23 March 2012

Kenyan courts begin to outline scope of constitutional right to information

The courts of Kenya have recently decided one case, and will soon be dealing with another, that require them to outline the content of the right to information as provided for in section 35 of the 2010 Constitution.

In Family Care Ltd v Public Procurement Administrative Board (Family Care), Kenya's High Court recently held that the constitutional right to information is reserved for Kenyan "citizens" and may not be exercised by other entities or persons such as corporations or foreigners.

The Family Care case dealt with a request for information by an Indian company for access to documents from two Kenyan government agencies in relation to a contract award. The court pointed out that "the right is only available to a Kenyan citizen." It contrasted the right to information to other rights which are available to "every person". The court found that the right to information is limited by reference to the scope of persons who can enjoy it. It follows that there must be a distinction between the term "person" and "citizen." According to the court "Persons" may be companies, but "citizens" refers to natural persons.

An additional case, Nairobi Law Monthly Company Limited (petitioner) v. KENGEN & Edward Njoroge, has been filed with the courts, but has not yet been heard. It raises other important issues relevant to Kenya's constitutional right to information. In this case, Nairobi Law Monthly sought records relating to contracts entered into by Kenya's Electricity Generating Company (KENGEN) with foreign companies.

Nairobi Law Monthly had published an article in which it asserted that the transactions with foreign entities were fraudulent and corrupt and that the documents could reveal that Kenyans have been overpaying billions of shillings in tax as a result of KENGEN's wrongdoings. This case should shed significant light on the extent to which the Constitution permits public access to the agreements of private companies. It will also examine whether the public interest can influence the release of documents, given that the requester insists that the documents will reveal corruption.

These two cases are particularly important given that Kenya does not currently have a legal regime governing access to information, although work on such a law is currently underway. In the absence of a law that governs the issue of access to information, the Court's decision will be guided solely by its interpretation of the constitutional provision providing the right to information. Before these two cases, little direction has been provided by the courts on the scope of the right, which only serves to amplify their impact.