Defining a Digital Right to Access
A guest post by Jaaziyah Satar
The implementation of the right to access information has been a topic of conversation as early as the 18th century. Sweden became the first country in Europe to do so (implement right to access). Anders Chydenius’ believed that democracy and workers’ rights were crucial to the economic growth of a state and urged that freedom of press and information is a vital right that should be accessible to all citizens; the English parliament also recognized the need and importance of abolishing political censorship in the 17th century. Eventually India, being the first non-European country, followed suit in the 20th century by incorporating the right to information into their own laws (known as the Right To Information Act).
The 2010 Kenyan Constitution sought to provide equality and transparency by inclusion of rights and fundamental freedoms one such being access to information. Part 2, Article 35 of the 2010 Constitution states the following:
(1) Every citizen has the right of access to-
- information held by the State; and
- information held by another person and required for the exercise or protection of any right or fundamental freedom.
The Access to Information Act was signed and enacted in 2015; the Act divided information into three key parts: “Exempt information” – information withheld by a public entity; “Information” – records held by a public entity; “Personal information” – information about an identifiable individual.
The Act attempts to protect the right a citizen has to access information, on paper, however there is no real, fortified means of ensuring the above gets implemented.
There has been a heavy emphasis placed upon the need for protection of digital rights in Kenya; Sammy Cheboi noted how Kenyans were slow in taking advantage of the transparency and access to information and this may be accredited to the fact that the majority of Kenyans make up the poor or illiterate. It may also be due to the fact that Kenya has a problem with corruption which means information is exclusively available to the wealthier class with connections within the Kenyan governance.
The above makes it difficult for the common wananchi to take action against a powerful individual.
Georgiadis’s notes that an important point to put across; the fact that sometimes courts interpret a statute to their discretion as opposed to how it was intended to be interpreted.
In the case of Famy Care Limited V Public Procurement Administrative Review Board & Another Article 35 of the 2010 Kenyan Constitution provided for information to be made available and accessible when requested. The court, however, ruled that the Defendants were not entitled to provide the information to the Plaintiff due to the fact that the information being requested was sensitive and not to be shared with the general public.
In the case of Rashid Odhiambo Aloggoh & 245 others V Haco Industries Limited a similar position was taken by the court; but as the article points out the attempts the court made to dismiss a petition (to access information) is unconstitutional.
So what is right to access information?
Digital rights are human rights because they cater for access, creation and the publishing of digital media (information) via computers and other forms of technology.
Right to access, like all digitals rights seeks to protect and allow internet users to access information and due to it being a human right it becomes a second generation human right.
The right to access information is a facilitative right used to access other rights – Peter Gathu and Henry Kahindi state how the right to access information can be utilized by citizens to their benefit. For instance, the citizens displaced (as a result of the 2007 post-election violence) can utilize the right to access information in order to gain compensation. By asking a public servant for information and files from the affected area that they were living in they would be able to get proof of their internally displaced person status. But without this information they can be deemed imposters as they would not have proof of their status and would therefore not be compensated. The right to access information in this circumstance would provide access to property rights as well.
In “Digital Citizenship: The internet, Society, and Participation,” Mossberger et al, explore the debate around “digital citizenship” – who has access to the internet? Is it a majority or a minority of people?
This brings an entire new element to the conversation (of right to access information) that has not yet been fully explored in Kenya; [evident in relation to the situation being explained with the internationally displaced persons (IDPs) in Kenya. In the event that they are denied access to information by state officials because they do not have the resources required (monetary or a “connection” in government). This denial on the official’s part, however, will be a clear violation of Part 2, Article 35 of the 2010 Constitution.]
Toks Oyedemi “Internet access…citizenship in the digital age,” offers a little bit more insight into the disparity between social classes; the article looks deeper into why South African legislators do not believe that their citizens do not have a right to internet access. The article’s comparison between the West and Africa highlights how the West can also financially afford to make digital rights a priority. South African legislators believe that there are many other problems ailing the African nation that need to be dealt with before digital rights can be tackled.
What therefore is a digital right to access?
From the foregoing, we can discern that it refers to the freedom or right to access refers to the right for all citizens of a country to access the communication networks that connect their devices onto the internet. This is a facilitative right that allows such citizens to then exercise the foregoing rights to assemble, associate, express and remain private and secure online.
In order to protect the right to access information one key thing that needs to be done is educating the masses (public and civil society) as to the traditional rights and the digital rights (that right to access information existed even prior to technological advancements). This responsibility could fall on an NGO or an organization such as the Centre for Intellectual property and Information Technology (CIPIT) to hold forums that discuss what digital rights such as the right to access information.