The petitioner, a publisher of the Nairobi Law Monthly, a magazine dealing with topical legal issues, was investigating a series of transactions undertaken by the mainly state-owned Kenya Electricity Generating Company (first respondent) and, as a result of the investigation, published a report implicating the first respondent and its chief executive officer (second respondent) in corrupt dealings. The respondents denied the allegations and as a result, the petitioner requested the first respondent to provide a broad range of “information on the issues arising out of the published article”, including contracts with drilling companies (paras. 2-3). The first respondent refused to release information arguing that it is not a public body and that the law journal is not a citizen (para. 3).
The petitioner turned to the High Court (Court) alleging a violation of his constitutional rights, inter alia, under Article 33 (freedom of expression), Article 34(1) (freedom of the media), Article 35(1)(b) (access to information) (para. 7). Specifically, the petitioner argued that it was entitled to access information in order to exercise its rights under Article 33(1) and 34(1) (para. 57). The petitioner submitted that “from the documents in its possession, it has enough information to convict the 2nd respondent on criminal charges, and that full access to information it seeks would be enough to unearth a scheme as large as the Anglo Leasing scheme” (para. 4).
In order to determine whether the first and second respondents violated the petitioner’s constitutional rights, the Court set out three questions to address (para. 23):1) the scope of the right to information under Article 35 in general and Article 35(1)(b) in particular; 2)whether or not the first respondent had a constitutional obligation to provide information under Article 35(1)(a) or (b), and 3) the definition of “citizen” for the purpose of Article 35(1) and whether the petitioner fell within the notion of “citizen” (para. 24).
Regarding the first question, the Court noted from the outset that the right to information “is at the core of the exercise and enjoyment of all other rights by citizens” (para. 26). Relying on the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the UN Human Rights Committee General Comment No. 34, the African Charter on Human and People’s Rights, and the jurisprudence of the South African Constitutional Court, the Court emphasized that the right to information is closely interlinked to freedom of expression and the media (para. 31). This right not only implies the entitlement by the citizen to information, but also imposes an obligation on the state to provide open access to the specific information requested by people and a duty to proactively publish information in the public interest (para. 34). According to the Court, in order to facilitate the right to information there should be a clear process “for accessing information, with requests for information being processed rapidly and fairly, and the costs for accessing information should not be so high as to deter citizens from making requests” (para. 40).
Notably, the Court highlighted the obligation of the state, derived from the duty to give effect to the right under Article 19 of the ICCPR, to enact “legislation governing this right [to access to information] and the circumstances under which it can be enforced”. According to the Court, such legislation in Kenya was “long overdue” (para. 29). Freedom of information legislation should be governed by a principle of maximum disclosure, and any exceptions to this right should be “clear, narrow and subject to strict “harm” and “public interest” tests, and to the rights and interests of others” (para. 38). The latter would include national security, defence, public and private safety, commercial interests and the integrity of government decision-making (para. 54).
Regarding the second question, the Court established that the first respondent, in which the state had a 70% stake, and which was subject to the provisions of the State Corporations Act, was “a state corporation or public entity” (para. 50). Therefore it was bound by the constitutional provisions in Article 35(1)(a) to provide information to citizens (para. 52).
The Court further found that in order to enforce the right under Article 35(1)(b) the citizen had to show that (i) the information was held by the relevant person (not the state) and (ii) the information sought was required for the exercise or protection of another right (para. 56). However, in the Court’s view, the petitioner could not allege that it required information from the respondents for the protection of its rights under Article 33 and 34 (para. 75). The Court found that to rule otherwise would mean that any person, other than the state, had an obligation to give a journalist or media outlet whatever information they demanded to exercise their freedom of expression and freedom of the press (para. 67). Such interpretation “would totally blur the distinction so clearly intended by the Constitution in making the two distinct provisions in Article 35(1)” (para. 68). According to the Court, it would “give the media a special status that elevates it above other entities in the state” (para. 73).
Finally, the Court found that a corporate body or a company was not a “citizen” for the purposes of Article 35(1) (para. 82). Therefore, the petitioner, as a legal person, could only enjoy the rights of the “persons” conferred by Article 35(2), but not of the “citizens” conferred by Article 35(1), including the right to access information (para. 81).
The Court found that there had been no violation of the petitioner’s rights under Article 33, 34 and 35(1)(b) of the Constitution (para. 83).
This is the first case by Kenya’s High Court to interpret Article 35 (freedom of information)
Judgment of the Court.
Written Comments (Article 19).