Red tape is strangling Kuwait’s infant FOI law - 360
Khaled Al-Rashidi
Published on December 1, 2022
While the intention is good, the Kuwaiti government can do away with the many hurdles in accessing public information.
Kuwait stands tantalisingly on the threshold of a new openness in government which could root out corruption. But there are obstacles in the way.
When the National Assembly in 2020 enacted the Kuwaiti Right to Access Information Act, it gave hope that nepotism, bribery and other crimes would come more under the spotlight and the perpetrators held to account. The Act gives individuals (including foreigners) and organisations the right to obtain information held by public entities.
It is the result of pressure by organisations such as Kuwait Transparency Society (KTS), which had been pressing for this law since 2013. With its enactment, Kuwait joined 119 other nations with such laws and became the seventh Arab nation to adopt a specialised regulatory framework, following Jordan, Yemen, Sudan, Tunisia, Lebanon and Morocco.
However, the Kuwait Anti-Corruption Authority (Nazaha) emphasises in its guide on the implementation of the Act that the right to information is not an end in itself, but a means to exercise other rights.
Right to Information (RTI) or Freedom of Information (FOI) laws are potentially useful to fight corrupt activities often kept out of sight, such as illegal payments to high-ranking officials and politicians by private entities to influence government decisions, corruption in public procurement, and allocation of public jobs to family and friends (nepotism and favouritism – or what is called wasta in Arabic).
It is hoped that with this openness, corrupt behaviour will be more susceptible to detection. Adding a clause to protect whistleblowers (as established by the Anti-Corruption Authority and Financial Disclosure Act 2016) can only help.
But two years down the track, there are obstacles.
KTS discovered that people in Kuwait are unaware of the existence of such l, or even the real rationale beyond them. If people don’t know about the law, they’re unlikely to use it. To compound the issue those who are using the Act are using it in a way for which it was not intended.
Officials and individuals use the Act to access personal or job-related information held about them. Rather than being used to obtain ‘general’ information that may help detect or prosecute corrupt behaviour, information requests often entail information that should originally have been provided without the need for a request — the kind of information that is regulated by data protection laws. KTS has since led a campaign to raise awareness of both the existence of the law and the rationale behind it.
A culture of secrecy is still entrenched in public institutions, which resist the effective use of the Act as a counter-corruption measure. A recent report by a Kuwaiti Member of Parliament showed 37 percent of public bodies still had not complied with the Act. KTS has received several complaints showing some government bodies “disrupt the provisions of this law under false pretexts”.
The Act also requires that every information request be based on proving the ‘interest’ of the applicant. Legal experts have clarified this actually impedes the effectiveness of the Act.
For example, it is impossible for anyone to show his or her interest in obtaining public information if such information does not affect his or her interest. The public institution being asked for information has an unwarranted, broad discretion in determining whether someone has an interest in the information requested. It’s simple, then, for the public body to decide whether it thinks the information would be released.
It doesn’t help that the Act’s oversight mechanisms and the expected length of any FOI process might deter people from exercising their rights.
While it is probably too early to assess the effectiveness of the Act these challenges suggest the act will be impractical.
Passing such a law is the first step though. More effort is still required to empower people to contribute to counter-corruption processes. Legislative amendments are necessary, including removing the ‘interest requirement’ and establishing a more efficient oversight mechanism, such as an information commissioner.
Of course, these efforts are largely dependent on political will and encouraging public participation in countering corruption.
Dr. Khaled S. Al-Rashidi is an assistant professor at the Criminal Law Department, School of Law, Kuwait University. He is also a board member of the Kuwait Transparency Society (KTS), Transparency International’s Kuwait Chapter. He declares no conflict of interest.
Originally published under Creative Commons by 360info™.