OPINION: Leveraging OGP for key accountability reforms in Kenya

The release of Kenya’s Progress Report by the Independent Reporting Mechanism (IRM) reviews the implementation of its second Open Government Partnership (OGP) national action plan, and details and evaluates fulfillment of the country’s commitments to opening government.

The report findings point to positive developments and concrete achievements made as part of Kenya’s participation in OGP.

Kenya joined OGP in 2012, and the process has gathered momentum, redesigning the country’s architecture for institutionalizing public engagement and government accountability.

The second action plan encompassed a broad range of priority policies, including climate change, beneficial ownership legislation, open contracting, and enforcing the right to information.

Two commitments were highlighted for their potential to have transformative impacts: passage of the law on access to information, and the law on transparency of company beneficial ownership.

The Access to Information Act was passed in August 2016, the culmination of many years of advocacy by civil society for a law to enforce constitutional provisions guaranteeing the public’s right to information (RTI). The legislation achieved a high rating by the Global Right to Information index, ranking Kenya 17 out of the 102 countries assessed.

The Companies (Amendment) Act, which introduced disclosure obligations for beneficial ownership of corporate entities for the first time, was passed in July 2017 and came into force in August of that year.

Under the new law, all companies must disclose the names and addresses of beneficial owners, in order to curb criminal activity around money laundering, tax evasion, and illicit financial flows. The register is still under construction, with information being compiled by a multi-party team coordinated by the State Law Office and the Department of Justice.

The aforementioned commitments are concrete examples of the OGP process positively effecting change toward opening government in Kenya. Such ambitious commitments, with actionable steps to implementation, should be sustained and deepened.

The precedent set by previous action plans, as well as the room for reform provided by the 2010 Constitution of Kenya, constitute a solid basis for improvement. OGP is a platform through which Kenya can continue its work on open government:

• Passage of the beneficial ownership law is an important step forward, but more is needed. The scope of the law should be broadened to require companies to report the following information: tax identification number, nationality, country of incorporation, and a description of how control is exercised. As recent international indices note, Kenya needs to keep working to reap the benefits of full implementation of transparency around bids and contracts. According to the Financial Secrecy Index, Kenya’s financial secrecy score is 80 percent, the sixth-highest in the world. Secrecy around financial flows and beneficial ownership abets and sustains corruption and tax evasion.
• Now that right to information legislation is in place, It is important for the government to take concrete steps for full and robust implementation of the law. Additional regulations must be passed in consultation with civil society groups to operationalize the act. Civil servants should be engaged early and trained accordingly, as they will be those tasked with maintaining public records and processing requests for information. A World Bank guide identifies four “drivers” for effective implementation of freedom of information laws: enabling conditions, demand for information, institutional capacity, and oversight. These could inform the design of future commitments by the Kenyan government.
• Despite being a key aspect of the Jubilee Manifesto, Uhuru Kenyatta’s 2013 electoral platform, there have been few convictions for corruption. Kenya’s second action plan included measures to strengthen preventive and punitive mechanisms for corruption but lacked specific means to follow through on them. To effect real change, the government needs to ensure enforcement mechanisms for existing anti-corruption laws. The institutions responsible for enforcement of anti-corruption laws need to be clearly defined, with their activity subject to public disclosure in accordance with the Access to Information Act.

Future action plans could move beyond building upon previous commitments by utilizing open government principles to implement the United Nations’ Sustainable Development Goals (SDGs) and Kenya Vision 2030, the country’s development program.

Both programs emphasize the need for good governance that is people-centered, results-oriented, and accountable, which can work in tandem with OGP action plans to transform the commitments from aspirational to achievable.

Authors: Caroline Othim, Justin Temple