Judgment upholds public ‘right to know’: Kenyan court orders government minister to provide information

19 July 2023 · Carmel Rickard

Maverick Kenyan human rights litigator, Okiya Omtatah, has done it again. The engineer-turned defender of the rule of law brought a challenge related to a government decision exempting the instruments used in a major merger from the Stamp Duty Act. When Omtatah asked the reasons for the exemption, he was met with silence. So, he challenged that silence in the constitutional and human rights division of the high court. Now, via a judgment that reaffirms key constitutional values, presiding judge Lawrence Mugambi says the reasons should have been provided and has ordered the government to do so.

Read judgment

Okiya Omtatah heads Kenyans for Justice Development Trust, an organisation he set up to promote ‘democratic governance, economic development and prosperity’. He isn’t a lawyer, but has a track record of spotting important human rights and rule of law issues that should be tested in court.

This time, he filed his petition against both the cabinet secretary (CS), ministry of lands and physical planning, and the attorney general, saying he wanted to assert his right to certain information held by the ministry. He said as a member of the public he was entitled to this information but the ministry denied him.

Omtatah’s case related to a legal notice published in 2019 by the CS for national treasury and planning. The treasury CS referred to a merger between of NIC Group PLC and the Commercial Bank of Africa and said instruments related to the merger were exempt from the Stamp Duty Act. In making this decision, said the CS, he had considered the recommendation of his colleague, the CS for lands.

Silence

Omtatah then wrote to the CS for lands, explaining the constitutional and statutory provisions on which his request was based, and asked for a copy of the recommendations sent to the treasury CS that resulted in the exemption decision.

The result? Silence.

There was no response to his letter. Nor was he given any information or material related to his request. He said failure to provide this material meant his constitutional right of access to information was violated, along with his statutory rights. Thus, he asked the court to declare that the CS and the AG had infringed the constitution and to order that they provide the information he sought.

Critical

Fleshing out his position, Omtatah said the constitution gave every citizen the right to information held by the state, subject to certain restrictions and processes.

He said this right was ‘critical for democratic conduct of government affairs’ because it allowed citizens to participate in governance: if citizens don’t know what is happening, they can’t ‘meaningfully participate in the democratic governance of their country’.

Further, the constitution stipulated that there ‘shall be openness and accountability including public participation in financial matters’.

Correct process

The main response of the land CS to his petition was that Omtatah had not followed the correct process: he should have applied to the commission on administrative justice to review the denial of the information he wanted, before he resorted to court action.

As to the dispute itself, the information sought was to be provided only to the treasury CS and so it should not be given to Omtatah, said the land CS.

What would Mugambi find?

Imperative

The court said that after the information was requested from the CS, ‘this information was neither provided, nor [was] his letter responded to.’

The Access to Information Act stipulated that once a request is made ‘it is imperative that a decision be communicated to the requester within 21 days.’ Mugambi said his interpretation of this, was that such a decision didn’t have to be ‘positive’: ‘it can be negative, satisfactory of unsatisfactory, partial or complete’. But the section required that ‘a decision’ be communicated.

What should happen when there was no decision? – In Mugambi’s view, the provision that an applicant for information had to resort to the commission on administrative justice before going to court, only kicked in ‘where the public officer to whom the request is made, has communicated his decision which must not be later than 21 days from the date when the request is made.’ In fact, the section that provided for an applicant to approach the commission was headed ‘Review of decisions by the commission’, clearly meaning that it applied where a decision had been made.

No provision was made for the section to apply if there had been no decision. Therefore, said the judge, Omtatah had not been incorrect to approach the high court directly.

National security

That left the main issue: whether failure to provide the requested information violated the law, or whether the information was lawfully exempted under the Access to Information Act?

The judge said that even when a limitation on access to information was necessary, it had to be ‘strictly limited’ to the extent that it was reasonable and justifiable in an open and democratic society. ‘Opaqueness is abhorred’.

The CS, however, insisted that the information that Omtatah wanted was protected ‘as information relating to national security’. But, said the judge, this claim ‘came through submissions from the bar and was not backed by any evidence that indicated … there was an evaluation’ by the CS behind this conclusion. ‘It was thus a speculation that deserves no further consideration.’

No evaluation

The information involved was a tax waiver, something dealt with in the Public Finance Management Act that stipulates the treasury ‘shall maintain a public record of each waiver, together with reason for the waiver’. The Stamp Duty Act says that the minister may direct instruments to be exempt from stamp duty ‘if he is satisfied that it is in the public interest to do so.’

In principle, a public record ‘ought to be available for public view’ unless there were exceptional circumstances, and the burden of proving these circumstances lies on the public agency claiming privilege. However, the CS made no attempt to show, through evidence, that an evaluation was carried out to decide whether releasing the documents sought by Omtatah ‘posed a threat of any kind’.

On top of that, the information Omtatah wanted concerned a matter where the decision made is said to have been taken ‘in the public interest’, ‘meaning that it was for the benefit and the protection of the public.’

Crucial information

The judge asked, ‘Why would the state agency concerned … conceal such crucial information on a matter of public finance made for the benefit of the public by shielding it away from eyes of same public it is to benefit?’

Withholding this information ran contrary to the law stipulating that there shall be openness and accountability including public participation in financial matters.

He concluded that both the constitution and various statutes were ‘violated’ by the failure of the CS to provide the information that Omtatah wanted.

Not confidential

It was not confidential because it related to matters of public finance where openness, accountability and public participation is mandated by the constitution. If that information were not provided, how could citizens exercise their right to hold public entities to account? It wouldn’t promote accountability in the public service through participation of citizens and was contrary to principles of good governance, including public participation, transparency and accountability.’

Refusal to provide the requested information ‘shows a state organ sprinting away from public accountability for its actions’. Not providing an answer within 21 days was a blatant disregard for the law, and no attempt had been made to explain the lapse.

Mugumbi thus declared that the CS had violated both constitution and national legislation by denying the information and documents requested, and issued a ‘mandatory order’ directing that the CS should now provide that information.

Carmel Rickard

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