Why is the Kenyan bill still not enacted? Bwana Ndemo?

Edith

________________

Edith Ofwona Adera

Senior Program Specialist

Climate Change and Water Program

Agriculture and Environment

International Development Research Centre

Regional Office for Eastern and Southern Africa

Liason House 2^nd floor, State House Avenue, Nairobi, Kenya

+254-20-2713160/1 | Fax: +254-20-2711063 | Mobile:  +254-733-624345|Ext 3406

eadera@idrc.ca | www.idrc.ca | www.crdi.ca

From: kictanet [mailto:kictanet-bounces+eadera=idrc.or.ke@lists.kictanet.or.ke] On Behalf Of Evans Ikua
Sent: Thursday, July 26, 2012 10:05 AM
To: Edith Adera
Cc: ke-users; KICTAnet ICT Policy Discussions
Subject: [kictanet] Freedom of Information Bill and Open Standards

Apologies for cross-posting.

The Peruvian Government in 2005 passed a law mandating the use of Free/Libre software in all Government agencies (bodies funded by the tax payer). I have reproduced some excerpts here below that tie in with our Freedom of Information Bill (and to a large extent the Data Protection Bill). Please note that the use of the term free is not to be confused to mean free of cost, but more about liberty, openness, open standards and access to source code.

"The guarantee of these rights in our Constitution is not solely based on the good will of the State's agents to fulfill the norms of the Constitution, but also based on the use of technologies that in some cases contribute, and in others do not, to an effective protection of said citizens' rights.

It is in this context of utmost importance for the State to implement those technologies that help reinforce the exercise of the right of citizens' to access information and to withhold it in cases that require so.

The use of Free Software in all of the State's agencies points in this direction. Basically, we can say that the fundamental principles that drive the present Bill are tightly related to the basic guarantees of a democratic State and we can sum them up in the following:

• Free Access of the citizens to public information
• Pereniality of public data
• Security of the State and of the citizens

To guarantee the citizens' free access to information, it is indispensable that the coding of the data not be tied to a sole provider. The use of standard and open formats guarantees this free access, making possible the creation of compatible software.

To guarantee the pereniality of public data, it is indispensable that the use and maintenance of software does not depend on the good will of the providers, nor of monopolic conditions, imposed by them. Systems can be guaranteed by the availability of the source code.

To guarantee national security it is vital to have systems that are devoid of elements that allow remote control or the transmission of non-desired information to third-parties. Therefore, it is required to have systems whose source code is freely accessible to the public, so that its inspection be allowed by the State, the citizens and a great number of freelance experts in the world."

Please see the following links for more info:
Peru's Bill - Use of free software in Government agencies

Peruvian Congressman refutes Microsoft's "Fear, Uncertainty and Doubt" (F.U.D.) concerning free and open source software.

Now, looking at our Freedom of Information Bill, the right to access of information by citizens is also anchored in the constitution under Article 35 of the Constitution. But the FOI does not make any reference to the method of processing or storage of that data and information by tghe public bodies. Part VII, Section 49, says "Every public authority or private body shall operate and maintain digital records"

There are two weaknesses with this particular section:

1. Is the Government mandated to require Private (bodies) companies to maintain digital records? Is this what the Bill aims to achieve? Or is it targeted at particular private bodies that deal with public data, say Banks or Hospitals? How does one differentiate? Maybe it needs to be a bit more specific
2. he requirement to maintain digital records also needs to go further and demand that such records must be maintained in an open and standard format, without tying the public to specific proprietary formats. As indicated in the above excerpt from the Peruvian Act, it is pretty obvious that the technology used has a large bearing to the access of information to citizens. There are certain instances where even web based applications in certain public bodies could only work on certain browsers. This denies all the right to access such public information.
   At the same time, storing public data in proprietary formats means that the availability of such data in the long term depends on the survival and availability of the particular vendor (pereniality of public data). This also  extends to the processing systems.

Fast forward to 2013, would the IEBC be able to give access to the source code of the softwares that it will use in its operations for public audit and scrutiny? What if someone has a problem with the electronic voter registration or voting and feels that they need to have access to that code so as to ensure transparency? And what about all other public bodies?

In the mean time, if I was to ask for information from a public body, what formats will I get the information in? Will those formats still be supported 20 years from now? Will the vendor require that we upgrade our systems (of course at additional costs) for us to continue getting access?

To answer these questions, the FOI needs to be very specific and demand that all public bodies process and store data in open and standard formats that are not vendor specific, nor proprietary. As tax payers and the people paying for these entities, we have a right to demand this.


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Kind Regards,
Evans Ikua,
lanetconsulting.com,
lpi-eastafrica.org,
ict-innovation.fossfa.net,
Skype: @ikuae
Cell: +254-722-955831