it Open Government? Marginal
Kenya made marginal progress towards implementing the ATI Act during the action plan period. Government agencies and civil society collaboratively drafted ATI regulations which were expected to be finalized soon. The Kenyan School of Government (KSG) introduced an ATI course for civil servants responsible for implementing the law. The Commission on Administrative Justice (CAJ) created a county governance toolkit and model county ATI law. Consequently, counties had begun to adopt ATI legislation by the end of the implementation period. The government had also developed a guide and monitoring tool for proactive information disclosure and published information on external debts.

This commitment reached a substantial level of completion, given progress across the 6 listed milestones. The primary outstanding activity under this commitment is the digitization of government records. However, CAJ established a steering and technical committees to develop the guiding standards for digitization. While the total number of information requests made to public institutions declined from the previous reporting cycle, information disclosure rate remained at approximately 99 percent. [68] This demonstrates a consistent level of response to requests for government-held information, although procedural and administrative barriers sometimes delay or render the process of accessing information bureaucratic and prohibitive. [69]

Under the first milestone, the government undertook to pass the ATI regulations. While the ATI Act is a robust law, its operationalization has been delayed by the absence of regulations. The draft regulations [70] were prepared collaboratively by the CAJ, the Ministry of Information Communication and Technology (ICT), the National Law Reform Commission (NLRC), and a civil society representative from Article-19. [71] At the time of preparing this report, the draft regulations were being circulated for comments and awaiting official publication by the Cabinet Secretary in charge of ICT. Co-leads of the commitment from the CAJ and Article 19 stated that there had been engagement with relevant stakeholders to fast-track finalization of the regulations, including with relevant parliamentary committees, the Cabinet Secretary in charge of ICT, as well as the Attorney General, who is tasked with publication of the final copy. [72] They reported the regulations are ready to be passed into law, but disruptive electioneering period as well as the COVID-19 pandemic proved to be major challenges. [73]

The KSG’s ATI course commenced in 2020 and has trained a total of four cohorts until 2022, comprising 90 individual participants who were mostly county officials. [74] While it was primarily established to offer management training, research, consultancy, and advisory services to the public sector, [75] the KSG has recently expanded the scope of trainees to include the private sector. The government worked with the KSG to develop the curriculum for learners and a guide for course facilitators. [76] The KSG also conducted a training of trainers expected to facilitate the course. [77] According to feedback from one participant of the ATI course, the training was very useful their work. [78] The training alumni urged the CAJ and the KSG to invest in creating more awareness among information officers at the county level and getting buy-in from ministries, departments, and agencies at the national level. It was also noted that the KSG could mobilize resources to monitor and evaluate the impact of the trainings. [79]

The CAJ also advanced the adoption of ATI laws at the county level as provided in the County Governance Toolkit. [80] During implementation, the CAJ developed a county model law on access to information, [81] which aimed to assist counties to develop their ATI laws in compliance with the provisions of Section 96 of the County Government Act. [82] The model law was disseminated to all 47 counties, but only Embu and Kwale counties had developed an ATI Law guided by the model law by the end of the action plan cycle; whereas Kisumu, Laikipia, Nyamira, and Turkana counties were in the process of adopting such laws in their legislative assemblies. [83] The full impact of these efforts will become more evident once all county assemblies pass the legislation.

The fourth milestone pertained to implementing a reporting framework on proactive disclosure by public institutions. The Kenyan ATI legal regime is designed in such a manner that it requires public institutions to proactively disclose information. The CAJ developed “A Guide on Proactive Disclosure for Public Entities at National and County Government Level in Kenya” [84] and an online monitoring tool on proactive disclosure, which is used to monitor compliance of public entities. [85] Among other things, the guide lays down the processes and practices to comply with proactive disclosure legal requirements. While the CAJ guidelines demonstrate intent, they focus on resolution of public complaints rather than provision of express guidelines on what public entities must proactively disclose. The CAJ noted that this milestone aligns with their mandate to monitor proactive disclosure by public entities. [86]

The fifth milestone pertained to the digitization of records held by public institutions. According to the CAJ, this was a rather ambitious milestone and was not completed. The CAJ cited the absence of budget allocation for what would be a costly project that is implemented with limited technical know-hows. Most importantly, the CAJ the need to properly define what digitization entails and lay down the standards of digitization. Some work had been done to kickstart this process while steering and technical committees primarily set up by the ICT Authority were set up to develop the standards. [87]

The final milestone under this commitment was to create an open and accessible public debt register. The National Treasury website already hosted a public debt register at the time of action plan development [88] and now contains information on external debt up to and including the period of June 2022. Institutions such as Institute of Public Finance Kenya Limited and the media used information from the debt register to develop independent reports to create awareness on Kenya’s external debt situation, [89] noting frequent public backlash over heavy borrowing to finance government budgets. [90]

The role of the CAJ in advancing information disclosure is becoming more prominent with many citizens perceiving it as a channel for seeking redress on matters related to access to information. Between 2020 and 2021, the CAJ estimated 77,845 information requests were received by public institutions—77,579 of which were disclosed, indicating a high level of disclosure (99.66%). The remaining 213 requests were transferred, while 28 requests were declined. [91] This represented a slight decline compared to 2019–2020, during which the CAJ disclosed 130,207 out of 130,492 information requests (99.78%). [92] This was partly due to the CAJ operating with fewer staff and restricted in-person operations amid the COVID-19 pandemic and budget limitation. [93]

Obstacles to accessing information continue to persist, especially where it touches on specific types of information, such as infrastructure projects. [94] Civil society actors also noted that procedural and administrative barriers such as delayed responses, convoluted bureaucracy, and associated costs also contribute to public frustration. [95] However, recent legal rulings have advanced access to information, particularly around public infrastructure contracts. In May 2022, for example, the court ruled that the non-disclosure clauses in the Official Secrets Act cannot override public interest. Consequently, the government was compelled to provide information on a multi-billion standard gauge railway construction contract. [96]

Looking Ahead
Kenya has made notable progress building the capacity of public officers on access to information. Reformers can advance access to information under future action plans through a number of avenues, including:

Kenyan reformers could look to Morocco’s various access to information commitments for examples and opportunities for peer learning. Morocco’s access to information regime is a work in progress, which under the 2018 action plan aimed to expand public awareness of their right to information (Commitment 1), appoint and train ATI officers (Commitment 2), and establish archive units across government bodies (Commitment 3). Commitment 6 on the development of a citizens’ guide on ATI requests and a transparency portal, where citizens’ access to information requests are submitted, passed to the relevant government body, and publicly tracked [97] was a particularly strong example. Commitment 21 in the 2021 action plan built on this by strengthening ATI at the territorial level by connecting local governments to the transparency portal and providing a model portal for local governments to adopt. [98] Broadly, these commitments demonstrate possible areas of focus for future access to information commitments in Kenya.