Making access to information a reality in Africa

Last month the world observed the 9th International Right to Know Day. More than 90 countries across the globe have laws guaranteeing access to government-held information. However, the move towards getting such a law in Africa has been painfully slow. Only eight countries in Africa—South Africa, Uganda, Angola, Ethiopia, Zimbabwe, Liberia, Nigeria and Niger—have access to information laws. Although the process of building an access to information regime is going on in Kenya, Ghana, Rwanda and Zambia, it lacks the support that it needs from the political spectrum, and until it gets that support, obtaining information held by public authorities will continue to be a struggle.

To bolster the right to information campaign in Africa, the African Commission for Human and Peoples’ Rights (ACPHR), has undertaken the task of developing a model access to information law which is expected to serve as a guide to the member states of the African Union in their adoption or review of access to information laws. Once finalised, it is expected that the model law will be adopted by the ACPHR at its 50th Ordinary Session, to be held from 24 October to 7 November in Banjul, The Gambia. The draft being developed by ACPHR Special Rapporteur on Freedom of Expression and Access to Information in consultation with various stakeholders was opened for public consultation in April 2011. This window for public comments is open until 31 October 2011. We must endeavour to put in our feedback and have our say on this precedent-setting document before the window closes.

While the present draft has many elements of a strong access to information law, it can be improved. There are areas where strengthening is desirable; for instance the manner in which the term information has been defined can be improved upon in order to make it more focused and inclusive while allowing scope for coverage of newer forms of information that may be created in future. A case in point may be Ugandan Access to Information Act which defines information as including written, visual, aural and electronic information. Such formulation, which is inclusive and yet not vague, will help remove ambiguities in the minds of requestors and help them in drafting their requests.

Moving ahead into the definitions section, the draft gives three categories of bodies that may be considered information holders for the purpose of this law – public bodies, relevant private bodies and private bodies. This may be confusing for a layperson. Bodies covered by this law can be neatly segregated in just two categories for the sake of simplification – one, bodies is in the state sector may be put in the category of public bodies and two, any entity that does not receive any funds from the state or does not perform a public function may be categorised as a private body.

Under the present scheme in the draft, an information holder, in ordinary cases, may take up to 30 days to respond to an information request. This period seems long when compared with standards set in some of the African countries with access laws. A shorter time limit is found in Uganda where response to an information request under its access to information law must be given in 21 days. An even shorter time limit of just seven days is specified in the recently enacted Nigerian Freedom of Information law. In places where information about basic services — such as water, sanitation, electricity, subsidised food, health, and education — is not available or accessible to the common citizen, timely access to information can be a matter of life and death. In the absence of information, one may not know their entitlements; the services offered by the government and its functionaries; or the remedies available in case of violation of their rights. In this scenario, access to information is directly linked to one’s right to life. The draft could opt for a shorter time limit so as to facilitate not only people’s access to information but also access to services that are due to them.

Going deeper into the draft, one finds that it does not hold strong on proactive disclosure. This is the backbone of any access to information regime. Proactive disclosure is, essentially, disclosure of information on a regular basis by bodies covered under the law without people having to file applications for such information. The list of categories of information required to be disclosed proactively under the present draft is much smaller than the ones found in the laws in place in some countries like Nigeria, Mexico and India. The addition of more categories of information to this list — such as salaries and remuneration of officers and employees; details of expenditure on subsidy or social welfare programmes; and details of recipients of permits, authorisations, concessions and contracts — can ensure reduction in the number of formal requests for information. Regularly putting such information to the scrutiny of the public eye would enhance accountability and reduce corruption. People would be able to assess whether expenditures carried out by public bodies match the budget laid out; whether public officials have more assets than they can account for; and whether people being shown as beneficiaries of schemes are indeed the ones enjoying that benefit.

Surprisingly, while the draft permits an information officer to reject a request on the grounds of it being frivolous or vexatious in nature, it contains no provision for compensating a requester who suffers any loss from an unlawful denial of an information request or unreasonable delay in providing the information. Rather than changing the age-old power imbalance between the ones who govern and the governed, this perpetuates the unfair advantage of those in power.

The above observations, reflective of international best practice principles, if built upon while strengthening the current working draft of the model law, member states of the African Union can look forward to an effective access to information model that would boost transparency and accountability in public life.

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* Vrinda Choraria is Project Officer, Access to Information programme, Commonwealth Human Rights Initiative (CHRI)
* CHRI prepared a preliminary analysis of the Draft Model Law for African Union Member States on Access to Information which can be accessed: here
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.