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ARTICLE 19 publishes analysis of Freedom of Information Bill

(ARTICLE 19/IFEX) - 31 January 2012 - In January 2012, ARTICLE 19 analysed the draft of the Kenya Freedom of Information Bill 2012 (Draft Bill or Bill), which is currently being discussed in Kenya. We reviewed the Draft Bill from an international and comparative law perspective in order to assess whether it is a progressive piece of legislation that will ensure the right to information in the country. In doing so, this brief draws upon standards of international law, as well as best practices of other states regarding the right to information.

ARTICLE 19 welcomes the Draft Bill as a positive step in the process of ensuring that the right to freedom of information is adequately protected and promoted in Kenya. The Draft Bill positively enshrines a number of progressive freedom of information principles, including a broad definition of the right to information, the duty to disclose information stemming not from public ownership but from its public functions, the right to seek information from private bodies, a clear and simple procedure for accessing information that takes into account language barriers and imposes minimal costs, a comprehensive proactive disclosure regime, public accountability for information officers and the protection of whistleblowers.

At the same time, the Draft Bill still contains several areas of concern, which ARTICLE 19 strongly urges the government to amend before enactment. In particular, ARTICLE 19 recommends the following changes:
• Everyone, not just citizens of Kenya, should be entitled to access information under the Bill.
• The Bill should include a provision stating that within one month of the entry of the Bill, any public authority is obliged to designate a public information officer to deal with requests for information and other issues specified in the Bill and adopt internal rules and procedures to ensure the implementation of the Bill.
• The members of the Information Commission should be appointed by the President and confirmed by two-thirds of the Parliament.
• The Bill should give powers to the National Assembly to appoint a tribunal to hear petitions requesting removal of a member of the Information Commission.
• The Bill should make the decisions of the Information Commission binding on all parties and enforceable by the High Court.
• The Bill should give powers to the Information Commission to impose penalties on public authorities who fail to comply with the obligation to report annually on their activities.
• The Bill should include sanctions for violations relating to the legal regime and give powers to the Information Commissioners to impose such sanctions.
• The Bill should provide for adequate funding of the Information Commission in view of its duties to provide education and information promoting the goals of the legislation.

ARTICLE 19 believes that adopting these and other recommendations highlighted in the analysis will significantly improve the Draft Bill and will contribute to better implementation of Kenya's international human rights obligations. We urge the Government of Kenya to support this legislation and ensure it is enacted in line with these revisions. ARTICLE 19 also calls on the state authorities and other stakeholders to promote freedom of information principles and public understanding of this important legislation.

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