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Kenyan court's interpretation of "citizens" limits access to information

ARTICLE 19 welcomes a High Court decision that citizens have the right to access the information held by public and state owned corporations, but is highly concerned by the court's continued narrow interpretation of "citizens" that would prevent NGOs, media organisations, and informal associations from making requests.

"This ruling is important for its recognition of citizens' constitutional right to information, and as a result, citizens will be more emboldened to seek information from public and state owned corporations, which have long operated in secrecy. The ruling is important in providing interpretations to the scope and application of the right to access information – as it applies to state owned companies – and has underscored the urgent need for the Kenyan parliament [to] pass the Freedom of Information legislation,” said Henry Maina, Director Article 19 Eastern Africa.

"However, the court's narrow interpretation of 'citizens' could prove [to be] a limitation on the application of access to information rights by legal entities in the future," Maina added.

The case was brought under Article 35 of the Kenyan Constitution by the legal periodical, Nairobi Law Monthly, and was supported by ARTICLE 19 after the Kenya Electricity Generating Company Limited, a substantially state owned company and Edward Njoroge, its managing director, had refused to publish information.

In her decision, the judge ruled that the company, which qualified as a public corporation due to its 70 per cent public shareholding, is required to provide access to information to citizens in an expedient and efficient manner, and should, in doing so, apply the principle of maximum disclosure. The ruling directed that in accordance with the principles of the right to information, it is incumbent on the public corporation to justify why it should not disclose information if they refuse to do so.

She also called on the government to enact the draft Freedom of Information Bill.

However, the Nairobi Law Monthly lost the case because the court ruled that according to the Kenyan constitution, it does not have the legal status of “citizen” and cannot therefore request the information in question.

The Kenyan constitution limits the definition of a citizen to natural persons only, which does not include NGOs and other civil society groups that – in most countries worldwide – are able to request information. The draft Freedom of Information Bill also limits the right to Kenyan citizens, and this case sets a prohibitive precedent that it is feared will limit the scope of the new bill, too.

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