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

Innovation Navigator innovation-navigator at chello.at
Fri Sep 3 06:12:03 PDT 2010


Dear Pranesh,

1. At the opening of the international anti-corruption academy
yesterday in Vienna I met some colleagues from Kenya and they
specified that a separate FOI Act will be adopted within the next years.

2. As a lawyer let me simple point ouit that constitutional principles
are not that bad and will be considered by some courts in certain cases.
However, even if you win a case at the constitutional court it willl not
substantially improve the request (that might differ from 
constitution to constitution).
And in most cases you are even not allowed to address the constitutonal court,
unless a specific Act is withstanding a constitutional principle.

3. I do fully share your observations and agree that the whole
ecosphere (including civil society) has to be supportive and adopt 
that mindset.
Similar to the issue of fighting corruption where some countries already move
from law enforcement action to a more holistic approach.

kind regards,


Gerhard

At 13:07 03.09.2010, Pranesh Prakash wrote:

>Dear Gerhard,
>I would agree with your general point, but disagree with your focus. 
>All these (namely, open data policies, constitutional provisions, 
>statutes on right to / freedom of information, institutional 
>ombudsman / authorities to implement these, progressive information 
>architectures, technical capabilities, sound data collection 
>policies and implementation of those policies at every level of 
>governance, and a hundred other considerations) are interconnected.
>
>Just as one cannot expect a good information architecture to solve 
>things in face of a hostile government, one cannot expect good 
>intentions embodied in a constitution to automatically translate 
>into transparency, accountability, equity of information access, and 
>empowerment of citizenry (the shift from subject-hood to citizenship).
>
>However a constitutional provision mandating access to information 
>is as good a position, nay even better a position, than most others 
>in which information-activists could find themselves.
>
>You wrote:
> > 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.
>
>I am however aware of countries where even statutes embodying the 
>right to information have not led to transformations of any 
>significant sort, and more or less remain in the statute books 
>gathering dust.  Thus, without the supportive ecosphere, no singular 
>condition is sufficient to ensure open data implementation.
>
>Regards,
>Pranesh
>
>On Monday 30 August 2010 10:23 PM, Innovation Navigator wrote:
>>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,
>>
>>
>>Gerhard
>--
>Pranesh Prakash
>Programme Manager
>Centre for Internet and Society
>W: http://cis-india.org | T: +91 80 40926283
>
>
>
>
>
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