IN THE HIGH COURT OF KENYA CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. 278 OF 2011 BETWEEN THE NAIROBI LAW MONTHLY COMPANY LTD......................................PETITIONER VERSUS KENYA ELECTRICITY GENERATING COMPANY LTD......................1ST RESPONDENT EDWARD NJOROGE............................................................... ......2ND RESPONDENT AMICUS CURIAE BRIEF Of ARTICLE 19: Global Campaign for Free Expression ARTICLE 19 ARTICLE 19 KENYA/EASTERN AFRICA Free Word Centre ACS PLAZA, Lenana Road Nairobi 60 Farringdon Road Lenana Road London EC1R 3GA, UK Nairobi P.O. Box 2653 00100 – Nairobi, Kenya Tel: +44 207 324 250 Tel.: +254 (20) 3862230/2 Fax: +44 207 490 0566 Fax : +254 (20) 3862231 May 2012 I. Introduction 1. The purpose of this submission is to provide the High Court of Kenya with additional information in respect of the claim raised by The Nairobi Law Monthly Company Ltd (hereinafter “the petitioner”) on the refusal by Kenya Electricity Generating Company (hereinafter “the 1st respondent”), a substantially state owned company, and Edward Njoroge (“the 2nd respondent”), to furnish the petitioner with information requested pursuant to the right of access to information, guaranteed by Article 35 of the Constitution of Kenya. 2. ARTICLE 19, Global Campaign for Free Expression (hereinafter “ARTICLE 19”) believes that the case raises important questions as to the scope of the constitutional guarantee for the right of access to information in Kenya and its application to companies that are wholly or substantially state-owned. 3. This submission identifies international legal standards on the right of access to information, by which Kenya is bound and which applicable to this case, attempting to contribute to the understanding and implementation of the right in the county. It draws upon international law on the right of access to information, principally Article 19 of the Universal Declaration on Human Rights (hereinafter “the UDHR”) and Article 19 of the International Covenant on Civil and Political Rights (hereinafter “the ICCPR”), and regional standards, including the African Charter on Human and Peoples’ Rights (the Charter)1 and the Declaration of Principles on Freedom of Expression in Africa (the Declaration).2 The brief also compares jurisprudence and best practice in respect of the regulation of state-owned companies and the exercise of the right of access to information. Finally, this brief refers frequently to other standards, including standard setting work of ARTICLE 19, such as The Public’s Right to Know, Principles on Freedom of Information Legislation.3 These standards have to be taken to account by the High 1 African Commission on Human and Peoples’ Rights, African [Banjul] Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21October 1986, available at http://www.achpr.org/english/_info/charter_en.html. 2 African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression in Africa, adopted by Resolution of the Commission at the 32nd Ordinary Session, 2002, available at http://www.achpr.org/english/_doc_target/documentation.html?../declarations/declaratio n_freedom_exp_en.html. 3 The ARTICLE 19 Principles are the product of a long process of study, analysis and consultation overseen by ARTICLE 19 and drawing on extensive analysis of international law and best practices on freedom of information. The Principles were endorsed by Mr. Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights, and referred to by the Commission in its 2000 resolution on freedom of expression. They were also endorsed by Mr. Santiago Canton, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report, Volume III of the Report of the Inter-American Commission on Human Rights to the OAS; available at http://www.article19.org/pdfs/standards/righttoknow.pdf Court when deciding on the petitioner’s request. 4. Based on the international standards, the submission concludes that the public companies (either wholly or partially state-owned) have obligation to comply with right to information requests. The exclusion of these companies from the access to information regimes or limiting the scope of their disclosure duties would then amount to violation of the right to freedom of expression and information. II. Interest of ARTICLE 19 5. This amicus brief is respectfully submitted by ARTICLE 19, an established international human rights organisation, promoting the right to freedom of expression and the right to information worldwide. It takes its name and mandate from the Universal Declaration of Human Rights, which proclaims the right to freedom of expression, including the right to receive and impart information and ideas. ARTICLE 19 is headquartered in London and has its regional office for East Africa based in Nairobi. 6. ARTICLE 19 frequently submits legal opinions, written comments and amicus curiae briefs,4 either directly or through the commissioning of expert opinions, to both international and national courts in cases which raise issues touching on the international guarantee of freedom of expression and freedom of information. ARTICLE 19’s briefs, which are based on relevant international human rights law and comparative standards, aim to assist courts to elaborate the specific meaning of freedom of expression in the context of the particular case in a manner which best protects this fundamental human right. 7. The persons with responsibility for this amicus brief within ARTICLE 19 are: Barbora Bukovska, Senior Director for Law and Policy, at +44 20 7324 2500 or email [email protected]; and Henry Maina, Director of ARTICLE 19 Kenya/East Africa at +254 (20) 3862230/2 or email: [email protected]. 4 For example, ARTICLE 19 acted as amicus curiae before the European Court of Human Rights in Goodwin vs. United Kingdom (23 March 1996, Application 16/1994/463/544), Incal vs. Turkey (9 June 1998, Application No. 22678/93), Observer and Guardian vs. United Kingdom (26 November 1991, Application No. 13585/88), Wingrove vs. United Kingdom (25 November 1996, Application No. 17419/90), Kasabova vs. Bulgaria (19 April 2011, Application No. 22385/03), Sanoma Uitgevers B.V. v. the Netherlands (14 September 2010, Application No. 38224/03), KAOS GL v Turkey (the judgement is pending, Application No. 4982/07), Samodurov and Vasilovskaya v Russia (the judgement is pending, Application Number 3007/06) or Mouvement Raelien Suisse v. Switzerland (Grand Chamber Decision pending, Application No. 16354/06); before the Inter-American Commission and Court in Reyes and Others vs. Chile (19 September 2006, Series C No. 151), Ulloa and Rohrmoser vs Costa Rica (3 December 2011, Case 12.367), Gonzalez and Fries vs. Chile (19 March 2009, Case No. 406/03), Fontevecchia & D’Amico v. Argentina (Case No. 12.524. Serie C No. 238, 29 November 2011), Uzcátegui et al vs. Venezuela. (pending, Case No. 12.661) or Luis Gonzálo ‘Richard’ Vélez Restrepo v Colombia (pending Case No. 12.658); or before the UN Human Rights Committee in Mavlonov and Sa’di vs. Uzbekistan (19 March 2009, Communication No. 1334/2004)13 as well as before a number of national courts, most recently in Rwanda, Indonesia, Thailand or Malaysia. III. Summary of Facts 8. In this brief, ARTICLE 19 relies upon and adopts the facts and procedural history as presented in the court submission. These materials were made available to ARTICLE 19 for the purposes of this submission by the Petitioner. 9. The petitioner is a company that publishes a monthly legal periodical. The 1st respondent is the largest electrical power generation company in Kenya, producing 80 percent of the electricity that is consumed in the country. It is substantially state-owned, with 70% of the shares held by the Government and the remaining 30% held publicly. The 2nd respondent is the Managing Director and Chief Executive Officer (CEO) of the 1st respondent. 10. In its October 2011 issue, the petitioner’s periodical ran a story on the commercial dealings between the 1st and 2nd respondents and the Great Wall Drilling Company of China. The background was that the 1st respondent and the Great Wall Drilling Company of China had entered a contract for the drilling of 6 wells at the Olkaria IV geothermal field. They then subsequently agreed for the drilling of an additional 15 wells at the same site, an arrangement that the petitioner contends was not lawfully entered into. 11. Pursuant to the guarantee of the right of access to information in Article 35 of the Constitution of Kenya, the petitioner requested all internal communications, board minutes, confidential letters, reports and all documents relating to any contracts between the 1st and 2nd respondent and the Great Wall Drilling Company of China, as well as the Green Energy Group AS of Norway, and its local agent Symba Energy. The first request was made on 6 October 2011 and, upon receiving no reply, a second request was made on 12 October 2011. 12. In a letter dated 14 October 2011 the 1st and 2nd respondents refused to furnish the requested information, questioning which provision within Article 35 of the Constitution of Kenya was the basis for the right asserted by the petitioner. This refusal to provide the requested information is the basis of the petitioner’s constitutional claim against the 1st and 2nd respondent now before the Court. 13. It is noted that the petitioner seeks the following forms of relief from the High Court: a declaration that the petitioner’s fundamental rights under the Constitution of Kenya have been violated; a declaration that the petitioner is entitled to damages and compensation; an assessment by the court on the quantum of damages and compensation due; an injunction compelling the 1st and 2nd respondent to disclose the requested information; and general, exemplary and aggravated damages under Article 23(3) of the Constitution of Kenya.