Zebedeo John Opore v The Independent Electoral And Boundaries Commission [2017] KEHC 9217 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION   NO. 418 OF 2017

In the matter of the Constitution of the Republic of Kenya, Articles 2 (1) & (4), 3 (1), 10, 12 (1) (a), 20, 22, 23, 35, 38, 48, 87, 258 and 259

and

In the matter of the Right of Access to Information

and

In the matter of the Independent Electoral and Boundaries Commission Act

and

In the matter of the Right of Access to Information Act

Between

Zebedeo John Opore.......................................................................................Petitioner

VERSUS

The independent Electoral and Boundaries Commission.................Respondent

JUDGEMENT

Introduction

1. For a better understanding of the applicants‘ claim for access to information and the respondent‘s refusal, it is necessary at the outset to outline the legal basis for the claim. The right of access to information held by the state is guaranteed by Article 35 of the Constitution. It provides:-

35. (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. The importance of this right has been explained by the constitutional  Court of South Africa in Brümmer vs Minister for Social Development and Others[1] where the Court said:- ".......access to information is fundamental to the realisation of the rights guaranteed in the Bill of Rights....."

3. Access to Information Act[2]was enacted to give effect to Article 35 of the Constitution. It provides a framework for public entities and private bodies to proactively disclose information that they hold and to provide information on request in line with the constitutional principles.

4. Section 4 provides that Access to information held by a public entity or a private body shall be provided expeditiously at a reasonable cost. More important is the wording of subsection (4) which provides that  the Act shall be interpreted and applied on the basis of a duty to disclose and non-disclosure shall be permitted only in circumstances exempted under section 6 which provides that:-

                Limitation of right of access to information
(1)    Pursuant to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution shall be limited in respect of information whose disclosure is likely to—
(a)    undermine the national security of Kenya;
(b)    impede the due process of law;
(c)    endanger the safety, health or life of any person;
(d)    involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made;
(e)    substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;
(f)    cause substantial harm to the ability of the Government to manage the economy of Kenya;
(g)    significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;
(h)    damage a public entity's position in any actual or contemplated legal proceedings; or
(i)    infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

(2)    For purposes of subsection (1)(a), information relating to national security includes—
(a)    military strategy, covert operations, doctrine, capability, capacity or deployment;
(b)    foreign government information with implications on national security;
(c)    intelligence activities, sources, capabilities, methods or cryptology;
(d)    foreign relations;
(e)    scientific, technology or economic matters relating to national security;
(f)    vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security;
(g)    information obtained or prepared by any government institution that is an investigative body in the course of lawful investigations relating to the detection, prevention or suppression of crime, enforcement of any law and activities suspected of constituting threats to national security;
(h)    information between the national and county governments deemed to be injurious to the conduct of affairs of the two levels of government;
(i)    cabinet deliberations and records;
(j)    information that should be provided to a State organ, independent office or a constitutional commission when conducting investigations, examinations, audits or reviews in the performance of its functions;
(k)    information that is referred to as classified information in the Kenya Defence Forces Act; and
(l)    any other information whose unauthorized disclosure would prejudice national security.

(3)    Subsection (1)(d) and (e) shall not apply if a request for information relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk.
(4)    Despite anything contained in subsections (1) and (2), a public entity or private body may be required to disclose information where the public interest in disclosure outweighs the harm to protected interests as shall be determined by a Court.
(5)    A public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means.
(6)    In considering the public interest referred in subsection (4), particular regard shall be had to the constitutional principles on the need to—
(a)    promote accountability of public entities to the public;
(b)    ensure that the expenditure of public funds is subject to effective oversight;
(c)    promote informed debate on issues of public interest ;
(d)    keep the public adequately informed about the existence of any danger to public health or safety or to the environment; and
(e)    ensure that any statutory authority with regulatory responsibilities is adequately discharging its functions.

(7)    Unless the contrary is proved by the public entity or private body, information is presumed not to be exempt if the information has been held for a period exceeding thirty years.

5. This Court has on several occasions in the past pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections.[3] What is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose.[4] All relevant provisions are to be considered as a whole and, where rights and freedoms are conferred on persons, derogations there from, as far as the language permits, should be narrowly or strictly construed.[5]

 6. In peremptory terms, the constitution imposes an obligation on all courts to promote ?the spirit, purport and the objects of the Bill of Rights, when interpreting legislation. In Phumelela Gaming and Leisure Ltd v Gründlingh and Others[6]the S.A. constitutional court observed: ?

"A court is required to promote the spirit, purport and objects of the Bill of Rights when interpreting any legislation, and when developing the common law or customary law‘. In this no court has a discretion. The duty applies to the interpretation of all legislation and whenever a court embarks on the exercise of developing the common law or customary law. The initial question is not whether interpreting legislation through the prism of the Bill of Rights will bring about a different result. A court is simply obliged to deal with the legislation it has to interpret in a manner that promotes the spirit, purport and objects of the Bill of Rights. The same applies to the development of the common law or customary law."

7. In line with the dictates of the constitution, this court will reject the narrow, literal reading of the above provisions and opt for a construction that promotes wider access to information.  Guided by the above constitutional principles, I now proceed to examine the facts of this case.

Petitioners case

8. By a letter dated 23^rd August 2017, the  petitioner requested from the Respondent, records and documents in their custody and control pertaining the elections for Bonchari Parliamentary seat held on 8^th August 2016. These include the number of voters identified by the electronic voter identification devices at every polling station; Copies of Forms 32A (Voter Identification & Verification Forms) at every polling station; Polling Station Diaries as prepared and submitted by the respective presiding officers at every polling station.  In the said letter, the petitioners counsel cited the time frame for filing election petitions, indicating that he desired the said information to lodge a petition.

9.

10.

       Respondent's Response

11. The Respondent admits having received the request and insists that it granted the petitioner  access to various statutory forms that were used during the conduct of the elections which include forms 35A and 35B of all the polling stations and constituency  respectively and that the petitioner cannot be granted the information as the same is of private nature for private use by the commission during the conduct of the election and insisted that the petitioner has all the documents he needs to file his petition.

Advocates submissions

12. Petitioners' counsel argued three issues, namely; (a) violation of article 35 (1) (a) of the constitution, that the petitioner desires the information for purposes of exercising his right to access  justice by challenging the election in court and that the information sought does not fall within the exceptions stipulated in the law. To  buttress his argument, counsel cited the recent Supreme Court decision rendered in Raila Odinga & Another vs Independent Electoral & Boundaries Commission[7] in which the court allowed an application for access information in an election dispute.

13. Counsel for the Respondent argued that the documents sought are of the nature that the Respondent has to collect and analyse and it would be improper to disclose the information before analysing it, that the applicant has not proved his case and cited section (i) (h) (g) of the Access to Information Act. Counsel relied on the decision rendered in Timothy Njoya vs A.G & Another.[8]

Analysis of the facts, the law and issues

14. The core issue in this case is whether the Respondent has discharged the burden under  article 24 of the constitution and section 6 of the Access to Information. Put differently, has the Respondent   established that its refusal to grant access to information is justified. In other words, what should the  Respondent do to demonstrate that refusal falls within the exceptions under section 6 of the Act.

15. Offering citizens access to state-held information is "one of the most effective ways of upholding the constitutional values of transparency, openness, participation and accountability."[9]  Accountability is unattainable if the government has a monopoly on the information that informs its actions and decisions. Access to information is not only fundamental to a properly-functioning participatory democracy; it also increases public confidence in government and enhances its legitimacy. There are also, according to Cora Hoexter:-

   "many other benefits to be had. For instance, access to information discourages corruption, arbitrariness and other improper governmental conduct. It facilitates the protection of rights, something that is easily demonstrated in the area of administrative justice. Like reasons for administrative action, access to state-held information can be of enormous assistance to a person who suspects that her/his  rights to administrative justice have been infringed and is in the process of building a case."[10]

16. Prior the promulgation of  the enactment of the Constitution of Kenya, 2010, there was no general right of access to information in Kenya. Considerable resources were directed instead towards maintaining secrecy in government and public bodies. Many statutes contained provisions making it a criminal offence for officials to release information. The inclusion of a right of access to information in state hands or held by public bodies was therefore "an innovation of great significance"[11] in the  Constitution of Kenya 2010. Article 35 confers on every person "the right of access to all information held by the state or any of its organs at any level of government in so far as such information is required for the exercise or protection of any of his or her rights."

17. It can safely be said that article 35 of the constitution aims to exclude the perpetuation of the old system of administration, a system in which it was possible for government to escape accountability by refusing to disclose information even if it had bearing upon the exercise or protection of rights of the individual. This is the mischief the expanded Bill of Rights in our transformative constitution is designed to prevent. Demonstrable fairness and openness promotes public confidence in the administration of public affairs generally. This confidence is one of the characteristics of the democratically governed society for which the Constitution strives.

18. Access to Information Act was enacted to give effect to the constitutional right of access to any information held by the State/Public bodies. A reading of the section cited above shows that the act  casts the exercise of this right in peremptory terms – the requester ?must be given access to the information so long as the request does not fall within the exceptions in section 6 of the act. It can safely be said that under our law, the disclosure of information is the rule and exemption from disclosure is the exception.

19. It is  also clear  from section 6 of the act, that there are ?reasonable and justifiable limitations on the right of access to information. The purpose of section 6 is to protect from disclosure certain information that, if disclosed, could cause material harm to, amongst other things to:- the defence, security and international relations of the Republic; the economic interests and financial welfare of the Republic and commercial activities of public bodies; and the formulation of policy and taking of decisions by public bodies in the exercise of powers or performance of duties conferred or imposed by law.

20. It is settled law that the burden of establishing that the refusal of access to information is justified rests on the state or any other party refusing access. This position was clearly expressed by the Constitutional Court of South African in President of the Republic of South Africa  & Others vs M & G Media Limited [12] where it was held that:-

"The imposition of the evidentiary burden of showing that a record is exempt from disclosure on the holder of information is understandable. To place the burden of showing that a record is not exempt from disclosure on the requesting party would be manifestly unfair and contrary to the spirit of............. the Constitution. This is because the requester of information has no access to the contents of the record sought and is therefore unable to establish that it is not exempt from disclosure under the Act. By contrast, the holder of information has access to the contents of the record sought and is able to establish whether or not it is protected from disclosure under one or more of the exemptions ....... Hence ......the evidentiary burden rests with the holder of information and not with the requester."

21. Thus, the Respondent  has a burden and a duty to demonstrate that the information sought falls within the exceptions under section 6 of the act. It is not enough to allege it does, as has happened in this case, without discharging the evidential burden to the required standard.

22. I find it desirable before formulating the standard to assess whether the Respondent has properly discharged its burden under section 6 of the act, to consider foreign jurisprudence dealing with comparable legislation. Foreign jurisprudence is of value because it shows how courts in other jurisdictions have dealt with the issues that confront us in this matter. At the same time, it is important to appreciate that foreign case law will not always provide a safe guide for the interpretation of our Constitution. When developing our jurisprudence in matters that involve constitutional rights, as the present case does, we must exercise particular caution in referring to foreign jurisprudence.[13]

23. The United States has well-developed access to information jurisprudence. Its Freedom of Information Act (FOIA) contains nine exemptions to disclosure. The FOIA places on the agency the burden to demonstrate to the court that it has properly relied on the exemption claimed by the agency refusing the information request. The agency claiming the exemption can discharge its burden only by presenting the court with evidence that the information withheld falls within the exemption claimed, and such evidence should not be controverted by either contrary evidence on the record or evidence of bad faith on the part of the agency.[14]

24. In Hayden vs National Security Agency,[15]  the District of Columbia Circuit Court of Appeals summarised the appropriate procedures to be used by trial courts in determining whether documents should be released. It said: ?(1) The trial court must make a De novo review of the agency‘s classification decision, with the burden on the agency to justify nondisclosure. (2) In conducting this review, the court is to give substantial weight to affidavits from the agency. (3) The court is to require the agency to create as full a public record as possible, concerning the nature of the documents and the justification for nondisclosure. (4) If step (3) does not create a sufficient basis for making a decision, the court may accept classified affidavits in camera, or it may inspect the documents In camera. This step is at the court‘s discretion . . . . (5) The court should require release of reasonably segregable parts of documents that do not fall within FOIA exemptions..[16]

25. The Canadian Access to Information Act[17]just like our Access to Information Act[18] provides for a number of exemptions to disclosure, as well as judicial review of a refusal of access to information.[19] The Act stipulates that the burden of establishing that a challenged refusal is authorised rests with the government institution refusing access.[20] Unlike in both the United States and South Africa, where courts engage in a de novo review of the lawfulness of the refusal, Canadian courts limit their review to whether or not the refusal was reasonable.[21] As in the United States, to establish proper reliance upon a discretionary exemption from disclosure, the government must provide evidence that the record falls within the description that is contemplated by the statutory exemption invoked.[22] The government must provide actual direct evidence of the confidential nature of the information at issue,[23] which must disclose a reasonable explanation for exempting the record.[24]

26. In Australia, requests for access to government records are governed by the Freedom of Information Act 1982.[25] Australian courts have held that the test for determining whether a refusal was justified is a reasonableness test, and the state‘s burden is not discharged merely by showing that the refusal was not irrational, absurd, or ridiculous.[26] Rather, it must go further to show that, in light of the public interest, there were reasonable grounds for the refusal. Even where a government minister has certified refusal on the grounds of public interest, the court must still ask itself whether, in the light of countervailing factors in the public interest, there were reasonable grounds for the refusal.[27]

27. From this comparative analysis of the standards applied by courts in other jurisdictions with legislation comparable to ours, the Respondent may discharge its evidentiary burden only when it has shown that the record withheld falls within the exemptions claimed. Exemptions are construed narrowly, and neither the mere ipse dixit of the information officer nor his or her recitation of the words of the statute is sufficient to discharge the burden borne by the state.[28] Even in jurisdictions like Canada, where courts do not engage in a de novo reconsideration of the merits of an exemption claimed, the refusal of access to information held by the state must be reasonable.[29] This is consistent with the importance placed in the Constitution on the right of access to information, as well as with the scheme of the act, according to which disclosure is the rule and exemptions from disclosure are the exception.[30] The  limitation claimed must satisfy the provisions of article 24 of the constitution and must be reasonable and justifiable.

28. The right of access to information is not absolute, but  to satisfy the requirements set out under article 24 of the Constitution, the respondent must demonstrate that the limitation  imposed on the constitutional right is “fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom and that it falls within the exceptions provided in section 6 of the act.”   In my view, the Respondent did not satisfy this constitutional test nor did they establish that the refusal falls within the exceptions in section 6.The Respondents only made a  reliance of section 6 without offering evidence to discharge the burden.

29. Specifically, counsel for the Respondent sought refuge in the provisions of section 6 (1) (g), (h) & (i) which provide that:-

(g)    significantly undermine a public or private entity's ability to give adequate and judicious consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration;
(h)    damage a public entity's position in any actual or contemplated legal proceedings; or
(i)    infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

30. In order to discharge its burden under section 6, the Respondent must provide evidence that the record in question falls within the description of the statutory exemption it seeks to claim. The proper approach to the question whether the Respondent has discharged its burden under section 6 is therefore to ask whether the Respondent has put forward sufficient evidence for a court to conclude that, on the probabilities, the information withheld falls within the exemptions claimed.

31. The  recitation of the statutory language of the exemptions claimed (as has happened in this case) is not sufficient for the Respondent to show that the record in question falls within the exemptions claimed. Nor is a mere ipse dixit affidavit proffered by the Respondent.[31] The affidavit must provide sufficient information to bring the record within the exemption claimed. This recognises that access to information held by the state or public bodies is important to promoting transparent and accountable government, and people‘s enjoyment of their rights under the Bill of Rights depends on such transparent and accountable government.[32]

32. Ultimately, the question whether the information put forward is sufficient to place the record within the ambit of the exemption claimed will be determined by the nature of the exemption. The question is not whether the best evidence to justify refusal has been provided, but whether the information provided is sufficient for a court to conclude, on the probabilities, that the record falls within the exemption claimed. If it does, then the Respondent  has discharged its burden under section 6. If it does not, and the Respondent has not given any indication that it is unable to discharge its burden because to do so would require it to reveal the very information for which protection from disclosure is sought, then the Respondent has only itself to blame.[33] For the Respondent to claim that it will have to analyse the data is not sufficient. In any event, what is sought is  clearly spelt out in the letter requesting the information. It is not the analysis but the information stipulated in the letter requesting the information.

33. What must be borne in mind is that access to information disputes are concerned with a constitutional right. In addition, the scheme of the act is such that information must be disclosed unless it is exempted from disclosure under one or more narrowly-construed exemptions. And what is more, the holder of information bears the onus of establishing that the refusal of access to the record is justified under the act.

34. At the risk of repeating myself, the information sought in this case is specified in the letter dated 23^rd August 2017. It has not been demonstrated how if at all, any of the above documents stated therein fall within any of the exceptions stipulated in section 6 cited above nor has been shown to be reasonable and   justifiable in a open and democratic society to satisfy the provisions of article 24 of the constitution.

35. The question is whether the information put forward is sufficient to place the informtion within the exemption claimed will be determined by the nature of the exemption. The question is not whether the best evidence to justify refusal has been provided. If the information provided is sufficient for the court to conclude, on the probabilities, that the information falls within the exemption claimed, then the Respondent has discharged its burden under section 6.

36. What must be emphasised, however, is that proceedings under Access to Information Act[34] differ from ordinary civil proceedings in certain key respects. First, these disputes involve a constitutional right of access to information. Second, access to information disputes are generally not purely private disputes – requesters of information often act in the public interest and the outcome of these disputes therefore impacts the general health of our democratic polity.

37. It is a reality that some things must be secret. More importantly, however, secrecy must be subjected to the tightest control. The judicial duty that secrecy should be as limited as possible is one that is vital to the success of our democratic order.

Conclusion

38. The grounds for exception to disclose information should be clearly and narrowly defined. Otherwise it is too easy to broaden exceptions and withhold important information. The presumption is always in favour of disclosure, unless the information meets a so-called three-part test, deduced from international law:- (a) the information relates to legitimate interests protected by the law, and (b) disclosure of the information threatens to cause substantial harm to that interest, and (c) the harm to the interest is greater than the public interest in receiving the information.[35]

39. The fact that the information falls within the list of legitimate exception grounds is not sufficient to exempt it from disclosure. The disclosure must harm the specific interest substantially and this harm must be greater than the public interest in receiving the information.[36] Disclosure takes precedence over secrecy, and to give effect to the principle of maximum disclosure, any legislation or provision contradicting this principle should be construed narrowly and in favour of the enforcement of the right.

40. The right to information forms part of human rights and freedoms, and it is essential to be able to access information from public authorities in order to exercise individual human rights and freedoms. Right to Information laws and policies create mechanisms whereby an individual can access information that may have an impact on them, in order to meaningfully exercise other rights in the Bill of Rights.

41. It is my considered opinion that the Respondent has failed to establish that the information sought falls within any of the restrictions under section 6 of the act and the tests enumerated above. Refusal to furnish the information to the petitioner which he requires for enforcement of a constitutional right, the right to access the courts is in my view a gross violation of the Constitution and a  breach of his fundamental rights under article 35 of the constitution.

42. The Court simply cannot countenance a denial of a fundamental right, which is the  cornerstone of our legal system. It is the Court’s primary duty to protect the basic rights of the people vis-à-vis government actions and actions by public bodies. This Court will continue to uphold the Constitution and its enshrined principles.

43. The Organisation of African Unity’s (predecessor to the African Union) African Charter on Human and People’s Rights, adopted in 1981 and came into force in 1986,[37] also upheld the right of access to information wherein Article 9 of the Charter states that:- “ Every individual shall have the right to receive information.”

44. At the 32^nd Ordinary Session of the African Commission on Human and Peoples’ Rights (Banjul, The Gambia, 2002) African countries adopted a Declaration of Principles on Freedom of Expression in Africa[38] which states that:- Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.

 45. Guided by my analysis of the facts and the law as enumerated above, I find and hold that the Respondent has not demonstrated that the information sought falls within the permitted exceptions. In view of my finding herein above, I find and hold that this petition  succeeds. Accordingly, I allow the petition and enter judgement in favour of the petitioner as follows:-

a. An Declaration  be and is hereby issued  that the Respondent has violated the petitioners Rights under Article 35 (1) (a) and (b) of the Constitution and Section 4 (1) (b) of the Access to Information Act No. 31 of 2016

b.  An Order be and is hereby issued compelling the Respondent to provide the petitioner within three days from the date of this judgement with the following:-

 i. Number of voters identified by the electronic voter identification devices at every polling station within Bonchari constituency;

ii. Copies of Forms 32A (Voter Identification & Verification Forms) at every polling station within Bonchari constituency ;

iii. Polling Station Diaries as prepared and submitted by the respective presiding Officers at every Polling Station within Bonchari constituency.

c. No orders as to costs.

Orders accordingly

Signed, Delivered and Dated  at Nairobi this   5^th    day of     September      2017

                                              John M. Mativo

                                                     Judge