Kenya
Name of law: The Access to Information Act, 2016
First adopted: 2016
Last modified: 2016-09
RTI Rating last updated: 2016-09
First adopted: 2016
Last modified: 2016-09
RTI Rating last updated: 2016-09
Introduction
Kenya boasts one of many strong RTI laws that have emerged in Africa recently, backed up by very strong constitutional guarantees. Strengths include the laws near-perfect scope, and a strong and independent administrative oversight body with sufficient powers to do its work. There are also strong procedures, albeit no requirement to provide a receipt or waivers for impecunious requesters. Most of the exceptions protect legitimate interests, are harm-tested and are subject to a public interest override, although secrecy laws are preserved. There are also reasonably robust but protections and sanctions, and a fairly comprehensive set of promotional measures.
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 4 | 6 |
| 2 | Scope | 29 | 30 |
| 3 | Requesting Procedures | 19 | 30 |
| 4 | Exceptions & Refusal | 19 | 30 |
| 5 | Appeals | 24 | 30 |
| 6 | Sanctions & Protections | 6 | 8 |
| 7 | Promotional Measures | 12 | 16 |
| ∑ = 113 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | YES | 2 | [Constitution] Article 35(1) Every citizen has the right of access to - (a) information held by the State; and (b) information held by another person and required for the exercise or protection of any right or fundamental freedom. (2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person. (3) The State shall publish and publicise any important information affecting the nation. | |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | 4(4) This Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6. | |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | NO | 0 | 3 The object and purpose of this Act is to (a) give effect to the right of access to information by citizens as provided under Article 35 of the Constitution; (b) provide a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles; (c) provide a framework to facilitate access to information held by private bodies in compliance with any right protected by the Constitution and any other law; (d) promote routine and systematic information disclosure by public entities and private bodies on constitutional principles relating to accountability, transparency and public participation and access to information; (e) provide for the protection of persons who disclose information of public interest in good faith; and (f) provide a framework to facilitate public education on the right to access information under this Act. | |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | Partially | 1 | 2 [...] citizen - means any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens. 4(1) Subject to this Act and any other written law, every citizen has the right of access to information held by - [...] | |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | YES | 4 | 2 [...] "information" includes all records held by a public entity or a private body, regardless of the form in which the information is stored, its source or the date of production; [...] "public record" includes any record in written or any other form containing information relating to the conduct of the public entity's business, prepared, owned, used or retained by a public entity regardless of physical form or characteristics; [...] | |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | 2 [...] "information" includes all records held by a public entity or a private body, regardless of the form in which the information is stored, its source or the date of production; [...] "public record" includes any record in written or any other form containing information relating to the conduct of the public entity's business, prepared, owned, used or retained by a public entity regardless of physical form or characteristics; [...] | |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | YES | 8 | 2 [...] "public entity" means - (a) any public office, as defined in Article 260 of the Constitution; or (b) any entity performing a function within a commission, office, agency or other body established under the Constitution; [...]. [Constitution] 260. "public office" means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; [...] | |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | YES | 4 | 2 [...] "public entity" means - (a) any public office, as defined in Article 260 of the Constitution; or (b) any entity performing a function within a commission, office, agency or other body established under the Constitution; [...]. [Constitution] 260. "public office" means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; [...] | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | YES | 4 | 2 [...] "public entity" means - (a) any public office, as defined in Article 260 of the Constitution; or (b) any entity performing a function within a commission, office, agency or other body established under the Constitution; [...]. [Constitution] Article 260. "public office" means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; [...] | |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | 2 [...] "public entity" means - (a) any public office, as defined in Article 260 of the Constitution; or (b) any entity performing a function within a commission, office, agency or other body established under the Constitution; [...]. [Constitution] Article 260. "public office" means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; [...] | |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | 2 [...] "public entity" means - (a) any public office, as defined in Article 260 of the Constitution; or (b) any entity performing a function within a commission, office, agency or other body established under the Constitution; [...]. [Constitution] Article 260. "public office" means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; [...] | |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | YES | 2 | 2 [...] "private body\" means any private entity or non-state actor that - (a) receives public resources and benefits, utilizes public funds, engages in public functions, provides public services, has exclusive contracts to exploit natural resources (with regard to said funds, functions, services or resources); or (b) is in possession of information which is of significant public interest due to its relation to the protection of human rights, the environment or public health and safety, or to exposure of corruption or illegal actions or where the release of the information may assist in exercising or protecting any right; [...] | |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | NO | 2 | 4(2) Subject to this Act, every citizen's right to access information is not affected by - (a) any reason the person gives for seeking access; or (b) the public entity's belief as to what are the person's reasons for seeking access. | |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | YES | 2 | 4(2) Subject to this Act, every citizen's right to access information is not affected by - (a) any reason the person gives for seeking access; or (b) the public entity's belief as to what are the person's reasons for seeking access. | |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | YES | 2 | 8(1) An application to access information shall be made in writing in English or Kiswahili and the applicant shall provide details and sufficient particulars for the public officer or any other official to understand what information is being requested. [...] (4) an application to access information, but any such form shall not be such as to unreasonably delay requests or place an undue burden upon applicants and no application may be rejected on the ground only that the applicant has not used the prescribed form. | |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | YES | 2 | 8(2) Where an applicant is unable to make a written request for access to information in accordance with subsection (1) because of illiteracy or disability, the information officer shall take the necessary steps to ensure that the applicant makes a request in manner that meets their needs. (3) The information officer shall reduce to writing, in a prescribed form the request made under subsection (2) and the information officer shall then furnish the applicant with a copy of the written request. | |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | 10(1) An information access officer may, not later than five days from the date of receipt of an application, transfer the application or any relevant part of it, to another public entity, if the information requested is held by that other public entity. (2) Where an application is transferred under subsection (1), an information access officer shall inform the applicant immediately but in any event not later than seven days from the date of receipt of the application, about such transfer. (3) A public entity to which an application is referred by an information access officer under subsection (1) shall make a decision on the application within twenty-one days from the date that the application was first made. (4) The provisions of this section shall apply with the necessary modification to an application for access to information that is made to a private body to which this Act applies. | A mechanism for transfers exists, but it does not appear to be mandatory. |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | YES | 2 | 11(3) Any information to be made accessible to an applicant shall be produced forthwith at the place where it is kept, for inspection in the form in which it is held unless the applicant requests that it be made available in another form and, if it is practicable to do so, such information may be copied, reproduced or used for conversion to a sound transmission at the expense of the applicant. | |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | YES | 2 | 9(1) Subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty one days of receipt of the application [...] | |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | 9(1) Subject to section 10, a public officer shall make a decision on an application as soon as possible, but in any event, within twenty one days of receipt of the application. (2) Where the information sought concerns the life or liberty of a person, the information officer shall provide the information within forty-eight hours of the receipt of the application. | |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | Partially | 1 | 9(3) The information officer to whom a request is made under subsection (2) may extend the period for response on a single occasion for a period of not more than fourteen days if - (a) the request is for a large amount of information or requires a search through a large amount of information and meeting the stipulated time would unreasonably interfere with the activities of the information holder; or (b) consultations are necessary so as to comply with the request and the consultations cannot be reasonably completed within the stipulated time. | No requirement for notification or reasons. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | 12(1) No fee may be levied in relation to the submission of an application. | |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | YES | 2 | 12(2) A public entity or private body from which an application for access to information has been made may charge a prescribed fee for the provision of the information and the fee shall not exceed the actual costs of making copies of such information and if applicable, supplying them to the applicant. (3) Subject to subsection (2), the Cabinet Secretary shall make regulations prescribing the fees payable for expenses incurred in providing information to an applicant. | |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | NO | 0 | N/A | Not mentioned. |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | NO | 0 | 28(10) A person to whom information is disclosed under this Act, conveys that information to others but who alters the information, or conceals part of the information or misrepresents the information, with intent to deceive, commits an offence, and is liable on conviction to fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding one year, or to both. | |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | NO | 0 | N/A | This is not specifically mentioned in the law, though it does amend some related legislation, notably the Official Secrets Act. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 9 | 6(1) Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to: (a) undermine the national security of Kenya; (b) impede the due process of law; (c) endanger the safety, health or life of any person; (d) involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made; (e) substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained; (f) cause substantial harm to the ability of the Government to manage the economy of Kenya; (g) significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration; (h) damage a public entity's position in any actual or contemplated legal proceedings; or (i) infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession. | "Professional confidentiality" is a bit over broad, as it could include, for example, veterinary confidentiality, as currently worded. |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | YES | 4 | 6(1) Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to: (a) undermine the national security of Kenya; (b) impede the due process of law; (c) endanger the safety, health or life of any person; (d) involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made; (e) substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained; (f) cause substantial harm to the ability of the Government to manage the economy of Kenya; (g) significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration; (h) damage a public entity's position in any actual or contemplated legal proceedings; or (i) infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession. | |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | Partially | 3 | 6(3) Subsection (1)(d) and (e) shall not apply if a request for information relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk. (4) Despite anything contained in subsections (1) and (2), a public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harm to protected interests as shall be determined by a Court. [...] (6) In considering the public interest referred in subsection (4), particular regard shall be had to the constitutional principles on the need to - (a) promote accountability of public entities to the public; (b) ensure that the expenditure of public funds is subject to effective oversight; (c) promote informed debate on issues of public interest ; (d) keep the public adequately informed about the existence of any danger to public health or safety or to the environment; and (e) ensure that any statutory authority with regulatory responsibilities is adequately discharging its functions. | A fairly strong override, but a point was deducted for the fact that the public interest test appears to only be conducted at the level of judicial review. |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | 6(1)(g) significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration; [...] (7) Unless the contrary is proved by the public entity or private body, information is presumed not to be exempt if the information has been held for a period exceeding thirty years. | |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | NO | 0 | N/A | Not mentioned. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | NO | 0 | N/A | Not mentioned. |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | 9(4) As soon as the information access officer has made a decision as to whether to provide access to information, he or she shall immediately communicate the decision to the requester, indicating - (a) whether or not the public entity or private body holds the information sought; (b) whether the request for information is approved; (c) if the request is declined the reasons for making that decision, including the basis for deciding that the information sought is exempt, unless the reasons themselves would be exempt information; and (d) if the request is declined, a statement about how the requester may appeal to the Commission; [...] | |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | 14(1) Subject to subsection (2), an applicant may apply in writing to the Commission [on Administrative Justice] requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information [...] | |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | YES | 2 | [Commission on Administrative Justice Act, 2011] Article 11(1) The President shall, within fourteen days of the commencement of this Act convene a selection panel for the purpose of selecting suitable candidates for appointment as the chairperson or member of the Commission. (2) The selection panel convened under subsection (1) shall consist of one person from each of the following bodies representatively - (a) Office of the President; (b) Office of the Prime Minister; (c) Ministry responsible for matters relating to justice; (d) Public Service Commission; (e) the Association of Professional Societies in East Africa; and (f) the National Council for Persons with Disabilities. (3) The selection panel shall, subject to this section, determine its own procedure and the Ministry responsible for Public Service shall provide it with such facilities and other support as it may require for the discharge of its functions. (4) The selection panel shall, within seven days of its convening, invite applications from qualified persons and publish the names and qualifications of all applicants in the Gazette and two daily newspapers of national circulation. (5) The selection panel shall, within seven days of receipt of applications under subsection (4), consider the applications, interview and shortlist at least three persons qualified for appointment as chairperson and five persons qualified for appointment as members of the Commission, and shall forward the names of the selected candidates to the President for nomination. (6) Until after the first general election after the commencement of this Act, the President in consultation with the Prime Minister shall, within seven days of receipt of the names forwarded under subsection (5), nominate one person for appointment as chairperson and two persons for appointment as members of the Commission, and shall forward the names of the persons nominated to the National Assembly. (7) The National Assembly shall, within twenty-one days of the day it next sits after receipt of the names of the nominees under subsection (6), consider all the nominations received and approve or reject any nomination. (8) Where the National Assembly approves the nominees, the Speaker shall, forward the names of the approved persons to the President for appointment. (9) The President shall, within seven days of the receipt of the approved nominees from the National Assembly, by notice in the Gazette, appoint the chairperson and members approved by the National Assembly. (10) Where the National Assembly rejects any nomination, the Speaker shall, within three days, communicate the decision of the National Assembly to the President to submit fresh nominations. (11) Where a nominee is rejected by Parliament under subsection (10), the President in consultation with the Prime Minister shall, within seven days, submit to the National Assembly a fresh nomination from amongst the persons shortlisted and forwarded by the selection panel under subsection (5). (12) If Parliament rejects all or any subsequent nominee submitted by the President for approval under subsection (11), the provisions of subsections (5) and (6) shall apply. (13) In shortlisting, nominating or appointing persons as chairperson and members of the Commission, the selection panel the National Assembly and the President shall ensure that not more than two-thirds of the members are of the same gender, shall observe the principle of gender equity, regional and ethnic balance and shall have due regard to the principle of equal opportunities for persons with disabilities. (14) After the first elections after the commencement of this Act, the member of the selection panel specified under subsection (2)(b) shall be replaced by a representative of the Public Service Commission. (15) Despite the foregoing provisions of this section, the President, in consultation with the Prime Minister may, by notice in the Gazette, extend the period specified in respect of any matter under this section by a period not exceeding twenty-one days. (16) Removal from office The chairperson or member of the Commission may be removed from office in accordance with Article 251 of the Constitution. [Constitution] Article 251(1) A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for - (a) serious violation of this Constitution or any other law, including a contravention of Chapter Six; (b) gross misconduct, whether in the performance of the member's or office holder's functions or otherwise; (c) physical or mental incapacity to perform the functions of office; (d) incompetence; or (e) bankruptcy. (2) A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground. (3) The National Assembly shall consider the petition and, if it is satisfied that it discloses a ground under clause (1), shall send the petition to the President. (4) On receiving a petition under clause (3), the President - (a) may suspend the member or office holder pending the outcome of the complaint; and (b) shall appoint a tribunal in accordance with clause (5). (5) The tribunal shall consist of - (a) a person who holds or has held office as a judge of a superior court, who shall be the chairperson; (b) at least two persons who are qualified to be appointed as High Court judges; and (c) one other member who is qualified to assess the facts in respect of the particular ground for removal. (6) The tribunal shall investigate the matter expeditiously, report on the facts and make a binding recommendation to the President, who shall act in accordance with the recommendation within thirty days. (7) A person suspended under this Article is entitled to continue to receive one-half of the remuneration and benefits of the office while suspended. | |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | YES | 2 | [Commission on Administrative Justice Act, 2011] Article 45. The funds of the Commission shall consist of - (a) monies allocated by Parliament for the purposes of the Commission; (b) such monies or assets as may accrue to the Commission in the course of the exercise of its powers or in the performance of its functions under this Act; and (c) all monies from any other source provided, donated or lent to the Commission. [...] Article 48(1) The Commission shall cause to be kept all proper books and records of account of the income, expenditure, assets and liabilities of the Commission. (2) Within a period of three months after the end of each financial year, the Commission shall submit to the Auditor-General the accounts of the Commission in respect of that year together with a - (a) statement of the income and expenditure of the Commission during that year; and (b) statement of the assets and liabilities of the Commission on the last day of that financial year. (3) The annual accounts of the Commission shall be prepared, audited and reported upon in accordance with the provisions of Articles 226 and 229 of the Constitution and the Public Audit Act, 2003 (No. 12 of 2003). [...] Article 53(1) The report of the Commission under Article 254 of the Constitution shall, in respect of the financial year to which it relates, contain - (a) the financial statements of the Commission; (b) a description of the activities the Commission; (c) recommendations on specific actions to be taken in furtherance of the findings of the Commission; (d) recommendations on legal and administrative measures to address specific concerns identified by the Commission; and (e) any other information relating to its functions that the Commission considers relevant. (2) The Commission shall publish the report in the Gazette and in at least one newspaper with national circulation. (3) The President, the National Assembly or the Senate may at any time require the Commission to submit a report on a particular issue. Article 54(1) The Cabinet Secretary shall, prepare an annual report and submit the report to Parliament in accordance with Article 153(4)(b) of the Constitution. (2) Where any of the recommendations contained in a report submitted under subsection (1) have not been implemented, the Cabinet Secretary shall report to Parliament the reasons therefor. Article 55. Parliament shall, upon expiry of five years from the date of commencement of this Act, and pursuant to Article 59(4) of the Constitution, review the mandate of the Commission with a view to amalgamating the Commission with the commission responsible for human rights. | |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | Partially | 1 | [Commission on Administrative Justice Act, 2011] Article 10(1) A person shall be qualified for appointment as the chairperson of the Commission if the person - (a) has knowledge and at least fifteen years experience in matters relating to human rights, law, conflict resolution, arbitration or administrative justice; (b) holds a degree from a university recognized in Kenya; and (c) meets the requirements of Chapter Six of the Constitution. (2) A person shall be qualified for appointment as a member of the Commission if the person - (a) holds a degree from a university recognized in Kenya; (b) has knowledge and at least ten years' experience in matters relating to any of the following fields - (i) law; (ii) public administration; (iii) economics or finance; (iv) gender and social development; (v) human rights; (vi) conflict resolution; (vii) management; or (viii) social sciences; (c) has had a distinguished career in their respective fields; and (d) meets the requirements of Chapter Six of the Constitution. (3) A person shall not be qualified for appointment as the chairperson or a member of the Commission if such person - (a) is a member of Parliament or a County Assembly; (b) is a member of the governing body of a political party; (c) is a member of a local authority; (d) is an undischarged bankrupt; or (e) has been removed from office for contravening the provisions of the Constitution or any other law. | Requirement that members cannot be part of the governing body of a political party is not quite strong enough for full points here. |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | YES | 2 | Article 23(1) In the performance of its functions under this Act, the Commission shall have the power to - (a) issue summonses or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission; (b) question any person in respect of any subject matter under investigation before the Commission; and (c) require any person to disclose any information within such person's knowledge relevant to any investigation by the Commission. [Commission on Administrative Justice Act, 2011] Article 26. In addition to the powers conferred in Article 252 of the Constitution, the Commission shall have power to [...] (d) obtain, by any lawful means, any information it considers relevant, including requisition of reports, records, documents and any information from any person, including governmental authorities, and to compel the production of such information for the proper discharge of its functions; (e) by order of the court, enter upon any establishment or premises, and to enter upon any land or premises for any purpose material to the fulfilment of the mandate of the Commission and in particular, for the purpose of obtaining information, inspecting any property or taking copies of any documents, and for safeguarding any such property or document; [...] | |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | Article 21(3) The decisions of the Commission shall be binding on the national and county governments. | |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | Article 23(2) The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order - (a) the release of any information withheld unlawfully; (b) a recommendation for the payment of compensation; or (c) any other lawful remedy or redress. | |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | Article 23(3) A person who is not satisfied with an order made by the Commission under subsection (2) may appeal to the High Court within twenty-one days from the date the order was made. (4) An order of the Commission under subsection (2) may be filed in the High Court by any party thereto in such manner as the Commission may, in regulations made in consultation with the Chief Justice, prescribe and such party shall give written notice of the filing of the order to all other parties within thirty days of the date of the filing of the order. | |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | Article 22(1) A person wishing to lodge a complaint under this Act shall do so orally or in writing to the secretary or such other person as may be duly authorized by the Commission for that purpose. (2) A complaint lodged under subsection (1) shall be in such form and contain such particulars as the Commission may, from time to time, prescribe. | |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | Article 14(1) Subject to subsection (2), an applicant may apply in writing to the Commission requesting a review of any of the following decisions of a public entity or private body in relation to a request for access to information - (a) a decision refusing to grant access to the information applied for; (b) a decision granting access to information in edited form; (c) a decision purporting to grant access, but not actually granting the access in accordance with an application; (d) a decision to defer providing the access to information; (e) a decision relating to imposition of a fee or the amount of the fee; (f) a decision relating to the remission of a prescribed application fee; (g) a decision to grant access to information only to a specified person; or (h) a decision refusing to correct, update or annotate a record of personal information in accordance with an application made under section 13. | |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | Partially | 1 | Article 22(1) A person wishing to lodge a complaint under this Act shall do so orally or in writing to the secretary or such other person as may be duly authorized by the Commission for that purpose. (2) A complaint lodged under subsection (1) shall be in such form and contain such particulars as the Commission may, from time to time, prescribe. (3) Upon receipt of a complaint under subsection (1), the Commission may - (a) call for information or a report regarding such complaint from the public entity or any other body within such reasonable time as may be specified by the Commission and - (i) if the information or report called for is not received within the time stipulated by the Commission, the Commission may proceed to inquire into the complaint without such information or report; and (ii) if on receipt of the information or report the Commission is satisfied either that no further action is required or that the required action has been initiated by the public entity, the Commission shall, in writing, inform the complainant accordingly and take no further action; or (b) without prejudice to paragraph (a), initiate such inquiry as it considers necessary, having regard to the nature of the complaint. | Clear procedures - no mention of timelines. |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | NO | 0 | N/A | Not mentioned. |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | YES | 2 | Article 23(2) The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order - (a) the release of any information withheld unlawfully; (b) a recommendation for the payment of compensation; or (c) any other lawful remedy or redress. | |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | YES | 2 | Article 18(1) Where an application to access information has been made to a public entity under section 8 and the applicant would have been entitled, subject to payment of any fee, to provision of any information in accordance with that section, any person to whom this section applies commits an offence if he alters, defaces, blocks, erases, destroys or conceals any record held by the public entity, with the intention of preventing the disclosure by that entity of all, or any part, of the information provision of which the applicant would have been entitled. (2) Subsection (1) applies to the public entity and to any person who, is employed by, is an officer of, or is subject to the direction of, the public entity. (3) A person convicted of an offence under subsection (1) shall be liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year, or to both. [...] Article 28(3) An information access officer who - (a) refuses to assist a requester who is unable to write to reduce the oral request to writing in the prescribed form and provide a copy to the applicant in accordance with section 8(2); (b) refuses to accept a request for information; (c) fails to respond to a request for information within the prescribed time; or (d) fails to comply with the duty to take reasonable steps to make information available in a form that is capable of being read, viewed or heard by a requester with disability in accordance with section 11(3), commits an offence and is liable, on conviction, to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or both. (4) Any person who - (a) charges a fee exceeding the actual costs of making copies of such information and supplying them to the applicant; (b) fails to respond to a request for information required for the exercise or protection of a right in accordance with the requirements of this Act; (c) fails to respond to a request to correct personal information; or (d) it having been ascertained that information held is out of date, inaccurate or incomplete, fails within the prescribed time, or within a reasonable time if no time is prescribed, to correct, destroy or delete the information, or to attach a statement to the information in accordance with section 13, commits an offence and is liable, on conviction, to a fine not exceeding one hundred thousand shillings, or imprisonment for a term not exceeding six months, or both. (5) Any person who is convicted of an offence under section 18(3) after a request has been made for disclosure of the information in question, with the intention of preventing the disclosure of that information in response to that request is liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both. (6) Any relevant private body that fails to make publicly available the name and contact details of its information access officer or officers commits and offence and is liable on conviction to a fine not exceeding five hundred thousand shillings. (7) Any relevant private body that is convicted, or any officer of which is convicted of an offence under this Act, or which, although not convicted is in serious breach of this Act may, after a fair hearing, be debarred from entering into any future contract with government under the laws relating to matters of procurement and disposal. | |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | YES | 2 | Article 19. Where any information provided by a public entity or private body to an applicant under section 11 was supplied to the public entity or private body by a third person, the publication to the applicant of any defamatory matter contained in the information shall be privileged unless the publication is shown to have been made with malice. [...] Article 28(1) Any person who knowingly discloses exempt information in contravention of this Act commits an offence and is liable, on conviction, to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding three years, or both. [...] (9) A person shall not be criminally liable for the disclosure or authorisation of the disclosure made in good faith in reliance on this Act. [Commission on Administrative Justice Act, 2011] Article 25. No matter or thing done by a member of the Commission or any officer, employee or agent of the Commission shall, if the matter or thing is done in good faith while executing the functions, powers or duties of the Commission, render the member, officer, employee or agent personally liable for any action, claim or demand whatsoever. | |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | YES | 2 | Article 16(1) A person shall not be penalized in relation to any employment, profession, voluntary work, contract, membership of an organization, the holding of an office or in any other way, as a result of having made or proposed to make a disclosure of information which the person obtained in confidence in the course of that activity, if the disclosure is of public interest. (2) For purposes of subsection (1), a disclosure which is made to a law enforcement agency or to an appropriate public entity shall be deemed to be made in the public interest. (3) A person shall make a disclosure under subsection (1) or (2) where such person has reasonable belief in the veracity of the information. (4) Any person who provides false information maliciously intended to injure another person commits an offence and is liable, on conviction, to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both. (5) Disclosure of information under subsection (1) and (2) includes information on - (a) violations of the law, including human rights violations; (b) mismanagement of funds; (c) conflict of interest; (d) corruption; (e) abuse of public office; and (f) dangers of public health, safety and the environment. (6) For the purpose of this section, a person is penalized if the person is dismissed, discriminated against, made the subject of reprisal or other form of adverse treatment or is denied any appointment, promotion or advantage that otherwise would have been provided or any other personnel action provided under the law relating to whistle blower, and the imposition of any such penalty in contravention of this section shall be actionable as a tort. (7) Any term of any settlement arising from a claim under this section, insofar as it purports to impose an obligation of confidentiality on any party to the settlement in respect of information which is accurate and which was or was proposed to be disclosed, shall be unenforceable. (8) In any proceedings for an offence for contravention of any statutory prohibition or restriction on the disclosure of information, it shall be a defence to show that - (a) in the circumstances, the disclosure was in the public interest; and (b) where the offence is alleged to have been committed by a public officer or Government contractor and involves the disclosure of information obtained by the person in the person's position as such, the defendant had, before making the disclosure, complied with the provisions of subsection (3). | |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 7(1) A chief executive officer of a public entity shall be an information access officer for purposes of this Act. (2) A chief executive officer of a public entity may delegate the performance of his or her duties as an information access officer under this Act to any officer of the public entity. | |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 21(1) The functions of the Commission shall be to - [...] (d) work with public entities to promote the right to access to information and work with other regulatory bodies on promotion and compliance with data protection measures in terms of legislation; [...] (h) perform such other functions as the Commission may consider necessary for the promotion of access to information and promotion of data protection. | |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 21(1) The functions of the Commission shall be to - [...] (c) develop and facilitate public education awareness and develop programmes on right to access to information and right to protection of personal data; [...] | |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 17(1) In this section, "records" means documents or other sources of information compiled, recorded or stored in written form or in any other manner and includes electronic records. (2) Every public entity shall keep and maintain - (a) records that are accurate, authentic, have integrity and useable; and (b) its records in a manner which facilitates the right of access to information as provided for in this Act. (3) At a minimum, to qualify to have complied with the duty to keep and maintain records under subsection (2), every public entity shall - (a) create and preserve such records as are necessary to document adequately its policies, decisions, procedures, transactions and other activities it undertakes pertinent to the implementation of its mandate; (b) ensure that records in its custody, including those held in electronic form, are maintained in good order and condition; and (c) not later than three years from the date from which this Act begins to apply to it, computerize its records and information management systems in order to facilitate more efficient access to information. [...] Article 25(1) The Cabinet Secretary may, in consultation with the Commission, make regulations, prescribing anything required by this Act to be prescribed or generally for the better carrying into effect the provisions of this Act. (2) Without prejudice to the generality of subsection (1), the regulations may provide for: [...] (e) the measures to be taken by public entities to ensure that adequate records are created and maintained by the entities; [...] | |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 27. On or before the 30th day of June of each year, every public entity shall submit to the Commission a report covering the preceding year, which shall include - (a) the number of requests for information received by the entity and the number of requests processed; (b) the number of determinations made by the authority not to comply with the requests for information under section 8, and the main grounds for such determinations; (c) the average number of days taken by the entity to process different types of requests; (d) the total amount of fees collected by the public entity while processing requests; and (e) the number of full-time staff of the public entity devoted to processing requests for information and the total amount expended by the entity for processing such requests. | |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 26(1) The Commission shall submit an annual report to Parliament and may, at any time, submit special reports to the Cabinet Secretary on any matter relating to any of its functions. (2) The annual report submitted by the Commission under subsection (1) shall include an overall assessment by the Commission of the performance of the Government with regard to access to information during the period under review. (3) The Cabinet Secretary shall lay the annual report of the Commission before Parliament within two months of receipt thereof, with any comments thereon which the Cabinet Secretary considers necessary. (4) The Cabinet Secretary shall be required, in every year, to report to Parliament the steps which the Government has taken in implementing recommendations made in the Commission's reports. |
