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Workshops

Report on Session VII
The Value of the Right to Information

Date: 24th of January 1999
Panelists: Richard Carver, Harsh Mander, Abha Singhal Joshi
Moderator: Mark Robinson
Rapporteurs: Sneh Aurora and Stephanie Loomis

The Session on the right to information was part of the broader issue of Social Transformation-Advocacy Experiences for Human Rights, Peace and Good Governance.

As we perceived it, the right to information ran as a common thread throughout the major conference themes and was an integral part of the issue of good governance and reduction of conflict that the conference sought to address.

The problem

Modern societies are beset with the problem of controlling state power and bringing it in conformity with citizens’ needs. The culture of secrecy handed down from the colonial system of governance has not only been adopted by the regimes in power but has also been consciously bred and entrenched in governance. This is marked primarily by secrecy provisions in the law and a stubborn refusal to loosen control over means of communication such as broadcasting.

Governance behind closed doors without the active participation of the bulk of the population is leading directly to violation of several human rights ranging from the very right of survival to exercise of civil and political rights.

Lack of information about government policies and decisions is making people subservient to economic factors as governments are agreeing to large scale globalisation without the involvement or participation of citizens who are left to grapple with the fallout of the sudden and speedy withdrawal of the protection of a welfare state. Whole populations are being subject to a dismal state of penury in the name of structural adjustment and globalisation. In the absence of being a part of the process, they are unable to cope with it or even to resist when the programmes of globalisation are not carried out properly and are going completely contrary to the solution they claimed to be.

On the political front, citizens are unwitttingly led into domestic and cross border confrontations and agreements both. These decisions, taken behind closed doors by a small coterie of people affect local populations in ways which they are unable to comprehend. Sudden or violent political changes are forced on people who are completely unaware of the processes. As a result, civilians are targeted in regional conflicts to which they are rarely a consenting party. In the domestic arena, they often become pawns in the political processes which benefit only a few. A bulk of the population either sees the state as a perpetrator of violence and a collector of taxes, or is apathetic to it, never having been a beneficiary of its processes.[1]

On the obverse are experiments in constitution –making such as that of South Africa in which the people were involved to a great degree through a constant flow of information on each process.[2]This has immeasurable value in that it will engender strong institutions where people know their role, powers and limitations and can activate appropriate and timely state action.

One of the biggest drawbacks of even bonafide state institutions is that people have no knowledge or information about them and are therefore unable to utilise them. These conditions make these institutions defunct, corrupt and a burden on the public exchequer. Free interaction about state institutions like Human Rights Commissions will strengthen and improve them through constant use. Malawi’s recently constituted Human Rights Commission was constituted through a process of public hearing and screening of the nominees. The holding of the public hearing was publicised over the electronic media.[3] Though the actual results will take a while to show up, it is a good beginning for public awareness about the institution resulting in constant accountability.

In the African context, there appears to be very little difference in the routine functioning of the professed democratic and non-democratic states. Governance is fraught with human rights abuses and the denial of civil liberties.

The value of right to information

One of the distinguishing factors between the non-democratic and the democratic states would be the level of citizens’ participation in decision making, which can be enhanced through the right to information, the level of transparency and openness in government functioning and broad based availability of information to the common citizen.

Informed participation would help alleviate many of the problems enumerated above. Free flow of information would enable people not only to participate and grow with the polity but also to resist decisions and actions which are contrary to the public good. Opening up of the media would help open and wide debate on issues, enabling not only multiple, but informed and best choices in governance and political issues.

In this background, it is imperative for civil society groups to take up the issue of right to information to find means for empowering people to fully participate in governance and to partake of the fruits of a stable and peaceful social existence.

The panel on the right to information started with a focus on the value and importance of the right to information and went on to specific ways in which civil society can campaign for the right and nurture it within different contexts.[4]

Importance of the right to information

Richard Carver outlined the importance of the right to information in maintaining democracy. As early as 1947, the United Nations had passed General Assembly Resolution 59(1) which stated that “ Freedom of Information is a fundamental human right …… and the touchstone of all freedoms to which the United Nations is consecrated.” He traced the development of the right from being one referred to as creating “morbid derangement of the functions of power” and the right to make “ vulgar enquiries” to modern day developments in the form of enactment of freedom of information legislation in many parts of the world during the last 50 years, notably the Freedom of Information law of the United States.

The importance of the right to information lies, firstly, in its helping to enforce democratic accountability. Independent information is also important for the people to make informed choices. This right is important not only for the exercise of political and civil rights but also social and economic rights. Amartya Sen, Nobel Prize winner for economics has remarked, “ you don’t have famines in a country that has a free press”. The right is therefore directly related to survival rights and basic needs such as food, water and health. For instance, it was the lack of access to information on AIDS and government’s reluctance to give it that worsened the public health crisis. People must have access to information regarding the environment and the impact of certain things and activities on the environment. In the context of one of the most pressing problems of modern day governance, the right to information is a potent tool for countering corruption. If government is to be “clean” there must be access to information and government accountability.

The scope of right to information

A major element of the right to information is the role of media in the scrutiny of the actions of public figures. By ‘information’ to which media must have access, is meant not just information handed out by the government but also details of nefarious dealings of government. For this there must be a real access to information, unhindered by government censoring. Here, it is not so much the importance of the media’s right to information, but it is the public’s right to know which is crucial. When, for instance, journalists in Zimbabwe[5] are taken away and kept in detention, it is not just a violation of their personal rights, but also a violation of all persons’ right to know.

In this context, there must be legal conditions which facilitate the freedom of the press. Many countries have a variety of laws in operation under the categories of “sedition” and “subversion”. Such terms are used exclusively by the powerful against the media under the garb of ‘inaccurate reporting” to cover all reporting that goes against the government. While protection of privacy is a legitimate interest , in many countries there are laws specifically protecting the head of state from defamation. In practice, these laws are used by the people in power to drag media through legal battles. The key turning point on this was the judgement of the US Supreme Court in New York Times vs. Sullivan[6] in which the court established an important safeguard for Press when they said that false information cannot be a ground for defamation if it is published in good faith. This principle has, however, been slow to work itself in Commonwealth jurisdictions, but have been taken note of in defamation cases.

The media’s right to information also includes the protection of legal sources. Investigative journalism should be encouraged and blanket claims of national security should not be used as a pretext for journalists to reveal their sources.

The scope of the right to information extends to access to the means of communication. If government is in control of the media then people cannot have free and unhindered access to information. Full and correct details about any issue (for instance the arrest of the journalists) cannot be had by the people of Zimbabwe because most of the media is controlled by the government. Unless government consciously loose.

ns its hold over broadcasting and media and facilitates growth of information technology like telephones and the internet, free access to information cannot become a reality for most people. The Supreme Court of Zimbabwe struck down the monopoly of telephone communications by the state as being violative of the right to freedom of Speech and Expression. Where PTCs[7] had monopoly over the provision of internet services and then provided inadequate services, it affected the constitutional right of Zimbabwians. This is an important step for giving free access to common citizens, for access to information does not merely mean that you can say and hear what you want but that you should also have the means to do that. At present, there are more telephones in Manhattan than in all of Africa. In Zambia there were attempts to intimidate Internet Service Providers and obstruct them from publishing the web site of the independent newspaper Post. Barring Mozambique, South Africa and Zambia, in the 26 African countries that have internet access, the state telephone company controls the sole ISP.

The access to information has a special role in unearthing human rights violations and bringing the perpetrators to book. The value of the right is in the right of the citizens to know the truth. Some countries have established Truth Commissions to examine and bring to light human rights violations. This has raised the issue of whether this creates more conflict. While some people will be upset by the revelations, it is equally true that there will be others who will suffer if the truth is not revealed. It is important for societies to examine these issues and take lessons from history and to bring human rights offenders to book. Government must be under a duty to expose the truth as it has the maximum access to the information of what happened and why. It is also an acknowledgement of the government’s responsibility for the actions of its members and functionaries. Official exposures are a means of keeping the nation’s historical records straight.

Legislating freedom of information

The next major focus of the panelists was on the importance of a freedom of information legislation. A freedom of information law is essential for the mechanisms to enable public access to information. They shift the onus of openness on the government from the public having to prove a need for the requested information.

There appear to be standard responses of governments in opposition to freedom of information laws: that giving access to information would be too costly, would be an administrative burden and would be detrimental to national security.

Regarding the first, the cost of a corrupt administration far exceeds the cost of giving information. Experiments in access legislation have proved to be much less expensive than was expected. Even otherwise, it would be a small price to pay for an open and accountable government.

The objection to interference with government decision-making are valid to some extent. FOI laws must ensure that government process is not seriously hampered. According to Richard Carver the possibility of being exposed to public gaze in every situation may ‘stifle creativity’ in government departments. He extent of this protection is, however, a debatable point.

Regarding restrictions on the grounds of national security, there can be no reason to have a blanket ban on information regarding national security agencies. The threat to national security must be proved to be seriously and real. An example of protecting information regarding national security could be the movement of troops during war.[8] This question is addressed by the Johannesburg Principles[9] on national security, freedom of expression and access to information. These state that the restriction will not be legitimate unless its genuine and demonstrable purpose is to protect a country’s existence, territorial integrity against threat of force. It cannot be used to protect government from embarrassment or exposure of wrong doing. In practice, however, most governments use national security for these very purposes. A classic example is the famous Spycatcher[10] case from England where an ex-official was prevented from publishing his memoirs revealing the doings of the national securities agencies.

Other questions which form the core of a law on right to information are, the ambit of the right –should it be merely horizontal, i.e. just enforceable between governments and individuals or should it be vertical also as between individuals and private parties?[11] While all public authorities should definitely come within the purview of access legislation, some private bodies or persons whose activities affect the public directly should also come within the purview of the law. NGOs should also necessarily be included in the law[12].

Keeping in mind all the above, it is possible to cull out certain broad principles which should inform any Freedom of Information law. These are:

  • There must be a broad inclusion of all public authorities in the law.

  • No blanket exclusion should be given to any body, but exclusions should be tested on the merits of each particular case.

  • There should be a presumption in favour of disclosure with the onus on the public official to explain why the information cannot be disclosed. Where disclosure is restricted, the test of substantial harm should be applied.

  • Written reasons for refusal of disclosure should be given and there must be provision for appeal from this decision.

  • Information should be disclosed in the form in which it is held, that is, there must be access to actual documents not only to their contents.

  • Procedures for giving information must be simple. This includes oral requests.

  • The fee to be levied should be reasonable.

  • There must be protection of whistleblowers, that is, of those public officials who choose to disclose restricted information in the public interest.

  • There must be a duty on government to periodically publish information regarding its policies and activities.

  • Training of public officials should be emphasised.

A Constitutional provision guaranteeing freedom of information is the best possible way for ensuring the right, but an access to information law will give substance to the right in terms of enforcement.

The struggle for a legislative right to information is two-pronged: on the one hand it is for the repeal of the colonial Official Secrets Act which most countries have. On the other hand, it is for an effective legislation, as detailed above. The point of attention for civil society groups should be the making of the law. Laws as they are generally made lack consultation at the time of drafting and therefore often do not end up addressing the problem in all its manifestations. In India, for example, the draft law which was being considered by the government[13], was drafted by a group of ten persons, eight of whom were serving civil servants. All of them were male, there was no representation of rural or disadvantaged groups or of civil society representing different interests. In this background, the Bill failed to take notice of important implications of the law such as prioritising information needs such as food, education, health and environment, setting up simple and effective systems for accessing information and fixing accountability on public officials. It is important for civil society members to involve themselves in this process and engender wide debate on all the issues mentioned above, so that inadequate and pre-emptive laws are not passed. The experience of South Africa in drafting the “Open Democracy Act” is a good model to follow, as it is easily the best Bill available today- the reason for which is that the process involves a large cross section of governmental, non-governmental and para-statal bodies and persons.

Advocating a Right to Information

Creating spaces Harsh Mander’s presentation emphasised the point that the right to information can be used to empower the voiceless and weakest sections of society in addressing their survival needs.While it is imperative to have a law putting into place a statutory right to information, it is equally important for civil society to devise ways in which to empower people to use the right where it exists and to create the right where it is weak or non-existent. The second part of the session on right to information was a sharing of experiences in India in doing this. Advocacy on the right to information on India has had a strong grassroots component along with constitutional backing in the form of expansive judicial decisions.

The right to information is at the core of one of the strongest movements in independent India. This movement directly affected the relationship of the people with the state and grew from being a small grassroots endeavour in a rural, poverty-ravished area to a concern of the media, the middle class and other interests reflected in the wide range of support for the initial struggle.

The struggle for the right to information was clearly linked to issues of livelihood and justice. The movement started from a small NGO consisting of a civil servant who gave up her job to work in the rural areas, a post-graduate student who likewise gave up his studies in the US and a local partner with excellent communication skills. This little group (MKSS)[14] was distinguishable from other NGOs in that it had no funding whatsoever and who chose to follow the lifestyle and standards of living of the rural folk with whom they intended to stay. This personal integrity and courage stood the movement in good stead as it was unassailable in the face of standard government accusations made against civil society groups_ a taste of which the conference participants had at the inaugural speech by the foreign minister of Zimbabwe.[15]

The work of the MKSS started by addressing issues related to minimum wages and co-operatives in a small rural district of Rajasthan, one of the Indian states subject year after year to deprivation and extreme poverty caused by famines. The means of livelihood in the area are casual farming and casual labour for the government poverty-alleviation schemes like building of roads and bridges. It was the threat to these very means of livelihood in the form of rampant corruption and misappropriation of funds by officials that made the common people rally around and decide that they had to take the issue in their own hands in the absence of any government initiative to do so.

The realisation that funds were being misappropriated came in the form of simple question marks on non-existent or incomplete works claimed to have been done by the implementing agency. But to prove syphoning of funds, documentary proof was necessary, such as the rolls of workers, bills, vouchers, etc. In the beginning some officials unwittingly gave the documents, unaware of the power of the information. These were used by the villagers to compare with the existing facts around them and then confront the local officials with the fact of their irrebuttable corruption.

Realising the power of documentary proof, this was developed into a methodology of regular public hearings[16]. The people’s right to information was fundamental to this methodology and was based on the premise that all acts and decisions of the government must be open to the people. Openness included a right of the people to ask for copies of the documents pertaining to government works. Having acquired these copies, each document was carefully cross-checked for the veracity of the claims made in it by holding meetings with the local people. A public hearing was then called to which the local people, local officials and some neutral persons of some standing such as well-known journalists etc. were called. The claims of the government as contained in the documents and the peoples’ versions were then juxtaposed with each other. Very often, faced with the irrefutable truth of their corruption, public officials admitted graft and agreed to return the money.

Soon, the word spread to the entire state and realising what was happening, public officials refused to give documents to the people. This triggered a mass campaign in the state demanding a written administrative order to enforce the government’s claims to transparency and honesty. To pre-empt the move, the government issued orders on the very first day of the agitation, to the effect that people could inspect documents for a fee. The MKSS however decided to continue its battle for a more meaningful right in the form of copies. After an unyielding agitation of several weeks the Chief Minister gave an assurance of setting up a committee within two months to work out the details for the enforcement of the right to information. After a year of waiting, the movement again decided to agitate for the right. After 52 days of an unceasing battle, government announced that they had, six months back notified an order giving the right to photocopy documents from the village local bodies.

This was a major victory for the movement but the real challenge is in mobilising people to make effective use of these spaces, once created. In order to use the methodology of public hearings for a people’s audit, some basic steps have to be followed. These steps are:

  • Identification of problems of the local populace: These could relate to corruption, wrongful or excessive use of power or patronage of vested interests, exploitation or denial of protection to disadvantaged groups, lack of consultation on vital issues of livelihood such as large development projects, and failure to perform duties effectively, such as inability to address public health issues like infant mortality rate or AIDS.

  • Identification of relevant information such as the norms, rules, procedures and laws which govern the exercise of these functions.

  • Identification of the source of information- where is the relevant information to be found- for instance information relating to allotment of a food quota or health benefits would be found in the registers of the relevant authority.

  • Finding out whether the rules regulations or laws allow for the information to be given to the public.

  • The next step would be to access the documents and scan them for information relevant for the purpose. For this, one may require the help of people with some expertise in the concerned area. A civil engineer, for example could identify relevant information regarding construction works.

  • These documents would then need to be collated and anaysed, cross-checking with the factual situation.

  • Having collected the prima facie evidence, the group or the individual could have three choices- to address conventional grievance redressal mechanisms like vigilance authorities , to address for a established by law for overseeing the functioning of local bodies, such as the gram sabha in India, which is a body consisting of the electorate of the particular village or group of villages. This body has a right to ask questions in the open forum regarding expenditures, etc. This may involve activating passive or defunct groups.The third way is to organise citizens’ groups around the issue and hold a public hearing wherein a social audit is carried out as in the experience of the MKSS detailed above.

  • Follow-up action for bringing the offenders to book. This could take the form of prosecution by the concerned authority, or a commitment from the offender to return the misappropriated funds, or both. Each group and situation would have to choose the method best suited to its environment.

While the above movement was based in India, this concept, this ‘disarmingly simple’ concept and methodology can be easily transplanted to other groups, especially in Africa where economic and social conditions are similar. Methods can be devised for people’s participation and audit taking into account the local factors like the nature of the mechanisms for people’s participation, the administrative structures and the rules and laws applicable in that particular country or region. Civil society groups can use this method or some modified version of it to empower local groups for enforcing their right to information in situations close to their lives.

Finding Spaces

Abha Singhal Joshi’s presentation shared the Indian experience of the growth of the Constitutional base of the right to information and experiments from within the government in enforcing the right. Getting enabling legislation for exercising the right to information and using the right to empower the common person is the ultimate goal, but it is a long road.

Considering the wide range of social, economic and political problems that the right to information would alleviate, it is important for civil society to find spaces in the existing structures for using the right to information in diverse ways in diverse situations-all of which would ultimately strengthen as well as widen the base of the right. Advocacy on the right to information would entail finding cracks in the monolith and expanding them.

One of the most effective pegs for enforcing the right to information is the Right to Freedom of Speech and Expression which most constitutions have as a fundamental, guaranteed right. It is now almost universally established that the right to know forms the obverse side of the right to freedom of speech and expression. Without having access to information there can be little meaning in the right to free speech and expression which includes the right to dissent.


[1] Keynote address of Prof. Hutcful and Kivutha Kibwana
[2] Paper andPresentation of Hassan Ibrahim , Session VII
[3] Reported by Batson Dewala from Malawi
[4] Freedom Of Information: Accountability, Equality and “Vulgar Enquiries” by Richard Carver
The Movement for Right to Information In India: People’s Power for the Control of Corruption
by Harsh Mander and Abha Singhal Joshi
[5] Refer……
[6] 1964
[7] Posts and Telecommunications Corporations
[8] This question was raised by Rudo Kwaramba of Masasa project, Harare
[9] 1995 group convened by Article 19 and University of Whitwatersrand. Later adopted by the UN Special Rapporteur on Freedom of Opinion and Expression
[10]
[11] This question was also raised by the floor in the course of discussion on the issue
[12] Harsh Mander in response to a question from the floor
[13] Bill drafted by Indian Government’s ‘Working Group on Right to Information and Promotion of Open and Transparent Government’ in 1997
[14] Mazdoor Kisaan Shakti Sangathan- Organisation for the power of peasants and labourers
[15] Refer report on inauguration
[16] Jan Sunwai in the local language Hindi

 

 
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