The Constitution provides for freedoms that were previously not contained in the old constitution. One of the many new additional rights is that every citizen has a right to receive information held by the state and that the state will publish any important information affecting the nation.
This right was previously not accessible under the old dispensation. Inclusion of this right would mean that the state is under obligation to publicise and publish any information that touches on the country. It makes it easier for civil rights organizations, NGOs involved in activism and other human rights activists to access this information unlike in the previous dispensation when such groups had to fight hard to get information from the state. In previous dispensations people who were found with information classified as “confidential” were charged with sedation and other treasonable offences. Information concerning the state was held almost solely by the state. There was a lot of state propaganda and sugar coating in previous dispensations. However the situation now is such that it is easier for citizens to get information from the state as it is now recognised as one of the fundamental rights of citizens.
However in as much as Article 35 provides for the right to be informed, it is reasonable to expect some limitations especially when it comes to issues bordering on state security and other information held by the state confidentially and that would be necessary for protection of public. It would be unreasonable to expect the state to publish details of all its operations including military, security and other intelligence information. Therefore this Bill is limited in as much as it has not been clearly stated what the incidences of limitation are. It is not clear exactly what the state is required to publish and what it cannot publish.
Under Article 24 there are general limitations to the bill of rights under Chapter 4 of the Constitution taking into account the nature of the right and other considerations. Most individual rights are limited on public security grounds. For example freedom of speech and freedom of the media could be limited on grounds of public security.
The only rights which are unlimited are protection from torture, cruelty and human degradation as well as freedom from slavery and servitude. This means that the state and certainly no institution can pass any decrees to limit these rights. Some institutions like schools unknowingly pass rules that may infringe on these constitutional rights. Therefore it is for institutions to be very careful when making their rules and regulations for they should not breach any fundamental rights.
Ever since the new Constitution was promulgated the number of constitutional references have increased especially on the fundamental freedoms. Sometime last year a foreign based civil rights organization filed a constitutional reference under Article 35 seeking some information held by the state to be made public. The court however held that this right is only available to Kenyan citizens.
An interesting provision in the same Article 35 is that every citizen has the right to receive information held by any other person necessary for the exercise or protection of any fundamental right. With strict interpretation it would seem that if any other person or institution has any information that would impact on any other of the fundamental rights owes you a duty of disclosure in so long as you seek to exercise your fundamental rights.
Under Article 35 (2) every person has the right to correction of untrue information or misleading information that affects the person. The Article does not state against whom this right would be applicable. Article 20 of the Constitution states that the bill of rights is applicable to all state organs and persons.
One way that Article 35 may be applicable especially when trying to enforce this right against private institutions would be in the case you would need medical reports from a hospital and the hospital refuses to release those reports on institutional regulations. In such a case, a suit filed on grounds of protection of the right to health and life would supersede any institutional regulations.
Some decisions taken by state institutions may also be subjected to this right especially when it comes to protection of the fundamental right of equality and freedom from discrimination.