The Right to Access Information is not Absolute
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 at British American Asset Managers Limited (BAAM), a licensed fund manager and subsidiary of British American Asset Managers Company (K) Ltd (Britam).
- 2In 2013, BAAM entered into a joint venture with Acorn Group Limited (Acorn) to undertake real estate development and related business ventures within Nairobi County and other regions. Under the arrangement, Acorn was responsible for real estate development, while BAAM was tasked with financing and managing the exit strategy for the projects. As part of the agreement, BAAM was to acquire a 25% equity stake in Acorn and receive two board seats and committee memberships for oversight. The partnership was implemented through special purpose vehicles (SPVs) for the execution of specific projects.
- Following the joint-venture agreement, BAAM successfully carried out several Investments and even launched the BAAM Cash Management System. However, when it attempted to launch the real estate business, the same was allegedly not received well by Dr Wairegi, the then Managing Director of Britam, who thought that the real estate should have been launched by Britam and not BAAM. In several instances therefore, Britam communicated its misgivings about BAAM’s cooperation with Acorn alleging among other things that, Acorn was not an expert in real estate.
- Soon thereafter, a dispute arose between Britam and the appellants. The main issue in contention was whether the 1st – 3rd Appellants, as employees of BAAM, could commence any real estate project and sign agreements directly with BAAM clients without any benefit to Britam shareholders. As a result of the dispute, the 1st – 3rd appellants resigned from Britam on various dates between August and September 2014. Subsequently, the 1st – 3rd Appellants formed a rival company, Cytonn Investments Limited (the 4th respondent).
- In October 2014, BAAM instituted various civil suits against the appellants and Acorn, seeking restitution of funds allegedly fraudulently transferred by the 1st – 3rd Appellants to Acorn and its affiliates without BAAM’s approval under the guise of investing in real estate. BAAM also lodged parallel complaints against the appellants with various professional bodies to which they belonged, namely the Advocates Disciplinary Committee, the Certified Financial Analyst Institute (CFA) and the Institute of Certified Public Accountants (ICPAK). In addition, criminal proceedings were also instituted against the appellants.
- Aggrieved by these actions, the appellants instituted two judicial review applications and a constitutional petition before the High Court in Nairobi. In the first judicial review application, they sought orders prohibiting the Inspector General of the National Police Service and the Director of Criminal Investigations (DCI) from arresting, harassing, or otherwise interfering with their liberty and property. They further sought orders compelling the return of mobile phones that had been seized by the police. The High Court declined to grant the substantive reliefs, finding that it would be premature and speculative to do so prior to a prosecutorial decision by the Director of Public Prosecutions (DPP). Nonetheless, the Court issued a prohibitory order restraining the Inspector General and the DCI from initiating any criminal proceedings against the appellants until the DPP had formally determined whether to institute charges.
- On 4 November, 2016, the DPP made the decision to institute criminal proceedings in Nairobi Chief Magistrates Criminal Case No 1735 of 2016 Republic v Edwin Harold Dande, Elizabeth Nailantei Nkukuu, Patricia Njeri Wanjama & Shiv Anoop Arora in which the 1-3rd appellants were charged with two counts of theft by servant under section 281 of the Penal Code in the sums of Kshs 1,161,465,388 and Kshs 10,132,368.50.
- Following the institution of Criminal Case No. 1735 of 2016: Republic v Edwin Harold Dayan Dande & 3 Others, the appellants, through their advocates, wrote to the respondents requesting disclosure of (i) a forensic audit conducted by KPMG on BAAM’s accounts; (ii) a legal audit conducted by Messrs Coulson Harney Advocates; and (iii) settlement agreements between Britam and Acorn Group Limited, recorded in HCCC Nos. 352, 353, 354, 361, and 362 of 2014.
- The Respondents did not respond to the request, prompting the appellants to file a constitutional petition before the High Court seeking an order compelling the respondents to disclose the requested information.
- The appellants argued that the information was necessary for their defence in the criminal proceedings and they could not adequately prepare their defence thus denying them a reasonable opportunity to a fair hearing.
- The High Court found that the appellants’ right of access to information under Article 35(1)(b) of the Constitution—read together with Section 4(1)(b) of the Access to Information Act, No. 31 of 2016—had been violated. As a result, the Court issued an order compelling the respondents to furnish the appellants with the requested documents and awarded them costs of the petition.
- Britam appealed the High Court’s decision arguing that the trial court failed to distinguish between the right to access to information held by public bodies and that held by private persons and in considering that a ‘positive obligation existed’ on the part of both public and private bodies to release information. They also contended that no credible evidence was tendered to demonstrate that the intended prosecution of the appellants was as a consequence of any material in the privileged reports or that any exculpatory material was in the privileged reports.
- The Court of Appeal allowed the appeal. It held that a party seeking information from a private entity must show:
- the right he seeks to exercise or protect;
- the information which is required in order to exercise or protect the right; and
- how that information would assist him in exercising or protecting the right.
- The Court of Appeal further held that a party requesting information from a private person must place before the court a demonstrable and sufficient link between the right sought to be exercised or protected and the information requested. Once this is done, the onus is on the private person from whom information is requested to show why such information should not be disclosed. After reviewing the evidence on record, the Court found that the appellants had not met the required threshold. Specifically, the pleadings did not establish a sufficient or demonstrable connection between the requested documents and the enforcement of the rights under Articles 28, 32(2), 48, and 50 of the Constitution.
- Dissatisfied with the decision of the Court of Appeal, the appellants filed a further appeal to the Supreme Court. In their petition, they sought an order of mandamus compelling the respondents to disclose: (i) the forensic audit conducted by KPMG on the financial records of BAAM; and (ii) the legal audit conducted by Messrs Coulson Harney Advocates in relation to the transactions undertaken by the appellants during their tenure at BAAM.
Supreme Court’s Decision
The Supreme Court held as follows with regard to 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
- The appellants had established that the information was sought in furtherance of their right to access justice under Article 48 of the Constitution and for the protection of their rights to a fair hearing and fair trial under Article 50.
- On the question of whether the information sought was necessary for the protection of the rights alleged, the Court held that a party requesting information from a private entity must demonstrate a clear and sufficient link between the right sought to be exercised or protected and the specific information requested. Once this threshold is met, the burden shifts to the private entity to prove why such information should not be disclosed.
- The right of access to information is not absolute. It is subject to lawful limitations, including those provided under Section 6(1) of the Access to Information Act, which permits withholding of information where disclosure would prejudice certain protected interests.
- The Court emphasized the 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 in granting access to information held by those parties. More fundamentally, the Appellants failure to establish a clear connection between the rights sought to be exercised or protected and the information requested implied that if they were granted that information, unwarranted invasion of the privacy of the BAAM and Britam would be unduly occasioned and could result in substantial prejudice to their commercial interests.
- At the trial court, the appellants shall have the opportunity to interrogate all and any documents produced by the DPP. If these documents include the ones they sought by the Petition, they shall have ample opportunity to study them and challenge their veracity.
- In the circumstances, the Supreme Court held that the Appellant’s request was misconceived and that the Appellants were not entitled to access the information under Article 35(1)(b) of the Constitution.
