CAJ Orders Homa Bay County: Headquarters Financing Disclosure Order

• The Commission on Administrative Justice ordered Homa Bay County Government and Assembly to disclose headquarters project financing records within 21 days.
• The directive followed an information request from Katiba Institute regarding the project's lease-to-own financing with the County Pension Fund.
• The commission clarified that parliamentary privilege is not a blanket exemption for withholding county assembly records.
• Non-compliance with the disclosure order could lead to recommendations for criminal prosecution under the Access to Information Act, 2016.
• The rulings aim to enable public scrutiny of how public resources are used, without establishing wrongdoing in the project itself.

Decisions involving public resources, including long-term financing arrangements and contingent liabilities, cannot be shielded from public scrutiny.

The Commission on Administrative Justice (CAJ) has issued a directive to the Homa Bay County Government and its County Assembly, compelling them to release all documentation related to the financing and construction of the county's new headquarters. This order, delivered on October 8, mandates the disclosure of these critical records within a strict 21-day timeframe. Failure to comply with this directive could lead to recommendations for criminal prosecution, underscoring the seriousness of the commission's stance on public information access.

This significant development stems from an information request initiated by the Katiba Institute in March 2025. The institute sought comprehensive details regarding the project's approvals, its lease-to-own financing arrangement with the County Pension Fund (CPF), and any associated long-term financial liabilities. The CAJ intervened after both the county executive and the assembly failed to respond to this initial request, prompting review applications from the Katiba Institute. The commission's subsequent rulings affirm the constitutional and statutory obligations of both entities to provide public access to such information.

Specifically, the Homa Bay County Government is required to disclose project approvals, all agreements made with the County Pension Fund, and reports detailing financial obligations, including any contingent liabilities. Concurrently, the Homa Bay County Assembly has been directed to furnish certified Hansard records, relevant legislative documents, implementation and financial reports, committee records, and supporting documentation. The directive explicitly states that any legally protected information within these documents should be redacted, rather than withholding entire records. The County Secretary and the Clerk of the County Assembly are the designated officials responsible for ensuring access to these records within the stipulated period.

The CAJ's orders are firmly rooted in Kenya's legal framework for transparency and accountability. The Commission on Administrative Justice Homa Bay emphasized that both the county executive and the Homa Bay County Assembly are bound by constitutional provisions and the Access to Information Act, 2016, to ensure public access to information. This legal obligation is central to the commission's decision, reinforcing the principle that public bodies must operate with openness. Non-compliance with such directives carries severe penalties, as Section 28 of the Access to Information Act, 2016, explicitly allows for recommendations for criminal prosecution in cases where information is unlawfully withheld.

A crucial aspect of the CAJ's ruling addresses the scope of parliamentary privilege. The commission clarified that records held by a county assembly are not automatically exempt from disclosure under parliamentary privilege provisions. This ruling sets an important precedent, indicating that legislative privileges cannot serve as a blanket justification for withholding public records. Instead, the directive specifies that if documents contain legally protected information, only those specific exempt portions should be redacted, ensuring that the maximum possible information is made available to the public. This interpretation strengthens the enforcement of the Access to Information Act 2016 and provides vital guidance for county assemblies across the country.

These rulings by the Commission on Administrative Justice hold significant implications for governance and public accountability in Kenya, particularly concerning the Homa Bay County headquarters financing disclosure order. Nora Mbagathi, Executive Director of the Katiba Institute, highlighted that the decisions reaffirm a fundamental constitutional principle: public institutions must be transparent and accountable to the citizens they serve. She stressed that decisions involving public resources, including long-term financing arrangements and contingent liabilities, cannot be shielded from public scrutiny. This perspective underscores the importance of the Homa Bay County Assembly information request and the subsequent CAJ intervention.

The orders do not, in themselves, determine any wrongdoing in the headquarters project. Instead, their purpose is to compel the Homa Bay County Government and County Assembly to disclose the necessary records that will empower residents to thoroughly examine the project's approvals, financing commitments, and overall implementation. By clarifying that legislative privileges do not offer a blanket exemption for withholding public records, especially concerning project financing and County Pension Fund Homa Bay records, the rulings strengthen the public's right to information. This outcome provides a vital mechanism for citizens to scrutinize how public funds are utilized, fostering greater trust and oversight in local government operations.

Lawyers advising county governments and assemblies must note this ruling clarifies that parliamentary privilege is not a blanket exemption for withholding public records, especially concerning project financing. Compliance officers in public sector entities should review their information disclosure protocols to ensure strict adherence to the Access to Information Act, 2016, as non-compliance can lead to criminal prosecution recommendations.

Source: Original reporting via Capital FM Kenya.