Importance of Access to Information in Promoting Transparency in Africa

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Importance of Access to Information in Promoting
Transparency in Africa
Pansy Tlakula ACHPR.
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A popular government without popular
information, or the means of acquiring it, is but
a prologue to a farce or a tragedy or perhaps
both. Knowledge will forever govern ignorance,
and a people who mean to be their own governors,
must arm themselves with the power knowledge
gives. James Madison, Former US President, 1822
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Importance of Access to Information in Promoting
Transparency

• Access to information is a fundamental human
  right and a precondition to transparency and
  accountability in the public sector.
• Given this fundamental right to information,
  governments have a duty to provide access to
  information.
• To achieve good governance, developing countries
  must accept Access to Information as a
  fundamental Human Right

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Importance of Access to Information in Promoting
Transparency

• Citizens access to information facilitates
  understanding of decision making process,
  contributes to transparency and accountability in
  the public and private sectors.
• Information empowers people to demand their right
  to participate and improve realisation of
  economic, social and cultural rights, and by
  extension, promote transparency

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Importance of Access to Information in Promoting
Transparency

• According to the Transparency International
  Annual Report,
• Information opens the doors of mutual trust
  between citizens and their governments. When the
  state conducts business and makes decisions
  behind closed doors, it creates distrust and a
  space in which impunity can thrive. When citizens
  are denied information held by the state, they
  are denied their right as voters and taxpayers to
  hold their governments to account, properly
  participate in the political process and make
  informed decisions.
• Information is the basis for all strengthening of
  government-citizen
• relations.

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Rationale for Access to Information in Africa

• Governance has improved in Africa, although most
  countries still
• grapple with the challenges of achieving
  exemplary democratic
• governance i.e.
• Lack of Citizen participation in governance
• Lack of transparency in election processes
• Institutional and capacity deficit for policy
  making
• Corruption
• Lack of accountability

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Access to Information in Africa

• African Charter on Human and Peoples
• Rights (Charter) provides in Article 9 (1)
  the right of every individual to receive
  information
• In 2002 the African Commission on Human and
  Peoples Rights (ACHPR) adopted the Declaration of
  Principles of Freedom of Expression in Africa to
  elaborate article 9 of the Charter

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Access to Information in Africa

• Principle 1(1) of the Declaration provides that
• freedom of expression and information,
  including the right to seek, receive and impart
  information and ideas, either orally In writing
  or in print, in the form of art, or through any
  other form of communication, including across
  frontiers, is a fundamental and inalienable human
  right and an indispensable component of
  democracy.

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Access to Information in Africa

• Moreover, the Declaration stipulates that
• Public bodies hold information not for
  themselves but as custodians of the public good
  and everyone has a right to access this
  information, subject only to clearly defined
  rules established by law

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Access to Information in Africa

• The Declaration also provides that the right to
• information shall be guaranteed by law in
  accordance with
• the following principles
• Everyone has the right to access information held
  by public bodies
• Everyone has the right to access information held
  by private bodies which is necessary for the
  exercise or protection of any right
• Any refusal to disclose information shall be
  subject to appeal to an independent body and/or
  the courts

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Access to Information in Africa

• Public bodies shall be required, even in the
  absence of a request, actively to publish
  important information of significant public
  interest
• No one shall be subject to any sanction for
  releasing in good faith information on
  wrongdoing, or that which would disclose a
  serious threat to health, safety or the
  environment save where the imposition of
  sanctions serves a legitimate interest and is
  necessary in a democratic society and

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Access to Information in Africa

• Secrecy laws shall be amended as necessary to
  comply with freedom of information principles.

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Status of Access to Information in Africa

• Constitutional provisions of most countries on
  the continent guarantee the right of
• Access to Information, yet very few of these
  countries have enacted laws that give
• effect to this right.
• South Africa Promotion of Access to Information
  Act of 2000
• Ghana Freedom of Information Bill 2002
• Kenya Freedom of Information Bill 2005
• Uganda Access to Information Bill 2004
• Mozambique Access to Sources of Information Bill
• Nigeria Freedom of Information Bill

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Analyses of the status of Access to Information
in Africa

• Southern Africa
• South Africa, Mozambique, Malawi and Madagascar
  are the four Southern African countries which
  expressly protect the right to freedom of
  information in their Constitutions and provide
  the most comprehensive protection for the right
  of access to information
• Other Countries such as Zambia, Lesotho,
  Zimbabwe, Namibia, Mauritius, Angola and
  Swaziland protect the right only within the
  context of freedom of expression the right to
  seek, receive and impart information
• Of all these countries, only Zambia, Mozambique
  and Malawi have Bills on freedom of information
  which are at various stages in the legislative
  process

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Analyses of the status of Access to Information
in Africa

• Southern Africa Continued..
• Angola, South Africa and Zimbabwe have adopted
  freedom of information legislation.
• The Constitution of Angola does not guarantee the
  right to freedom of information, the right to
  access public information is recognised by Decree
  No. 16A/95, of December 15, 1995.

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Analyses of the status of Access to Information
in Africa

• Southern Africa Continued..
• It is also worth noting that, the government of
  Angola has passed three laws from 2002 to 2003 on
  access to information.
• The Law on Access to Administrative Documents
  approved in August 2002, allows individuals to
  demand access to administrative documents held by
  state authorities, public institutions, local
  authorities and private bodies that are
  exercising public functions.
• However, in order to get this information, the
  Law requires that requests should be made in
  writing and Government agencies are expected to
  respond to the request no later than 10 days from
  the submission of the application.

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Analyses of the status of Access to Information
in Africa

• Southern Africa Continued..
• Furthermore, access to documents with personal
  information is limited to the named individual
  and can only be used for purposes for which it is
  authorized.
• The law equally provides for the creation of a
  monitoring Commission which can examine
  complaints, provide opinions on access, review
  practices and decide on classification of
  documents.
• The said Commission can also give opinions on
  implementation and is required to produce an
  annual report on the law.

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Analyses of the status of Access to Information
in Africa

• Southern Africa Continued..
• In South Africa, the right of access to
  information is given effect to by the Promotion
  of Access to Information Act of 2 February 2000
  (PAIA), intended "To give effect to the
  constitutional right of access to any information
  held by the State and any information that is
  held by another person and that is required for
  the exercise or protection of any rights.
• In terms of this Act, both a natural and a
  juristic person, be it a private or public body
  can request information from both public and
  private bodies.
• Information held by private bodies can only be
  requested if the requester can prove that such
  information is necessary to enforce human rights.

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Analyses of the status of Access to Information
in Africa

• Southern Africa Continued..
• The PAIA also provides for a procedure for
  requesting information, appointment of
  information officers in every public and private
  body and the functions of information officers
  which amongst others include the duty to assist
  applicants in making their requests to comply
  with the requirements of the law.
• The innovative aspect of the PAIA is that it
  vests the responsibility of monitoring the
  application of the Act with the South African
  Human Rights Commission, which is an independent
  constitutional body.
• Furthermore, although the PAIA is a very
  progressive piece of legislation, it is also in
  certain areas very expensive to implement.

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Analyses of the status of Access to Information
in Africa

• Southern Africa Continued..
• In Zimbabwe the right to access information is
  governed by the provisions of the Access to
  Information and Protection of Privacy Act of 2002
  (AIPPA) which provides for the right to
  information that is held by public bodies only.
• The right of appeal where access to information
  has been denied lies with the Zimbabwe Media
  Commission.
• The Act excludes certain records from the
  application of the Act. Apart from the records
  that are normally subject to exemption in other
  jurisdictions, the Act exempts what is called
  protected information from disclosure.

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Analyses of the status of Access to Information
in Africa

• Southern Africa Continued..
• This protected information, which accounts for a
  substantial part of the exemptions in the Act
  appears under a number of headings including the
  following, protection of advice relating to
  policy, protection of information relating to
  inter-governmental relations or negotiation,
  protection of information relating to financial
  or economic interests of public body or the
  state etc.
• The wide scope of protected information under
  AIPPA gives room for concern and expectedly has
  led to its constitutionality being criticized by
  Zimbabwean human rights activists.

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Analyses of the status of Access to Information
in Africa

• Eastern and Central Africa
• Constitutions of Uganda, Tanzania, DRC and
  Eritrea explicitly guarantee freedom of
  information.
• Kenya, Central African Republic, Chad and
  Ethiopias Constitutions guarantee the right
  within the broader context of freedom of the
  press and expression.
• Though enshrining the right to freedom of
  expression, Constitutions of Equatorial Guinea,
  Burundi, Cameroon, Gabon, Rwanda and Djibouti
  make no reference to the right to information.
• Currently DRC, Ethiopia, Kenya and Tanzania have
  draft legislations on freedom of information
  which have not yet been passed into law.
• Uganda is the only country in East Africa with an
  access to information law that has been adopted.

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Analyses of the status of Access to Information
in Africa

• Eastern and Central Africa
• In Uganda, access to information is regulated by
  the Access to Information Act of 2005.
• Amongst others, the Act grants every citizen the
  right to access information and records in
  possession of the state or any public body.
• It also provides for grounds for restricting
  access to information, proactive disclosure of
  certain categories of information, appointment of
  information officers, functions and duties of
  information officers, procedure for requesting
  information and for judicial review of any
  refusal of information on grounds of limitations
  or restrictions,appointment and duties of
  information officers, procedure for requesting
  information and appeal against refusal of
  information to the Courts.

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Analyses of the status of Access to Information
in Africa

• Eastern and Central Africa
• Cabinet records and records of cabinet
  committees, and records of court proceedings
  before the conclusion of the case are exempted
  from the application of the Act.

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Analyses of the status of Access to Information
in Africa

• Eastern and Central Africa
• With regard to Ethiopia, it should be noted that
  in July 2009, the Ethiopian House of Peoples
  Representatives passed a Bill on the Mass Media
  and Freedom of Information Proclamation 2008
  which updates and reforms the Ethiopian Press Law
  of 1992.
• Though yet to be signed into law, the
  Proclamation has generated criticism for its
  provisions which reportedly gives information
  officers in government departments the discretion
  to deny access to information deemed sensitive
  with no opportunities for judicial review and for
  the limited public consultation in the process
  leading up to its enactment

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Analyses of the status of Access to Information
in Africa

• Eastern and Central Africa
• Some weaknesses have however been identified in
  the Act.
• They include the fact that the Act applies only
  to public bodies, limits the right to request
  information to only citizens, the categories of
  information exempted are vague and are not
  subject to the public interest test, and the
  Minister responsible for overseeing the
  implementation of the Act is to be appointed by
  the President, raising issues of independence.

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Analyses of the status of Access to Information
in Africa

• West Africa
• Constitutions of Ghana, Guinea Bissau, Cape Verde
  and Burkina Faso guarantee the right to freedom
  of information.
• Freedom of information in Nigeria, Togo and
  Liberia is provided for in the context of freedom
  of expression.
• Constitutions of Benin, Senegal, Cote DIvoire,
  Guinea and Niger provide for freedom of
  expression, and do not provide for freedom of
  information.
• The Gambia does not protection of freedom of
  expression or access to information in its
  Constitution.
• Ghana has a Bill on freedom of information that
  has been under consideration for over five years,
  drafted in 2003, the Bill remains pending in
  Cabinet, yet to be forwarded to Parliament for
  consideration.

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Analyses of the status of Access to Information
in Africa

• West Africa Continues..
• The Nigerian Freedom of Information Bill which
  was introduced since 1999 was passed by the
  Nigerian House of Representatives and Senate in
  August 2004 and November 2006 respectively.
  However this Bill has still not been signed into
  Law.
• Liberia introduced a draft Bill to Parliament in
  April 2008.
• Sierra Leone and Burkina Faso draft Bills on
  freedom of information have been prepared by the
  initiative of NGOs partnering with government to
  enact them into Law.

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Analyses of the status of Access to Information
in Africa

• Northern Africa
• Constitutions of Algeria, Egypt, Libya, Morocco
  and Tunisia are silent on freedom of information,
  and only protect the freedom of expression.
• Algeria and Morocco are the only countries in
  North Africa with draft Bills on access to
  information.

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Challenges in promoting the right to access
information

• Some countries in the sub region face some
  challenges with the realisation of access to
  information despite provisions in their Statute
  books.
• Existence of Official Secret Acts restrict the
  media from receiving information and reporting
  freely on government activities.
• Acts provide for severe criminal penalties where
  information is disclosed without authorisation,
  and oaths of Secrecy are imposed. E.g. Botswana
  National Security Act 1988, Zimbabwe Official
  Secrets Act 1970, Tanzania National Security Act
  1970 and Swaziland Official Secrets Act 1968.
• On the civil side, low levels of education,
  illiteracy, poor transport and communication
  infrastructures, unavailability of information in
  local languages, lack of political will by
  governments and discrimination in terms of
  gender, income or disability.

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Way Forward

• In order for governments to meet their
  development objectives, a freedom of information
  regime is required.
• Another step is to raise public awareness, at all
  levels, especially amongst public
  representatives, on the advantages of having an
  open government, by adopting laws that will make
  information held by public bodies available to
  the people.

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Way Forward

• Adopt best practices in countries that are still
  teething in this venture. E.g. South Africas
  experience in access to information legislation
  has been considered an international good
  practice it can therefore provide significant
  lessons for other African countries at various
  states of draft legislations.
• However, there are still challenges in so far as
  the effective implementation of the legislation
  is concerned

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Way Forward

• Make information automatically available to the
  public in simple and concise language and where
  possible, translated into local languages.
• The AU should be more proactive in its efforts to
  ensure freedom of expression and access to
  information in Africa by defining and codifying
  the right of access to information as a
  fundamental human right.
• State parties that have not enacted access to
  information laws should expedite the process of
  adopting those.

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Way Forward

• State parties that have not enacted access to
  information laws should expedite the process of
  adopting those.
• Where freedom of information Laws do not exist,
  any other legislation that provide for access to
  information should be used

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Conclusion

• Mere existence of Constitutional provisions on
  freedom of expression and Acts, does not always
  mean that access to information is realized in
  the country.
• On the other hand, transparency cannot be
  realized if the laws that exists are not
  implemented.