Why we must unveil the queen
In the ancient Spartan democracy, the all the citizens were directly involved in major decision-making processes. As populations and perhaps egos grew, it became impossible to involve everyone in the day to day running of state affairs. A class of fulltime governors who made decisions for the rest of the society evolved. Thus representative democracy was born. This brought about a class of people who by the virtue of their leadership positions acquired (and controlled) more information than the rest of the society.
As societies become more complex, governance processes generate more and more information. Those higher in the governance hierarchy are entrusted with higher levels of information and are privy to key decision making processes. Often, some of this access translates to personal privileges like business opportunities, personal influence and political power. This state of affairs has created a struggle between the rulers and the ruled over access to information. The rulers can only maintain their privileges by limiting access while the ruled have to protect their common good by accessing more, quality and timely information.
From the rulers’ perspective, wide public information is anathema to the smooth running of the state. Authorities fear unreasonable requests and petitions from citizens. It is naturally expected that the citizenry yearning for a more responsive and accountable state would pursue more access while the authorities would resist ceding ground. A critical question then arises: Whose interest is more legitimate. If this question were to be put to Nicolo Machiavelli while writing the Discourses on Livy he would have responded with a rhetorical equivalent by asking - Which men are more harmful to the republic, is it those who desire to acquire or those who fear to lose what they have already acquired? Machiavelli observes that freedom is safer in the hands of the citizenry because they are less likely to usurp it.
The first three decades following independence in most African countries were characterised by centralised autocratic leadership. The ’founding fathers’ surrounded themselves with a clique of few friends who controlled information on almost all critical national decisions. This stranglehold on information bred malpractices like corruption, nepotism and general contempt for rule of law. A wind of change that swept through the continent in the early 1990s shook this arrangement and improved governance practices by varying degrees in different African countries. More people are now mainstreamed into influencing political processes either through political parties, trade unions or civil society organisations.
However, the improved political space in some countries is limited to ritualistic democracy where citizens vote every four or five years and leave the leaders to run the country any way they wish. This weak civic engagement and participation grant leaders a leeway to make key decisions like public procurement, disposal of public assets, national budgeting and hiring of public officers without much regard to public interest. By demanding access to information, the African taxpayer is sending a message that she wants more involvement. That voting for the leader of choice is not enough and that good leaders become even better when put under constant scrutiny.
The civil society has been pushing for enactment of legislation on citizen access to information. The efforts have borne fruits in countries like South African, Uganda and Angola. In Kenya the bill has been in the works since 2000, while in Nigeria it was first presented to parliament in 1999. Even with these inordinate delays, there are clear signs African states are heading towards more open governance. But do we really need freedom of information legislation? Can it change the way we are governed, move us any closer to transparent and accountable governance?
Strangely, Zimbabwe passed a semblance of freedom of information law more than five years ago. Within that period, the country has moved from bad to worse. One has to look long and hard to identify a single positive contribution of this law to the quality of governance for the citizens. The legislation exists alongside an Official Secrets Act and has been used more towards limiting than facilitating access to information. We hope that the African governments currently pursuing passage of this legislation are not taking lessons from Harare. Uganda which passed the law in 2005 is not a beacon transparency and good governance either. The National Resistance Movement government got away with a third term for Museveni against the original constitutional provision of maximum of two terms. Rumours about a fourth term already seem plausible. In South Africa, technical and financial impediments stand on the way of successful implementation. Access to public records costs more than US $400 while privately held information costs more than US $600.
A look at the effectiveness of related good governance laws is not encouraging either. Kenya, Nigeria, and Tanzania have all passed legislation to establish independent anti corruption agencies and water tight procurement laws. Yet their governance practice remains poor. For example last year, the speaker to the national assembly in Nigeria was implicated in a scam worth about US $5 million involving public procurement while the Kenyan taxpayer almost lost about US $200 million in 2004 in a scam involving security related procurement. The ‘Anglo Leasing’ scam in Kenya seriously eroded public confidence in the good governance legislation. Even more recently, the Tanzanian president was forced to dissolve the cabinet with the prime minister resigning following corruption allegations. Such developments send serious doubts whether any forthcoming law is bound improve the quality of governance.
There is no debating the fact that a freedom of information legislation is likely to drastically improve the quality of governance. What needs to be critically scrutinised are the underlying reasons as to why a raft of good governance laws passed in different African countries do not seem to work. Why do we keep passing very good laws without the slightest political will to make them work? Where do we go from here?
It is a sad fact that the road to good governance is bound to be bumpy. No one law however well intentioned will provide a one-off dosage for success. Efforts should therefore be directed towards constantly supporting building blocks for good governance. The governed must keep tightening the discretionary space available to their leaders. The proposed law provides a positive step in this direction by seeking to allow ordinary citizens prowl into the hitherto dark areas.
Arguments will definitely be made on the need to withhold some information for security and operational reasons. As regards control of information, governments closely resemble African Jumbos. If left unattended, they will roam and trample on every farmland. Yet the jumbos definitely need some space left for them but the tether must never be too long. The challenge is how to maintain a healthy tether that favours the landowners without strangulating the jumbo.
As we prepare for the passage of this law, we have to evaluate whether our systems are actually ready for it. For citizens to successfully claim their rights, the judiciary must be strong enough to provide a credible recourse. Judicial systems in Africa currently need to be reformed. If the judiciary is not seen to be independent enough, citizens will not see the need to lodge complaints where their access rights are violated. This defeats the need for the law.
The civil service also needs to be trained and reformed. Most public servants in Africa do not appreciate the mantra that taxpayer is king. Until this is done, freedom to information will be diluted by a culture that grants public servants lordship status against the taxpayers.
There is a danger that the information law may lose potency if different countries do not take necessary technological measures. Government agencies can creatively restrict access through providing information in forms not easily accessible to the people. Local authorities in a remote district where internet services are unavailable may for example provide governance information through the internet.
As Africa moves towards more participatory democracy, it has to be realised that laws by themselves do not change societies. Political will is more fundamental in this aspect. The governing class must be made to appreciate that there is a price to be paid for passing laws. That price is involves a commitment to fully implement and observe them. A cursory look at the recent legislative reforms does not reflect this appreciation.
The proposed freedom to information law must be rescued before if falls into the traditional abyss that holds so many laws that were meant to improve the way we govern ourselves. This can be done by ensuring that we pass it not because it is fashionable but that we believe in the principle of open, accountable and participatory governance.
The world marks the international freedom of information day this month. Let us make it a moment of reflection. Do we want to perpetuate a system where information is monopolised by a few? Or do we need to keep all informed on why, when, how and we make decisions that affect their live?
* Mwangi Kibathi is a Programmes Officer with Transparency International- Kenya.
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