The right to information in Africa

Despite what has been called an “explosion” in the passage of FOI laws with more than seventy developing countries passing the laws in the last decade, Africa has largely been absent.

There is a vast new body of experience on how to implement an FOI regime in the context of challenging institutional, resource and other socio-economic constraints, but in the African context this experience is limited only to South Africa, which remains the only African country that has passed and implemented an Access to Information law. Uganda and Angola have also passed FOI legislation but these have not been brought into force yet. The Zimbabwean Access to Information and Protection of Privacy Act is a classic example of what an FOI law should not be.

During that era when only Sweden and the USA had FOI legislation, these laws created an understanding of FOI as being merely a part of the right of freedom of expression which in and of itself had come to be perceived as a right that only affects journalists and political activists. However, there has been a major paradigmatic shift in the past decade. Freedom of Information or the Right to Know, properly implemented, is now regarded as a multi-dimensional human right that can make a huge difference to both people and their governments, backed by international legal instruments.

In 1946 the United Nations General Assembly adopted Resolution 59(1), which stated that: “Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the UN is consecrated.” Other international human rights instruments enveloped the right of access to information within the broader and fundamental right of freedom of expression. For example, the UN General Assembly’s Resolution 217 A (III) on the 1948 Universal Declaration of Human Rights which states that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Subsequently, the UN General Assembly’s Resolution 2200 A (XXI) on the 1966 International Covenant on Civil and Political Rights states that: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

In the Commonwealth, the issue of access to information was first given expression within the Commonwealth in 1980 when the council of Law Ministers issued a statement recognizing the fact that: “public participation in the democratic and government process was at its most significant when citizens had adequate access to information”. However this was given more detail in 1999 when the Commonwealth convened an Expert Group on freedom of information which confirmed that: “Freedom of information should be guaranteed as a legal and enforceable right permitting every individual to obtain records and information held by the executive, the legislative and the judicial arms of the state, as well as any government owned corporation and any other body carrying out public functions.”

This principle was adopted by the council of Law Ministers who went on to formulate further principles which started that; a) member countries should be encouraged to regard freedom of information as a legal and enforceable right, b) there should be a presumption in favour of disclosure and Governments should promote a culture of openness, c) the right of access to information may be subject to limited exemptions but these should be narrowly drawn, d) Governments should maintain and preserve records, and e) in principle, decisions to refuse access to records and information should be subject to independent review. The Ministers also called on the Commonwealth to promote these principles among its member states.

On the African continent the Organisation of African Unity’s (predecessor to the African Union) African Charter on Human and People’s Rights also upheld the right of access to information wherein Article 9 of the Charter states that: “a) Every individual shall have the right to receive information, and b) Every individual shall have the right to express and disseminate his opinions within the law.”

Decades later, at the 32nd Ordinary Session of the African Commission on Human and Peoples’ Rights ( Banjul, The Gambia, 2002) African countries adopted a Declaration of Principles on Freedom of Expression in Africa which states 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,” and that “the right to information shall be guaranteed by law in accordance with principles” set in the declaration, which include the following among others: “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; 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 secrecy laws shall be amended as necessary to comply with freedom of information principles.”

The declaration precedes the AU’s African Charter on Democracy, Elections and Governance - adopted at the AU Assembly of the AU on 30 January 2007 - which states as one of its objectives “(the promotion of) the establishment of the necessary conditions to foster citizen participation, transparency, access to information, freedom of the press and accountability in the management of public affairs”. The Charter states that member states shall implement the charter in accordance with, among others, the principle of “transparency and fairness in the management of public affairs”. In Article 12 it also calls on member states to: “promote good governance by ensuring transparent and accountable administration”. Article 19 of the Charter calls on each member state to “guarantee conditions of security, free access to information, non-interference, freedom of movement and full cooperation with the electoral observer mission.”

Following these international standards various countries have attempted to codify these access to information rights either in statutes or in constitutions. A country’s constitution should always be the most supreme law of the land and its highest standard on matters of law and rights. In southern Africa six SADC countries have expressly guaranteed the right to information within their constitutional framework, namely; South Africa, Malawi, Mozambique, the DRC, Tanzania and Madagascar. Eight other SADC countries have only protected this right within the context of the broader right of freedom of expression which normally includes the right to “seek, receive and impart information”. These countries are Botswana, Lesotho, Angola, Zambia, Mauritius, Zimbabwe, Namibia and Swaziland. Of these countries, besides Angola and Zimbabwe, only Zambia has a bill at advanced stages. The Zambian bill – a product of a healthy and successful partnership between the government and civil society - was tabled before parliament in 2002. However the bill was soon and unceremoniously withdrawn by the government during its second reading. Six years later, in early 2008 the late Zambian President, Levy Mwanawasa reintroduced the bill in parliament during the official opening of the assembly.

Though Zimbabwe has passed a law called the Access to Information and Protection of Personal Privacy Act (AIPPA), it is difficult to consider this legislation as a proper Right to Information Law because of the numerous and very broad exemptions on the exercise of the right to information and its draconian provisions aimed at controlling the exercise of journalism in the country.

In the eastern part of Africa only Uganda has the right of access to information specifically guaranteed in the constitution (section 41) and the country remains the only country in the region that has passed legislation that gives effect to the right of access to information. Regulations have not yet been passed in order to bring the legislation into force. In Tanzania and Kenya the right to information is only established in the constitution as part of the right to freedom of expression. The draft bills on Freedom of Information law are at advanced stages in both countries. In 2007 a Kenyan government delegation undertook a study tour to South Africa to learn from the experiences there on drafting and implementing a Freedom of Information in the context of a developing African country.

Article 29 of the Ethiopian constitution expressly established the right to information but also within the broader freedom of the press, mass media and artistic creativity. A draft bill on Freedom of Information law is also being considered by the Ethiopian government.

In the western part of the continent, Gambia doesn’t have constitutional protection either of the right of access to information specifically or the right to freedom of expression generally. Gambia is infamous for being one of the most dangerous places for the practice of journalism on the continent. On a more positive note, the constitutions of Ghana, Cameroon and Senegal expressly guarantee the right to information while in Nigeria and Sierra Leone the right is constitutionally established as part of the freedom of expression. The Nigerian draft bill was passed by both houses of Parliament in 2007 but the former President, Olusegun Obasanjo, refused to sign it into law, which was quite a set back for the campaign for Freedom of Information law in Africa. There are presently draft laws in Nigeria, Ghana, Sierra Leone and Liberia. The Liberian draft was tabled before parliament in April 2008 and stands a good chance of being signed into law after supportive remarks made by President Sirleaf-Johnson and key ministers in her cabinet. However there are currently no draft bills in Benin, Burkina Faso, Cameroon, Cape Verde, Mali and Senegal.

In North Africa, the Moroccan constitution established the right to “freedom of opinion and freedom of expression in all its forms”. Morocco has the only draft bill on Freedom of Information legislation in North Africa.

It is evidently still early days in the enactment of Freedom of Information laws on the African continent. Freedom of Information advocates have a formidable task ahead of them, which is nothing short of changing the culture from that of secrecy to that of openness. Access to information is an important tool for promoting accountability and transparency in public service delivery and should continue to be championed. There is a need to for activists and advocates to remain forever vigilant that countries that have taken bold steps of enacting these laws such as Uganda, Angola and South Africa do not regress into secrecy but are encouraged to strengthen implementation of these laws. Campaign groups and lobbyists must continue to learn from the examples on law advocacy that have come from South Africa, Nigeria, Zambia, Ghana and Kenya. Lastly, civil society and progressive governments in the continent should be encouraged in making Freedom of Information part of the discourse in consolidation of democracy and promotion of socio-economic justice.

* Mukelani Dimba is the Deputy Chief Executive Officer of the Open Democracy Advice Centre . This is based a paper given by the author on the occasion of the regional conference on the Right to Information, organized by the African Network of Constitutional Lawyers, 17 – 18 June 2008, University of Cape Town, South Africa.

* Please send comments to [email protected] or comment online at http://www.pambazuka.org/

The first Freedom of Information legislation in the world was passed in 1766 when Sweden passed her Freedom of the Press Act. This action would only be followed by the United States of America almost two-hundred years later with the passing of the Freedom of Information Act.