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.
We trust that you have found the above critique enlightening. Feel free to contact us at email@example.com or on + 254 715 310 677 for any legal enquiry.
For: Strategic Legal Solutions Group Limited
Centre for Legal Research & Policy Development – a participating consultancy firm in the SLS Group of consultancies.