Importance of Access to Information in Promoting Transparency in Africa

1. Importance of Access to Information in Promoting Transparency in Africa Pansy Tlakula ACHPR.

2. “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

3. 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

4. Importance of Access to Information in Promoting Transparency • Citizen’s 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

5. 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.

6. 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

7. Access to Information in Africa • African Charter on Human and People’s 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

8. 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.

9. 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”

10. 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;

11. 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

12. Access to Information in Africa • Secrecy laws shall be amended as necessary to comply with freedom of information principles.

13. 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

14. 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

15. Analyses of the status of Access to Information in Africa Southern AfricaContinued.. • 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.

16. Analyses of the status of Access to Information in Africa Southern AfricaContinued.. • 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.

17. Analyses of the status of Access to Information in Africa Southern AfricaContinued.. • 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.

18. Analyses of the status of Access to Information in Africa Southern AfricaContinued.. • 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.

19. Analyses of the status of Access to Information in Africa Southern AfricaContinued.. • 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.

20. Analyses of the status of Access to Information in Africa Southern AfricaContinued.. • 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.

21. Analyses of the status of Access to Information in Africa Southern AfricaContinued.. • 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 constitutionalitybeing criticized by Zimbabwean human rights activists.

22. 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 Ethiopia’s 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.

23. 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.

24. 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.

25. 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

26. 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.

27. 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 D’Ivoire, 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. Way Forward • Adopt best practices in countries that are still teething in this venture. E.g. South Africa’s 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

33. 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 informationlaws should expedite the process of adopting those.

34. Way Forward • State parties that have not enacted access to informationlaws 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

35. 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.