NAIROBI, Kenya, Apr 22 — The ongoing dispute involving the Kenya Wildlife Service (KWS) and the Office of the Ombudsman over snakebite-related death statistics brings Section 28 of the Access to Information Act, 2016 into sharp focus.
At its core, this provision defines when failures or wrongful acts linked to public information requests become criminal offences—and the penalties attached.
Why Section 28 is central to the KWS case
In the current matter, the Commission on Administrative Justice has warned that failure by KWS to release requested data could trigger a recommendation for prosecution of its Director General.
That warning is anchored in Section 28, which sets out offences related to non-compliance, obstruction, or misuse of access to information obligations.
1. Criminal liability for wrongful refusal or concealment of information
Section 28(1) provides that anyone who knowingly discloses exempt information unlawfully commits an offence.
While this clause is often read in the context of improper disclosure, it also underscores the broader legal principle: handling of information under the Act is tightly regulated.
However, in the KWS case, the more relevant concern is refusal or failure to disclose non-exempt public data—such as statistical information on snakebite deaths.
If a public officer deliberately obstructs access or mishandles a request in bad faith, other subsections come into play.
2. Penalties for obstructing access to information
Section 28(3) directly targets information access officers who fail in their duties. Offences include:
Refusing to accept or assist with a request
Failing to respond within the prescribed time
Failing to make information accessible, including for persons with disabilities
Such conduct is punishable by a fine of up to KSh 50,000 or imprisonment of up to three months, or both.
In the KWS case, repeated failure to respond to follow-up requests could fall within the broader pattern of non-compliance the Ombudsman is scrutinising.
3. Failure to provide or correct public information
Section 28(4) expands liability to include:
Failure to respond to legitimate information requests
Charging excessive fees
Failure to correct inaccurate or outdated information
Penalties here are more severe: up to Sh100,000 in fines or six months’ imprisonment.
This is relevant in contexts where an agency holds information—such as wildlife-related fatality data—but fails to release or update it within reasonable timelines.
4. Obstruction of oversight institutions
Section 28(8) criminalises:
Failure to comply with summons from the Commission
Providing false or misleading information
Obstructing proceedings
Penalties rise to Sh300,000 or six months in jail.
This is particularly significant because the Ombudsman relies on cooperation from public institutions during reviews. Non-response or evasive replies, as alleged in the KWS case, can escalate matters from administrative dispute to potential criminal liability.
5. Good faith protection
Importantly, Section 28(9) protects officials who act in good faith under the law. This means:
Honest mistakes in disclosure decisions
Reasonable reliance on exemptions under the Act
do not automatically attract criminal liability.
This safeguard is designed to prevent fear-driven over-compliance by public officers.
6. Why the Ombudsman’s warning matters
The Commission’s warning that it may recommend prosecution does not itself convict anyone. Instead, it signals that:
The refusal to provide snakebite death statistics may be viewed as unjustified under the Act
Continued non-compliance could shift the matter from administrative review to criminal exposure
In essence, Section 28 gives enforcement “teeth” to Kenya’s access to information framework—turning repeated or deliberate obstruction into a punishable offence.
7. The bigger principle: transparency in public health data
Beyond the legal dispute, the underlying issue is transparency. Data on snakebite deaths is considered public-interest information because it:
Informs public health policy
Guides antivenom distribution and procurement
Supports parliamentary oversight
Section 28 reinforces that withholding such information without lawful justification is not just an administrative lapse—it may, in certain circumstances, carry criminal consequences.
Bottom line
In the KWS case, Section 28 of the Access to Information Act serves as the legal backbone for the Ombudsman’s warning.
While prosecution lies in the ODPP’s dormain, the law clearly establishes that persistent refusal, obstruction, or bad-faith handling of information requests can move a public official from regulatory scrutiny into criminal liability territory.