The High Court has delivered a landmark judgment affirming the constitutional right of senators to access information from county governments, ordering Busia Governor Paul Otuoma and other county officials to release documents requested by Busia Senator Okiya Omtatah within 21 days.
In a decision expected to strengthen oversight over county governments across the country, a three-judge bench comprising Justices Janet Mulwa, Weldon Korir and Anthony Mrima held that denying a senator access to public records not only undermines constitutional oversight but also violates the right to access information guaranteed under Article 35 of the Constitution.
The petition was filed by Omtatah after the Busia County Government allegedly failed to respond to numerous letters seeking documents relating to the management of county affairs. The judges found that the county’s conduct was unconstitutional.
“A Senator, in his or her official capacity as a democratically elected county leader and a representative of the county in Parliament, does not lose his or her rights as a citizen under Article 35 of the Constitution to access information from the county government,” the court held.
The bench declared that senators are constitutionally entitled to personally access information and documents held by county governments whenever such information is necessary for the discharge of their oversight mandate. According to the judges, county governments cannot selectively decide whether to respond to requests from senators, since accountability is one of the fundamental principles underpinning devolved governance.
“Senators have a constitutional right to personally access all information and documents held by county governments at all times in the performance of their constitutional mandate.”
The court observed that the Senate’s constitutional role of protecting counties and overseeing the use of public resources would be rendered ineffective if county executives were allowed to withhold information from elected leaders. The judges equally extended the same principle to Members of County Assemblies (MCAs), holding that they too are entitled to access documents required to perform their oversight role.
In the judgment, the court found that Busia County’s refusal to provide the requested records violated several provisions of the Constitution, including Articles 10, 27, 35, 47, 73, 75, 174, 201 and 232. The bench ruled that the respondents infringed Omtatah’s right to fair administrative action and discriminated against him by denying him access to information that should ordinarily be available in the public interest.
“The failure by the respondents to provide the requested information violated the petitioner’s constitutional right of access to information and fair administrative action,” the court stated.
The judges further held that the conduct offended the Access to Information Act, the Fair Administrative Action Act, the Leadership and Integrity Act, the Public Officer Ethics Act and provisions of the County Governments Act.
To remedy the violations, the court issued an order of mandamus compelling Governor Otuoma and the other respondents to furnish Omtatah with all documents and information sought in 15 separate letters written between June 2023 and January 2024. The respondents were directed to comply with the order within 21 days of the judgment.
