‘We must appreciate as a nation that the right to access information is not a fringe right to other rights in the Bill of Rights. It is integral to the democracy conceptualized by our Constitution, in that it encourages public participation, abhors secrecy in governance and above all seeks to ensure that public power delegated to leaders is not abused.’ – Judge E.C Mwita, Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR, at paragraph 57.

In a landmark judgment by the High Court in late 2017, Judge E.C Mwita in the case of Katiba Institute v Presidents Delivery Unit & 3 others [2017] eKLR found that the President’s Delivery Unit (PDU) and state officers working in the Office of the President were under both a constitutional and legal obligation to allow any citizen to access information in the State’s possession since it was held on behalf of the public. In this case, civil society organisation Katiba Institute (KI) had filed a constitutional petition challenging the decision of PDU not to provide information sought by KI relating to the #GOKDelivers and #JubileeDelivers advertisement campaigns (pictured above), including dates when advertisements were done, nature and copies of advertisements, cost of advertisements and who met the cost of those advertisements.

KI alleged that on diverse dates during the year 2017, PDU published advertisements in the media, through billboards, print media as well as through electronic platforms particularly social media using the hashtags #GOKDELIVERS and #JUBILEEDELIVERS. These adverts focused on achievements of the incumbent President Uhuru Kenyatta and his Jubilee Party administration appeared in the run-up to the August 8 General Elections with the clear aim of swaying public support in favour of Jubilee and Kenyatta’s bid for a second consecutive term in office. KI wrote to PDU on 17th August 2017 in pursuit of its right of to access information under Article 35 of the Constitution, seeking information on how many advertisements had been published, through what media, schedules and dates when it was done, copies of the documents advertised, total cost incurred and the relevant government accounting office(r) and the individual or government agency that met the cost. The information sought was to cover the period 25th May to 16th August 2017. In this regard, KI claimed that PDU refused and/or failed to supply the information sought in its letter.

Therefore KI filed the present petition in the High Court seeking several remedies; (1) A declaration that the failure by PDU and its officers to provide information sought under Article 35(1) and also to publicise the information in accordance with Article 35(3) on the basis of the KI’s request dated August 17th 2017 was a violation of the right to access information; (2) A declaration that the failure by PDU and its officers to provide information sought under Article 35(1)(a) and also publicise the information in accordance with Article 35(3) on the basis of the petitioner’s request dated August 17th 2017 was a violation of Article 10 of the Constitution specifically the values of the rule of law, public participation, human rights, good governance, transparency and accountability; (3) A declaration that failure by PDU and its officers to provide information sought under Article 35(1)(a) and also to publish the information in accordance with Article 35(3) was a violation of the obligations imposed on the said respondents by Chapter Six specifically Articles 73(1) and 75(1) of the Constitution and section 3 of the Leadership and Integrity Act and sections 8, 9 and 10 of the Public Officers Ethics Act; (4) An order of mandamus compelling the PDU and its officer to forthwith provide at PDU’s cost, information sought by KI in their letter to PDU dated August 17, 2017; and finally (5) costs of the petition to be paid by PDU to KI assessed at Kshs 500,000/-.

In response to KI’s petition, PDU had four main lines of argument namely (1) that the provisions of Article 35 of the Constitution were only justiciable in respect to citizens who are natural persons but not KI, a juristic person; (2) that the petition was premature since the Access to Information Act (AIA) confers oversight and enforcement role on the Commission of Administrative Justice (CAJ); (3) that the information sought by KI was available at the Auditor General and Parliament which are constitutionally mandated to oversight public expenditure; and (4) that the information sought was exempted under section 6(1)(a) and 6(2)(j) of AIA as it affects state security.

After having considered the pleadings, submissions by both KI and PDU lawyers, the learned judge found that there were two central issues arising for determination in the petition, namely (1) Whether PDU and its officers violated KI’s right of access to information; and (2) Whether PDU and its officers should be compelled to give the information requested by KI. On the first issue, the court states that under Article 35 of the Constitution, the only pre-condition for accessing information is ‘that information be in possession of the state, state officer or public body’. The court notes the subsequent enactment of AIA in 2016 which was intended to ‘actualise Article 35’. For instance, the court notes that section 4 of AIA provides that ‘the right to information is not affected by the reason why a citizen seeks information or even what the public officer perceives to be the reason for seeking information.’ Therefore the court concludes that ‘the right to access information is inviolable because it is neither granted nor grantable by the state.’ Rather it is ‘a right granted by the Constitution and is protected by the same Constitution.’

Still on the first issue, the court dismissed PDU’s claim that the right of access to information was not available to KI since the latter is a juristic person. In this regard, the court stated that section 2 of AIA defines a citizen as ‘any individual who has Kenyan citizenship, and any private entity that is controlled by one or more Kenyan citizens.’ Thus from this definition, the court held that ‘a juristic person whose director(s) is a citizen, is considered a citizen for purpose of exercising the right to access to information under Article 35(1)(a) of the Constitution as read with section 4 of Access to Information Act.’ Regarding PDU’s contention that the information sought is limited by section 6(1)(a) and 6(2)(1) of AIA, the court stated that the onus was on PDU to show how the information sought affected state security and therefore, falls within section 6 of the Act. In the court’s view, the information sought by KI from PDU about dates, nature of advertisements and copies thereof, the cost of advertisements and who meets that cost ‘cannot be information that affects state security.’ Similarly the court dismissed PDU’s interpretation of AIA that KI should have first complained to the Ombudsman or CAJ before filing the petition.

In arriving at its decision in favour of KI, the court stated as follows:

‘From my evaluation and analysis of the facts and evidence in this petition, and submissions by counsel for the parties and bearing in mind precedent and the law, I come to the inescapable conclusion that the respondents [PDU and its officers] violated the petitioner’s [KI’s] right of access to information and that no effort was made to justify this violation. For that reason, I am equally satisfied that the petitioner has proved its case to the required standard and must succeed.’

In light of the above, the court granted each and every relief sought by KI as itemised above with costs.

Following this landmark court judgment, the focus now shifts to KI to disclose whether the information sought from PDU provides sufficient evidence to show whether or not Kenyatta broke the law by using state resources during his re-election campaign. In its submissions in court, KI cited section 14(2) of the Elections Offences Act which prohibits government from advertising in print or electronic media or by way of banners or hoardings in public places its achievements during election period.