Supreme Court of Kenya: The Right to Access Information is not Absolute.
Any person requesting for information must demonstrate the right that they seek to protect
through the information and that the access to information is required to protect that right.
Supreme Court of Kenya
The Right to Access Information is not Absolute. Any person requesting for information must demonstrate the right that they seek to protect through the information and that the access to information is required to protect that right.
Summary of Facts
- The 1st to 3rd Appellants, Edwin Dande, Elizabeth Nkukuu, and Patricia Wanjama were senior officers of British American Asset Managers Limited (BAAM), a subsidiary of British American Asset Managers Company (K) Ltd (Britam).
- In 2013, BAAM entered into a joint venture with Acorn Group Limited to undertake real estate projects. Under the deal, Acorn was responsible for project development, while BAAM provided financing and managed exit strategies. In addition, BAAM was to acquire a 25% equity stake in Acorn, two board seats and committee memberships, for project oversight.
- Pursuant to this arrangement, BAAM launched several investments including BAAM’s Cash Management System. However, when BAAM sought to venture into real estate, Britam’s shareholders opposed the move, arguing such a venture should have been undertaken by Britam, not BAAM
- Amid the disagreement, the 1st to 3rd Appellants resigned between August and September 2014 and subsequently established Cytonn Investments Limited (the 4th Respondent).
- In October 2014, BAAM instituted multiple civil suits against the Appellants and Acorn, alleging that funds had been fraudulently diverted to Acorn and its affiliates under the guise of real estate investments without BAAM’s approval. It further lodged complaints against the Appellants before their professional bodies, including the Advocates Disciplinary Committee, the CFA Institute, and ICPAK, and also initiated criminal proceedings.
- In response, the Appellants filed two judicial review applications and a constitutional petition before the High Court, seeking to restrain the Inspector General and Directorate of Criminal Investigations from arresting or interfering with them. The Court issued an interim order restraining the Inspector General and DCI from prosecuting until the DPP had made a formal determination on whether to institute charges against the Appellants
- In November 2016, the DPP instituted Criminal Case No. 1735 of 2016 against the 1st to 3rd Appellants, charging them with two counts of theft by servant under Section 281 of the Penal Code, involving amounts of Kshs 1.16 billion and Kshs 10.1 million.
- Following the charges, the Appellants filed a Constitutional Petition before the High 1 www.mutie-advocate.com Court seeking disclosure of: (i) a KPMG forensic audit of BAAM’s accounts; (ii) a legal audit by Coulson Harney Advocates; and (iii) settlement agreements between Britam and Acorn. They argued that these documents were essential for preparing their defence and that non-disclosure would deny them a fair hearing.
- The High Court upheld the Petition, finding that the Appellants’ right of access to information under Article 35(1)(b) of the Constitution, read with Section 4(1)(b) of the Access to Information Act, had been violated. Accordingly, the Court ordered the Respondents to provide the requested information.
- Britam appealed to the Court of Appeal, arguing that the High Court erred by failing to distinguish between access to information held by public bodies and that held by private entities. They further argued that there was no credible evidence to show that the Appellants’ prosecution was based on the privileged reports, or that those reports contained any exculpatory material.
- The Court of Appeal allowed the appeal, holding that a party seeking information from a private entity must demonstrate: (a) the specific right to be exercised or protected; (b) the information required for that purpose; and (c) how that information would assist in exercising or protecting the right.
- The Court of Appeal further held that a party seeking information from a private entity must demonstrate a clear and sufficient link between the right asserted and the information sought, after which the burden shifts to the entity to justify nondisclosure. The Court found that the Appellants’ pleadings failed to establish such a connection between the requested documents and the enforcement of their constitutional rights.
- Dissatisfied with the Court of Appeal’s decision, the Appellants appealed to the Supreme Court, seeking an order of mandamus compelling disclosure of the documents, including the KPMG forensic audit of BAAM’s financial records and the legal audit by Coulson Harney Advocates relating to transactions undertaken during their tenure at BAAM.
Supreme Court’s Decision
The Supreme Court made the following findings on the right to access of information:
- The right of access to information is a fundamental right that underpins and facilitates the enjoyment of other rights guaranteed under the Bill of Rights. It includes both the right to seek and to receive information and is available to every citizen
- This right is guaranteed in Article 35 (1) of the Constitution and further protected under section 4 of the Access to Information Act, No. 31 of 2016. It is also recognised in several international conventions and treaties such as Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR) and Article 9 (1) of the African Charter on Human Rights and Peoples Rights.
- A requester seeking to enforce his right under Article 35 (1) (b) must, as a prerequisite, demonstrate:
- The right that seeks to be protected
- That the access to the information is required to exercise or protect that right 1 www.mutie-advocate.com
- The appellants demonstrated that the information was sought in advance their right of access justice under Article 48 of the Constitution and to safeguard their rights to a fair hearing and fair trial under Article 50.
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On the question of whether the information sought was necessary for protection of the Appellant’s rights, the Supreme Court held as follows:
- Where information is sought from a private entity, the applicant must demonstrate a clear and sufficient link between the right being asserted and the specific information requested. Once this threshold is met, the burden shifts to the private entity to justify non-disclosure.
- The right of access to information is not absolute. It is subject to lawful limitations, including those under Section 6(1) of the Access to Information Act, which permits withholding where disclosure would prejudice certain protected interests.
- There is need to strike a balance between the appellants’ right of access to information under Article 35 of the Constitution and the privacy rights of private entities such as BAAM and Britam, as guaranteed under Article 31 of the Constitution.
- Internal working documents, particularly internal investigation reports which may affect the rights of parties not involved in the litigation, such as BAAM’s and Britam’s clients, cannot be wished away when considering a request for access to information.
- The Appellants’ failure to establish a clear connection between the rights they sought to enforce, and the information requested meant that granting access would have led to an unwarranted invasion of BAAM’s and Britam’s privacy and could have caused substantial prejudice to their commercial interests.
- In any event, the Appellants would have sufficient opportunity at the trial court to examine all documents produced by the DPP. Should those documents include the ones sought in the Petition, they would be able to review them fully and challenge their veracity.
- In the circumstances, the Supreme Court held that the Appellants were not entitled to the right to access information under article 35 (1) (b) of the Constitution.
