Access to Information

The constitutional and legal provisions set out in article 35 of the Constitution of Kenya, 2010
(Constitution)) and the Access to Information Act demonstrated that unless there was good
reason, a citizen should not be impeded from accessing information that was in the possession of
the State or a State entity that was needed for the advancement or protection of a right.
In the case of Orange Democratic Movement Party (ODM) v Independent Electoral and
Boundaries Commission [2019] eKLR it was held that access to information disputes are
concerned with constitutional rights and the design of the act is that information must be
disclosed unless it is exempted from disclosure under one or more construed exemptions and the
burden of proving the exemption lies on the person holding the documents.
The case of President of the Republic of South Africa and Others v M & G Media Ltd
(CCT 03/11) [2011] ZACC 32; 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC), underscored
that the constitutional right to access information held by the state holding that it gives effect to
“accountability, responsiveness and openness” as founding values of constitutional democracy.
In the case of Famy Care Limited v Public Procurement Administrative Review Board &
another Petition [2012] eKLR it was held that: -“the right of access to information is one of the
rights that underpin the values of good governance, integrity, transparency and accountability
and the other values set out in Article 10 of the Constitution. It is based on the understanding that
without access to information the achievement of the higher values of democracy, rule of law,
social justice set out in the preamble to the Constitution and Article 10 cannot be achieved unless
the citizen has access to information.”
The case of Mary Nyawade v Banking Fraud Investigation Department & 2 others Petition
No. 143 of 2017 held that the grounds for the exception to disclose information should be clearly
and narrowly defined otherwise it is too easy to broaden exceptions and withhold important
information, and that 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.
Article 35 can only be limited under Article 24 as set out in the case of Karen Kandie v
Alassane Ba and another[2017]eKLR in which the Supreme Court described the applicable test
for evaluating limitation of rights under Article 24 as ‘a reasonable and justifiable test’ to be
undertaken on a case-by-case basis.
In the case of Legal Advice Centre t/a Kituo Cha Sheria & 33 others v Cabinet Secretary,
Ministry of Education & 7 others [2021] KEHC 390 (KLR) the High Court held that under
Article 24(3) of the Constitution and Principle 4 of the Global Principles on National Security
and the Right to Information (Tshwane Principles), the burden on justifying the limitation on the
right to access information rests on the person resisting disclosure.
Declaration of Principles on Freedom of Expression and Access to Information in Africa
ADOPTED BY THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
AT ITS 65TH ORDINARY SESSION.(TSHWANE PRINCIPLES).
The Declaration establishes or affirms the principles for anchoring the rights to freedom of
expression and access to information in conformance with Article 9 of the African Charter which
guarantees individuals the right to receive information as well as the right to express and
disseminate information. The Declaration, therefore, forms part of the soft-law corpus of Article
9 norms developed by the African Commission, including the Model Law on Access to
Information for Africa as well as the Guidelines on Access to Information and Elections in
Africa, adopted by the Commission, respectively, in 2013 and 2017.
The right to access information as a basis for accountability, responsiveness, and openness was
emphasized in the South African case of Brummer v Minister for Social Development &
OthersCCT 25/09 2009 ZACC 2.
In Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company & 2
Others [2013]eKLR held that the right to access information under Article 35 (3) provides for
the state’s duty to pro-actively disclose information in the public interest as well as to provide
open access to information held by the State.
Limitations on the access to information
Section 6 of the Access to Information Act of 2016
Article 24(1) of the Constitution expressly states that any limitation upon a constitutionally
protected right must be anchored in law and that limitation should be reasonable and justifiable
in an open and democratic society.
The burden on justifying the limitation on the right to access of information rested on the person
resisting disclosure, as provided for in article 24(3) of the Constitution which stated that the State
or a person seeking to justify a particular limitation should demonstrate to the court, tribunal or
other authority that the requirements of the article had been satisfied. Supreme Court case of
Karen Kandie v Alassane Ba & another, Petition No 2 of 2015 (2017) eKLR
Under principle 4 of the Tshwane Principles, it was not sufficient for a public authority seeking
to withhold information to simply assert that there was a risk of harm but such authority was
under a duty to provide specific, substantive reasons to support its assertions. The exceptions
should apply only where there was a risk of substantial harm to the protected interest and where
that harm was greater than the overall public interest in having access to that information.
Article 19 of the Universal Declaration of Human Rights provides that “Everyone has the right to
freedom of opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media and
regardless of frontiers”. Article 19(2) of International Convention on Civil and Political Rights
also makes the right to information imperative when it states that “Everyone shall have the right
to freedom of expression; this right shall include 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 his choice.” And finally, article 9(1) of Africa Charter on
Human and Peoples Rights states that “every individual has the right to receive information.”
In the case of Trusted Society of Human Rights Alliance & 3 others v Judicial Service
Commission (2016) eKLR where it was held that the exceptions should apply only where there is
a risk of substantial harm to the protected interest and where that harm is greater than the overall
public interest in having access to that information. They contended that courts will not merely
rely on blanket assertions by the government regarding the nature of the information
To satisfy the requirements set out under article 24 of the Constitution, the respondents must
demonstrate that the limitation imposed on a constitutional right is fair, reasonable, necessary,
and justifiable in a democratic society and that it falls within the exceptions provided in the
Access to Information Act. Section 6(1) of the Access to Information Act.
The burden of justifying the limitation on the right to access information rests on the person
resisting disclosure, as provided in Article 24(3) which states that the State or a person seeking to
justify a particular limitation shall demonstrate to the court, tribunal, or other authority that the
requirements of the article have been satisfied.

Disclosure will be refused if releasing that information would cause harm to the commercial or
financial interests of the business. Such interests in my view include trade secrets of the business
or a third party; Financial, commercial, scientific, or technical information of the business or a
third party which, if disclosed, is likely to cause harm to the commercial or financial interest(s)
of the body or third party; or Information supplied in confidence by a third party and where
disclosure of such information could reasonably be expected to put the business at a
disadvantage in contractual or other negotiations or prejudice the business in commercial
competitions in line with the decision in Transnet Ltd and another v SA Metal Machinery Co1

1
71 (147/2005) [2005] ZASCA 113; [2006] 1 All SA 352 (SCA); 2006 (4) BCLR 473 (SCA) (29 November 2005)