FOI and the Fight Against Corruption in Kenya

The Kenyan Section of the International Commission of Jurists has campaigned for years to promote the right to know. Information is power, when citizens have the right information they can be a very powerful force for positive change. The right to access information held by public bodies referred to as ‘freedom of information’ is a fundamental human right recognised in international law. The right to seek, receive and impart information is enshrined in the international instruments including the International Covenant on Civil and Political Rights, the United Nation’s Universal Declaration of Human Rights and the African Charter on Human and People’s Rights. Kenya is party to all these international instruments and has assumed obligations thereto towards making the rights a reality in Kenya.

Freedom of information (FOI) supports better public policy and is a salient antidote for corruption and opacity in government. The public has the right to know how policy is made. It is an open fact that corruption is prevalent in Kenya. The National Rainbow Coalition (NARC) Government came to power on the platform of reforms, chief of which was zero-tolerance for corruption. However there are numerous incidences of corruption reported in the NARC regime such as the Anglo Leasing Scandal.

Corruption thrives in Secrecy!

In Kenya we have in operation the Official Secrets Act that is used to silence any whistleblowers on corruption in Government. One of the key challenges of anti-corruption reform in Kenya is treatment of whistleblowers. Many persons are afraid of blowing the whistle on corrupt people and dealings because they fear penalisation and mistreatment for making such disclosures. The draft FOI Bill 2006, which was developed by civil society activists contains a provision on protection of whistle blowers which would boost the fight against corruption in Kenya.

Corruption thrives in secrecy because corrupt leaders and public officials are confident that they cannot be caught and their misdeeds cannot be revealed to the public. Corrupt leaders know they can be returned to office and do not risk being voted out. If citizens are made aware of their misdeeds, they would not re-elect them.

The purpose of a freedom of information law in addition to eliminating secrecy is to ensure that the public can trust the information it receives from the government and to force the government to speak truthfully.

Poor third world countries such as Kenya have their situations worsened by lack of official information. Being information poor is worse than suffering a poverty of resources. In Kenya we are information poor. The salient reason for information poverty is that large stockpiles of valuable information are kept away from the citizens.

To effectively eradicate opacity and corruption, a freedom of information law must conform to international principles on freedom of information. These are founded on the premise that information is a public good, presumption of openness, proactive disclosure, maximum disclosure and minimum exemptions, protection of whistle blowers, effective machinery for access and ensuring that access is affordable. These principles are included in the draft FOI Bill 2006.

Any efforts to fight corruption will come to nought unless an effective Freedom of Information Law underpins them. Attempting to end graft without such a law will be an expensive, fraught and eventually unsuccessful endeavour. A freedom of information law assists citizens to be vigilant over government; deepens the media’s watchdog role and helps the oversight and legislative functions of Parliament.

How the Draft FOI Bill 2006 will help

Firstly the definitions of public bodies and information are wide and inclusive enough to capture all departments of the government and all sorts of information. The position in Kenya now by virtue of not having freedom of information legislation is that all information held by government is classified, privileged and secret. Government in Kiswahili translates as serikali drawn from siri kali (fierce or top secret). The Government is a place of top secrets!

All government departments would be captured by the definition of public bodies including parastatals, commissions and all bodies supported by public funds. This means that even the newly set up corruption fighting bodies would be covered, they would have to release information on what they are doing, who they are investigating, what are the allegations etc.

Under the FOI Bill 2006, the Government is bound to collect, collate, store and record information in a manner and form that is easily retrievable. The corruption related fables we hear of files getting lost or records not being kept would be a thing of the past. Enhanced transparency and openness heralded by freedom of information legislation would make it difficult for corruption to take place.

Record keeping would help the public keep tabs on what is happening and question things immediately. In the example of tendering, if only one company kept winning tenders, we would be able to question it right away. Further it would help remove the problem of painting all members of government with the same brush. We can be sure that not all NARC Ministers and public officials are corrupt because openness would help us to single out and nail the culprits.

The right to information envisaged in the FOI Bill means that the Government has a duty of disclosure at all times. The Government would be obliged to keep us informed so that we can have participatory democracy. Granted, there is information that the public should not be privy to because it would endanger national security or public interest. But even for this kind of scenario the Government should give reasons why it should not disclose some information. The decision not to disclose should be in the public domain. A ready example here is affairs concerning the military and defence departments. The hottest corruption sagas in recent times have emanated from there. Our knowing about a contractual dealing in the military has more public good than harm to national security.

In the budget process the populace is locked out until the Minister for Finance reads his budget in mid-June. The FOI law would help to open up the process of allocating financial resources for government activities. The interaction between planning and budgeting is referred to as the Planning and Budget Cycle. A final component of the cycle is the implementation stage where budgeted resources are expended. Unfortunately, this intricate process is all carried out internally within the government machinery, and shrouded in secrecy until the final document is released for public consumption.

Currently, there is no policy of proactively releasing public information for purposes of monitoring this process. The public is only able to participate at the parliamentary level through their representatives. If information on government planning and expenditure was availed to the public, there would be fewer or no avenues for grand corruption and embezzlement. We would be able to question any over-estimations as well as white elephant projects in which a lot of money is expended but with nothing to show. We would know what monies were allocated for what tasks so if the tasks are not done the monies should remain in public coffers. Access to information in the budgeting process would help reduce budget lines intended or susceptible to corruption and embezzlement. With a freedom of information law in place, all citizens will have a chance to participate in decision-making and development initiatives.

There are a few available avenues of accessing information on government expenditure such as the Auditor General’s Office, Parliamentary Accounts Committee (PAC), and the Parliamentary Investment Committee (PIC). These committees are empowered by the National Assembly (Powers and Privileges) Act to seek information relating to public expenditure within all public institutions where the Government has at least 51 per cent equity shareholding. However, in all of the Auditor General’s reports studied there were numerous sections where information was not forthcoming from the relevant departments or officials. Ironically these bodies too are shrouded in secrecy. They themselves, as in the case of the Auditor General, do not have easy access to information held by other departments. The Government should put a stop to all this by allowing for the right to access information.

In the Transparency International rating it is notable that the countries with freedom of information legislation rank low on corruption levels. In this context, Kenya should urgently enact the FOI Bill to help fight against entrenched corruption that has so blighted the country’s development since independence.