Untitled - Africa Centre for Open Governance

While the move towards more open governance is positive, the Government should take further
measures to enhance the right to access information. The Government must be guided by the
principle of maximum disclosure, which establishes a presumption that all information will be
disclosed, subject only to narrowly drawn exceptions to protect overriding public and private
interests. Further, while the right is most commonly understood as an obligation to respond to
requests for information, the constitution obliges the Government to disseminate, proactively and
in the absence of a request, information of key public interest. This can be taken further to imply, as
Article 19 has argued, an obligation on officials to create, compile or collect information in certain
contexts such as the aftermath of massive human rights abuses, where it has been described as
‘the right to truth’. 90 Finally, a Freedom of Information Act, a draft of which has been sitting with
the Government for years, which needs to be strengthened, must be enacted. This would be in
keeping with Kenya’s commitment in 2011 to open up government.
Kenya runs the risk of becoming a criminalized or captured state. Evidence points to the existence
of systemic corruption with organized crime networks that have links to state institutions including
the police, immigration, customs, and even the Judiciary. The Government must enhance its
capacity to counter such penetration. The consequences of failing to do so are unimaginable.
In conclusion then, there are things in the year ahead that spell positive development for the
country in terms of governance. However Kenyans need to remain vigilant and guard against
actions bound to be detrimental in the struggle towards achieving good governance and better
welfare for the population at large. Above all, Kenyans must continue to fight for the effective and
faithful implementation if the new constitution, which offers the best hope of addressing our
historical governance challenges decisively.
90 Article 19, “Humanitarian Disasters and Information Rights: Legal and ethical standards on freedom of expression in
the context of disaster response,” http://www.article19.org/data/files/pdfs/publications/freedom_of_information_
humanitarian_disasters.pdf (2005)
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