2.1 History of the Right to Access of Information

The right to access of information is thought to have first[3] been espoused in Sweden in 1766[4] when the freedom of the press law[5] was enacted. This was followed by France in 1789 when it adopted the Declaration on Human and Civil Rights[6].

In 1946, the United Nations General Assembly adopted Resolution 59(1) on Freedom of Information whose terms were;

"Freedom of Information is a fundamental right and is the touchstone of all the freedoms to which the United Nations is consecrated. Freedom of Information implies the right to gather, transmit and publish news anywhere and everywhere without fetters. As such it is an essential factor in any serious effort to promote the peace and progress of the word."

This was later followed by the United Nation Declaration of Human Rights in 1948; Article 19 thereof recognized the right of access to information as was the case for 19 of the International Convention on the Civil and Political Rights of 1966.  In the same year (1966), the United States of America enacted the Freedom of Information Act (FOIA)[7].

In post communist-era, Hungary became the first country to enact the freedom of Information law in 1989[8]. In Latin America and the Carribean, Columbia was the first to introduce the freedom of information law in 2000 followed by Mexico and Peru in 2002[9]. In Africa, South Africa was the first country to adopt the freedom of information law in 2000, although the right to information was already enshrined in the South Africa Constitution of 1996[10].

2.2 Legal framework for the Right to Information in Kenya

The right to information is now recognized and codified under the Constitution of Kenya. Prior to the enactment of the new Constitution there existed no law that guaranteed this right and attempts to introduce the right to information law through an Act of Parliament did not prove fruitful.

The promulgation of the new Constitution of Kenya in 2010 therefore heralded a new chapter in the right to information in Kenya. Article 35 thereof codified for the first time the right to information. It provides thus;

"(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.

Unlike other provisions in the bill of rights which bestow the specific right to "every person", Article 35 employs the words "every citizen". We shall later see how the differences in use of language influenced the court in making its decision.

The right to freedom of speech has also generally been held to include the right to know or the right to information. Indeed Article 33 of the Constitution of Kenya provides in the relevant part that;

"(1) Every Person has the right to freedom of expression, which includes;

(a) Freedom to seek, receive or impart information or ideas..."

It is therefore arguable that the right to information in Kenya is governed by the provisions of both Article 35(1), and Article 33(1) as set out above.  Further Article 232(1) (f) of the Constitution provides that the principles and values of public service include transparency, and provision to the public of timely and accurate information.

The statutes[11] that have some bearing on the right to access of information include the Official Secrets Act, theStatistics Act, 2006, and the Public Archives and Documentation Service Act.

By virtue of Article 2 of the Constitution of Kenya, Article 19 of the United Nations Universal Declaration on the Human Rights, and Article 19 of the International Convention on Civil and Political Rights have applicability in Kenya. Further, Kenya is also a party[12] to the United Nations Convention against Corruption (UNCAC)[13], 2005. Chapter Two[14] of UNCAC is particularly important as regards the right to information[15].

Article 9 of the African Charter on Human and Peoples’ Rights also enshrines the right to information.

It is also vital to point out that for purposes of this paper consideration shall be given to the Freedom of Information Bill 2012. Though still pending in Parliament as a Bill, we shall for purposes of argument only consider some of its salient provisions in critiquing the decision of the High Court in terms of advancing an alternative interpretative approach to the Constitution.

2.3 Facts of the case

The genesis of Famy Care Limited vs. Public Procurement Administrative Review Board & Another[16], arises from an open international tender that had been floated by the Government of Kenya through the Kenya Medical Supply Agency(KEMSA) for supply of  family planning commodities.  Famy Care Limited (the "Petitioner") participated in the said tender but was unsuccessful in its bid.

Being aggrieved by the tendering process, the petitioner, (curiously[17]) filed a petition before the High Court challenging the procuring process and alleging that certain fundamental rights and freedoms had been breached. Subsequently, the Petitioner filed two applications seeking the enforcement of Article 35 of the Constitution of Kenya. As against Kenya Medical Supply Agency, the petitioner sought the minutes of the evaluation and technical reports of the tender[18], while from Pharmacy and Poisons Board it sought disclosure of any correspondence between it and any of other party concerning  a certain drug in the context of the tender in order to enable it prosecute the petition.

When the matter came up for hearing, the respondents, in particular KEMSA, raised a preliminary objection that the Petitioner was not entitled to seek enforcement of Article 35 on the ground that it was a foreign company incorporated in India. The court agreed, and dismissed the two applications.

2.4 Findings of the Court on the right to information

From the decision of the High Court there are two important holdings as regards the right of access to information in Kenya;

1) The right to information is only enjoyable by Kenyan Citizens, and not foreign citizens

2) The right to information is enjoyable by natural Kenya Citizens and not Kenyan juridical persons such as corporations, or associations.

Though the court made other findings in the case, which we may not necessarily share in their soundness, we have not identified them hereinabove.

3.1 Procedural approach in enforcement of fundamental rights and freedoms

We start the critique of the Court’s decision first by pointing out that the court did not properly consider procedure to apply in the matter before. It is therefore arguable that the decision was partly informed by the procedure that was adopted by the court on such a weighty matter as enforcement of fundamental rights.

Generally, it is undesirable to dismiss an application or a suit that seeks enforcement of a constitutional or fundamental right on a preliminary objection or on a technicality without interrogating the matter on its merit. The court should instead have conducted a detailed examination of the material presented by the petitioner before making a decision whether to dismiss the petition or not. This should also be the approach in the applications that were before the court.

Had the court considered the application and subsumed the preliminary objection as response thereto perhaps it would have come to a different conclusion. The Court of Appeal in the case of Rashid Odhiambo Aloggoh & 245 others vs Haco Industries Limited [19] held that it was undesirable for the High Court to summarily dismiss a petition (or any application) that seeks the enforcement of fundamental rights. In essence the Court of Appeal meant that the Court ought to first join the issues to prove the facts on which the alleged contravention was based before determining whether the material facts amount to infringement of a fundamental right or not. It is argued here that had the court taken the approach advanced herein the question that would have been formulated for determination would have been different from the rather simplistic question of whether or not a citizen is entitled to seek enforcement of Article 35. This is demonstrated in the next section.

3.2 Interpretation of the Bill of Rights

Unlike the old Constitution, the Constitution of Kenya 2010 stipulates the principles to be applied in the enforcement of the Bills of Rights. In terms of interpretation, the bill of rights can be said to be self encompassing in that it would not even require the court to seek refuge in any other interpretation approach, like the liberal or purposive interpretation.

Article 20(4) of the Constitution provides that courts and other adjudicating authorities shall in interpreting the provisions of the bill of rights promote the spirit and objects of the bill of rights and promote the values that underlie an open and democratic society, humanity, equality, equity,  and freedom.

Further, Article 20(3) provides that in applying a provision of the bill of rights the courts shall adopt the interpretation that most favours the enforcement of a right or fundamental freedom and develops the law to the extent that it does give to a right or fundamental freedom.

In view of the above provisions, can it be said that the decision of the High Court in Famy Limited upheld the above principles? We are not persuaded. The decision does not only breach the provisions of Article 20(4) in that it does not promote the values that underlie an open and democratic society, and promote equality, but also it does not favour the enforcement of the right to access information in Kenya.

It is arguable that decision is discriminatory to the extent that the court holds that Article 35 applies only to Kenyan citizens and not foreigners, and further that it can only be enforced by Kenyan natural citizens and notKenyan juridical persons. These holdings are restrictive in the enforcement of the right to access information and do not develop the law as regards the access of information.

It is clear from the Constitution[20] that a right or freedom in the bill of rights shall not be limited or restricted unless as provided by the law, and even then to the extent that the limitation is reasonable and justifiable in a democratic  society based on human dignity, equality, equity, and freedom taking into consideration the following factors;

i) The nature of the right and fundamental freedom;

ii) The importance of the purpose of the limitation

iii) The nature and extent of the limitation

iv) The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

v) the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

From the above considerations it is an onerous task to justify a limitation or a restriction of a right or freedom in the bill of rights. The limitation must be in the clearest of cases and even then based on justifiable and reasonable grounds.

The Court quite correctly recognized that Article 35 of the Constitution enshrines the right of access to information. Further, the court observed that Article 35 enshrines an implicit limitation that is the right is only available to a Kenyan citizen. The question that ought to have been asked is what purpose would be served by limiting that right?  In view of the context of the case where Famy required disclosure of certain information relating to a tender that it had participated in, there was no reasonable justification to preliminarily deny it the access to such information on the pretext that it was a foreign incorporated company and that further that it was a juridical person.

The court ought to have asked itself what prejudice would be suffered by the Respondents and the Kenyan public at large if the information sought by Famy Care Limited was to be disclosed. Further, the court ought to have taken into account the context in which the right was being enforced and interrogated the purpose for which wasFamy Care Limited was seeking the disclosure of the information. These are the tenets of an open and democratic society.  However, as pointed out above, the court may not have been in a position to go to this length and ask the questions posed above due to the summary procedure that was adopted at the hearing.

We gather from the judgment that Famy Care Limited sought the information for purpose of prosecuting the petition. As such, without any other compelling reason to warrant the refusal, the court ought to have decided otherwise.

3.3 Corporate Citizenship

The Ruling also raises a rather controversial question of whether a corporation can be deemed a "citizen"[21]. In trying to demystify the question, the court took refuge in the Citizenship Chapter[22] of the Constitution. Whereas the court acknowledged that the word "citizen" is not defined in the Constitution, it opined that the purport and effect of the provisions of Chapter 3 is that citizenship is in reference to natural persons.

This approach with respect was inhibiting. A cursory and literal reading of, and the for arguments sake, the provisions of Chapter 3 of the Constitution and in particular the provisions of Article 13(2) shows that a company/corporation is not excluded from acquiring citizenship. The said provides thus;

13. (1) Every person who was a citizen immediately before the effective date retains the same citizenship status as of that date.

(2) Citizenship may be acquired by birth or registration. (Emphasis added)

From the above provisions it implies that citizenship is acquired either by birth or registration. The constitution does not provide for manner or the law governing the registration. It therefore means arguendo that registration can even include under the Companies Act which details how companies are incorporated in Kenya. Indeed section 2 of the Companies Act stipulates that a "company" means;

"a company formed and registered under this Act or an existing company" (emphasis added)

It is therefore arguable that since the constitution provides that citizenship may be acquired by registration, a company registered under the Companies Act acquires a citizenship as envisaged under Article 13(2).

Quite apart from the foregoing legislative provisions, the authoritative Black’s Law Dictionary defines a "citizen"[23] as;

"a corporation that was incorporated within a state or has its principal place of business there".

Further, the Court sought to justify its reasoning by comparing[24] Article 35 and 38. Article 38 deals with participation in the electoral process and making political choices. The two rights are quite distinct. But even then, it is not entirely true that corporations can be limited in exercising political rights.  The Supreme Court of USA as recent as 2010 disabused such a notion in the case of Citizens United vs Federal Elections Commission[25],byupholding the rights of corporations to make political expenditures under the First Amendment.

Further, it is our argument that without an express definition of the word "citizen" under the constitution, its use under Article 35 is sui generis and cannot be subjected to the purport and effect of Article 13 and 14 especially if its effect would be to limit the enjoyment of right under Article 35. It is therefore our view that "citizen" under Article 35 includes both natural and legal persons in view of the above and the observation of Dirk Merkel et a[26]l, that;

"Alluding to corporations in terms of citizenship does not literally mean that corporations are citizens or have citizenship, but that their substance or their actions can be understood as being in some meaningful way similar to that of citizens or citizenship

3.4 Different approach same view point

3.5 Freedom of Information Bill

As already alluded to above, the Freedom of Information Bill (the "Bill") has for some considerable length of time been pending in Parliament[31]. It is vital to consider some of the salient aspects albeit if only for comparable reasons to discern the direction being taken in promotion of the right of access to information in Kenya. Although inadequate in some other respects[32], the Freedom of Information Bill 2012[33] is more progressive than the Constitution if the Ruling under consideration herein is anything to go by.

As a starting point, the Bill stipulates under Section 26 that;

"(1) Every citizen has a legally enforceable right to access information held by, or under the control of, a public authority, in accordance with this Act.

(2) Subject to this Act, every citizen has the right to access information held by, or under the control of a private body where that information is necessary for the enforcement or protection of any right.

(3) Subject to this Act, a person’s right to access information is not affected by -

(a) any reason the person gives for seeking access as the right to access of information is independent of a person’s interest; or

(b) the public authority’s belief as to what are his reasons for seeking access

(4) A person has the right to access information of a public body or private body expeditiously and inexpensively;

(5) A person has a right of access to information generated, received and or held by public bodies, subject only to such limitations as are necessary for public interest;

(6) this Act shall be interpreted and applied on the basis of a duty to disclose. Non disclosure shall be permitted only in exceptionally justifiable circumstances;

Based on the language used in the Bill as quoted above, it does seem that, in view of the Ruling of the Court, the Bill is more progressive than what is provided for under Article 35 of the Constitution. The question that begs answer is if the Bill is eventually enacted into law as it is, would it be a violation of the Constitution in light of the Ruling?  Section 26 of the Bill interchangeably uses the words "citizen" and "person". Whereas Article 35 bestows the right on "every citizen", section 26 of the Bill bestows the right both on "every citizen, and "person""[34]. It is therefore arguable that should the Freedom of Information Bill pass into law in its current state then in view of the Ruling in Famy Care Limited, some paragraphs of Section 26 shall be deemed unconstitutional. Yet, the Promulgation of the Bill and its earlier versions has been hailed as being progressive[35]. One wonders if the provisions in the constitution of Kenya on the right to information are retrogressive.

It is noteworthy that the Bill in its current version was reintroduced to Parliament by the government[36] and one can only shudder but imagine the sentiment in the Ruling limiting the right to information, and the more progressive Bill being sponsored by the Government. Ordinarily, it is the Judiciary that breathes life into the law, especially where the executive wants to curtail it. The Ruling depicts a change of roles it seems.

4.1 Jurisprudential effect

The Ruling in the Famy Care Limited is the first decision[37] by the court that defines the persons entitled to assert the right to access information under Article 35. As such, under the doctrine of precedent other subordinate courts and tribunals shall be bound by that interpretation whereas the decision will be of persuasive nature to courts of concurrent jurisdiction.

The interpretational approach taken by the High Court is likely to be a constraint to the development of the law relating to the right to access of information in Kenya. This is because until the ruling is either distinguished by a court of concurrent jurisdiction or overturned either by the Court of Appeal or the Supreme Court, it shall serve as the benchmark law on the right of access to information.

The implicit limitation in Article 35 is likely to be viewed as normal rather than an exception and this will have serious ramifications on the manner that the state or state organs are held accountable both by Kenyan citizen and foreign nationals who may have justification for seeking information from the state or its organs.

4.1 Jurisprudential effect

The Ruling in the Famy Care Limited is the first decision[37] by the court that defines the persons entitled to assert the right to access information under Article 35. As such, under the doctrine of precedent other subordinate courts and tribunals shall be bound by that interpretation whereas the decision will be of persuasive nature to courts of concurrent jurisdiction.

The interpretational approach taken by the High Court is likely to be a constraint to the development of the law relating to the right to access of information in Kenya. This is because until the ruling is either distinguished by a court of concurrent jurisdiction or overturned either by the Court of Appeal or the Supreme Court, it shall serve as the benchmark law on the right of access to information.

The implicit limitation in Article 35 is likely to be viewed as normal rather than an exception and this will have serious ramifications on the manner that the state or state organs are held accountable both by Kenyan citizen and foreign nationals who may have justification for seeking information from the state or its organs.

4.2 Effect on Commerce

As noted by the Court in its ruling, the right of access to information is one of the rights that underpin the values of good governance, integrity, transparency and accountability and the other values set out in Article 10 of the Constitution.

Interpretation of a right or freedom in the bill of rights must seek to promote the Kenya’s social economic and political development[38]. The bill or rights must therefore be an avenue for seeking to improve the welfare of the citizenry. One way to do so is facilitating commerce. Indeed Article 19(1) of the Constitution recognizes that;

"The Bill of Rights is an integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies"

Kenya has set out its social, economic and political policies in its development strategy, Vision 2030. In terms of economic policies, Kenya has adopted both domestic and international policies that it seeks to pursue in order to promote development and improve the welfare of its populace.  At the international level Kenya pursues the policy of trade and investment liberalization both at the multilateral and regional level. For instance, it is a member of World Trade Organization, and regionally it belongs to East African Community, among others and has negotiated Bilateral Investment Treaties with other nations.

As a member of the WTO, for instance, Kenya has certain obligations to other members under the WTO constitutive instruments. One such obligation is the principle of non-discrimination[39]. Under this principle, Kenya shall not accord its nationals more favourable treatment than what it accords nationals of other members in trade relations.

Further, another basic principle of the WTO is to ensure that access to information on the trade regimes of members is clearly communicated to all members for effective enforcement of commitment. This is done under the transparency[40] pillar which is enshrined in most covered agreements of the WTO[41] to which Kenya is party.  For instance, Article III of the General Agreement on Trade in Services (GATS) provides that;

Each Member shall respond promptly to all requests by any other Member for specific information on any of its measures of general application or international agreements within the meaning of paragraph 1. Each Member shall also establish one or more enquiry points to provide specific information to other Members, upon request, on all such matters as well as those subject to the notification requirement in paragraph 3[42].

By interpreting the right of access to information as excluding foreign nationals, Kenya is sending mixed signals to its trading partners. This could be viewed as being an impediment or non-tariff barrier (NTB) to trade. Access to information by traders and investors (whether national or foreign) leads to predictability of the trading regime in Kenya and instill confidence in traders on what to expect when they carry out legitimate business activities.  This in turn is likely, on balance to attract foreign investments which could have a societal-wide impact in terms of offering employment opportunities and reduction in cost of production hence cheaper goods and services.