US President Woodrow Wilson once said: "Everybody knows that corruption thrives in secret places, and avoids public places, and we believe it a fair assumption that secrecy means impropriety – Government must, if it is to be pure and correct in its processes, be absolutely public in everything that affects it."

Kenyans now know that what they suspected all along was true. The previous regime supervised and actively engaged in massive plunder of public coffers. 

There have been daily revelations about millions of shillings lost in fraudulent transactions, ranging from questionable payments to contractors for work not done, or shoddily done, to irregular allocation of public property to persons in position of power.

Acknowledging this endemic and institutionalised corruption, the Government has adopted a zero-tolerance policy. 

Opening the Ninth Parliament, President Kibaki reassured Kenyans that the fight would start at the top. One of the biggest challenges facing the new Parliament will be to make comprehensive legislation to enforce this policy and ensure that legislators help.

The stories about extensive looting, however, also reveal the consequences of operating under a system that is closed to public scrutiny. 

The culture of Government in Kenya has long been one of secrecy, bolstered by the traditional perception that Government is Serikali or the "big secret". 

This culture has done immense damage to the relationship between Kenyans and their Government.

First, of course, it has maximised opportunities for corrupt public officials getting away with wrongdoing. Second, by placing Government officials beyond the scope of public scrutiny, it has promoted the perception that all Government officials are corrupt.

This has seriously undermined public confidence in all aspects, tainting even those Government officials who carry out their work with integrity.

The Government's plan to combat corruption is commendable. But for graft to be tamed, the plan must also incorporate a comprehensive policy of opening up the Government to public scrutiny. 

Just doing that – making Government information freely accessible to the public and the Government takings upon itself the obligation to provide information to the public – would substantially reduce corruption and result in massive financial benefits for Kenyans.

The Draft Constitution has a provision guaranteeing every citizen's right to access information held by the State and obliging the Government to make available any important information affecting the nation's life. 

The Draft Constitution also mandates Parliament to enact legislation to give effect to this right within six months of the new Constitution coming into force. 

Accepting this provision would be a step towards opening up the Government. There are other areas, though, that should be dealt with first.

The Official Secrets Act, for example, drops a blanket of secrecy on all Government information. Under this Act, all public officials are under obligation to withhold information the minister may deem classified.

Further, any citizen wishing to access such information has to prove that it ought to be declassified to the satisfaction of the official who deemed it classified in the first place – a burden of proof impossible in practice. 

Under the Act, Government officials who release such "secret" information are harshly penalised, up to 14 years in jail.

These provisions make it impossible for anyone to get even the most basic information from any part of the public service without enduring a rigorous, time-consuming, and often expensive bureaucratic struggle. 

Again, the responsible public official, usually the Permanent Secretary or the Minister, has full discretion to determine whether or not to grant access.

The existence of the Official Secrets Act and other restrictive regulations, as well as the absence of any official requirement for disclosure, shows that the previous Government purposely fostered a legal environment in which it could operate in a shroud.

The longer the new Government operates in this legal environment, the more it will become accustomed to operating without public scrutiny, and the more difficult it will be to eradicate the official culture of secrecy.

Over and above the proposed anti-corruption laws, the new Government will have to pass comprehensive legislation that (a) allows Kenyans broad access to information; (b) places the burden of proof squarely on the Government and its agents in any attempt to withhold information; (c) provides only for limited exceptions; (d) sets clear limits to discretionary powers; (e) protects whistleblowers; and (f) allows for a judicial review.

South Africa faced the same challenges Kenya faces today when it abolished apartheid and began the transition to democratic government. It decided that an open government was critical to enduring democracy.

The South Africans have guaranteed citizens’ right to information in their constitution and have enacted legislation to ensure the government remains open to public scrutiny.

The Promotion of Access to Information Act (2000) would be useful in providing insights into the drafting of a Kenyan Right to Information Bill. 

To prevent a recurrence of the grand theft carried out under Kanu, the new Government will need, at a minimum, to repeal the Official Secrets Act, change public service rules and make several administrative reforms to improve records management and information flow to the public.

Regulations that restrict media independence and obstruct journalists' investigative responsibilities should be repealed. 

These steps would open up the Government to examination. This is the sine qua non of economic prosperity, social justice and good governance and of achieving the open society that Kenyans crave.

---

Ms Kagari is a project officer with the Commonwealth Human Rights Initiative's Police Reform Programme