The Right of Access to Information in the Kenyan Constitution: An Indirect Denial of Other Fundamental Rights to Non-citizens?
Authors Ndivhuwo Ishmel Moleya
Source: Africa Journal of Comparative Constitutional Law, 2017, p. 155 – 184
This article analyses the right of access to information under article 35(1) of the Constitution of Kenya. In particular, it questions the reasonableness and justifiability of the right of access to information as conceptualised. It argues that the manner in which the provision is couched does not resonate with the broader values and principles that the Constitution represents. In particular, it argues that the provision is couched in a manner that inhibits the enforcement of other fundamental rights that the Constitution confers to non-citizens. It illustrates the point by analysing the relationship between randomly selected fundamental rights and the right of access to information. The article also analyses the provision in relation to international legal instruments governing the right of access to information and illustrates that the provision is inconsistent with such mechanisms, which are directly applicable in Kenya by virtue of articles 2(5) and 2(6) of the Constitution. The provision on the right to access information is further analysed as a so-called limitation clause, by juxtaposing it with article 24 of the Constitution, in order to establish whether it limits non-citizens’ right of access to information in a reasonable and justifiable manner. The article finally suggests that the provision should be amended to expand its ambit to include non-citizens.