The same week that the Open Data Barometer touted Kenya as the most advanced developing country in the world, an article in The Nation blamed the lack of data for the country’s weak government. Nation journalist Muthoki Mumo found that as a result of a lack of data and access to information, the country’s counties cannot plan or budget and this is the first year the counties developed their own budgets under devolution.
Scrutiny of the now three-year-old Kenya Open Data Portal for the Land Quest investigation on how government and donors are managing valuable natural resource discoveries of oil and water turns up nothing: an environmental category filled with unrelated census data; a financial sector category with one lone data set from the International Monetary Fund; and a completely empty justice category. Over 30 data petitions presented to, among others, the Ministries of Mining and Water, Environment and Sanitation over three months, yielded no national level data. Kenya has identified new natural resources, its biggest find yet, but data about those discoveries is nowhere to be found.
In an “off-the-record” conversation in a dark Lodwar bar, a senior Turkana County government official told the Land Quest team that the Governor’s office has access to geo-located oil drilling data, but that the information is confidential. The information is restricted to a small inner circle. Not even the cabinet has seen it.
A history of secrecy
The frustrating hunt for data personifies the use of the word sirikali (deep/hot/secret) to mean government (Serikali in Swahili) among Kenyans. The secretive and smoke and mirrors nature of government operations is perpetuated (and protected) through policies like the Official Secrecy Act. Kenya ranked 136 out of 177 countries in the 2013 Transparency International Corruption Perception Index.
The Open Data Portal was launched in 2011 with much fanfare by the then Information and Communication Permanent Secretary Dr. Bitange Ndemo with the hopes of stemming corruption. Two years after its launch, Dr. Ndemo stated publicly that government departments reluctant to hand over data have stalled the portal. Now, stakeholders ranging from research institutions and policy groups to tech groups and government watchdogs are giving up and looking in other places for alternative sources of data.
The government is prevented from sharing some contractual data by old laws that require the consent of both contractual parties, especially when it comes to natural resources. For example, the Petroleum Act requires that oil companies like Tullow Oil, which leads drilling in Turkana, consent to making the contract public before any details are shared by the government.
Lobbying for natural resource transparency
Both the International Monetary Fund and the World Bank have encouraged the Government of Kenya to adopt transparency and release the contract. The World Bank plans to issue a $50 million dollar World Bank grant whether the government decides to incorporate the World Bank’s transparency recommendations in new legislation or not.
“It’s a process in which you need to educate the government about how the oil and gas sector and industry work and what issues are really confidential or not,” Lex Huurdeman, a specialist in oil, gas and mining in East Africa for the World Bank, explained. “The more that people know and understand about the industry the fewer problems you have along the road but governments in general are not very good at communications about these issues.” Whether the Government of Kenya decides to adopt an open communication strategy is an open question. “The World Bank can advise what to do but we cannot tell them what to do.”
The one official agreement between the Ministry of Energy and a foreign oil company obtained by the Land Quest team documents a commitment to continued secrecy. The Memorandum of Understanding was signed in order to end community protests against the oil companies that forced a shut down in operations for two weeks. The terms prohibit the document from being shared with any community members.
So far, the government has not applied to become a member of the Extractive Industries Transparency Initiative (EITI), which sets standards for access to information and accountability and no donor is requiring them to do so. Kwame Owino, the Chief Executive Officer of the Institute of Economic Affairs noted that membership to the EITI is up to the government. “The government needs to apply and show cause why it wants to be a member. It is yet to do so.” The EITI requirements for being a member include having an oversight body which would include government and civil society members among others, an officer in government to lead the implementation process and timely and accurate reports about openness.
“We have very few donors who can take on the government,” said Hadley Becha, Director of the Kenya Oil & Gas Working Group, part of Community Action for Nature Conservation, which is petitioning the government to seek EITI membership.
Access to Information Law
Under Article 35 of the constitution, “every citizen has a guaranteed right to access information held by the state and the state shall publish and publicize any important information affecting the nation”. But with no specific legislation to enforce that provision, government bodies are reluctant to share even mundane data. For instance, while seeking wetlands data from the Department of Resource Surveys and Remote Sensing (DRSRS) under the Ministry of the Environment for this investigation, officials first tentatively consented, then after multiple rounds of deliberation, stated that the data could only be shared with other government agencies.
A recent court ruling on a petition, Contravention of Fundamental Rights and Freedoms, pushed access to information one step closer to reality. Judge Mumbi Ngugi, in a case in which publisher Nairobi Law Monthly wanted energy producer Kengen to release to it contracts awarded to two Chinese companies, ruled that Kenyan citizens, but not corporations, are entitled to access.
Nairobi Law Monthly Publisher Ahmednasir Abdullahi applauded the ruling calling on Kenyans to push the government for access to information. Experts however argue that without an implementing law on access to information, despite the court’s ruling, it will be difficult for the government to start opening up, since there are no procedures or timelines for complying with information requests in place.
Linda Obonyo who works with the governance and policy program at Transparency International stated existing restrictive laws like the Official Secrecy Act would also have to be dealt with before citizens could expect to exercise their right to access to information.
The Open Government Movement
Though Kenya is a member of the Open Governance Partnership, which seeks to make information available to individuals and institutions as a critical step to better transparency and accountability, in practice, like the Kenya Open Data Initiative, is a distant goal. Under the program, stakeholders, such as the government, media and civil society, all have critical complementary roles to play in transparency.
The Media and Open Government, an independent report funded by the Omidyar Network, sheds light into how these institutions can work together. The report challenges government to involve media and stakeholders in the critical steps it takes towards freedom of expression as a core ingredient of openness. Key to this is to proactively determine what information will be useful to citizens and reviewing classification of confidential information and legislation on access to information. It also challenges media to recognize open government as a rich source for data and information.
As for the Open Data portal, the World Bank is currently seeking help in Open Data Outreach, a proactive access to information initiative, to design programs to support outreach to citizens, generate demand-driven engagement and partnerships and promote co-creation as a tool to create new products and services in Kenya. But without reliable data or an access to information law, many are skeptical about the future of the portal.
The current draft access to information law may not help uncover the murky past of natural resources dealings. Edgar Odari of Eco-News Africa, a trade justice and extractive industry civil society group, explained that the draft law is not retroactive. So, when it is passed, only new data will be available. This means that critical data like mining licenses that allowed drilling in Turkana, details of the World Bank financing to the Government of Kenya and any other related documents may continue being nothing more than an ongoing source of speculation.
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