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Limitation of the Right of Access to Information in Kenya

The Access to Information Act stipulates the limitation of the right of access to information in Kenya. The Act limits access to certain information in Kenya according to Article 24 of the Constitution which provides grounds for limiting certain rights and fundamental freedoms.

Article 35 of the Kenyan Constitution provides the right of access to information. Every citizen has the right of access to information held by the State and information held by another person and required for the exercise or protection of any right or fundamental freedom.

Every person has the right to the correction or deletion of untrue or misleading information that affects the person. The State should publish and publicise any important information affecting the nation.

Limitation of the right of access to information in Kenya

Section 6 of the Access to Information Act contains the provisions on the limitation of the right of access to information in Kenya. According to Article 24 of the Constitution, the right of access to information under Article 35 of the Constitution should be limited regarding information whose disclosure is likely to—

  • undermine the national security of Kenya;
  • impede the due process of law;
  • endanger the safety, health or life of any person;
  • 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;
  • substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;
  • cause substantial harm to the ability of the Government to manage the economy of Kenya;
  • 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;
  • damage a public entity’s position in any actual or contemplated legal proceedings; or
  • infringe professional confidentiality as recognized in law or by the rules of a registered association of a profession.

These sections above should not apply in limitation of the right of access to information 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—

  • 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;
  • substantially prejudice the commercial interests, including intellectual property rights, of that entity or third party from whom information was obtained;

Information relating to national security includes—

  • military strategy, covert operations, doctrine, capability, capacity or deployment;
  • foreign government information with implications on national security;
  • intelligence activities, sources, capabilities, methods or cryptology;
  • foreign relations;
  • scientific, technology or economic matters relating to national security;
  • vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans or protection services relating to national security;
  • 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;
  • information between the national and county governments deemed to be injurious to the conduct of affairs of the two levels of government;
  • cabinet deliberations and records;
  • 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;
  • information that is referred to as classified information in the Kenya Defence Forces Act; and
  • any other information whose unauthorized disclosure would prejudice national security.

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 a Court should determine.

In considering the public interest, particular regard should be had to the constitutional principles on the need to—

  • promote accountability of public entities to the public;
  • ensure that the expenditure of public funds is subject to effective oversight;
  • promote informed debate on issues of public interest;
  • keep the public adequately informed about the existence of any danger to public health or safety or the environment; and
  • ensure that any statutory authority with regulatory responsibilities is adequately discharging its functions.

A public entity is not obliged to supply information to a requester if that information is reasonably accessible by other means.

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.

For more information about the limitation of the right of access to information in Kenya, see the Access to Information Act.

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Gĩthĩnji is the founder of afrocave.com. He is passionate about politics and governance, public finance management and cycling.@Afrophi