Article 19 of the ICCPR provides that everyone shall have the right to hold opinions without interference, everyone shall have the right to freedom of expression; this includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice.

The UN Special Rapporteur on Freedom of Opinion and Expression has also stressed the overriding importance of freedom of information. In his 1995 report to the UN Commission on Human Rights he stated that freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked [2].

Freedom of information and freedom of expression may however be restricted in limited cases. These are cases where enjoyment of such rights threatens national security or privacy. Article 19(3) of the ICCPR states that the exercise of the rights may be restricted in cases provided for by law and that are necessary. These are: For respect of the rights and reputations of others; and for the protection of national security or of public order (ordre public), or of public health or morals.

In Kenya, Freedom of expression is enshrined in the constitution. Section 79(1) of the constitution provides that, “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence [3].

This section gives a right to freedom of expression but does not include freedom to seek or access information or ideas. There is need for free flow of information if citizens are to freely express their ideas in an informed manner. This can only be achieved where the information is easily accessible. Information should freely flow from the government to its citizens to encourage public participation in government affairs. Section 79 of the constitution further imposes restrictions on public officials especially with regard to how they handle public information. This goes against international law standards providing for disclosure. International standards require that governments disclose information except in cases where withholding of information is necessary and justifiable in a democratic society.

In many African countries, Freedom of information has further been hampered by the official secrets Act, which protects the states interest with regard to information as opposed to public interest. The Kenyan official secrets Act states that official information is secret unless its release has been specifically authorized and provides for severe criminal penalties in case of un authorized disclosure. The case in Kenya as in other countries in Africa, existing laws work to hamper access to information rather than disclosure. It is no wonder that only five countries in Africa have a specific Freedom of Information law. To enhance democracy in a government of any country, the government should not withhold information unless it is justified to do so.

The Official Secrets Act was enacted to provide for the preservation of state secrets and state security. In the absence of any other legislation providing for access to information, the official secrets Act takes precedence. In a democratic state, however, the government should withhold information only in exempt cases where non-disclosure is justifiable and provided for in law. Provisions of the official secrets Act therefore impede democracy.

Freedom of information promotes good governance, democracy, trust and accountability in government. Public Information is collected using tax payers money and should therefore be easily accessible. Governments often hold this information secret and attempts by the public to gain access it are often frustrated by government officials. Records should be made available and provided to members of the public when needed, with the government acting as a custodian of information.

Access to information eases government’s decision-making process as a result of the participation of an already informed citizenry. Citizens can only exercise their rights or influence decision making if they have access to reliable and adequate information. Most African Countries claim to be democratic but true democracy cannot be achieved or be felt if the citizens have no access to information. Democracy is achieved when people engage with their leaders and influence decision making process. Leaders are often elected based on mere political slogans but essentially, the public needs information to properly exercise their democratic rights. They will be better placed to choose their leaders based on information giving their record rather than mere political talk. Citizens can then hold their leaders accountable for policies and decisions made while in government.

With access to information, citizens will then be empowered to demand action against the corrupt and recovery of diverted development expenditure. Lack of free flow of information impairs and slows down economic and social development. For most African countries, economic development is often undertaken in participation with private contractors and /or international donors. It is important that all those involved in such economic deals are held accountable to the public. This can only be realized if information on development deals is shared with the public. Members of the public through access to information will increase their economic opportunities. Members of the public are aware of government funds available and make use of them in improving their lifestyles, business persons can find out about licensing requirements, taxation and trade regulations, workers access information about labour regulations and their entitlements. Provision of such information increases economic opportunities for the less powerful as well as for big players.

Freedom of information is a vital tool to fighting corruption which best thrives in an uninformed society. Citizen’s right to seek information from the state on any issue promotes transparency and accountability in government. Freedom of information also promotes transparency and openness in public and private decision making process. Statistics reveal that in countries where freedom of information has been enforced, positive results have been realized in terms of reduction in corruption, inefficiency and mismanagement [4].

Statistics show that in 2005, of the ten countries scoring best in transparency International’s annual corruption perceptions index, no fewer than nine had effective legislation enabling the public to peruse government files and of the ten counties that were perceived to be worst in corruption, only two had freedom of information legislation. Freedom of information reduces corruption and promotes transparency in governments, since citizens are empowered through information. Demystification of rules and procedures, proactive dissemination of relevant information touching on matters of public policy and regular consultation with the public is a strong safeguard against corruption.

Freedom of information is important for the achievement of meaningful democracy. With access to information citizens are better placed to choose their representatives on the basis of strength of their record, hence they can hold their governments accountable for the policies and decisions it promulgates. Democracy is further enhanced when people meaningfully engage with their institutions of governance and form their judgments on the basis of facts and evidence, rather than just empty promises and mere political talk.

Freedom of information reduces electoral fraud and promotes proper public participation in elections. Documents such as the voters’ register should be available to the public long before elections to avoid cases of rigging and inconsistency in voter turn out. Democracy is further enhanced when the public engage with public institutions and form their judgment on the basis of facts and evidence rather than just empty promises and meaningless political slogans. With freedom of information, the government is more sensitive, accountable and responsive to the needs of its citizens.

In a democratic state, access to official information is vital to ensure that the people remain in ultimate control over the functions of government. Freedom of information allows citizens to scrutinize their officials, to participate in decision-making and to exercise their rights and responsibilities in an effective and informed manner. Fundamentally, official information belongs to the public. It is a national resource, which should be used solely for public purposes. As the Australian Law Reform Commission pointed out, the information which public officials, both elected and appointed, acquire or generate in office is not acquired or generated for their own benefit, but for purposes related to the legitimate discharge of their duties of office, and ultimately for the service of the public for whose benefit the institutions of government exist and who ultimately fund the institutions of government and the salaries of officials [5].

*Anne Nderi works in the Policy research and Advocacy Program - Kenyan Chapter of the International Commission of Jurists.

* Please send comments to [email protected] or comment online at http://www.pambazuka.org/

Notes:

1. The United Nations General Assembly in 1946 Resolution 59(1)

2. UN Document E/CN.4/1995/32, para, 35. See also Special Rapporteur’s annual reports to the UN Commission on Human Rights each year since 1995.

3. Section 79,The Constitution of Kenya.

4. Freedominfo.org

5. Re Eccleston and the Department of Family Services and Aboriginal and Islander Affairs, (1993), 1 QAR 60, at 73. Quoted in Australian Law Reform Commission, Report Number 77, 1995, http://www.alrc.gov.au, Chapter 2 paragraph 4.9