on Session VII
The Value of the Right to Information
24th of January 1999
Panelists: Richard Carver, Harsh Mander, Abha Singhal Joshi
Moderator: Mark Robinson
Rapporteurs: Sneh Aurora and Stephanie Loomis
Session on the right to information was part of the broader issue
of Social Transformation-Advocacy Experiences for Human Rights,
Peace and Good Governance.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
value of right to information
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.
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
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.
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.
of the right to information
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
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.
scope of right to information
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
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
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
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.
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.
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
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.
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.
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.
freedom of information
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.
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.
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.
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.
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.
This question is addressed by the Johannesburg Principles
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
case from England where an ex-official was prevented from publishing
his memoirs revealing the doings of the national securities agencies.
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?
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.
in mind all the above, it is possible to cull out certain broad
principles which should inform any Freedom of Information law. These
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
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.
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.
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,
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.
a Right to Information
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.
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.
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)
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.
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.
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
the power of documentary proof, this was developed into a methodology
of regular public hearings.
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.
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.
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
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
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.
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.
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.
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.
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.
Keynote address of Prof. Hutcful and Kivutha Kibwana
Paper andPresentation of Hassan Ibrahim , Session VII
Reported by Batson Dewala from Malawi
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
Posts and Telecommunications Corporations
This question was raised by Rudo Kwaramba of Masasa project, Harare
1995 group convened by Article 19 and University of Whitwatersrand.
Later adopted by the UN Special Rapporteur on Freedom of Opinion
This question was also raised by the floor in the course of discussion
on the issue
Harsh Mander in response to a question from the floor
Bill drafted by Indian Government’s ‘Working Group on Right
to Information and Promotion of Open and Transparent Government’
Mazdoor Kisaan Shakti Sangathan- Organisation for the power of peasants
Refer report on inauguration
Jan Sunwai in the local language Hindi