By Lenah Bosibori
Nairobi, Kenya: The Access to Information Act (ATI), was adopted by parliament on September 21, 2016, enhanced Article 35 of the Constitution of Kenya 2010; which guarantees every citizen the right to access and obtain information from public and private bodies acting in a public nature.
Among the beneficiaries of the Act is the media, especially when seeking information held by state agencies on matters of public interest. Access to Information Act, 2016
The Act is also envisaged to support journalists gain access to information when writing investigative and in-depth stories that require facts, truth and have impact on public interest.
While the Act was designed to promote transparency and accountability, challenges in its implementation have been reported in Kenya mostly by journalists and civil society organizations. A Report published in September 2020 by Article 19 a human rights organization that promotes freedom of expression, indicated that at least 48 journalists had been attacked or restrained from doing their work during the pandemic. Journalists attacked and silenced
Theoretically, the Act grants journalists the right to request and access information from government bodies, as long as it does not infringe on specific exemptions outlined in the law. The exemptions outlined in the law includes;
This passage outlines the circumstances under which the release of information is restricted in Kenya to safeguard national security and other essential interests. Unauthorized disclosure of information is prohibited if it can (a) threaten national security, (b) disrupt legal processes, (c) jeopardize individuals’ safety, (d) invade privacy without proper authority, (e) harm commercial interests, (f) hinder the government’s economic management, (g) obstruct decision-making processes, (h) harm a public entity’s legal position, or (i) breach professional confidentiality.
The definition of information related to national security includes military strategy, foreign government information, intelligence activities, foreign relations, scientific, technology, or economic data, vulnerabilities or capabilities, investigative information, cabinet deliberations, data relevant to government conduct, and other information that, if disclosed without authorization, would endanger national security.
However, journalists in Kenya have encountered obstacles such as delayed responses, denial of information sought and in obtaining timely and comprehensive information from the government.
Through the previously held interviews, it was discovered that journalists face significant challenges in accessing information from state agencies.
Dominic Kirui is a freelance journalist who spoke openly about his experience in accessing information from the government.
“I think I am that person the government has branded not to get information from them, first when I mention that I am a freelance journalist, it is like I lock myself away from being served. With more than ten years’ experience in journalism, I have gotten information twice over a period of ten years. I have been practicing journalism in Kenya, I have sought information more than 20 times from government bodies,” said Kirui.
Kirui adds that he doesn’t understand the government’s reluctance to divulge information.
“Government needs to be swift and smart work for journalists when accessing information, even if you do a letter, they will never respond and when you try to appeal, the court will take more than two years to settle the matter, do journalists have all that time to wait?” Queried Kirui.
Kirui says when he is totally denied information he uses the familiar quote, ‘our efforts to reach a certain officer in government were futile’.
“I once put that quote in my story and the officer who was responsible was fired,” adds Kirui.
He urges the Government and its Agencies to have round tables with journalists so they may present their concerns.
Emily Chebet works as a reporter at Citizen TV, one of Kenya’s largest privately owned TV stations; she also had the same challenges as Kirui.
“Government has a lot of protocols and bureaucracy which becomes a very big problem especially when your story needs to run immediately,” says Chebet.
She adds that some officers are so careful with sharing information because they fear the media.
“They think that you may misquote them, others say that they need permission from their senior officers to be able to share information, you end up wasting a lot of time and decide to go without their quotes,” says Chebet.
Chebet adds that it is even difficult when addressing County officials, there is a lot of confusion sometimes on who is supposed to speak, they say that the department is devolved. “In such cases I seek an expert opinion, “adds Chebet.
Chebet shared that sometimes the officers offer to share information but on condition of anonymity, “You see, this does not sound well when publication is done. It renders a story not credible.”
Kirui and Chebet are among many Journalists I interviewed who concluded that journalists face delayed responses and often denied information requests.
This, according to them, hinders their ability to report accurately and hold public institutions accountable.
Victor Bwire, Director for Media Training and Development at the Media Council of Kenya (MCK) said that Kenya as a young democracy is emerging from the colonial period that included a lot of secrecy which is slowly moving to technology.
He adds that the government used to thrive in secrecy including stamping newspapers as confidential. The thriven secrecy was through Kenya’s Official Secrets Act of 1970 revised in 2012 as well as proposed amendment in 2020 (The Official Secrets Act or The Act).Kenya: Official Secrets Act incompatible with freedom of expression standards – ARTICLE 19
“If you go to some government offices you find a newspaper stamped confidential then you wonder what is confidential in that newspaper,” said Bwire during an interview.
Bwire adds that lack of awareness about the Act among government officials and limited capacity to handle information requests effectively have also been identified as major challenges.
According to him, their efforts to fight for journalists to access information within seven days instead of the 21 as per the Act were futile. “As a media Council body that promotes and protects the freedom and independence of the media, the Council wanted a timeframe of seven days because of the urgency of news stories instead of the 21 days waiting time limit, but according to Bwire it was not possible
“We had requested the implementers of the Act to give journalists a seven-day wait limit but that was not possible, this was because the Law does not favor anybody but is equal to everybody,” he said.
John Allan Namu, who is the founder and investigative journalist at African Uncensored, says that in Kenya the Access to Information law is more robust than in other East African nations.
“We are better off than our neighbors but still something needs to be done,” says Namu.
Moreover, he says that the culture does not match the law. “The law is fairly progressing in that one is able to get information, but there are various provisions and Cap Acts that allow for government officials to deny public rights to access to information, specifically journalists,” adds Namu.
“Yes, I have personally used the ATI Act but I was still denied information, I tried to appeal but nothing came through,” said Namu during an interview in Nairobi on 14th June 2023
Namu shares that there needs to be certain clauses of the ATI Act to enforce when people ignore and refuse to give information that should be legitimately held by the public officers.
He urges journalists to use the Act more frequently and test the laws and its limits in various organizations.
“By doing this, we will be able to build an index of organizations and institutions within the government that are open or partly open or not open at all to give information,” reiterates Namu.
“I followed the law which requires one to write an official letter and waited for 21 days. I faced delays, rude and very unnecessary responses. Sometimes the officers decide to ignore the request,” added Namu.
According to Namu, one is left waiting indefinitely for responses that will never come through.
“This shows that there are people who don’t take journalism seriously, and that attitude of ‘Siri Kali’ (Big secret),” said Namu.
He adds that he found the Act useful in that one can make a request through the Act and get a response within 21 days.
“If 21 days’ elapse before you get the information, you try the Commission on Administrative Justice (CAJ), also known as the office of Ombudsman,” said Namu.
“What needs to improve is the response time; public officers have a responsibility to treat the access to information seriously not only from journalists but also from the public, “he adds.
According to CAJ, the Commission receives annual reports from Ministries, Departments and Agencies which demonstrate the status of ATI implementation. From the reports received by the Commission, it was noted that institutions are actively involved in the implementation process of Access to Information.
Brian Otieno is a news anchor at Nation media group (NMG), he says that there is a lot of bureaucracy and limited access when trying to get information.
“We are forced to get approvals from a very senior office to get someone to speak on a certain topic on live television and yet we have a backlog of stories, this hinders us from reporting accurately,” said Otieno.
“Sometimes I call them unnecessary interventions, and they make our work hard as journalists. We are just trying to do the best of our work; can you make it easy for us to access information that is relevant that can be put out there for the benefit of the public?” Queries Otieno.
He adds that some of the work journalists do needs urgency, speed and timeliness.
Alternative Ways of Seeking information When Denied
Otieno adds that he approaches the denials by doing short interviews with the key respondents like the chairs of parliamentary committees.
“Those are the only things one can do to get the information you need, in a normal day, you will not even see a piece of paper for reference like the spelling of certain words, names of companies for you to do an accurate, timely and informative story,” adds Otieno.
Joseph Ndunda, a court reporter with Nation Media Group (NMG), had a contrary opinion. He says that accessibility of information often hinges upon the relationship one has with the source.
Drawing on his experience working in the court system, he emphasizes the importance of building a healthy rapport with sources.
In his case, he enjoys a good relationship with the chief magistrate of the station, who willingly shares information that is suitable for publication.
However, Ndunda also acknowledges that some journalists abuse their power by demanding to record in unauthorized areas.
To illustrate this, he recounted an incident involving a journalist from a prominent media house.
“Without seeking permission from the chief magistrate, the journalist began recording inside the court premises. Consequently, all the recorded data had to be deleted,” said Ndunda.
Dunda’s account highlights the significance of maintaining respectful and professional relationships with key individuals in order to foster a cooperative atmosphere and facilitate the flow of information.
Moreover, it serves as a cautionary tale about the consequences of disregarding protocols and infringing upon authorized spaces while gathering news.
One journalist from a British Broadcasting Corporation (BBC) who sought anonymity said that she understands that she will never be granted access to information when she requires it, but she has her own ways of getting it.
“I usually use my non-Kenyan journalists to call government offices, I realized when I use a foreigner it is very easy and first to get what I want, our government bodies respect both foreign journalists and foreign media houses,” said the source who requested anonymity.
I later embarked on a journey to the office of Commission on Administrative Justice (CAJ) to gain insight on what they have been doing to help journalists get information when denied.
The reception at the CAJ offices was different from other government offices I have ever visited.
I received a very warm reception despite booking a quick appointment. At the commission I met Simon Nzioka, the Chief Access to Information Officer who shared more details. He said that the Act is in its 7th year since inception.
Nzioka said that a requester has a maximum of 21 calendar days, meaning the days are inclusive of weekends. “If there is no response after 21 days it is assumed that one has been denied information,” said Nzioka.
“So far, we have engaged the public institutions by sensitizing them starting with the leadership who are the Chief Executive Officers, who are responsible for the information in different institutions, “added Nzioka,
According to Commissioner Lucy Ndungu, in charge of investigations of Complaints under the CAJ Act at the Office of the Administrative Justice also known as Ombudsman, the commission has not received a huge number of requests as they anticipated.
“The commission has received and processed 246,760 requests out of this number, 229,054 requests have been granted and 242 requests declined,” said Ndungu.
She added that the Commission has received a total of 1,057 applications for review of decisions by entities under the Act since 2016 to date.
“A total of 994 applications representing 94% were successfully resolved whereof the concerned entities provided the requested information or provided lawful reasons for withholding information,” added Ndungu.
Further Ndungu says that the majority of the applications for reviews received by the Commission representing 91.5% were classified as decisions refusing to grant access to information under section 14 (1)(a) of the Act. These are mostly characterized by general lack of a response from the requested institutions or where the response given is not satisfactory to the requester.
The Commission received about 2.4% applications for reviews on refusal to correct/update/annotate records of personal information under s. 14 (1) (h)]. Further, a total of 4% of the applications received were addressing the issue of public entities obligations on proactive disclosure as provided for by sections 5 and 14(3) of the Act.
“It is very difficult to get data on requests submitted by journalists as the reporting requirement under the law does not have this category. Also, the law does not expect requesters to say their profession and thus it is difficult to get such data from the institutions or at the appeal stage,” said Ndungu.
Challenges Facing the Access to Information Act Office
Nzioka said resources are one of the biggest challenges facing the Act despite it being in place for seven years.
“Many of our government records are still in analog form meaning they are manual and not yet digitized, a reason one may take a long time to get information," added Nzioka.
"For journalists, we have developed a handbook that is simplified to guide the journalists on how to go about the Access to Information Act mostly to investigative journalists who need more to uncover underreported stories, “said Nzioka. Access to Information in Kenya : A Journalists’ Handbook
Nzioka also cited the culture of secrecy as another challenge hindering access to information. “We are coming from a culture where the government used to hide a lot, “added Nzioka.
"Journalists lack awareness levels, some journalists do not know how to request information from the government bodies and when denied they also don't know how to appeal,” added Nzioka.
Lack of technical expertise is another challenge hindering the full implementation of the Act, according to Nzioka.
"The Act is highly technical, it requires highly skilled people to handle it, there is also poor record management in our systems," said Nzioka.
According to Nzioka, disposal of records is another biggest challenge. "Some institutions that are not following the law end up destroying data from their records because people don't want to be accountable,” he added.
How to Request for Information
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Make an application in writing either in English or Kiswahili and save a copy of it so that in the future one can demonstrate that the request was sent.
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Give a clear information on the kind of information one is seeking for, every request should have sufficient evidence, the law does not require a reason for the requested information
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Wait for 21 days, if no response, launch an application for review to the Commission for Administrative Justice,
"We have received several requests from journalists, and we have been able to process some, the law expects the commission to decide, sometimes we go to court when an institution refuses to give a reason for the denial, “said Nzioka.
“We had a case that was processed in court and the requester was compensated up to one million Kenya shillings (6,688 US dollars), " Nzioka added.
Through the many interviews I had with journalists, getting information is still a challenge in Kenya despite the access to information Act (ATI) in place seven years down the line.
Research has shown that media is the most trusted institution in Kenya, and, therefore, improved media performance, facilitated by access to information to enhance this trust is critical.
Due to low levels of compliance to the ATI Act, journalists writing stories of public interest run the risk of irresponsible reporting which can lead to defamation suits. Let all players collaborate to promote the ATI Act in full and help journalists tell balanced stories with facts.
This work was produced as a result of a grant provided by the Africa-China Reporting Project at the Wits Centre for Journalism at the University of the Witwatersrand, Johannesburg. The opinions held are of the author.
[…] By Kenyan journalist Lenah Bosibori. First published in Talk Africa. […]
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