CoE must rectify PSC’s bungles

The Parliamentary Select Committee on Constitutional Review has committed an unforgivable sin against the people of Kenya. Meeting in Naivasha ostensibly to reach a consensus on contentious issues, the MPs who constitute the PSC assigned themselves the responsibility to write a new constitution for the people of Kenya; and in that process they butchered the Nzamba Kitonga Draft in such a wicked manner as to end up with a Constitution to protect their own privileged positions, marginalize the poor and muzzle the Fourth Estate.

Of all the crimes they committed at Naivasha that of denying the people of Kenya access to information tops the list. Following the mutilation of that vital part of the Bill of Rights, the Committee hoodwinked the people by making a proposal for a watered down legislation that pretends to protect the rights of the people to know. Realizing the importance of access to information for Kenyans, Nzamba Kitonga had suggested in his first Harmonized Draft Constitution of November 17, 2009, to have a whole article dealing with that critical aspect of human rights.

He therefore suggested in Article 52. (1) that every citizen had the right of access to—(a) information held by the State; and (b) any information that was held by another person and that was required for the exercise or protection of any right or fundamental freedom. The significance of this part of the Nzamba Kitonga proposal is so important given the fact that until today the people of Kenya are kept in the dark about a lot of information they ought to know.

Kenyans’ money has been used to gather information about many mysterious events such as the death of Robert Ouko and the Goldenberg scandal; and yet when that information is obtained it is kept away from the people in the most unlawful and scandalous manner. Recently an expensive exercise of conducting national census was launched and the results are now the most tightly guarded secret of the Government. It is said the real reason is the fact that Somali nationals who have illegally acquired Kenyan citizenship now number two million and the Government is too embarrassed to announce the figure. Part (b) of that Article is important because there are many private institutions that hold vital information that may be needed for the protection of some fundamental rights. Such institutions or persons must not deny the people access to information they need.

In his first Draft, Nzamba Kitonga also suggests in Article 52.(2) that every person has the right to demand the correction or deletion of untrue or misleading information that affects that person. This is a fair demand in situations where there are both freedom of expression and freedom of information. Where information is circulating freely, factual errors are bound to occur, and when they do, the need for corrections should be protected by the Constitution. Another important suggestion made by Nzamba Kitonga is the need for the State to publish and publicize any important information affecting the nation. This was taken care of in Article 52.(3) of his first Draft.

It so happens that the people meeting in Naivasha have everything to gain by the continued secrecy of the Government on a number of issues. It is not, for example, in the political interest of Uhuru Kenyatta, for some facts about his father’s regime to be laid bare for all to see. Who, for instance, killed Tom Mboya and Pio Gama Pinto? What information does the Government have about those assassinations? It is not in the interest of William Ruto for certain information about Moi’s despotism to be made public because that is when the Agriculture Minister was among the most favoured boys of the dictator. Public land was grabbed and a lot of people become multibillionaires through sleaze, bribery and corruption. Ruto does not want that information out.

It is therefore not a wonder that Nzamba Kitonga’s Article 52 was not changed at all even after public debate. It was not considered a contentious issue. But due to the rearrangement of the articles of the Revised Harmonized Draft following the public debate, Article 52 was submitted to the PSC as Article 40 on 8th January 2010, completely unaltered. No even a comma was changed! At that time little did the CoE realize they were submitting their work to the butchers of Naivasha. What followed was a shocking mutilation of the people’s right to know. The entire Article on Access to Information was chopped off. Instead one line was added to the Article on the Freedom of Expression saying Parliament shall, by legislation, provide for the right to access of information. There is everything wrong with that suggestion which can lead to not only keeping the people in perpetual darkness and ignorance but also to limiting freedom of the media.

Given the fact that the recommended legislation will be framed and shaped by the same people who were in Naivasha and others like them who happen to be Members of Parliament, there is very little hope that that legislation will be the Freedom of Information Act this country needs. To begin with the MPs seem to enjoy the current secrecy protected by the Official Secrets Act which legitimizes the criminal act of denying the people vital information they need to enhance democratic space in the country. Section 20 of this horrible law says any person who is guilty of an offence under this Act for which no penalty is specifically provided shall be liable to imprisonment for a term not exceeding fourteen years.

This atrocious and most repulsive legislation goes against Article 19 of the Universal Declaration of Human Rights which states 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. Paradoxically this freedom to SEEK information does not exist in our current Constitution!

Section 79 of our current Constitution says except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence.

The word “seek” does not appear anywhere in Section 79 of our Constitution. That makes the work of the Fourth Estate extremely difficult. When the media have no information they are virtually muzzled. Given the fact that Kenya’s vibrant Fourth Estate is the only remaining institution that upholds the democratic right to free expression, the threat to deny it freedom of information is a threat to democracy itself. Nzamba Kitonga and his team must save this nation by reinstating Access to Information as a full Article in the Constitution the people of Kenya desire to have.