Strengthening Access to Information (KE0038)

Brief Description of the Commitment

The commitment seeks to ensure the effective implementation of the Access to Information Act, No. 31 of 2016, for the realization of citizens’ right of access to information. It further seeks to strengthen the existing regulatory framework on Access to Information and leverage technology to enhance disclosure of information and promote effective records management.

Problem Definition

The Development of the National Access to Information Policy seeks to provide legislative guidance for the effective implementation of the Access to Information Act, No. 31 of 2016 ( ATI Act, 2016). The ATI Act was not sponsored by the Executive and therefore its development was not preceded by a Policy as is the norm in the majority of legislative instruments initiated by the Executive. The importance of developing a policy framework first is intended to amongst other salient features allow the executors to determine a clear road map, conduct an assessment of the problem and possible solutions, and define the opportunity to be embraced and the modalities or approaches to realize the benefit prior to proposing the necessary legal framework. This is essential to ensure that the law is properly understood, uniformly applied, and effectively promotes transparency and accountability. Other challenges brought by the lack of a national ATI policy include inconsistency and incoherency in government policies on information disclosures, inadequate resource allocation, and lack of enabling procedures and infrastructure. The challenge affects citizens, civil society organisations, and government officials ability to exercise the right of information as well as fulfill statutory duties on the part of government officials.

The adoption of the model Access to Information Law by at least Four Counties targeting OGP Local Counties), seeks to decentralize the national access to information framework and encourage its awareness, adoption and effective implementation at the local level. Communities, media, local organizations, and government officials in the selected counties will benefit from a strengthened access to information framework allowing citizens access to relevant information about their lives, critical services and will facilitate their participation in governance while holding the county governments to account.

The Development of Reporting Guidelines for Public and Private Entities on ATI The ATI Act obligates public entities and relevant private bodies to provide the Commission with reports required under the Act with respect to the implementation thereof. The Act additionally under Section 23(7) confers on the Commission the power to develop and publicize guidelines in consultation with the public detailing the reporting requirements including the manner, means and timeframes that apply to public entities and relevant private bodies. The objective of this milestone to guide public entities and private bodies (duty bearers) in compliance with their reporting obligations under the Act, provide for modalities of submitting annual reports to the Commission and administrative sanctions to be met by the Commission for non-compliance with reporting obligations and to provide for feedback mechanisms by the Commission to public entities & relevant private bodies upon assessment and evaluation of the reports. All these will serve to enhance the Commission’s capacity to implement the ATI Act.

Strengthening administrative action by the media to effectively use the Access to Information Act for the delivery of accurate information, combating misinformation and disinformation and creating public awareness of OGP. This milestone aims to empower journalists and media practitioners to effectively use the Access to Information Act to seek and deliver accurate information, combat misinformation and disinformation, and also raise public awareness about the Open Government Partnership (OGP). Journalists, media organizations, and the general public are affected by the spread of misinformation and disinformation, particularly during critical events like elections, pandemics, natural disasters, etc. The problem of false information has intensified with the advent of the digital age, requiring a proactive approach to mitigate it. In addition, diminishing trust in media and shrinking media freedom aggravate the problem.

The Development of a Framework for the Digitization of Public Records under Section 17 of the ATI Act. The provision seeks to modernize record-keeping and information management within the public sector, making government data more accessible and manageable in line with Kenya’s National Digital Master Plan 2022-2032. The problem of outdated and inaccessible public records, including challenges with the inefficiency of info management, retrieval and sharing among inter-agency has been persistent and has hindered effective access to information including that which concerns matters of life and liberty. These can be improved for efficiency in task load. To address these challenges, we will develop a framework that will provide national standards for the computerization of public records in line with the Web Content Accessibility Guidelines (WCAG) and in international best practice as envisioned in Section 17 of the ATI Act. Citizens, government officials, and organizations relying on public records will greatly benefit from this initiative.

Increase Awareness and uptake of the Access to Information Course at the Kenya School of Government and Broaden the Base of Participants to include Private Sector Information Officers. The Commission in partnership with the Kenya School of Government developed an ATI curriculum targeting public officers involved in processing of access to information requests in public entities to equip them with knowledge, skills and competences to implement the legal framework on access to information. By broadening the base of participants to include private sector information officers, this milestone aims to enhance the understanding and application of the Access to Information Act which mandates both public and relevant private entities to proactively disclose information to the citizens. The lack of awareness of their role and mandate in providing this information has been a major hindrance due to a strong culture of secrecy and ignorance of the law amongst duty bearers. The problem of limited knowledge and capacity to utilize the Act has impacted both those seeking access to information and information officers.

Enhancing Proactive Disclosure of Information by Key Stakeholders across the Electoral Cycle to address a recurring problem related to political transparency, accountability and public participation. Kenya’s electoral process has often been a charged affair, marred by concerns over credibility, transparency, accountability coupled with inadequate information infrastructure, and a lack of willingness by key actors to provide relevant information for accountability purposes. Since the adoption of the 2010 Constitution, Kenya has conducted three general elections—in 2013, 2017 (including a repeat presidential poll), and 2022. These elections have been marked by significant legal disputes and varying levels of civil conflict sparked by allegations wanting credibility, transparency, and accountability. The inadequate information infrastructure to manage the electoral process, and an unwillingness by state actors to provide information for those seeking accountability has resulted in public trust deficit and unrest. The crucial role of transparency and the right to information in safeguarding peace, security, and stability within the electoral context, therefore, is undeniable.

What are the causes of the problem?

● Culture of Secrecy: A significant factor contributing to the issue is the entrenched culture of secrecy within the government. Public officials habitually withhold information that should be accessible to the public. This culture of secrecy prevents citizens from holding the government accountable and participating in governance, even though the Access to Information Act mandates public entities to proactively disclose information. The root cause here is a historical and systemic lack of transparency and openness within government institutions, perpetuating a culture of secrecy that impedes progress.
● Lack of Structure and Standards: The absence of structured processes and standards for digitizing government records is another critical issue. This deficiency hinders the effective organization and accessibility of information. The root cause can be traced back to an absence of comprehensive policies and standards for managing government records in a digital age.
● Low Awareness of ATI: There is a lack of awareness among both public officials and citizens regarding their rights and obligations under the Access to Information Act. When both parties are unaware of their roles and responsibilities, the public's right to access information is impeded. This lack of awareness stems from limited educational efforts and the historical disregard for the importance of open government practices.
● No Uniform Government Approach: Inconsistencies in the government's approach, processes, and procedures for disclosing information exacerbate the problem. The absence of uniformity in government information disclosure protocols results from a lack of comprehensive guidelines, which can be attributed to a lack of emphasis on standardization in the past.
● Inconsistent Policies and Inadequate Resources: There are inconsistencies and incoherencies in government policies on information disclosure. The problem is compounded by inadequate resources, lack of enabling procedures, and infrastructure, resulting from a historical failure to prioritize information management and transparency.
● Challenges During Elections: During elections, limited access to online spaces further complicates the issue. Root causes include inadequate digital infrastructure and barriers to online access during critical electoral periods.
● Low Trust in Media: The diminishing trust in media and shrinking media freedom aggravate the problem. The historical issues related to media credibility and freedom within Kenya's socio-political context are the root causes of this challenge.
● Limited Awareness and Implementation of Accessibility Guidelines: Limited awareness and implementation of accessibility guidelines, such as the Web Content Accessibility Guidelines (WCAG), indicate the need for comprehensive awareness standards and regulatory enforcement, with the root cause being a historical lack of emphasis on digital accessibility.

Commitment Description

The promulgation of Kenya’s constitution in 2010 opened a new chapter for Access to Information in Kenya. Article 35 of the ‘new’ constitution now guaranteed every citizen the right to access information. However, it was until September 21, 2016, that life was breathed into this article through the enactment of the Access to Information Act and the subsequent Gazettement of ATI Regulations. Since then, there have been concerted multi stakeholder efforts geared at socializing this constitutional provision. These have included the development and the roll-out of the Curriculum on Access to Information for Journalists in Eastern Africa in 2022 in addition to the ATI Curriculum for public officers entrenched at the Kenya School of Government in 2020. There have also been innovative programs like the development of the Model County law on ATI and the simplification of ATI Toolkits for media and citizens. Capacity building and awareness creation initiatives of ATI amongst duty bearers and rightsholders have also been progressed. The most recent development has been the finalization of the National ICT Policy in 2019 and the Gazettement of the Standards on Accessibility of ICT Products in 2022.

Proposed Solutions

● Overarching policy framework on ATI
● Enhanced capacity building on ATI for government, private sector, media and citizens
● Inclusion and strengthening the capacity of media to help them fulfill their role of providing quality and reliable information.
● Enhanced accountability framework for public entities and private bodies in reporting
● Broadened base of stakeholders meaningfully participating in OGP and open government processes
● Enhanced electoral integrity and citizen access of digital spaces during elections

Desired Results

Proactive disclosure of information by government and relevant private institutions Empowered citizens to obtain information held by public bodies Available and easily accessible information to citizens to enhance their participation in governance issues Enhanced oversight and enforcement capacity of the oversight institution on access to information Digitization of government records to facilitate access to information and to act as a catalyst to the digital transformation of government processes.

Commitment Analysis

1. How will the commitment promote transparency? Access to information will foster evidence-based engagement between the government and citizens. It will also oblige the government to make public data regarding the utilization of public funds readily accessible for scrutiny.

2. How will commitment help foster accountability? Since citizens can easily access information from public entities, they can hold public entities accountable based on the information they get Citizens will have the leeway to interrogate/scrutinize the government based on the information that government provides especially in the utilization of public funds through projects, processes and development programs and in the process enhance accountability.

3. How will commitment improve citizen participation in defining, implementing, and monitoring solutions? Ensuring information and services are accessible to all, including those with disabilities or from marginalized communities, thereby enhancing inclusive and broadbased participation. Overall, this commitment creates an ecosystem of transparency, awareness, and engagement. Citizens will be better equipped to participate in defining solutions that align with their needs, actively engage in the implementation process, and monitor the progress made.

Commitment Planning (Milestones | Expected Outputs | Expected Completion Date)

Development of a National Access to Information Policy | National ATI Policy Developed | 31st May 2027

The adoption of the Model County Access to Information Law by the 4 OGP Local Counties | County Access to Information Laws passed in three counties | June 2027

The Development of Reporting Guidelines for Public and Private Entities on ATI | Reporting Guidelines for Public and Private Entities Developed | June 2027

Development of a Framework for Digitization of Public Records under Access to Information. | Framework for Digitization developed | June 2027

Strengthen the capacity of journalists to effectively utilize Access to Information (ATI) to address misinformation and disinformation concerns, promote citizen engagement and facilitate informed public participation in the OGP process | Number of Journalists sensitized | June 2027

Increase awareness and uptake of the Access to Information Course at the Kenya School of Government and broaden the base of participants to include private sector information officers. | Reviewed Curriculum Number of cohorts trained

Strengthening media capacity to effectively use the Access to Information Act for the delivery of accurate information, combating misinformation and disinformation and creating public awareness of Open Government Partnership | Number of Journalists and media practitioners sensitized | January 2027

Enhancing democracy through proactive disclosure of information by key stakeholders across the electoral cycle to address a recurring problem related to political transparency, accountability and public participation. | A report on timely release of information by stakeholders in the electoral cycle | December 2026