Is the judiciary the weakest link in the fight against corruption?

In the recent times the Judiciary of Kenya has been on the spotlight in its role in the fight against corruption. There is a general public argument that the judiciary has been slacking in this area and worse accused of being a puppet that is controlled by the people and authorities in power. So, is the judiciary the weakest link?

The judiciary has played a critical role by upholding and protecting the principles and purposes of the Constitution of Kenya. Failing to perform this mandate as required by the people of Kenya would be the first step in failing in the fight against corruption. In this regard it has not failed and has tirelessly upheld the rule of law in our nation despite the fierce forces that have come against it and threatened it.

First and foremost, it is vital to understand the judiciary does not operate on its own accord. In Article 159(1) of the Constitution of Kenya,2010, we see the judiciary’s power to perform its mandate is derived from the people of Kenya. The judiciary is required by the people of Kenya to uphold the rule of law and protect the principles and purposes of the Constitution of Kenya as it expresses our desires and rights as a people.

To ensure it performs its mandate efficiently without interference or control by others, the Constitution grants the judiciary absolute independence from the other arms of government and other influences in Article 160 of the Constitution of Kenya. The judiciary must therefore follow the due process of law without fear or favour as mandated by the Constitution.

Essentially the judiciary is expected to administer justice in our nation through the court system in place. In taking on an active role to join the fight against corruption, the judiciary has created specialized courts for this. The courts are namely the Anti-Corruption Magistrate’s courts and the High Court Anti-corruption and Economics Crimes Division. These courts have extended working hours and active cases management systems to ensure the cases are heard and dealt with in a timely fashion.

Despite this great strides and other programs to improve the quality of administration of justice, we cannot turn a blind eye to some of the challenges the judiciary has faced in this fight. These challenges have made the judiciary be termed as the weak link yet some are completely independent of the Judiciary. Some of the challenges are:

1. Insufficient funding for its operations;
2. Corrupt cartels in courts that manipulate cases;
3. Backlog of cases in courts due to lack of exploitation of alternative forms or dispute resolution by litigants; and last but not least,
4. A general lack of understanding and appreciation of the court realities on the ground by people. For example; delaying tactics employed by both clients and advocates during the trial process. A vivid reality that I have faced while handling court cases.

The war against corruption is a cancer that plagues the whole nation. The burden and responsibility to fight it cannot be placed on a single player when the whole nation is involved in one way or another. The fight is further not going to be won by blaming one another or busying ourselves with the question ‘Who is the weakest link out of them all?’ At the end of the day all arms of government, institutions and people of Kenya are weak links if they fail to do their part in the fight against corruption.

In my opinion, the statement ‘the judiciary is the weakest link in the fight against corruption’ is a misconception and lack of appreciation of the realities of administrating justice in a nation. The judiciary is the bloodline in protecting the desires and rights of the people of Kenya.

Kenya Law in Environment and Public Participation

Last year i had the opportunity of representing the Kenya young lawyers at Eugene ,Oregon for the annual Environmental Law Alliance Worldwide (ELAW) conference and the Public Interest Environmental Law Conference (PIELC).

The following is an interview that i had with regards to Kenya’s Law on Environment and Public Participation on the Global Energy & Environmental Law Podcast with Professor Myanna Dellinger.

Podcast link:Kenya, Environment and Public Participation

Picture credit:en.wikipedia.org

CHRISTIAN LAWYERS

It is an interesting thing to be a Christian who is a lawyer. It’s even harder when people’s first comment when they meet you is “all lawyers are liars”. This is an obvious cliché’ with no truth but good luck trying to remove it from people’s lips.

What then does this mean for Christian lawyers who value their faith and are part of this tainted profession? Is it easier to join them since you cannot beat the larger group or choose to stand out and make the common man’s word change?

The truth of the matter is, it is very easy to be caught up in the same old practices that have given our profession a bad name. It’s been done for so long that it actually looks like the basic norm. How can a Christian lawyer live faithfully and stand out in our profession? Today I will share how a Christian lawyer can remain untainted by the “norm” of the legal field. Here goes:

1.THE MARKET PLACE, YOUR MINISTRY.

Matthew 5:13-16

“You are the salt of the earth. But if the salt should lose its taste, how can it be made salty? It’s no longer good for anything but to be thrown out and trampled on by men. You are the light of the world. A city situated on a hill cannot be hidden. No one lights a lamp and puts it under a basket, but rather on a lampstand, and it gives light for all who are in the house. In the same way, let your light shine before men, so that they may see your good works and give glory to your Father in heaven”

If all Christians were to remain in church all the days of their lives, who would ever take the gospel to the world? God in His wisdom, knew that we cannot all be pastors, praise and worship leaders, choir members and all that. Of the outside world He said “The harvest is plentiful, but the workers are few. Ask the Lord of the harvest, therefore, to send out workers into His harvest.” (Luke 10:2).He therefore thought of ways to reach out to all people and one was the marketplace.

In our various market places, the hospital, courtroom, kitchen, school, road, grocery shop and so much more we find our church where we become it’s minister. In order for Jesus to reach and rescue the world he had to penetrate it, he didn’t box himself inside the four walls of the synagogue.

When we understand this, we immediately know we are accountable to God for our market place as ministers of the Word of God through our lives, actions, business practices and how we handle our office.

How can we be ministers in the legal profession? 

Radiate Christ’s love,Don’t refuse to shine and Spread Christ’s influence.

For more: http://www.lifeway.com/Article/sermon-mission-marketplace-city-hill-salt-light-matthew-5

2.WHO DO YOU ANSWER TO IN THE LEGAL PROFESSION?

If I was to ask fellow learned counsels who they answer to in the legal profession, I would get varied answers as they would range from the law society of Kenya, to myself if one owns a law firm, to a company where employed and maybe a few more interesting ones.

Well, as for the Christians in our profession, the answers above are a no no! Ever considered this words:

“…Whoever does not TAKE UP THEIR CROSS and follow me is not worthy of me. Whoever finds their life will lose it, and whoever loses their life for my sake will find it.” (Matthew 10:38-39).

How many of us love to bring out the Christianity card when it is convenient? Many people do not want to look too Godly before their peers, some of which are their seniors and even seek their approval.Most of the rimes we do care more of what our peers would think of us rather than what God requires of us.

But what does Jesus tell us in the verse above? We must take up our cross every day and follow Him. This is in spite of what others would say or think of us. The rich young ruler was not ready to lose it all and must have thought of being called foolish for his decision amongst his peers and so walked away from Jesus sad(Matthew 19:16–23) .Taking up our cross every day is tough and yet this is what is required of us every single day.

Take a simple example of using office resources for your own personal benefit, how about giving that Kshs.500 to the prison guard so as to see your convict client, what of eating client’s money when you are not supposed to? What of treating you’re paying clients much better than your pro bono one’s? The list is endless. Yet this examples are an everyday normal.

Taking up our cross each day is not pleasant and most often than not will cost us dearly. We will truly look foolish before our peers but our solid witness for Jesus Christ will be respected by many even if not acknowledged. It is people’s true witness of Jesus Christ that led others to salvation and not their double lives.

If we then love our lives as legal practitioners more than we do our Lord Jesus Christ, we will lose it eventually. Our love for Jesus Christ and His way in our profession must reign supreme.

It is simple, WE ANSWER TO JESUS CHRIST in all our waking moments as Christian lawyers. Our everyday should be characterized by us asking the Lord’s will for our day as lawyers and not asking Him to fit in our busy schedule. It is all about Him in our work every day. All about Him and what He requires of us.

3.THE PURPOSEFUL WALK OF A CHRISTIAN LAWYER

Understanding therefore we have been called to be ministers in the legal profession and answer to Jesus Christ every single day, we then have to set our minds and purpose to live for Him every single day of our lives.

“But Daniel purposed in his heart that he would not defile himself with the portion of the king’s meat, nor with the wine which he drank: therefore he requested of the prince of the eunuchs that he might not defile himself.” (Daniel 1:8)

The thing about being purposeful is knowing you can choose not to but instead choose to do that thing. Daniel had a choice but purposed out of his own free will not to eat the meat.

Are we purposeful in our everyday walk with Jesus Christ as Christian lawyers? Do we purpose to please Him in each and every moment, being conscious that how we live our lives affects our witness for Him to everyone around us?

I thank God we don’t have to use our strength in all this for it is written “This is the word of the LORD to Zerubbabel (Christian lawyers) saying, not by might nor by power, but by My Spirit,’ says the LORD of hosts.” (Zechariah 4:6)

When we do so, the common man will have a new cliché’ to spread about the legal profession, “There are some lawyers with a difference and they are the Christian lawyers”.

Point to ponder

If today someone was to ask about your reputation at your work place would they acknowledge you are the light of that office and that many people admire your stand and true witness of Jesus Christ at the market place? Or would they laugh at the comical nature of such a statement in light of your character?

Seeking fellow Christians?

For all Christian lawyers seeking to have a fellowship with fellow Christians lawyers in the profession and don’t know where to begin, why not start here the Kenya Christian Lawyers Fellowship. KCLF brings together all born again lawyers in Kenya for fellowship and ministry.

Picture credit:www.chriastianlegalfellowship.org,www.findachristianlawfirm.com

 

ABOUT THIS LAW BLOG

When faced with a legal question or problem, many people don’t know where to start, why not start here?

One of the reasons that I started this law blog is the fact legal information is scarce if not limited. I remember before I became a lawyer how hard it was to access any kind of legal information let alone a person to offer this information. Sometimes it was not really a legal problem requiring a complex solution but just a legal question requiring an authentic answer. Drawing from this I understand the need for access to legal information and services to the common Kenyan and the reason I started this blog.

This blog first and foremost seeks to provide legal information on everyday legal issues. It is very important to note therefore, this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied.

This blog also intends to provide simple online and offline legal solutions that one may require such as legal representation, legal advice, legal opinions, legal services, legal research and writing, legal referrals, legal networking and legal aid to the people in need. This will be made possible by contacting us personally.

Off essence and close to my heart is making a difference in the society I live in by providing legal mentorship programs with concerted efforts of close associates and motivational talks to various institutions such as schools and churches.

This blog will make use of the following features to make the blog more interactive and useful to it’s readers:

1. How-to-guides on enforcing and defending individual rights.
2. Well research legal information on various topics.
3. Current trends and issues from a legal perspective.
4. Clear and easy to understand information on everyday legal issues.
5. Questions and answers segment.

All this will be delivered free of complex legal jargons and relatable manner for everyone to benefit from the information.

The main purpose of this blog is to provide excellent legal information and solutions to all those who interact with it.

If you have any questions on the content of this article, suggestions or feedback, please send us an email at advocateruthnzioka@gmail.com.

Picture credit: http://www.theregister.co.uk

Disclaimer:I hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied.

WHO IS LADY JUSTICE?

Many of us have seen the symbol of a lady famously referred to as lady justice. The real wonder for most has been what is she all about? Well, today I will highlight what her symbol means.

First and foremost, she is and has been used throughout the legal systems of the world as a representation of the principles of fairness and equity in the justice system. Our laws and law systems were derived in essence from her stories and ideals.

Who then is she and what is her importance?

Her name Lady Justice was originally known as the goddess Themis. In Greek Themis means ‘order’. She is approximately 4 feet in height and weighs about 90kgs. For  accessories  she’s  fashioned  in  concert  with  the  Roman  symbols  of Justicia. She has – a simple blindfold, – balance scales of a design of that day and – a common soldiers sword of the period.

HER SYMBOLS

She has three key features: the blindfold, sword and scales are the classic devices.

1.The scales represent that Lady Justice carefully weighs the claims of each side, that is the facts of the case. They are referred as the ‘scales of justice’. The Scales of Justice represents the balance of the individual against the needs of society and a fair balance between interests of one individual and those of another. Each scale presents a measure of evidence.

2.The sword represents the enforcement measures of Lady Justice. It means she stands ready to obligate faithfulness to her decision of reason and justice by both parties. The Sword of Justice is the active force, a symbol of power, protection, authority, vigilance and might. This double-edged sword in Justice’s left hand, recognizes the power of Reason and Justice, which may be wielded either for or against any party. It serves as a reminder of the necessity of real punishment, the power of the law, and ultimately, the power over life and death.

It is worthy to note she holds a sword that is oversized to her body proportion as the swords’ size symbolizes a very important facet of justice, respect. She barely holds the sword in her right hand but it is very closely positioned to her body. Thus she does not reign by fisted threat or fear of use of a weapon but instead she rules and openly exhibits she is prepared to get respect.

3.The blindfold represents blind justice and impartiality meaning decisions of objectivity and/or impartial. Justice should be administered objectively, without fear or favour, regardless of money, wealth, fame, power, or identity.

The blindfolds only became a fixture around the 15th century, and that is why in certain jurisdictions (like in front of the Old Bailey in England), Lady Justice appears without her blindfold.

Having this in mind, one would obviously want to question what is the situation in Kenya today? Is the symbolism depicted by lady justice followed in Kenya’s legal practice? The ball is in your court.

I hope you have found this post useful and insightful. If you have any questions suggestions or feedback, please send us an email at advocateruthnzioka@gmail.com

Picture credit:www.witf.org

DISCLAIMER:Please note that this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied.

 

 

 

PUBLIC INTEREST ENVIRONMENTAL LITIGATION

This refers to a branch of law that prevents, mitigates, remedies or compensates for harm done to the environment. The necessity lies in the rapid degradation of environment and the need of efficient environmental management. The right to defend the environment is usually provided for by the laws of each country, either constitutionally or by an Act of parliament. These laws will usually include a provision allowing “any person” to bring suit in court against “any person” who violates the statute. These law suits have many unique characteristics that distinguish them from typical civil litigation.

Usually in the common law countries, for one for one to file a suit, one must have locus standi. This becomes difficult to prove in environmental cases. However, this problem was resolved with the enactment of the Environmental Management and Coordination Act, No.8 of 1999.It spells out that every citizen has a right to bring an action to protect the environment and does away with the requirement of sufficient personal interest. The Constitution of Kenya, 2010 provides in Article 42 that every citizen has a right to a clean and healthy environment. It further provides in Article 70, where an environmental right is violated or is likely to, the person may apply to court for redress. Article 22(c) sums it up by stating that every person has a right to institute court proceedings claiming that a fundamental right has been violated in the interest of the public. All this simply means that anyone of us can bring an action in court with the interest of protecting our environment. An action can be brought for public interest litigation under the following:

1. Environmental degradation
2. Violation of basic human rights of the poor
3. Content or conduct of government policy
4. Compel municipal authorities to perform a public duty
5. Violation of religious rights or other basic fundamental rights

According to Bhagwati J. in Bandhua Mukti Morcha-Vs-Union of India, AIR 1984 S.C. “Public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice, which is the signature tune of our Constitution”.

Public interest litigation has been used as an effective tool to control acts of environmental degradation. In Uganda for example, civil societies have been active in compelling government and private organizations to observe measures to protect the environment. In TEAN Vs Ag and NEMA [Misc. Application No. 39 of 2001], court forced a tobacco company to increase the size of the cigarette warning on cigarette packs and advertisements; the court also held that public smoking pollutes the environment and is a danger to the health of non smokers. In India smoking was held to be a violation of the right to life of non-smokers inRamakrishnan and others Vs State of Kerala [AIR 1999 Kerala 385], while inEnviro-Legal Action Vs Union of India [1996] 2 LRC 226, the Indian supreme court held that uncontrolled pollution of water sources and air by industrial wastes was a threat to right to life.

Although a vital branch of law, people are yet to start using it as a tool to safeguard a clean and healthy environment. This can be attributed to the fact that though not a new concept, it is being made aware to the citizens, while for others it seems like an unrealistic venture and futile as gains one no personal benefits as seen in civil suits. Its uniqueness thus creates a number of challenges which i discuss briefly.

Non-justiability

First and foremost the some environmental cases have been held by American and Canadian courts as non-justiciable. This is tortious actions in nuisance concerning greenhouse gas emissions. Defendants to such climate change litigation have argued that courts lack subject matter jurisdiction to adjudicate the plaintiff’s claims as they raise non-justiciable political questions. Common law tort claims do not present non-justiciable political questions. The only issues are those inherent in the adjudication of the plaintiff’s common law tort claims. There is no federal constitutional statutory provision committing any of these issues to a federal political branch.

The issue of justiciability needs to be addressed by potential public interest litigants in the choice of the type and subject matter of the litigation. A wrong choice could doom the litigation from the start.

Willing and able plaintiffs

While there may be legal suits capable of being brought to prevent, harm to the environment, which are justiciable by the courts, citizens or citizen groups must be willing and able to bring them. Willingness is a product of not only enthusiasm and zeal for the environmental cause but also a cultural attitude. The cultural tradition of the country needs to support, and not impede citizen access to justice through legal suits. Public interest litigation is often a form of protest, challenging powerful interests in the government and the private sector.

Where protests and challenges to power are met with sanctions, citizens and citizen groups will be inhibited from taking public interest litigation. Hence, promotion of public interest litigation involves promotion of democratic principles of free speech and assembly, and access to justice.

Ability is a product of many factors, including knowledge and experience of the subject matter of the legal suit and of the substantive and procedural law governing the suit, the capacity to access sufficient and adequate human, financial and material resources to bring and maintain the suit, and personal attributes such as dedication, perseverance and resilience. Public interest litigation is not easy, only special plaintiffs prevail.

Knowledgeable, experienced and willing lawyers

Citizens and citizen groups can represent themselves in courts; they are not required to be represented by lawyers. However, lawyers can improve the prospects of a citizen action succeeding if they are knowledgeable and experienced in litigation, especially in litigation of the type and subject matter of the particular action. Public interest litigation, by its nature, complexity and importance, justifies engaging the assistance, advice and advocacy of leading lawyers. There is a need, therefore, to facilitate access to such lawyers, including by addressing the issue of cost.

Funding of litigation

A critical issue for the public interest litigant is how to fund public interest litigation, including the cost of access to leading lawyers. There are numerous methods that have been used around the world. First, the public interest plaintiff can raise the funds themselves. For citizen groups, this tends to be difficult. Fundraising activities and events tend to raise only a small proportion of the funds needed.

Philanthropic funding source, such as charitable foundations and donors, are usually disinclined to fund litigation because of its adversarial nature.

Secondly, plaintiffs and the lawyers can agree to seek legal aid for the particular case.

Legal aid is usually provided by the government. In Kenya however, legal aid public interest environmental matters is difficult to obtain as some of the environmental issues sought to be challenged are of interest to the government.

lack of awareness

Generally, there is a high level of ignorance on environmental issues. This is because society feels there are bigger problems to solve other than planting a mere tree. This therefore means, citizens who are environmentally conscious will be the only ones to take cases to court. On the other hand lawyers and judges will only facilitate protection of the environment if they are aware of environmental law and their role in management of the environment.

Intimidation/threats/corruption

It is obvious public interest environmental litigation challenges the powerful in the society. This therefore presents a difficult battle for the weaker person, as they will use all means necessary to frustrate the litigation, if not being frustrated they will receive threats that maybe to extreme seeing a litigant withdraw the lawsuit.

In light of these challenges, the importance of public interest litigation cannot be overstated. It may be one of the less attractive law branches but indeed the most important as it is one of the tools the world is using to safeguard sustainable development for the present and future generations. Public interest litigation is important because of several factors. These are:

1. a) In most developing countries, the legal regime of environmental laws is weak and the laws are difficult to enforce and sometimes ambiguous. Public interest litigation has helped bridge this gap.
2. b) Public interest litigation is important where the government is not willing to promote/protect the environment. The government may not be willing to prosecute those who violate environmental laws and at times the government is a violator of environmental laws. In some jurisdictions an injunction can be brought to compel or stop the government from degrading the environment.
3. c) In most developing countries governments lack resources to prosecute and investigate all the criminal cases that take place within its jurisdiction. Public interest litigation enables individuals to bring action on behalf of the community, a role the government may not play.
4. d) Where criminal remedies are not enough, e.g. a fine may be too small compared to the amount of environmental degradation. A civil suit is well suited for orders such as restitution and compensation which may not be provided for by criminal laws of a country.
5. e) Where criminal remedies are not enforceable, e.g. where a crime is committed by a company and yet the punishment for the crime is imprisonment, it becomes hard to punish the company. Litigation on behalf of the public can be brought as a tort under negligence, nuisance and the rule of strict liability in Rylands Vs Fletcher.

The success of public interest environment litigation in Kenya in promoting sustainable development will depend on the level of environmental awareness and willingness. It further requires the existence of a supportive group of lawyers trained and experienced in environmental law and who are willing to take up environmental cases. Most importantly however, success in public interest litigation will depend on co-operation  and role of all stakeholders, given the complex political nature of the environmental question.

Picture credit:www.sekho.com,www.bellona.org

This blog post firs appeared on the Institute for Law and Environmental Governance page as published by Ruth Nzioka.

DISCLAIMER:Please note that this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied.

ACCESS TO INFORMATION IN KENYA

“You cannot protect the environment unless you empower people, you inform them, and you help them understand that these resources are their own, that they must protect them.”

Wangari Maathai(2004 Nobel Peace Prize Laureate)

Introduction

The right to access public information refers to the right any person has to look for, request, and receive information held by the government.

The constitution is the foundation of all the rights in Kenya.Access to information is provided under Article 35 and states as follows:
(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.
The implication of Article 35(1) is that a citizen does not have to give reasons for seeking information from the State. In case where he seeks information from a private entity or another person and the request is denied and files suit in court to compel the person to provide him with the information he has the onus of showing that the information sought is required for the exercise or protection of a particular right or fundamental freedom.

It should be noted this right only applies to citizens as interpreted by the Kenyan courts. This was seen in the case of Famy Care Limited vs. Public Procurement Administrative Review Board & Another [2012] e KLR and only natural persons as seen in the case of Nairobi Law Monthly Company Limited V Kenya Electricity Generating Company & 2 Others [2013] e KLR, where court held such right can only be enjoyed by a natural person.
Article 24 recognizes that any right or fundamental freedom in the Bill of rights may be limited but the limitation must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” The limitation must be through legislation and shall not limit the right or fundamental freedom so far as to derogate from its core or essential content. The burden of proof lies on the person seeking to justify the limitation.

The State is obliged by Article 35(3) of the Constitution to publish and publicize any important information affecting the nation. The Constitution does not provide what important information is. This calls for legislation or policies and guidelines to provide for what important information is. Publication and making information public by the State will be one of the ways that will promote and give effect to the right of access to information. Citizens will generally seek from the State information that the State has not published or publicized. The net effect of these provision therefore requires the commissions and independent offices to publish information on their operations where citizens can access information from these State bodies without having to request for the information, and at a minimal or no cost. This promotes the protection and realization of freedom of information and access to information in Kenya.

It is of urgent necessity that the Kenya national and county governments operationalize Article 35 of the Constitution through the enactment and effective implementation of freedom of information laws. The Access to Information Bill, 2013 is yet to be passed by parliament.

Article 35 is also given effect by other Constitutional provisions such as provisions requiring constitutional offices and independent offices to publish annual reports to the Kenyan people on their operations. On environmental information, the National Land Commission, for example, will publish environmental or environmental related information thereby giving effect to the Kenyan citizen’s right of access to environmental information.
Importance of an access to information law.
A history of legal and institutionalised secrecy of government operations has created an environment in which the right to information has historically been devalued, allowing corruption and other state excesses to thrive. The Anglo Leasing scandal of the early 2000s demonstrated the importance of right to information in preventing corruption as it involved diminished oversight for the procurement of police equipment because it had been classified as for “security” purposes. National security purposes have also been used to justify other state excesses, such as to curtail civil liberties and media freedoms as witnessed in the police summoning of two journalists over their coverage of the Westgate terror attack in September, 2013.

Access to information held by the state can be seen as a fundamental right of the individual and a crucial component of democracy. It allows the public to be aware of governmental decisions which can impact the environment and individual lives. Access to information also allows the public to participate in criticizing and thereby improving governmental decision-making, which ultimately can help to prevent harmful activities which can cause significant damage to the health of people and the environment.

The absence of such legislation can lead to the violation of citizens’ fundamental rights. In the absence of transparency, it is impossible for countries to operate as democracies. In a democracy it is essential that people can access a wide range of information in order to participate in a meaningful way in matters that affect them. It entrenches the principle that public “servants” act on behalf of the public when carrying out their functions and must remain accountable for their actions.

This law is also essential to combat corruption on the continent and has a significant impact on how citizens live their daily lives, and contributes significantly to access education, employment and health, as well as access to basic amenities and services, such as water, housing and electricity through ensuring citizens can hold government to account.

Progressive measures toward realisation of an access to information law in Kenya
Beyond the Constitution, many laws or bills which are either sector–specific or relating to public service delivery in general acknowledge the role of right to information as a facilitative right for the realisation of economic, socio– cultural and political rights and for improving good governance. These include the Health Bill, Water Bill, Public Procurement and Asset Disposal Bill and Public Service (Values and Principles) Bill, all of 2014, that include provisions to promote transparency and accountability premised on the principle of right to information.

At the decentralised level, the County Management Act provides for public communication and access to information in the management of county affairs. Section 87 of the Act recognises that timely access to information, data, documents and other information relevant or related to policy formulation and implementation is important for promoting citizen participation in the running of county governments.
Actors in Kenya’s development and democracy agendas have acknowledged the necessity of right to information in advancing these processes. Initiatives aimed at enhancing open government have used right to information principles to promote transparency and accountability in government.

These include the Kenya Open Data Initiative (KODI) and the Open Governance Partnership (OGP), which make key government data freely available to the public through a single online portal and comprise a country action plan to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. Efforts of government to promote citizen engagement through initiatives like the open data portal and open government partnership are commendable and should be strengthened. On the downside though, the open data portal is not regularly updated mostly due to reluctance and stubbornness of public government agencies to disclose and make this information available.

The judiciary has recognised the import of right to information but has also not been expansive with its interpretations of Article 35. In Peter M. Kariuki vs. AG the court acknowledged the importance of the right in determining appropriate damages for the petitioner. In Kenya Society for the Mentally Handicapped (KSMH) vs. the AG, the court held that “coercive orders of the court should only be used to enforce Article 35 where a request has been made to the state or its agency and such request denied”. These interpretations are contrary to the internationally established principle of maximum disclosure, which establishes the obligation of public bodies to disclose information and the corresponding right of every member of the public to receive this information. This principle further stipulates that everyone present in the territory of a country should benefit from this right.

Conclusion
In conclusion, the effectiveness of Kenya’s right to information mechanisms is dependent on the commitment of the government to effectively implement freedom of information laws and the protection and promotion of these rights. This ongoing process has taken varying approaches driven by different impetuses and responding to changing circumstances including legislative developments, judicial interpretations and the incorporation of right to information in open government mechanisms. Advocacy initiatives should continue to utilise the diverse opportunities to the advance right to information. The media and the public at large should also exercise their rights to know and by so doing, create a demand to access of information.

This blog post first appeared in the Institute for Law and Environmental Governance  published by Ruth Nzioka.

Picture:http://www.oic-ci.gc.ca