Kuwait continues efforts to promote the right to information

Kuwait - Wednesday, January 27, 2021

The State of Kuwait’s Minister of Justice, Dr. Nawaf Saud Al-Yaseen, issued today the executive regulation on access information under Law No. 12 of 2020. This was done in compliance with the timeframe stipulated in the text of the Law adopted by the National Assembly on 5 August 2020. On this occasion the Minister said that “the law is one of the most important requirements [of the UN convention against corruption] ... and contributes to improving Kuwait's position internationally on relevant indicators on freedoms and anti-corruption”.

By adopting this law, Kuwait joins more than 120 countries with similar legislation and has become the seventh Arab country to adopt a specialized regulatory framework in this regard, along with Jordan, Yemen, Sudan, Tunisia, Lebanon and Morocco, in addition to a local law adopted by Iraq’s Kurdistan Regional Government. This is while noting that most of these laws have not entered into force or are not being properly implemented on the ground.  

Kuwait’s Law number 12 for 2020 was published in the Official Gazette on September 6th and will enter into force six months later, that is next March. This legislative step is part of the country’s efforts to implement the Kuwait Integrity and Anti-Corruption Strategy (KIACS), which was developed with UN support and announced on 15 January 2019. It is also in line with article 10 of the UN Convention Against Corruption to which Kuwait became a state party in 2007. The statement issued by the Kuwait Anti-Corruption Authority on the occasion considered the law to represent “a new building block in preventing corruption and strengthening transparency and integrity in the public sector.”

Indeed, access to information laws are key to enhancing transparency, enabling accountability, and reducing opportunities for corruption. They are essential for the promotion of human rights, with the right to information enshrined in article 19 of the Universal Declaration on Human Rights; and are also conducive to sustainable development efforts as emphasized by Agenda 2030’s 16th Sustainable Development Goal (SDG) on peace, justice and strong institutions. 

The new Kuwaiti law is divided into seven chapters comprising seventeen articles. The first chapter defines the terms used in the law including the entities that are subject to it. These include ministries, public committees and institutions and other public legal persons, in addition to Kuwaiti companies to which the state or one of the aforementioned entities contribute to more than 50% of its capital, and private companies and institutions that keep information or documents on behalf of these entities. In chapter two, the law avails the right to individuals and legal entities only on a lawful interest basis. Entities subject to this law are required to appoint information officers who will be responsible of processing information requests. Those entities are required to also organize, classify and index the information available to make it easily accessible when requested. This should be done within two years of the law entering into force.

Chapter three provides that within three years from the date of entry into force, entities subject to this law shall pro-actively publish information and establish websites for this purpose. The information and documents required to be proactively published are laws, regulations, decisions under which entities operate, general public policies affecting peoples’ lives, decision-making processes, supervision and accountability mechanisms, organizational structures, job descriptions, contact information of persons in leading positions, and information about projects and activities, among other information specified in article 5.

Chapter four specifies the process of submitting an information request based on a specific template. Information requests should be responded to in ten days. The period could be extended up to three months after notifying the applicant, if the information needed is significant, or access to the information requires consulting another entity. If the information request is rejected, the applicant may submit a complaint to the entity in question, which must respond within sixty days. The refusal of a grievance should be justified, and recourse to courts is possible afterwards.

In chapter five, the law specifies ten types of information that are excluded from the right to access information, including but not limited to information affecting national security, public security and defence capabilities, information deemed secret by the constitution, laws or decisions of the government, information related to peoples’ private lives, and trade secrets. Crimes and penalties related to this law are defined in chapter six, which also assigns the Public Prosecutor as the authority responsible for investigating and prosecuting these crimes. The seventh and last chapter comprises final provisions.

The Kuwait Transparency Society (KTS), which is a member of the executive committee that drafts the law’s executive regulations, and is also a member of the regional non-governmental group of the Arab Anti-Corruption and Integrity Network (ACINET), played an important role in supporting the formulation and adoption of this law. “We have actively participated in the drafting committee and we expressed our opinion, as representatives of civil society, on its various provisions, and submitted suggestions regarding the proactive publication of information as per international standards”, said Mr. Majid Al Mutairi, Chairperson of KTS, adding, “this law is very important for anti-corruption practitioners and journalists; we cannot monitor and hold anyone accountable if we don’t have access to public information”. 

The effectiveness of an access to information law depends on the comprehensiveness and quality of the regulatory framework in place as well as the capacity to enforce it. The Global Right to Information Rating (RTI Rating) assesses such laws based on seven criteria: the persons eligible to exercise the right; its scope; the requesting procedures; exceptions; refusals and appeals; sanctions and protections; and promotional measures.

International standards and good comparative practices call for the right to information to be guaranteed to all persons including non-citizens and legal entities without the need for justification or legal standing. They also require public authorities to appoint officials (information officers) dedicated to ensuring compliance with information disclosure obligations. Furthermore, they call for a clear process to request information and that exceptions to the right of access be minimal, clear, and respectful of human rights. Also, requesters should be guaranteed the right to appeal to an independent administrative oversight body. 

Kuwait has taken a step forward in adopting the access to information law and its executive regulation. Notwithstanding some critique that could be raised about certain aspects of the law as compared to international standards and comparative good practices, this step was welcomed at the national level and is well received and monitored by concerned regional and international organizations. As is the case for similar legal frameworks in the region and beyond, the challenge ahead is to implement the law effectively, which is a matter left to the entities mentioned in the law and those who are responsible for the implementation of the initiative numbered as 1.1 in the Kuwait Integrity and Anti-Corruption Strategy (2019-2024).