and Multilateral Governance: Access to Information in Africa
Complied by Vaishali Mishra
Media Officer, CHRI
Over the past
ten years, around forty countries have passed Right to Information
(RTI) laws. The great majority has been in Eastern and Central
Europe and Asia. Africa sadly lags behind: besides Zimbabwe's
repressive Access to Information and Privacy Act, only South Africa
has an ATI law. However, there are signs of activity on the African
continent: there are draft ATI bills in a number of places including
Nigeria, Ghana, Ethiopia, Tanzania and Mozambique.
This article seeks
to provide an update on some of this work.
Update on draft
civil society access to information laws in the region
Ghana's 1992 Constitution
is one of the few Constitutions in the world that guarantees both
freedom of expression and separately, right to information. In
line with Ghana's commitment to international human rights covenants
and conventions such as the Universal Declaration of Human Rights,
the right to information is part of the general fundamental freedoms
and human rights contained in the Chapter 5 of the Constitution.
A " Freedom
of Information Bill" was drafted in 2002, and has since been
approved by the Ghanaian Cabinet. The draft Bill states, "Every
person has a right of access to information or part of information
in the custody or under the control of a government agency unless
the information or that part of the information falls within any
of the exemptions specified in Part II." The Bill also outlines
responsibilities and procedures for responding to applications
for information, requiring that authorities respond to requests
within 30 days. The Bill also provides for access to information
held by private bodies if the information is required for the
protection of "fundamental human rights or freedoms, preservation
of public safety or protection of public interest".
Critiques of the
Bill state that the Bill contains too many exemptions to the right
to information and could therefore potentially be open to abuse,
including an exemption if "the disclosure of the information
could reasonably be expected to damage the financial interest
of Government," as well as exemptions for "Frivolous
or vexatious application".
The Bill doesn't
contain any penalty provisions in case a public official unreasonably
refuses to provide information. There is also no monitoring body
present to supervise operation of the law. The challenge that
Ghana faces is the lack of advocacy for integrating the right
to information in all governance processes in the continent. There
is a need for RTI organisations to take an interest in the APRM
process to facilitate its accuracy and success.
At present, Mozambique
has no right to information law, although the Mozambique's Constitution
specifically recognizes the right to information as a fundamental
constitutional right. Article 74 (1) of the Constitution explicitly
recognises that every citizen has the right to inform oneself
and be informed about the relevant facts and opinions, at the
national and international level, as well as to disseminate information,
opinions and ideas through the press.
In the internal
law of Mozambique, there is no specific regulation related to
access of information sources. This gap needs to be filled especially
when it comes to information related to the well being of all
So, despite the
Constitutional protection afforded to the right, little has been
done to operationalise it in practice. This is a major failing
because it is well accepted that even where there is a specific
constitutional guarantee for the right to information, legislation
is needed to detail the content and extent of the right. Recent
analyses by the Commonwealth Human Rights Initiative, Article
19 and ODAC South Africa have pointed out several faults. Most
significant among these, are the failure of the Bill to contain
a clear statement entrenching a "Right to Information."
More generally the draft is brief, with the result that it fails
to include a number of important provisions such as permitting
requests to private bodies and protection or whistleblowers. Also
the procedures for necessary information need to be better thought
The current Namibian
government's approach to access to information is coloured by
its long-standing reluctance to address questions and disclose
information related to the struggle for independence.
It has now entered
the process of formulating Freedom of Information legislation,
more as a result of pressure from external factors rather than
a demand from internal forces. Currently the process is hampered
by a lack of popular demand for Freedom of Information (FOI) legislation.
Both civil society and the media, by all indications, seem not
to see the need for such an Act. On its part, the media has been
silent in its support for such legal reform - a process in which
it certainly has a vested interest.
The Namibian Constitution
does not make any specific reference to the protection of the
right to information. There is also no additional legislation,
which provides for this right. The constitution merely protects
the right to freedom of speech and expression, which is said to
include freedom of the press and other media outlets. However,
a Cabinet directive was issued in 1999, tasking the office of
the Prime Minister with formulating draft FOI legislation. Since
then, no substantial development has been recorded in this regard.
The House of Representatives
last week passed perhaps the most important bill in the fight
against corruption and the enthronement of transparency and accountability
in government when it overwhelmingly passed the Freedom of Access
to Information Bill.
For the first
time it will be a criminal offence for any public official to
hoard information. It remains for the Senate to pass its own version
of the bill and for the President to append his signature for
Nigeria to join the league of open democratic societies.
proved both in Nigeria and elsewhere that misrule begins when
government officials are allowed by statutes such as the Official
Secrets Act to withhold information from the people they serve.
Invariably, the information withheld are those that foster corrupt
practices by the public officials whether elected or not.
The bill, which
was sponsored by Jerry Igbokwe, has removed the shackles from
the media for conducting investigative journalism in the most
professional manner acceptable worldwide and would allow the Nigerian
media to beam its searchlight on public officials.
service will cease to be attractive to those who in the past have
considered public office as a method of self-enrichment; they
will give way increasingly to people who have genuine interest
in social and economic development of the country. Political appointments,
which have assumed the status of life and death contests, will
also change their character.
But, the bill
should be regarded as a means not as an end in itself. Government
must demonstrate the will to enforce its provisions; otherwise
it would not be worth the paper on which it is written. In addition
to that, the citizens of this country, especially the media, must
now vigorously but responsibly make use of the power that the
bill has given them; not for blackmail or self-enrichment but
in the public interest.
Finally, it is
fortunate that this bill has been passed three years before the
next election and before new candidates start presenting themselves
for election to various offices. The 2007 elections will present
the country and the media the first real test of the efficacy
or otherwise of this bill. Those who would want to use ill-gotten
wealth to secure elective office must be prepared to face media
scrutiny such as this country has never witnessed before.
of a FOI law is therefore just the beginning. Governments need
to radically change their internal cultures and be more receptive
to demands of public accountability. Transparency and a meaningful
articulation of the Access to Information Bills should be a core
value and a central operating principle for governments to enable
citizens and civil society organisations to participate in their
policy-making and in their institutional evolution, and to thereby
give them ligitimacy.
This article has
been compiled on the basis of the papers produced by Nana Oye
Lithur, Kaitira Kanjii the ATI Programme Director for the Media
Institute of Southern Africa and Osaro Odemwingie, presented in
the Conference on Public Accountability and Multilateral Governance
arranged by Open Democracy Advice Centre on the 29 September 2004
in Pretoria, South Africa.