First published in the Business Daily on December 28, 2016.
The Access to Information Act, 2016 became operational on September 21 giving effect to Article 35 of the Constitution.
It provides for the right to information by Kenyans from government agencies and relevant private entities. The Act provides the following useful tools for fighting graft in public procurement and disposal.
Publication of particulars of contracts: The Act provides for the publication of particulars of contracts for the provision of public works, goods or services. Public entities should publish this information on their websites (or other suitable media) upon signing the contracts.
These particulars include the specifics of the public works, goods or services, the scope of service and terms of reference, the contract sum, the name of the service provider or contractor and the completion period. The menace of road projects botched by contractors have for instance been highlighted in various occasions.
Publication of details of the contracts will increase accountability by contractors of these projects by enhancing public scrutiny on their quality, prices and delivery timelines. Protection of whistleblowers: The Act provides safeguards to officers who disclose information in public interest.
This includes disclosure to a law enforcement agency, such as the Ethics and Anti-corruption Commission or the police, of information that exposes violation of the law, mismanagement of funds, conflict of interest, corruption and abuse of public office. Such disclosure may attract penalties only where maliciously made.
Debarment of contractors and suppliers: The Act provides a sanction to private entities which violate the right to access to information by Kenyans. Such contractors and suppliers and their officers will risk debarment from future procurement and disposal contracts with the government.
This sanction, coupled with the requirement for publication of details of contracts, is likely to discourage contractors and suppliers from engaging in misappropriation of public resources, thereby increasing compliance with procurement and disposal procedures.
In conclusion, when effectively implemented the Act may reduce graft by increasing access to information by stakeholders, enhancing transparency in public procurement and disposal, protecting whistleblowers exposing corruption and imposing sanctions on contractors and suppliers.
The challenges to implementation of the Act include the interpretation of limitations of the right to access to information.
Disclosure of information to the public is subject to limitations listed to include disclosure involving unwarranted invasion of privacy or causing substantial harm to the government’s ability to manage the economy.