The history of press freedom in Kenya has been told through struggles against censorship, journalist detention, publication bans, and other methods governments have used to discipline an inconvenient press.
The Constitution of 2010 changed that landscape, but it also raised a question often lost when press freedom is discussed only in terms of publication: what use is freedom to publish if the information needed to hold government to account remains beyond the journalist’s reach?
The coincidence of World News Day with the International Day for Universal Access to Information deserves attention in Kenya.
The importance of information access
The discussion has focused on information integrity in an age overwhelmed by misinformation, disinformation, artificial intelligence and the speed with which falsehood acquires the appearance of truth.
The temptation may be to answer that problem through more regulation of speech.
Still, a democratic society should begin by ensuring that reliable information held by public institutions is available to citizens and journalists.
Our Constitution provides the foundation, since Article 35 gives every citizen the right to access information held by the State and, where necessary to exercise or protect a right, information held by another person.
Article 35(3) requires the State to publish and publicise information affecting the nation.
Read with Article 34, which protects media freedom and independence, these provisions recognise that press freedom and access to information are inseparable.
A journalist free to publish, but unable to obtain records upon which reporting depends, enjoys a freedom diminished in practice.
Challenges in accessing information
Parliament sought to give effect to that promise through the Access to Information Act, 2016, whose language proceeds from disclosure rather than secrecy.
The difficulty is that old-order habits have proved harder to change than the law.
Journalists still encounter unanswered letters, delays, referrals between offices, and the assertion that information is “confidential”, sometimes without a lawful basis identified.
In the digital age, such delays create an information vacuum filled by speculation, manipulated images and deliberate falsehood.
The continued existence of the Official Secrets Act in its present form deserves parliamentary attention, for it belongs to a legal culture formed before the Constitution of 2010 placed openness, accountability and public participation among the governing values of the Republic.
There are matters whose disclosure may imperil national security, prejudice lawful investigations, invade privacy or cause other harm recognised by law.
The objection is not to legitimate secrecy, but to a statutory framework whose language can encourage public officers to begin from secrecy when the Constitution requires disclosure to be the starting point.
The courts have recently stated that position in Attorney General v Khalifa & 3 others, where the Court of Appeal in May this year affirmed that the Official Secrets Act must be read subject to Article 35 and the law governing access to information.
Mere reliance upon the Act, the Court held, is insufficient to justify withholding State information; any refusal must satisfy the Constitution and the exemptions in the Access to Information Act.
Parliament should now review the Official Secrets Act and remove provisions whose language or assumptions no longer conform to the Constitution.
Need for legislative reform
At The Platform, we have given these freedoms true meaning through an independent, not-for-profit magazine concerned with law, justice and society, whose pages are intended for researched argument rather than hurried opinion.
We want writers to read judgments, legislation, reports and public records, test official explanations against the law, and present what they find in language that allows readers to understand how power is exercised and whether it is exercised lawfully.
That is the kind of legal journalism we believe a constitutional democracy requires.
We also invest in younger lawyers, researchers and writers, working with them on research and giving them exposure through publication.
In doing so, we strive to live up to the spirit of Chief Justice C. B. Madan, remembered in The Platform as a judge who “let the law speak to power”, and to the call made in his name to “let the law speak to the powerful without fear or favour.”
We want professionals who combine that courage with accuracy, fairness, discipline and the ability to distinguish evidence from assertion.
World News Day should invite us to defend not only the journalist’s right to publish, but also the citizen’s right to know, from which serious journalism draws much of its strength.
The role of journalism in democracy
If public institutions disclose information promptly, if Parliament removes remnants of secrecy inconsistent with the Constitution, and if the media continues investing in research and the next generation of writers, Kenya will be better placed to confront misinformation without sacrificing freedom.
Trusted journalism depends upon access to trustworthy facts, and those facts, where they concern public affairs, cannot be treated as the possession of the State.
