Importance of Access to Information in Promoting
Transparency in Africa
Pansy Tlakula
ACHPR.
“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
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
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
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.
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.
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


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Lack of Citizen participation in governance
Lack of transparency in election processes
Institutional and capacity deficit for policy making
Corruption
Lack of accountability
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
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.
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”
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;
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
Access to Information in Africa
 Secrecy laws shall be amended as necessary to comply with
freedom of information principles.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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
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.