The Computer Society of Kenya

Since 1986


Saturday June 16, 2018

The Executive Order by President Uhuru Kenyatta on procurement in public institutions, and is in line with Article 35 of the Constitution, confers every citizen the right to access information held by the State, and, compels the State to publish and publicise any important information affecting the nation. The order makes it possible for citizens to access information on tenders, who was awarded the tenders, identity of the directors of companies awarded tenders, contract details and what was supplied among other things.

The Access to Information Act was passed in 2016 after over 15 years of advocacy led by the civil society. However, one big challenge is that, to date, the Ministry of ICT is yet to come up with regulations on issues such as fees chargeable to the public for obtaining information in whatever form, such as digital copies or photocopies. As it stands, neither the government nor private organisations are bound by any law when determining what to charge citizens for information sought.


In the face of numerous multibillion scams such as the NYS 2 and NCPB among others, I agree that the government needs to employ all lawful tools to curb this corruption scourge. Access to information increases accountability and transparency, and allows the identification and uncovering of corrupt practices. Information enables the public to participate in the scrutiny of government activities, and to have their rightful say in the development of anti-corruption policies and laws and to monitor their enforcement.

Moreover, information empowers citizens to identify and demand action against corruption. It also allows the media, civil society and oversight agencies to detect and sanction public officials engaging in corruption.

Access to information, coupled with freedom of expression and a vibrant free and independent media, including good investigative journalism, ensures that the public is aware of what the government is doing on their behalf; encourages informed decision-making by both the State and the public; and, encourages the media to shine a light on what is important. It also enhances public participation which is a national value.


Right now, Kenyans are watching keenly how the Directorate of Criminal Investigations, EACC, Office of the Director of Public Prosecutions and the Judiciary are dealing with the NYS2 and other cases. As such, future information requests could include very pointed questions to all duty bearers regarding their commissions or omissions. For instance, it was revealed in court that the lead investigator in the NYS2 saga had a prior relationship with Jeremiah Gicini Ngirita, a suspect charged with fraudulently receiving money from NYS. The investigator further claimed that the DCI knew of this conflict of interest and did nothing. The fact that he did not recuse himself from the case raises red flags as to whether the case is being sabotaged from within.

As such, any Kenyan would be within his or her rights to do an information request to the DCI asking what he indeed knew about the conflict of interest; why he chose not to act if he indeed knew; what he plans to do if he did not know; and whether or not it will lead to an expanded investigation and disciplinary action.

Proponents to access to information understand that the State collects and holds information and makes decisions on behalf of the people and not for itself because the State exists because of the people and not the other way round. Therefore, ultimately, all information held by the State belongs to the people.


Be that as it may, under the law, it is understood that citizens are not able to request for certain kinds of information held by the State, albeit in very limited and narrow circumstances such as information that may jeopardise national security, public order, reputations of others and privacy. It thus follows that I cannot request detailed operational plans form the KDF because such information may jeopardise their need for secrecy. However, it is within my rights to interrogate their budgets and expenditure.

The move by the President to open up the tendering processes is a positive step. The fight against corruption depends on less secrecy, more transparency, the rule of law and equality before the law. The Cabinet Secretary for ICT should, therefore, quickly publish the Access to Information regulations to breathe life to this accountability framework.

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