Exploring the legal manoeuvres for an equilibrium between access to information and privacy rights in Kenya and South Africa

 Marystella A Simiyu
 LLB (Kenyatta University); LLM (Centre for Human Rights, University of Pretoria) & LLD (University of Pretoria)
 Africa Senior Legal Advocacy Officer at the International Press Institute
 
 This email address is being protected from spambots. You need JavaScript enabled to view it.

 Edition: AJPDP Volume 2 2025
 Pages: 61-82
 Citation:  MA Simiyu ‘Exploring the legal manoeuvres for an equilibrium between access to information and privacy rights in Kenya and South Africa' (2025) 2 African Journal on Privacy & Data Protection 61-82
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Abstract

An enforcement tension between the right of access to information and privacy is inevitable insofar as the foundation of one right is information disclosure, the other being control of disclosure. Both rights, however, are not absolute in nature and are subject to reasonable and justifiable limitations, allowing the intervention of international, regional and national laws to reconcile competing interests. The balancing of these rights in African legal frameworks is of key interest in Africa where the value of the right to privacy has been contested. However, the evolution of legal instruments such as the African Union Convention on Cyber Security and Personal Data Protection and the African Commission Declaration of Principles on Freedom of Expression and Access to Information in Africa is reflective of the legal adaptation to the contemporary needs of African societies on privacy and information. These instruments together with the Guidelines on Access to Information and Elections in Africa confront the challenges faced with the realisation of both access to information and right to privacy and data protection. This article focuses on the impact of this equilibrium in promoting good governance, transparency and accountability, including during elections, towards nurturing an informed and engaged electorate and public. In dissecting the domestication of the provisions in international and regional instruments, and national approaches to facilitating these rights, the article examines the legal systems in Kenya and South Africa. The article finds that a common anchoring consideration in balancing access to information and privacy rights is a public interest override that outweighs the envisioned harm.

Key words: access to information; privacy; data protection; elections; competing rights

1 Introduction

Paradoxically, the complete enjoyment of human rights rests on limiting the exercise of certain rights that may be in conflict.1 The rights of access to information and privacy are in a potential collision in as much as they pursue opposing objectives of information disclosure and information control, respectively. However, both rights enjoy fundamental status under international law. The majority of national constitutions reconcile competing interests in rights by imposing limitations. Generally, rights limitations are guided by the principles of legality, legitimate aim, and necessity and proportionality in a democratic society.2 Absolute rights are only marginally recognised under international law, revealing an expectation of conflicting rights.3

The growing corpus of international and national laws has attempted to address the conflict between the right to information and privacy rights. This is especially so in the wake of the implications of globalisation and digital technologies on the exercise of these rights and other rights, including the right to meaningful public and political participation. By employing the human rights approach, this article examines how frameworks at the United Nations (UN) and African levels as well as national legal systems in Kenya and South Africa have approached the reconciliation of these rights. This article is structured in five parts. Part 1 is this introduction. Part 2 unpacks the definition of privacy and its correlation with access to information. Part 3 analyses how the UN and African legal frameworks address the competing interests concerning access to information and privacy. This part zeros in on the substance and implementation of the Guidelines on Access to Information and Elections in Africa using practical examples from South Africa and Kenya. Part 4 examines how statutes and case law in Kenya and South Africa find the middle ground between privacy and access to information. Part 5 concludes the article.

2 The conceptual intersection between privacy and access to information

Conceptualising privacy has been the subject of considerable intellectual discourse.4 While there is no accepted consensus on the definition of privacy, the notion of ‘access’ features strongly in characterisations of the term ‘privacy’. Access in this sense is relational and may pertain to access to a person, be it a tangible physical state or intangible psychological state.5 In one of the early descriptions of privacy, Cooley writes of the right to be left alone.6 Scholars Warren and Brandeis further depict this right to be left alone or privacy right as a component of a more holistic and evolving portrayal of the right to life and the enjoyment of life.7 One’s desire to exercise control over their state of solitude, anonymity and secrecy, key aspects of privacy, features strongly in this definition.8 Gerety, similarly, defines privacy as ‘an autonomy or control over the intimacies of personal identity’.9 These definitions place the reigns of regulating the conditions of access to an inner private sanctum on an individual.

The second aspect of access and privacy, on which this article will largely focus, is access to information about a person. The term ‘informational privacy’ is relevant to this discourse. For example, authors such as Westin define privacy as the ‘claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others’.10 The notion of an individual’s control over the conditions surrounding access to information about them has collated the debate and frameworks on privacy as predicated on access to information; in this sense, regulation of what is retained and what is disclosed from the private to the public realm.11 This definition in itself acknowledges that information about a person may not be in their sole possession or control, but others may have access to one’s information. Consequently, a collective responsibility is imposed on others to protect another’s right to privacy and unconsented and unreasonable access to their information.12

Often, ‘privacy’ and ‘data protection’ are used concomitantly and even sometimes synonymously, though discourse on their similarity or identicalness has been contentious.13 As definitional purists argue, data protection specifically relates to safeguards emanating from the modalities of processing personal data (information of ‘an identified or identifiable natural person’), which may cross the confines of the private sphere that the right to privacy protects.14 Norms on data protection canvas how information is collected, stored, used and disseminated which has a correlation with the right to privacy but may exceed its formulation in its application.15 Makulilo concluded that ‘privacy and data protection are two distinct and separate concepts although they have overlapping objectives. The differences between the two concepts reside in their scope, goals, and content.’16 Notably, some authors have adopted the terms ‘data’ and ‘information privacy’ to temper the tension between data protection and privacy conceptualisation.17 Coalescing concurring and differing debates on privacy and data protection, a common ground that largely unifies the different discourses, is the presence of information and the exercise of control on its disclosure and management. This article underscores the conditions for information disclosure that conform to or conflict with the right to privacy. The ensuing context is characterised by globalisation and revolutionary technological advancements that have opened up frontiers for facilitating access to information and simultaneously complicated the ability of individuals to control information retention and disclosure. The intervention and adaptation of the law to this reality become crucial to protect personal and informational privacy and access to information.

3 Reconciling competing interests of privacy and access to information in the United Nations and African legal frameworks

The legal status of the right to privacy evolved from discourse to common law protection to prescriptive with legal recognition and protection in key human rights frameworks such as article 12 of the Universal Declaration of Human Rights (Universal Declaration);18 article 17 of the International Covenant on Civil and Political Rights (ICCPR); and a majority of national constitutions including on the African continent. Article 17 of ICCPR prohibits ‘arbitrary or unlawful interference with’ a person’s ‘privacy, family, home or correspondence’, or unlawful attacks on their honour and reputation. The exclusion of privacy rights in the African Charter on Human and Peoples’ Rights (African Charter)19 has inspired discussion on the place of privacy in Africa. Some authors have argued that the omission of the right to privacy in the African Charter should not lead to the conclusion that an individual’s right to privacy lacks value in African societies.20 This argument is often grounded in Africa’s collectivist culture.21 The articulation of the right to privacy in current African legal frameworks challenges arguments on its utility in contemporary African society. Case in point, the African Union Convention on Cyber Security and Personal Data Protection (Malabo Convention), which took effect in June 2023, is a homegrown instrument that outlines state obligations with regard to personal data protection.22 Admittedly, the development of the instrument was inspired by European legal frameworks such as the European Union Data Protection Directive 95/46/EC;23 the Council of Europe Convention 108;24 and the Organisation for Economic Co-operation and Development (OECD) Privacy Guidelines.25 All the same, the Malabo Convention addresses privacy and data protection issues in the African context.

Other binding and non-binding instruments have articulated the right to privacy in Africa, such as article 10 of the African Charter on the Rights and Welfare of the Child (African Children’s Charter), which protects the right to privacy of children.26 The African Children’s Charter, however, was inspired by the UN Convention on the Rights of the Child (CRC), which contains a similar provision.27 Additionally, principle 40 of the Declaration of Principles on Freedom of Expression and Access to Information in Africa (2019 Declaration) articulates everyone’s right to privacy and the protection of their personal information.28

Shifting gears to the right to information, its original formulation under international law is under freedom of expression encompassing freedom of expression, right to information, and media freedom. At the UN level, the right to information originates from the freedom of expression definition as the ‘freedom to seek, receive and impart information and ideas’.29 Under article 9 of the African Charter, it is simply ‘the right to receive information’. Soft law instruments have significantly elaborated the substance of the umbrella of rights encapsulating free expression to peel back the essence of the right to information. General Comment 34 on article 19 of ICCPR, for instance, defines it as the right to access information including records possessed by public bodies or other entities that conduct public functions.30 General Comment 34 proceeds to obligate states to ensure proactive disclosure of information of public interest and the passage of the necessary legal frameworks to enforce the right to information.31 Under General Comment 34, one can exercise the right against the state and public bodies. However, successive frameworks have narrowly expanded the scope of duty bearers.

The right to information under the African Charter is augmented by binding and non-binding instruments that provide context-specific obligations to facilitate access to information. The interdependent character of rights is revealed in the formulation of these provisions with access to information seen as an enabling right to other fundamental rights. For example, article 2 of the African Charter on Democracy, Elections and Governance (African Democracy Charter) links access to information to improved ‘democracy, elections and governance’;32 article 4 of the African Union Convention on Preventing and Combating Corruption includes access to information as a measure towards addressing corruption and related offences;33 and article 6 of the African Charter on Values and Principles of Public Service and Administration requires the realisation of the right to information in public service and administration towards effective public service delivery.34 An underlying thrust of these instruments is to course-correct and counter the endemic culture of secrecy, maladministration, corruption and impunity in African governments, and enhance transparency, accountability and meaningful public participation.35 The dichotomy between the ensuing secrecy culture in public institutions and contentious secrecy legislation in some African countries against the growing corpus of freedom of information laws in Africa unveils a tension not only within human rights but also within the state and institutional culture.36 Relatedly, Fitzpatrick argues that the ‘tendency of governing elites to confuse “the life of the nation” with “the survival of the regime” creates a grave risk that derogations and limitations on expression and information rights will be excessive’.37

Cognisant of the implication of state secrecy on access to information, the international mechanisms of the UN Special Rapporteur on Freedom of Opinion and Expression, the Organisation for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media, and the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression adopted the Joint Declaration on Access to Information and Secrecy Legislation in 2004. The Declaration provides:38

The right of access should be subject to a narrow, carefully tailored system of exceptions to protect overriding public and private interests, including privacy. Exceptions should apply only where there is a risk of substantial harm to the protected interest and where that harm is greater than the overall public interest in having access to the information. The burden should be on the public authority seeking to deny access to show that the information falls within the scope of the system of exceptions.

The right to information under the African Charter is further refined by a tripartite soft law structure found in the 2019 Declaration, the Model Law on Access to Information for Africa (2013 Model Law),39 and the Guidelines on Access to Information and Elections in Africa (2017 Guidelines).40 The 2013 Model Law provides that its objective is to give effect to operationalise this right as guaranteed by the African Charter to ‘any information held by a public body or relevant private body; and any information held by a private body that may assist in the exercise or protection of any right’. Crafted in similar terms, the 2019 Declaration and the 2017 Guidelines combined with the 2013 Model Law indeed form the corpus of frameworks that expand the scope of actors upon whom the right of access to information is enforceable.

First, public bodies and relevant private bodies have a duty to proactively disclose information.41 The proactive disclosure of information principle anticipates that information disclosures are not predicated on a request but are rather done routinely in the course of duty.42 Privacy considerations come into play given some of the information held by these bodies may be confidential information or personal data subject to legal protection. Persons can exercise their right of access to information, including access to one’s personal data, against three duty bearers:43

• a public body characterised as an entity established by the Constitution or other law, or is part of government;
• ‘a relevant private body’, meaning an otherwise private body that is owned totally or partially or directly or indirectly ‘controlled or financed by public funds’, or undertakes ‘a statutory or public function or’ service; and
• a private body but the enforceability of access is conditional upon the exercise or protection of another right.

The presence of a legal framework on privacy and data protection that is concisely drafted, accessible and enforced by competent and independent authorities dovetails with the right to information. There is a reasonable expectation to know to what extent governments can curtail an individual’s right to privacy in the name of the right to information as well as the safeguards implemented to prevent arbitrary and unlawful infringement of the right to privacy. General Comment 16 on the right to privacy emphasises the need for information on authorities allowed to interfere with their right to privacy, the manner and extent of the interference and recourse and remedy in the event of a violation.44

While the Malabo Convention’s objective on personal data commits African states to develop laws to strengthen human rights, especially the protection of physical data and privacy, it attaches a caveat that these measures should not prejudice the free flow of data.45 The Malabo Convention and the 2019 Declaration stipulate the guiding principles for the legal processing of personal data, including ‘consent and legitimacy, legality and fairness, purpose, adequacy and relevance, accuracy, transparency, and confidentiality and security’.46 These principles further demarcate the boundaries of privacy and information access and disclosure. Access to information is also emphasised with regard to the processing of personal information. Among the rights of a data subject in the Malabo Convention and the 2019 Declaration is the right to information on the type, scope, purpose, recipients, and timelines with regard to the information processed about them. The data subject also has the right to access this information and may object to the processing of the data or rectify or erase the information.47 Data subjects, therefore, can submit an access to information request to a data controller or processor for their own personal data to manage access to their information.

Also, an examination of the 2019 Declaration shows that from the outset it recognises the correlation between free expression (including the right to information) and privacy towards enabling the right to dignity.48 The 2019 Declaration guarantees the right to privacy both offline and online and the protection of personal information under principle 40. The Declaration further outlines state obligations in adopting privacy and data protection laws that comply with international laws and standards.49 The balancing and trade-off between privacy, data protection and information disclosure beyond one’s private sphere is seen in various provisions. Towards protecting data or information privacy, the Declaration imposes both negative and positive state obligations. The prohibition against ‘indiscriminate and untargeted collection, storage, analysis or sharing of a person’s communications’ and targeted surveillance that contradicts international laws and standards is a negative obligation aimed at ensuring the state respects the right to privacy.50 The state’s positive obligation emanates from the duty to adopt laws for ‘the protection of personal information, privacy and communication surveillance of individuals in accordance with international human rights law and standards’ as well as other safeguards.51

As of August 2024, at least 36 countries in Africa have passed data protection laws.52 Fewer countries have adopted access to information laws at about 28 African states.53 Cabo Verde, which was the trendsetter in Africa in adopting data protection laws in 2001, only adopted its access to information law in 2022. Some authors have credited the Brussels Effect as the impetus behind the uptake of domestic data privacy laws in Africa.54 Specifically, ‘the adequacy requirement’ under articles 25 to 26 of the now-repealed Data Protection Directive 95/46/EC predicates data transfer to third-party countries on an ‘adequate level’ of protection.55 Similarly, the earlier-mentioned influence of the European data protection regime on the substance of the Malabo Convention and many national data protection laws has drawn concern about the absence of an African-centred methodology for regulating privacy and data protection in African countries.56 Reflecting that privacy provisions in African constitutions were similarly inspired by the constitutions of imperial governments, it rests on enforcement actors, including the judiciary, to ensure that the interpretation of national statutory provisions is reflective of the African context while protecting fundamental rights such as access to information. This is especially crucial because of concerns over poor implementation of laws despite a demand for public interest information and privacy and data protection in Africa.57 In subsequent parts, this article analyses how courts in Kenya and South Africa have confronted this conundrum.

3.1 The contribution of the African Commission 2017 Guidelines to the information versus privacy debate and its implementation in South Africa and Kenya

The Guidelines on Access to Information and Elections were adopted by the African Commission on Human and Peoples’ Rights (African Commission) in 2017 to reinforce the protection of the right to freedom of expression and access to information particularly during elections.58 The 2017 Guidelines underscore ‘the principle of proactive disclosure of information’ throughout the election period as a conduit for enhanced accountability of electoral stakeholders and promoting credibility, integrity and stability during African elections.59 The interdependence between access to timely, credible, relevant and accurate information with meaningful political participation is an underlying thrust of the 2017 Guidelines. Meaningful political participation, including exercising the right to vote, envisages the active participation of an informed electorate in the elections and other democratic processes who can freely exercise their right to expression, association and assembly.60

The realisation of access to information during elections transforms voting from a passive exercise to an engaging experience by informed voters. That being said, various historical, social, cultural, political and economic considerations and biases influence voter choice in many African elections that are not anchored on issues. Blind affiliation to group interests driven by ethnicity, tribe and religion, among others, or personality politics without a corresponding reflection on issues and track record are an Achilles heel of meaningful participation in elections in Africa.61 Arguably, through concerted civic and voter education and access to information, fledgling African democracies can course-correct and nurture a culture of issue and performance-based voter choice.

Uniquely, the 2017 Guidelines identify eight key electoral stakeholders and outline the information which, at the minimum, they should disclose to the electorate and public during elections. The electoral stakeholders are ‘appointing authorities of election management bodies (EMBs), EMBs, political parties and candidates, civil society organisations (CSOs), law enforcement agencies, media regulatory bodies, media and online media platform providers, and election observers and monitors’.

Since 2019, the Centre for Human Rights, University of Pretoria (CHR) has undertaken a country assessment of domestic compliance with the Guidelines that covered South Africa (2019),62 Uganda (2020),63 The Gambia (2021)64 and Kenya (2022).65 While there are varying levels of compliance in the different countries influenced by democratic culture, legislative coherence, institutional strength, and resource capacity, among others, the reports reveal an overall need to enhance knowledge of the Guidelines and promote its mainstreaming in the activities of electoral stakeholders.66 Guidelines 31 to 34 strive to promote the implementation of the 2017 Guidelines by mandating state adoption of ‘legislative, administrative, judicial and other measures’ to implement the soft law. States are also required to disseminate the Guidelines to relevant electoral stakeholders and ensure effective training. Compliance measures should be captured in the periodic country reports ‘submitted to the African Commission under article 62 of the African Charter’.

Relevant to privacy, data protection and access to information, the CHR reports, as well as advocacy actions on the implementation of the proffered recommendations, reveal instances of conflict between access to information and privacy and data protection obligations. A review of the Guidelines reveals a singular focus on information disclosure. The Guidelines are structured to outline the categories of information electoral stakeholders should disclose during the elections. Not surprisingly, EMBs bear the most burden in information disclosure on both internal records as well as other election records, given their election administration mandate.67 The potential dilemma of conflicting proactive disclosure obligations with privacy and data protection does not receive a mention in the Guidelines. This is not to say that the Guidelines did not contemplate the notion of competing rights. For example, the stipulation for responsible authorities to refrain from implementing internet shutdowns further provides that in exceptional cases necessitating an internet shutdown, the reasons shall be proactively disclosed and the limitation complies with the three requirements of lawfulness, legitimate aim and necessity and proportionality in addition to prior judicial review.68 Interestingly, among the stakeholders, the Guidelines only indicate a general caveat on proactive disclosure duties of CSOs and this is based on exceptional cases where it is evident that their operations may suffer demonstrable harm.69

Political parties are also data controllers and data processors during elections. The 2017 Guidelines perceive political parties through the lens of a duty bearer to disclose information with no mention of their privacy and data protection obligations. Guideline 21 requires states to enact the relevant laws including on the proactive disclosure by political parties of received public and private funding, campaign expenditures, and annual audited financial reports. The orientation of political parties has traditionally been categorised under private bodies but their status as private bodies blurs when some elements of a public body breach this boundary such as through the receipt of public funds.70 In South Africa, courts have affirmed the position of political parties as voluntary associations and private bodies.71 However, in their capacity as private bodies, they have information disclosure obligations including on private funding, that the Constitutional Court of South Africa linked to the electorate’s ability to meaningfully exercise their right to vote and make informed decisions.72 This obligation also extends to independent candidates. In the fulfilment of this obligation, political parties and candidates may disclose personal data about private funders which, in some cases, may lead to prejudices emanating from supporting certain parties or candidates. In South Africa, the decision of the Constitutional Court led to the amendment of the Promotion of Access to Information Act (PAIA),73 and the adoption of the Political Party Funding Act (PPFA) in 2018 which fulfils Guideline 21. In Kenya, section 16 of the Election Campaign Financing Act, 201374 regulates disclosure of funding by political parties. However, the Act’s implementation has suffered in the wake of its suspension from coming into force until the 2017 elections and lack of political will.75

Instances in the Guidelines that necessitate privacy considerations include on disclosure of the voter register. Guideline 17 obligates EMBs to proactively disclose the voter’s register with voter’s identification information including their full name, identity card number, picture (if available), age and gender. Data protection considerations require EMBs and other data controllers and processors to consider data protection principles, particularly purpose limitation and data minimisation before disclosing such personal details in the full register. Therefore, it is important to read these provisions together with international privacy and data protection standards, and relevant national laws and case law.

National legislation is important to balance privacy and access to information during elections. In Kenya, the Independent Electoral and Boundaries Commission (IEBC) is obligated to apply the data protection principles as outlined in the Data Protection Act in processing the personal data of voters.76 The voter’s roll contains biometric data as well as other personal information including their name, identity number, sex, postal and residential address, and phone and email contact details.77 South Africa’s voter’s register contains the identity number, consecutive number, voter’s name and voter’s address or ordinary residence but no mention of a photograph.78 A participating political party can request a copy of the voter’s roll without charge but will be subject to a fee if they want the version with additional information on the addresses of voters. 79 They are also tasked to only use the information for election purposes, failing which they are guilty of an offence.80 This makes political parties data controllers and processors with responsibilities to protect the privacy and data of voters.

Privacy and data protection responsibilities of political parties are heightened in the information age. Digital technologies have refined data-driven political campaigning and strategising that has raised concerns around the data of voters and the wider public.81 A breach into the private sphere is evident in the growing trend of unsolicited and targeted political messaging during elections sent through personal devices or social media platforms.82 Increasing integration of technology in election administration in Africa coupled with empirical evidence of data breaches of voter information, as in the case of Kenya in the 2022 elections,83 or closed political party lists information, as was the case in South Africa during the 2024 elections84 reveal a need for electoral stakeholders to reinforce data privacy practices in compliance with existing legislation. Information Regulators and Data Protection Authorities have adopted regulations to address the tensions of access to information and privacy. The Office of the Data Protection Commissioner (ODPC) in Kenya published the Guidance Note on the Processing of Personal Data for Electoral Purposes during the 2022 election period, aimed at guiding data processors, including political parties and candidates.85 In 2019, the South Africa Information Regulator published a Guidance Note on the Processing of Personal Information of a Voter by a Political Party in Terms of the Protection of Personal Information Act, 4 of 2013.86 However, there is a need for better compliance and wider civic education on information and privacy rights.87

4 The interplay of privacy, data protection and access to information in the broader legal framework in South Africa and Kenya

Both South Africa and Kenya have adopted access to information and data protection laws and set up the required enforcement agencies. Arguably, South Africa is more advanced in anchoring these laws through supporting policies, institutions and case law though the effectiveness of implementation has been contentious.88 South Africa heralded the adoption of information laws in Africa with the enactment of PAIA in 2000.89 The Act was operationalised in 2001. PAIA is the statute envisioned under article 32(2) of the Constitution to enable access to information in the possession of the ‘state, or another person’ and that is necessary for ‘the exercise or protection of any rights’.90 The status of the legislation in relation to article 32 has been interpreted in the courts of law with PAIA affirmed as the vehicle for facilitating the constitutional right of access to information.91 Further access to information is endorsed as a means towards reinforced ‘human rights culture, social justice, transparency, accountability and effective governance of all public and private bodies’.92 From the outset, the absolute character of access to information is negated with PAIA subjecting the exercise of the right to justifiable limitations including ‘the reasonable protection of privacy, commercial confidentiality, and effective, efficient and good governance’ and such as to balance access to information with any other rights.93 Relevant to the crux of this article, the below focuses on the extent privacy rights may warrant the restriction of access to information.

Assessing the bounds of information disclosure within the confines of the law requires enforcement agencies to consider access to information frameworks alongside privacy and data protection laws; relevant to South Africa, PAIA and the Protection of Personal Information Act (POPIA). This is crucial to safeguard against unreasonable information disclosure as articulated under section 34 of PAIA.94 In an effort to reconcile the interests of access to information and privacy rights, PAIA outlines either mandatory or discretional obligations in disclosing certain information that is protected from disclosure on privacy grounds. For both public and private bodies, considerations include ‘unreasonable disclosure of third party information of a natural person including a deceased person’;95 third party commercial information such as trade secrets or own commercial information in the case of a private body; 96 breach of confidentiality or disclosure that may threaten the receipt of future confidential information for a public body;97 protection of the safety of persons or property; 98 unwaived legal privilege considerations; 99 and protection of research data of a third party, or research data of the public or private body.100

Other privacy considerations and exemptions from disclosure for a public body on privacy grounds include some records of the South African Revenue Service (SARS) unless requested by the tax subject or their representative;101 police records ‘in bail proceedings, and law enforcement and legal proceedings’;102 reasonable threats to the national defence, security and international relations;103 material threats to national economic interests and financial welfare and the public body’s commercial activities;104 impediments to the formulation or success a policy, or public decision making;105 and ‘manifestly frivolous or vexatious requests’ or requests that may considerably and unreasonably redirect resources.106

While PAIA stipulates specific exemptions to these considerations, it also provides a general public interest override with regard to grounds of refusal based on privacy except concerning SARS records under section 35 of PAIA. 107 In particular, the public interest override operates if information disclosure reveals a substantial legal offence or violation; or ‘imminent and serious public safety or environmental risk’.108 Further, the enforcement agency must weigh whether the public interest in the information disclosure supersedes the contemplated harm.

Kenya’s Access to Information Act (ATI), on the other hand, is a fairly recent enactment having come into force in 2016.109 The equally important Data Protection Act (DPA) became law in 2019.110 The ATI Act similarly operationalises the right of access to information under article 35 of Kenya’s Constitution. The formulation of article 35(1) is identical to that of South Africa’s article 32(1). However, article 35 goes further to guarantee the right to ‘the correction or deletion of untrue or misleading information that affects the person’ and obligates the state to ‘publish and publicise any important information affecting the nation.’111

Comparatively, the ATI Act’s attempt to reconcile the competing interests on access to information and privacy, while not as elaborate as PAIA, is couched in similar themes. In rather broad terms, access to information shall be limited to protect national security; ‘due process of law; the safety, health or life of a person’; unjustified privacy violation of another; substantial prejudice to the commercial interests of ‘the data subject or a third party’; damage to a ‘public entity’s position in any actual or contemplated legal proceedings’; or professional confidentiality.112 The ATI Act also provides a general public interest override requiring information disclosure by ‘a public or private body where the public interest in information disclosure outweighs the harm to protected interests’ subject to a court’s determination.113 Additionally, considerations of individual privacy and commercial interests do not apply ‘if a request for information relates to the results of any product or environmental testing, and the information concerned reveals a serious public safety or environmental risk’.114

4.1 Judicial interpretation of the balance between access to information and privacy rights in South African and Kenyan courts

The legal systems in Kenya and South Africa are mixed, including both statute and common law pronouncements.115 Common law is defined as law emanating from judicial decisions as opposed to statutes. In Marbury v Madison the United States Supreme Court stated: ‘It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.’116 Courts have a legal interpretive mandate that has been defined as ‘the process or activity of using legal materials, such as statutes, constitutions, contracts, wills, and the like, to ascertain legal obligations, powers, rights, privileges, and so on’.117 In other definitions, interpretation ‘refers to the activity of the judge who, on the one hand, attempts to determine the scope of an ambiguous or obscure text and, on the other hand, attempts to elaborate a solution when the text presents a gap’.118 South African and Kenyan courts have faced the task of dispelling the tensions in the statutory articulations of access to information and privacy rights in social contexts towards both determining the scope of the law, filling gaps and/or aligning the law to the spirit of the Constitution.

In Arena Holdings South Africa’s Constitutional Court was confronted with a challenge to the constitutionality of the absolute exemption of taxpayer records from disclosure under section 35 of PAIA.119 The case emanated from a refusal by SARS to accede to a 2019 request for the tax records of the former President, Jacob Zuma, following allegations that he evaded taxes during his tenure as President.120 SARS denied the request because the records were confidential and exempted from disclosure as per sections 34(1) and 35(1) of PAIA, and section 69(1) of the Tax Administration Act (TAA).121 The Court had a duty to balance the competing interests between the personal ‘right to privacy of taxpayer records’ against the public interest in accessing the records where there is evidence of serious illegality.122

The Constitutional Court had previously applied public interest considerations in ruling against the absolute prohibition of information disclosure on privacy grounds involving divorce proceedings123 and asylum applications.124 In confirming the order of the High Court on the unconstitutionality of the absolute prohibition under section 35 read together with section 46 of PAIA in Arena Holdings, the Constitutional Court asserted that the absolute exemption of individual tax records was not a less restrictive measure to limiting the right of disclosure.125 The absolute approach contradicted the constitutional approach to competing rights. The Court added that applying the public interest override provided under section 46 of PAIA to the mandatory protection of taxpayer information would still ensure the protection of confidentiality as the disclosure would be limited and closely defined; the principle of severability would operate to demarcate the limits of disclosure; and the taxpayer would retain a right of notice, response and appeal.126

The order by the Constitutional Court in Arena Holdings not only obligated Parliament to address the constitutional conflict in the contentious provisions but went a step further in providing, in the interim, an amended wording to the contentious provisions that applies the public interest override to section 35 of PAIA’s confidentiality provisions.127

Kenyan courts similarly have confronted questions on the privacy of taxpayers’ records when faced with access to information demands in Njoya.128 In the Court of Appeal case, the Kenya Revenue Authority (KRA) denied a request for information on whether members of parliament were paying taxes on the ground that it violated confidentiality under section 125 of the Income Tax Act.129 The applicant challenged the constitutionality of the provisions with regard to article 35(1)(b) of the Constitution. In allowing the appeal, the Court of Appeal stated:130

It is true to say that traditionally confidentiality of tax information is a globally recognised and accepted concept which is meant to be an aid in compliance … Still, we entertain no doubt that the right to information is critical to the attainment of transparent and accountable government and is an enabler to the exercise and enjoyment of other rights by citizens. It has been recognised expressly in the Constitution of Kenya 2010, under article 35.

Notably, since the decision was made, the Income Tax Act was repealed by the Tax Procedures Act, effective as of January 2016.131 Both events preceded the adoption of the ATI Act in Kenya. Two facts stand out: Unlike PAIA, the ATI Act does not expressly exempt the confidentiality of tax records from access to information requests under section 6. However, the Tax Procedures Act in stipulating exemptions to the confidentiality of taxpayer records excludes an information request that meets the public interest override standard.132 It would be advisable for the Kenyan courts to learn from its South African counterparts in the provision of orders and provide further guidance to Parliament to cure the legislative anomaly where relevant. For example, South Africa’s Constitutional Court amended the wording of the impugned provision pending parliamentary action. This allowed, on the one hand, guidance on a constitutionally aligned wording of the section and, on the other, protection of the doctrine of separation of powers.133

After the passage of the ATI Act, Kenyan courts have affirmed the importance of maximum disclosure in the interest of the public in light of section 6 exemptions that consider the right to privacy. In Zebedeo John Opore v The Independent Electoral and Boundaries Commission134 the respondent denied an information request on certain information about a parliamentary seat election including the number of voters identified electronically, copies of polling station voter identification and verification forms, and polling station diaries. The IEBC rejected the request on grounds of privacy. However, in allowing the petition the High Court stated:135

The fact that the information falls within the list of legitimate exception grounds is not sufficient to exempt it from disclosure. The disclosure must harm the specific interest substantially and this harm must be greater than the public interest in receiving the information. Disclosure takes precedence over secrecy, and to give effect to the principle of maximum disclosure, any legislation or provision contradicting this principle should be construed narrowly and in favour of the enforcement of the right.

In yet another case, Tiso Blackstar Group (Pty) Ltd & Others v Steinhoff International Holdings NV, the issue of legal privilege as a barrier to access to information was litigated at the Western Cape High Court.136 The case arose from a refusal to honour an access to information request for an investigative report on accounting irregularities by the respondent, Steinhoff International Holdings NV, a public company. The applicants in this case are a media house and a civil society organisation. The public interest motivation behind the request was to accurately report on a public interest matter which, in this case, was the corporate scandal.137 Access was denied on the grounds of legal privilege under section 67 of PAIA.138 According to Steinhoff, the report that was the subject of the information request was prepared expressly to seek legal advice for actual or contemplated litigation. For a record to meet the test of litigation privilege, the document in question ‘must have been obtained or brought into existence for the purpose of a litigant’s submission to a legal advisor for legal advice; and second that litigation was pending or contemplated as likely at the time’.139 In this case, the respondent’s claim of litigation privilege failed to meet the prescribed standard and the Court nullified the refusal.140

From the above selected cases, a trend emerges from Kenyan and South African courts to narrowly construe privacy restrictions when faced with a conflict with access to information in the interest of the public. This is especially so when the information is in the control of a public body, or a private body and necessary for the exercise of a right. Laudably, this is important towards promoting good governance, transparency and accountability in public and private institutions.

5 Conclusion

The quest towards finding the equilibrium between privacy and access to information is complex and multifaceted requiring the intervention of legal frameworks at international, regional and domestic levels, and various enforcement actors including the judiciary. However, crucial instruments on the African continent, such as the African Commission’s 2017 Guidelines on Access to Information and Elections in Africa, while impressively advancing access to information, have gaps with regard to the corresponding privacy and data protection rights. This article’s analysis of the soft law instrument shows the importance of a holistic reading of international, regional and national law protections to balance access to information and privacy rights. South Africa and Kenya have made strides in confronting this rights conflict in their legal systems. Where a conflict emerges concerning balancing access to information and privacy, the laws and courts have underscored public interest disclosure considerations that supersede the potential harm of disclosure. Arguably, this approach, which eschews rights absolutism, allows for the better entrenchment of disclosure practices, good governance, accountability and transparency that has historically marred national democratic trajectories in African countries.