[A2k] [open-government] Access to information a right in new Kenyan constitution

Innovation Navigator innovation-navigator at chello.at
Mon Aug 30 09:53:38 PDT 2010

Dear Pranesh, Dear colleagues,

I am not aware of any country on the globe where
a single constitutional provision without transformation
into Acts and Ordinances did show any significant effect.

If open data policy would be so simple as stated in litera c,
then why did the implementation of open data policy
not progress substantially in the past 20 years?
Even in forerunner countries as AU, Canada and the US?

Sorry, common legal practice showed that in the
permanent conflict with data protection, copyright and other
rights and restrictions, open data implementation turned
out to be very tricky.
Even constitutional principles are in permanent conflict.

So lets see the evaluation report in ten years,

kind regards,


At 12:58 30.08.2010, Pranesh Prakash wrote:

>The provision states:
>35. Access to information
>(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.
>New laws will allow access to information held by State
>By Henry Maina
>Posted Tuesday, August 24 2010 at 00:00
>The operations of the Kenyan government in the 
>past 47 years can be summarised as secretive and opaque.
>However, this will soon be a thing of the past.
>However, the promulgation of the New 
>Constitution on Friday will immediately allow 
>Kenyans to demand disclosure of any information 
>held by the State as provided for in Article 35.
>It states that every citizen has the right of 
>access to information held by the State; and 
>information held by another person and is 
>required for the exercise or protection of any right or fundamental freedom.
>The idea that this provision of the New 
>Constitution comes into effect immediately makes 
>in some way superfluous the pending Freedom of Information Bill.
>This is because the right to access information 
>as formulated in the New Constitution is a 
>blanket right, it needs no legislation on how it 
>is applied and there is no qualification on the 
>type of information that can be accessed.
>In fact, the promulgation of the New 
>Constitution immediately renders most sections 
>of the Official Secrets Act redundant and the 
>often quoted secrecy oath nugatory.
>This is because the Article 35 (3) states that 
>the State shall publish and publicise any 
>important information affecting the nation.
>That Article 35 found its place in the New 
>Constitution after over 10 years of civil 
>society organisations trying to advocate for the 
>passage of an access to information law is a big 
>win for democracy, good governance and rule of law.
>To Wanjiku who has seen the quality of her life 
>deteriorate because of bad governance and lack 
>of accountability, the access to information 
>provision could make a lot of difference.
>Similarly, a legislator sitting in one of the 
>parliamentary oversight committees, say the 
>Parliamentary Accounts Committee, could request 
>for comprehensive information on the expenses 
>incurred by the State to resettle Internally 
>Displaced Persons in the last two years.
>To investigative journalists, the provision on 
>access to information allows you to do your 
>research and have an exclusive without having to 
>look at your shoulders for fear of criminal 
>charges like publication of false information or 
>obtaining information illegally.
>Thus Article 35 in the New Constitution is a win 
>for all Kenyans regardless of status, 
>profession, race, class and even level of education.
>It obliges all public bodies, which is any body, 
>established by or under the Constitution; 
>established by statute; which forms part of any 
>level or branch of government; owned, controlled 
>or substantially financed by funds provided by 
>government or the state; or carrying out a statutory or public function.
>The writer is the director of ARTICLE 19 Eastern Africa.
>Pranesh Prakash
>Programme Manager
>Centre for Internet and Society
>W: http://cis-india.org | T: +91 80 40926283
>open-government mailing list
>open-government at lists.okfn.org

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