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Omwanza Ombati*
T
he Republic of Kenya is perched somewhere in East Africa; it is partly desert but mostly tropical in climate; the people are wonderful
and diversified. With forty five ethnic communities who speak different tongues, Kenya is a cooking pot of culture, ideas, diversity, language and art. The country covers roughly 44.6 million hectares, ten per cent being national reserves and game parks. The country may be divided into four distinct topographical regions—the coastal region, the arid low plateau, the highlands and the lake Victoria basin.
Population is 78 per cent rural and 22 per cent urban, with the most rapid urban growth confined to Nairobi, Mombasa, Kisumu, Nakuru, Eldoret, Kakamega and their satellite extensions. According to the 1999 census, the overall growth rate of Kenya’s urban population now stands at 6 per cent, implying a very rapid rural-urban migration pattern. This is further reflected in statistics which indicate that absolute poverty in the rural areas stands at 50.1 per cent.[1]
Kenya’s economy depends primarily on agricultural and pastoral land uses. Current estimates indicate that agricultural income provides for over
75 per cent of the population, and 70 per cent of all wage employment, and that agriculture contributes over 80 per cent of export earnings. The
2002 Economic Survey demonstrated that the economy recovered from a negative growth rate of 0.2 per cent to positive figures. Transport, storage and communications had the highest growth rate of 3.1 per cent.[2]
It is important to note that this growth was reflected in service industries. The correlation between access to legal information and eradication of poverty is an aspect of growth considered later in this paper.
Kenya’s beautiful landscapes, breathtaking scenery and “must see” game parks suffice to attract visitors from every part of the world. Her people tell her story through nuances and folklore that pass down the generations. This in fact underscores the importance of information in the African setting—and the philosophy that governed it; which was to liberally share ideas; it was what preserved culture as we know it today.
Information Access and the Governing Law
The Communications Commission of Kenya Act of 1998 (the CCK) governs access to information, Internet trade and its attendant functions in Kenya.[3]
The preamble captures the purpose of the act—to provide for the transfer of the functions of the Kenyan Post and Telecommunication Corporation and for connected purposes. The 103 sections of the Act are contained in five thematic parts and supplemented by three schedules.
The policy statement which set the ground for the promulgation of the Act attempted to map out the objectives, strategies and features that demonstrate that the Government is committed to facilitating provision of information generally to the Kenyan public. It provides that this would facilitate the orderly modernisation of the sector in the period 1999 to
2015. This was to ensure that the sector developed an adequate capacity to meet demands for basic services and rapidly emerging requirements for new services. All this is articulated very broadly, which I assume is not to limit the policy-making body by the strictures of language.[4]
The policy statement reiterated the overall government vision for the information sector and was geared towards the optimisation of its contribution to the development of the Kenyan economy and ensuring availability of efficient, reliable and affordable communication services. Substantively, the Act addresses some fundamental issues: it places an obligation on the board in charge of the CCK to submit to the responsible minister an annual report5 detailing the progress of the CCK in attaining the objectives of the Government as enunciated in the policy statement that we alluded to. The minister is obliged to report annually to Parliament, which vets that progress of CCK vis a vis the law and overall risks and assumptions—towards achieving the vision of government in provision of information.
Part III of the Act entitled “Telecommunications Services” deals with the licensing and regulatory role of the Commission which is to ensure that
“there are provided throughout Kenya such telecommunication services as are reasonably necessary to satisfy the public demand”. The question that this paper raises is whether this has been achieved.
Kenya subscribes fully to the right to freedom of expression. Section
70(b) of the Constitution deals with freedom of expression. The provisions largely conform to Kenya’s international obligations arising from international instruments to which it is a party. Article 19 of the International Covenant on Civil and Political Rights provides thus:
• Everyone shall have the right to hold opinions without interference.
• 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.
Article 10 of the African Charter on Human Rights and Peoples Rights
provides that:
• Every individual shall have the right to receive information.
• Every individual shall have the right to express and disseminate opinions within the law.
Kenya is therefore duty bound, not only at a moral level but also legally to protect, give effect to and promote the freedom of expression in its laws and practices. Access to legal information is within that mandate.
Demand for Information from the Government
Most of the people seeking information from the Government face difficulty of some sort or other.6 Specific emphasis is directed towards arms of government which are concerned with provision of legal information, for instance the Attorney General’s office and the Judiciary. In the survey which we rely on, 73.8 per cent of those who sought information got it with difficulty and 4.9 per cent of people who sought information did not get it
at all. It was also noted that younger people were able to access information more easily than older folk. This is probably because of technology access and literacy; as a matter of fact, urbanites are more exposed to technologies and possibilities. This survey, carried out for the International Commission of Jurists is based on a small sample from urban Nairobi.
Most citizens who were interviewed said that they wanted information which would enable them to participate in governance. An investigation in the survey revealed that accessibility of public information indicated that 46 per cent could use the information to help them in governance issues; whilst 27 per cent said that it could help them organise and help for public accountability.
Most (98 per cent) of those interviewed for the International Commission of Jurists Report thought that there was a need to enact a law on easy access to information. The reasons given for such a law included popular accountability and entrenching institutions of accountability. Privacy concerns were also voiced.
It seems that the demand for public information has not been translated to real terms by providing the necessary machinery. The secretive mode of governance in Kenya (sirikali)7 has its roots in colonialism which, in philosophy, mystified government.
The intangible costs of secrecy undermine the potential for well informed critiques, review, input and the opportunity to scrutinise entrenched beliefs and ways of thinking. The conclusion that comes from this paper is that the
Government is only committed on paper to access to information. Many Kenyans seek public information from the Government every single day whilst the Government keeps on frustrating them.
Internet Exchange and the Monopoly of Jambonet
The CCK Act split the former Kenya Posts and Telecommunications Corporation into three entities—the Communications Commission of Kenya, the Postal Corporation of Kenya8 and Telkom Kenya Limited. Telkom Kenya Ltd was incorporated under the Companies Act.9 Telkom Kenya was subsequently granted a monopoly status to run Jambonet, which
is the only exchange point to Internet traffic up to 2004.
With intense lobbying amongst industry players and belated public outcry about Kenya’s lethargy and incompetence in running Jambonet, the CCK finally acceded to the launch of the Kenya Internet Exchange Point (KIXP). The Director-General of the Communications Commission of Kenya in his speech launching KIXP stated that:
Kenyans shall now enjoy faster transmission of electronic mail within the county, and speedy browsing of websites hosted by connected local Internet service providers. The Internet backbone will encourage the development
and hosting of local content. Routing of local traffic within Kenya will ultimately result in cheaper interest access charges as more ISPs get connected to the Exchange.[10]
Available statistics11 record that there are about 5,000 websites in Kenya, the majority of which are hosted outside the country, the cost of hosting in the country being prohibitive in the first instance. The number of regular Internet users is currently estimated at about 400,000. These figures continue to go up steadily as more Internet service providers subscribe to the Internet exchange.
The CCK argues that Kenya will have to address the problem of low Internet penetration for it to participate actively in the information and knowledge based economy. In my theses, the main hindrances to Internet use in Kenya are access prices, lack of awareness and lack of computer literacy.
The CCK though contends that the Kenyan Government perceives that development of this area is a key pillar of development in the alleviation of poverty.
The Social Impact in Provision of and Access to Legal Information
The starting point is that access to legal information should be free to all Kenyans. The Internet makes this vision quite attractive and feasible. It’s not only cheap, but it is also a medium which can be accessed by any. In any event, if the draft Kenyan Constitution is adopted by the National Constitutional Conference, the aftermath would be numerous pieces of legislation that would inundate the legal sphere. The proposal for provision of access to legal information would be very beneficial.
My contention has always been that access to legal information will materially change the lives of Kenyans. This concept of change is compressed to three points:
First, it will enable Kenyans to be acutely aware of their rights and the
responsibility that flows from them.
Secondly, it will ultimately reduce conflict vis a vis conduct of human relations. Law as a tool of governance is grounded on the belief that Parliament, being an agent of the people, promulgates laws that are for the general good of people and also controls and ventilates numerous competing interests in the country.
Thirdly, a society of less conflicts, that adheres to the rule of law,
penultimately improves the lives of its people.
The Ministry of Justice and Constitutional Affairs12 states that the economic recovery program of the Government recognises that the administration of justice, the rule of law and respect of human rights and fundamental freedoms are the foundations for renewed confidence in Kenya as a destination of local and international investment capital. The Ministry’s challenges in the implementation of these strategies include the need for leadership, legal and institutional reform and collaboration with civil society. To honour this, the Ministry restates that public education and access to information will be an integral part of the strategy.[13]
The Ministry also provides that the impact of the strategy will be improved access to justice through an efficient, accessible, responsive, transparent and accountable legal and justice system The key activities of the Ministry’s resource mobilisation strategy are to:
identify consumers of information from the Ministry
determine the information requirement of each user
determine methods of obtaining data, compiling and disseminating it and communication standards, and to develop indicators and milestones for assessing the effectiveness and efficiency of information.
Further, the objectives of the Ministry to computerise are meant to ensure that staff at the Ministry and the judiciary have access to adequate computing resources and effectively utilise them. E-mail and internet services to all the staff for internal and external communication and research are to be made available.
Self Representation, Social Justice and the
Rule of Law
Section 77 of the Kenyan Constitution provides for the rights of an accused person who has been charged with a criminal offence. It also provides for legal aid to those charged with capital crimes. That means that a suspect charged with a non-capital offence has no recourse to legal aid and must rely on self representation if unable to afford a lawyer. What makes this difficult especially for lay people is the lack materials on the criminal justice system, ignorance of procedures in prosecution and of defendants’ rights. If, for instance, the necessary brochures were published and posted in a site that the public can download, it would be possible for the public to be educated about these matters. It has been established that even a public seminar about self representation goes a long way toward establishing delivery of justice.
Justice Oliver Wendell Holmes captured the essence of discourse and access to ideas in Abrahams v United States:[14]
When men have realized that time has upset many fighting facts, they may come to believe . . . that ultimate good . . . is better reached by free trade
in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our constitution. It is an experiment as life is an experiment.
The Kwach Committee15 listed the following as interest groups in the judiciary and its process:
persons interested in trade and investment
individuals and companies affected by the justice process
the general Kenyan public.[16]
The judiciary has set up a system of links between its departments and the general public. To interlink with the public—the main consumers of its services—it established the following offices: the Chief Court Administrator, the Deputy Registrar and the Head of Protocol. This I argue creates extra layers of bureaucracy and red tape and in principle does not guarantee that the public has access to legal information. The International Commission of Jurists, Kenya Chapter, argues that in order to ensure that the system
of Justice in Kenya serves the needs of the people, it should be made more accessible and efficient.[17]
The nexus between access to legal information and poverty is that at first blush when one looks at the populace, there exists a poverty of ideas. Secondly, Kenyan people do not have access to legal information. It is evident that such access would create an accountable system and also enable easy access to the justice system. This would have a multiplier effect of ensuring social justice not only to those who can afford to hire a lawyer but also to those who are poor in Kenya—those whom some African authors characterise as the wretched of the earth.
Further, the justice system and its concomitant institutions are created principally to serve the people. The perceptions of the people therefore should be that: “we the people are properly served by the institutions that Parliament creates for us.” Public institutions only grow when access to information is assured. Thirdly, access to essential legal information is important for the rule of law. Primary legal information includes legislation, case law, treaties and so on. Secondary materials include interpretive materials such as law reform reports and investigative commission reports.
In Kenya, the issue of access is mere talk, “apple in the sky”. Numerous commissions established by the President have come up with elegant white papers. A curious development in that respect is that even after an investigative commission named the Presidential Commission into the Causes of Tribal Clashes completed its report, it had to get a citizen to go to court to compel the Attorney-General to produce the report and disseminate it to the public.
It is thus inimical to the rule of law that legal information which is supposed to be widely accessed by any Kenyan, either individually affected or for any other purpose, is not easily available. Substantively what access to legal information does is:
It strengthens the institutions of the rule of law.
It establishes a transparent system that is easily accessible.
It builds confidence and confidence building will make it possible to have foreign investors come into the country and thus achieve one of the objectives of the Government which is to alleviate poverty.
Article 46 of the Kenyan draft constitution reinforces this by stating that the freedoms of electronic and print media of all types are guaranteed.18 It provides, with certain specific exceptions, that Parliament cannot enact any law requiring prior licensing of any form of publication or dissemination of information, comment or opinion.[19]
However an innovative provision in the Kenyan sense is found in article
47 which states that every citizen has the right to information held by the state and a right to demand the correction or deletion of untrue or misleading information which affects him.20 I argue that in making access to legal information easier, cheaper and more efficient, Kenyan values, in terms of the rule of law, cultural interactions and cultural integrity will be upheld and inculcated into the Kenyan psyche.
Contribution to Primary Users of Legal Information
The primary users of legal information in Kenya are:
the judiciary, including judges, commissioners of assize, magistrates etc.
the Attorney-General’s chambers and people working at the Attorney-
General’s
advocates
law students
other compliance officers and companies.
The judiciary has a website,21 which can be described as an information web page. It has the daily cause list posted and sometimes not even regularly. The web page does not have certain important details that would be expected of it, for instance the structure of the judiciary, the number of judges, magistrates etc.
The Law Society of Kenya has a website22 which requires registration by members; it has a profile of members; rules and regulations, and programs.
It has a diary of events, letters by the Law Society to various ministries, and recent papers presented by members or on its behalf.
The Federation of Women Lawyers Kenya Chapter (FIDA) states that its vision in its website 23 is to help create a just society that is free of discrimination against women. In pursuance of that goal, it has contact information on its site, news releases, articles, members, details and solicitation for support.
The Legal Resource Foundation (LRF) is a non-governmental organisation established in 1993. The LRF states its mission in its website,24 to enhance quality participatory human rights and legal education, and to promote low cost community-based mechanisms for the resolution of individual and communal rights.
Law Africa is a commercial website25 which at a fee subscription provides access to case law and company searches. Its average cost is $100 per month which is quite prohibitive in Kenya. This can only be paid by the very top notch law firms in terms of income.
Eastafricanlaw 26 states its objective as “working to build an extensive legal database containing legal materials”.
Africa has always had in-built and entrenched systems of information access even before the advent of the Internet or any structured form of information access in the Western sense. One commentator conjures African folklore thus:
Elders in the African society setting discussed community matters,
artists created symbols and artifacts, poets chronicled history and myth; information exchange for women took place at the wells and markets; games and stories guided children. Occasions such as marriage festivals, ceremonies and dances were part of a community’s communication strategy; village drummers, announcers and runners kept communities informed.[27]
This emphasises that pre-colonial African societies accessed information which is a source of power. Therefore, by ensuring everyone the right of access to information, no group or stratum in society could use it to manipulate other segments of society. It follows that access to legal information is even more critical, because its consumers are either directly affected by it or use it as a means of ventilating their legal concerns. Access becomes important in negotiating or litigating.
If legal information belongs to the public it behoves its custodians to facilitate public access to28 If the contrary occurs and such information is systematically withheld by those in power, the result would be that the people would soon become ignorant of their rights and lose, as a result, the power to govern their lives or determine the direction in which their lives should be led. In general, the statutes governing the media regime in Kenya have tended to be more regulative than facilitative. While regulation may be seen as a means of integrating a complex pattern of spheres of action, its success must be judged with reference to the purposes that the practice is intended to secure, and the actual results.
The public custodians of legal information have therefore failed totally. The verdict is out. It is not a secret any more that legal information is peddled in exchange for favours or held out for those who have the means to buy it. The way forward would be for other actors to enter into the arena and develop the requisite database; I have in mind a model on the lines of AustLII. Secondly, commercial vendors of legal information can in the long run make it more affordable for the public by providing cheap access.
Changing Perceptions on the Judiciary
The Kenyan judicial system suffers from a serious lack of public confidence and is generally perceived as being in need of fundamental reform. The International Commission of Jurists (Kenya)’s report Strengthening Judicial Reforms Performance Indicators: Public Perceptions of the Kenyan Judiciary,
contain damning evidence of bribery, corruption and lack of public confidence. Similarly, Transparency International’s survey, The Urban Bribery Index, places the judiciary on the list of public institutions reported by citizens as places where bribery thrives.
A report of the Advisory Panel of Eminent Commonwealth Judicial Experts began on the following premise, which was adopted as its working statement.[29]
The objective is to come up with a judiciary that is independent, efficient
and accountable. Efficient in terms of delivery of consistent, fair and timely justice, thus laying the foundation on matters such as case management, procedural reforms, guaranteed law reporting. Accountable in terms of accessibility by all consumers of justice to the court, its structures and outputs; transparency and consistency in its operations and output. [30]
The Ministry of Justice and Constitutional Affairs,31 in its strategic plan, notes that law reporting in the country started last year after a twenty year break. Primary materials required by consumers of justice have not been delivered consistently to them. This has created an urgent need to access not only the law reports which have been published, but also judgments which have remained unreported for a long time.
The Ringera Anti-Corruption and Integrity Committee was set up by the Chief Justice in February 2003, to investigate causes of corruption, and suggest a way forward. It released its report to the public on 1
September, and observed that ignorance by the public was a major cause that perpetuated corruption. It reads:
It is a truism that a majority of persons who deal with the courts as litigants, complainants or witnesses are ignorant of their procedural and substantive legal rights, entitlements and or obligations or the consequences of their acts or omissions in the eye of the law. The committee was informed that such ignorance was taken advantage of by judicial offers, prosecutors, paralegal
staff and even probation officers. We agree that ignorance of the law by members of the public about their legal rights, privileges, entitlements, obligations, the legal process and substantive law provides a fertile ground for judicial corruption.
The newly constituted Law Reporting Council32 has now embarked on issuing new law reports dating back twenty years ago, launching a report every three or four months. It has also promised to make materials available on its website in due course. The questions are in what format and whether indeed the Law Reporting Council has the expertise to develop an appropriate search engine that can easily be understood and used by Kenyan advocates, lawyers, law students and other consumers of legal information.
In order to publish these judgments, most of which are in hard copies,
the documents have to be scanned, formatted and proofed and reformatted before they can be published. The process of converting these documents into a database is painfully tedious and sometimes it seems insurmountable. So what is the way forward?
Further, part of the blame for incompetence in the judiciary should be apportioned to the lack of law reporting and impeded access to legal materials e.g. gazette notices, journals and other interpretive materials that are used in legal discourse. Blame should also lie squarely on the judiciary for not modernising to accord with modern techniques of research and methods of accessing legal information. The Chief Justice has presented lap top computers to all judges of the Court of Appeal. What we are not told is how many of them know how to use the facilities like Lexis Nexis and other research tools.
Besides that phase, the public rarely gets to read judgments in full text to appreciate what judges really write.33 Most respondents surveyed by the International Commission of Jurists (Kenya) stated that they learnt about the judiciary mostly from the newspapers and daily print. The Commission’s report concluded inter alia, that—
• What was apparent from the data collected was that a large majority of those interviewed considered the legal system to be complicated despite the fact that they understood the language used and the proceedings.
• That the press came out as the main source of information to people on matters pertaining to the judiciary.
It further concludes that the onus falls on the legal fraternity and the judiciary to increase their role in providing comprehensive and professional information to the public on judicial and legal matters.
Dag Wies,34 discussing an experiment in Norway which raised similar issues, states that in discussing access to information held by the Government, two lines of distinction should be followed:
• First is the possibility of increasing the efficiency of already existing access rights accorded by legislation, through the use of information technology.
• Second is what may be insufficient organisational and practical arrangements for the citizens to realise the potential of existing legislation.
With that posited, it becomes apparent that the obligation to provide access and also the material for the public to access, should arise from those who generate the material. The important question is whether the judiciary has been able to meet the standard; Sadly, it has not.
* LL.B (Hons) Moi. Bar Candidate 2003; Researcher, Presidential Commission of Inquiry
into Illegal and Irregular Allocation of Public Land, Kenya. E-mail <saintombati@yahoo. co.uk>.
[1] Government of Kenya, Report of the Kenya Demographic and Health survey (1999).
[2] Government of Kenya, Poverty Reduction Strategy paper for the period 2001–2004 (2000).
3 The Act was given presidential assent on 1 October 1998, and became operative in 1999
when the Minister of Information gazetted it.
[4] <http:www.cck.go.ke/policygoal> at 18 June 2003.
[5] Part II of the Act establishes the Board and donates the mandate to enable the Board to operate.
6 This was per the survey carried out by ICJ Kenya, in its report, “The State of Freedom of
Information in Kenya” (1999) 39 (“ICJ Freedom Report”).
[7] Sirikali is a Swahili word which means secret; and the Swahili term sirikali for government intones hot secret.
8 This was after the repeal of Chapter 411 of the Laws of Kenya.
[9] Chapter 486 of the Laws of Kenya.
[10] Address by CCK Director General, during a luncheon to mark the official launch of the
Kenya Internet Exchange Point, at Hotel Intercontinental Nairobi, 18 April 2002.
[11] Ibid.
12 Created by a Presidential Circular 1/2003 of 14 January 2003. The Presidential
Circular spelt out the following as the core functions of the ministry: Integrity and Ethics, Constitutional Matters, Legal Policy, Human Rights and Democracy and Legal and Judicial Reform.
[13] Government of Kenya, Ministry of Justice and Constitutional Affairs, Strategic Plan (2003)
[18].
14 Abrahams v United States [1919] USSC 206; (1919) 250 US 616, 630, dissenting.
[15] Justice Richard Kwach, a Judge of the Court of Appeal was appointed by Justice Chesoni
(now deceased) to make inquiries and recommend the necessary remedial measures to redeem the image of the judiciary to the Kenyan public.
[16] ICJ Kenya, The Judiciary in Review 2002–2003 (2003).
17 ICJ (Kenya), Strengthening Judicial Reforms in Kenya, volume V, “Public Perceptions of
Magistrate Courts” (2003).
[18] Kenyan draft Constitution art 46(6).
[19] Ibid., art 46(5)(a).
20 Ibid., art 47(2).
[21] <www.judiciary.gov.ke>.
[22] <www.lawsociety.co.ke>.
[23] <www.fidakenya.org/main/index.asp>.
[24] <www.lfr.or.ke>.
[25] <www.lawafrica.com>.
26 <www.eastafricanlaw.com>.
[27] Makali (ed), Media and Practice (2003) 63.
[28] ICJ, Kenya, The State of Freedom of Information in Kenya (1999) 24.
29 The Advisory Panel of Eminent Commonwealth Judicial Experts, Constitution of Kenya
Review Commission (2002) (2002) 16.
[30] Author’s emphasis
[31] Laws of Kenya, above n 9.
[32] <www.kenyalawreports.or.ke>.
33 The argument in the statement below reflects the thinking of Kenyan judges and their
insensitivity to criticism. The issue is whether objective truth is revealed to judges only and
if indeed it should be scrutinised. See e.g., William J. Brennan, “Reason, Passion and the Progress of the Law” (1987) 42(8) The Record of the Association of the Bar of the City of New York 950, 977. In the 42nd Benjamin N. Cardozo Lecture delivered to the Association on September 1987, Brennan remarked (at page 953): “judges must choose between basic principles...Cardozo identified two elements of the judicial process, that is, legal and
popular culture ... [the judges] who do this are flesh and blood human beings, demi-gods to whom objective truth has been revealed.”
[34] Dag Wies Schartum, “Technology to Improve Exercise of Privacy Rights—A Norwegian
Example” <http://www.austlii.edu.au/au/journals/PLPR/2001/2.html> .
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