On 03rd October 2016, the Commission on Administrative Justice (CAJ) is reported to have received the first complaint filed under the Access to Information Act, 2016. The complainant, Gravel Mwambala is reported to have filed a complaint against Safaricom Limited seeking information regarding his registered mobile phone, which information would potentially vindicate him from a crime that he is alleged to have committed back in 2013. The complainant hopes that the information received from the mobile service provider would reveal his exact location on the material day and prove that he was not at the location where the crime is alleged to have occurred but was instead receiving treatment at a local hospital.
The complaint is the first to put the provisions of the Access to Information Act, 2016 (The Act) to the test. The Act, which came into force on 21st September 2016, gives effect to the provisions of Article 35 of the Constitution espousing every citizen’s right to access information held by the State or another person where the information is required for the exercise or protection of any right or fundamental freedom.
The right of access is however not without its limitations. The Act limits the right in respect of information whose disclosure is likely to, among others, undermine national security, endanger the safety, health or life of any person, infringe professional confidentiality, impede the due process of the law, cause substantial harm to the ability of the government to manage the economy or substantially prejudice the commercial interests including intellectual property rights of that entity or third party from whom that information was obtained.
In recognition of the constitutional right to access to information, the Act sets out the procedure and timelines for requesting information from both private and public entities. The Chief Executive Officer of the entity acts as the information access officer but may delegate the performance of his or her duty to another officer in that entity. Once a request is made a decision must be made within twenty one days of receipt of the request subject to the right to transfer the request to another entity should the information requested be held by another entity. However, the Act recognises that where the information sought relates to the life or liberty of a person, the information should be provided within forty eight hours, which period may be extended for not more that fourteen days where either (i) the request is for large amount of information that would not be provided within the stipulated period or (ii) where consultations are necessary to comply with the request and the consultations cannot be completed within the stipulated time.
The CAJ is granted powers of oversight and enforcement under the Act which include reviewing decisions issued in relation to requests for information as well as receive and inquire into complaints made under the Act. It is against this background that the complainant filed his complaint against Safaricom Limited seeking information that would potentially prove his innocence in the crime he is alleged to have committed. While the outcome of the complaint is yet unknown, the Act is undoubtedly a step forward towards asserting the constitutional right to access to information.
Please contact us at Info@cfllegal.com should you require further information.
