With tremendous respect to the Judge
in this matter, the judgment is a relegation to right of information reform
efforts. The Petitioner is denied orders for the respondents to supply the information,
and disentitled to damages for the reason that the Petitioner is a juristic
person and not natural person. The judgment is sound from
paragraph 1 to 66 whereafter, I believe the Judge got misguided. For instance,
the judgment argues that “An
interpretation of Article 35(1) (b) as urged by the petitioner implies that
‘another person’, other than the State, has an obligation to give a journalist
or media outlet whatever information (s)he or it demands in order to exercise the
freedoms under Articles 33 and 34. Put differently, such a reading implies, not
just the negative obligation not to interfere with the exercise by the media of
its freedoms under these two Articles, but a positive obligation on everyone to
give it whatever information it seeks in order to enable it publish stories and
information.”
This finding is unsupported by any
logical reasoning. The Constitution of Kenya is categorical and doesn’t purport
to qualify who is a person for purposes of enjoyment of provisions on right of
information.
The decision that “The intention in Article 35(1) was clearly
to create two distinct situations with regard to the right of access to
information: one in which the citizen was entitled as of right to information
held by the State; the other in which a citizen could access information from
another, a private person, for the exercise or promotion of another right or
freedom” is an error in interpretation of that article. The numbering of as
35 (1) (a) and 35 (1) (b) is merely to list what kind of information a citizen
is entitled to, and not to create any distinction whatsoever.
The judgment also infers that the
petitioner relied on Article 35 (1) b of the Constitution. The Petitioner in
fact relied on the whole of Article 35 and not just 35 (1) b. As such, the
Petition was based on competent provisions of the law, and were requesting for
information held by a public entity (which the judge correctly affirmed it is).
The argument that a media house as
juristic person cannot enforce the right of information is mysterious. How then
are these juristic persons who have been recognized by the Constitution (through
guarantee of freedom of press) supposed to discharge the mandate (which
curiously the judge acknowledges within the judgment)?
How then can the press exercise
freedom of press if they are not recognized as beneficiaries to the right to
information provisions?
Even if corporations are not
citizens within the meaning of certain provisions, they surely must have the
same capacity as natural persons to effectively enjoy and exercise their
constitutional rights to press freedom which the judge acknowledges is critical
for a democracy, transparency and accountability.
Moreover, a cited case to the effect
that corporations are not citizens within the meaning of THAT CLAUSE’ can only
mean that they (corporate media houses) are citizens within the meaning of SOME
OTHER CLAUSES.
In order for media houses (often registered as
corporations) to enjoy the rights conferred by Article 35 (2), they surely must
have a right of access to information as contemplated under article 35 (1) just
like a natural person.
CONCLUSION
We trust that you have found the above critique
enlightening. Feel free to contact us at info@stralexgroup.co.ke or on + 254 715 310 677
for any legal enquiry.
Yours faithfully,
For: Strategic Legal Solutions Group Limited
Centre for Legal Research & Policy Development – a participating consultancy firm in the SLS Group of consultancies.
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