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.

In this article Mukelani Dimba shows how freedom of information legislation can be used by citizens to pursue their socio-economic rights. He argues that it creates the conditions in which government decisions about resource allocation can be effectively challenged.

The third wave of democratisation in the developing world has created opportunities for development and reconstruction in many nations brought to their knees by past regimes that were oppressive, secretive and undemocratic. This has focused not only on infrastructure and the economy but also on a rethink of the relationship between those in power and those who voted them into power. In this reconfiguration we should recall the words of the American constitutionalist, Alexander Hamilton, who once said that ‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary… A dependence on the people is no doubt the primary control on government; but experience has taught mankind the necessity of auxiliary precautions.’

These ‘auxiliary precautions’ referred to by Hamilton included not only the courts and other organs of state but also the constitutional legal framework established to support them. If men and women were angels, basic human freedoms, such as the right to vote and freedom of expression (which includes the right to seek, receive and impart information), would not need to be protected in national constitutions. Nor would there be any need for special constitutional provisions obliging governments to share the spoils of economic growth fairly among citizens by ensuring that even the most impoverished have access to the services needed to sustain life, protect dignity and enhance the prospects of future generations. Alas, men and women are not angels, and we therefore need these ‘auxiliary precautions’ to protect the democratic order for the material benefit of the poor. It is vital that national constitutions not only protect civil and political rights but also promote the realisation of social and economic rights.

By social and economic rights, I refer to what Professor Kader Asmal, the South African human rights scholar, activist and former government minister, once called ‘the red and green rights’, namely the rights to housing, health care, food, social security, social services, education, human dignity in conditions of detention, healthy environment, land and security of tenure.

The third wave of democracy has not, in most cases, led to the social and economic development of communities previously materially disadvantaged by discriminatory and undemocratic systems of government. I believe that this is largely because the focus has tended to be on the full constitutional protection of civil and political rights as the cornerstone of the democratic order, while neglecting or partially entrenching social and economic rights within the constitutional framework.

Some correctly argue that democracy is not a sufficient condition for development or for social and economic equality. Many scholars have argued ‘that democracy will remain a formality unless it also includes substantive social and economic equality’ (Jones and Stokke, 2005). Amartya Sen’s argument is that ‘democratic institutions are guarantors for public deliberation and effective responses to poverty and deprivation’ (Jones and Stoke, 2005). Sen (2000) goes on to argue that:

‘Freedoms are not only the primary ends of development, they are also among its primary means. Political freedoms (in the form of free speech and elections) help to promote economic security. Social opportunities (in the form of education and health facilities) facilitate economic participation. Economic facilities (in the form of opportunities for participation in trade and production) can help generate personal abundance as well as public resources for social facilities. Freedoms of different kinds can strengthen one another.’

Mumtaz Soysal, in his 1977 Nobel lecture, argued that:

‘When those deprived of their socio-economic rights cannot make their voices heard, they are even less likely to have their needs met. If a person is deprived of one right, his chance of securing the other rights is usually endangered. The right to education and the right to freedom of information and open debate on official policies are necessary to secure full public participation in the process of social and economic development. The freedom of the human mind and welfare of the human being are inextricably linked.’

In countries where citizens have been unjustly denied access to certain services and resources because of their race or other societal background, a constitution, as an ‘auxiliary precaution’, that protects socio-economic rights is vital to the process of redress, reconstruction and redistribution.

The protection of socio-economic rights by a country’s constitution and their progressive realisation partially justiciable by the courts is a departure from the norm, where the focus has tended to be on judicial protection of political and civil rights. Traditionally, freedom of information (FOI) has found its place among the body of these political and civil rights.

During the era when only a few Scandinavian countries and the USA had freedom of information legislation, these laws created an understanding of FOI as merely part of the right of freedom of expression, which in and of itself had come to be perceived as a right that affected only journalists and political activists. Earlier international legal instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, also enveloped FOI within the broader right to freedom of expression. The newer Declaration on Principles of Freedom of Expression by the African Commission on Human and People’s Rights follows a similar route, the major difference being its extension of FOI to privately held information.

I firmly believe that it is when freedom of information is used as a form of leverage to protect or promote other socio-economic rights that it finds its real meaning in a developing-country context. The well-known and remarkable work of the MKSS in Rajasthan in India, emulated by other organisations in South Africa and elsewhere, shows how FOI can be used to the benefit of local communities and governments by helping social organisations expose corruption that compromises the proper implementation of development projects and social security schemes. This supports the idea that one of the purposes of the tools of democracy, such as FOI, is ‘to advance poor people’s access to socio-economic resources and services’ (Barbeton, Davis and Sarkin, 2000). This is consistent with the United Nations Development Programme in its assertion that:

‘Effective anti-poverty programmes require accurate information on problems hindering development to be in the public domain. Meaningful debates also need to take place on the policies designed to tackle the problems of poverty. Information can empower poor communities to battle the circumstances in which they find themselves and help balance the unequal power dynamic that exists between people marginalised through poverty and their governments.’

In India, for example, the government runs a massive food subsidy scheme as a social security measure to promote the right to food. Food rations are in most instances distributed through shopkeepers in the private sector, called ration-dealers. A person takes their ration card and collects food parcels from their local ration-dealer. The dealer then claims payment from the government for the food he has distributed to the community. However, some ration-dealers have been reportedly manipulating the process for their own ends by telling people that they have run out of food subsidy stock, offering to sell them food from their ‘ordinary trading stock’ instead. In the ration-dealers' records these transactions are recorded as distributions related to the food subsidy scheme and money is claimed from the government. The ration-dealers therefore get paid twice, by the customer and by the government.

This practice was exposed in a number of villages in Rajasthan when these communities, assisted by the MKSS, used the state’s freedom of information law to access the claims submitted by the ration-dealers to the government. Massive discrepancies were discovered between what the ration-dealers claimed and what they had actually distributed, which was captured on individual ration cards kept by each member of the community. By accessing government documents these citizens were able to reconcile what was claimed on paper with the reality on the ground. This illustrates vividly the multi-dimensionality of freedom of information in the developing world, where it can be used as tool for accountability, to protect socio-economic rights, fight corruption and improve government efficiency.

In Thailand, children’s right to education and fair and equal treatment was protected when one parent used the country’s freedom of information law to challenge a public school’s decision denying their child’s enrolment in one of the country’s best public schools. In seeking access to the results of enrolment tests, the parent exposed the discrimination that had hitherto been part of the selection process, and which favoured children from rich and prominent families. This action prompted a countrywide overhaul of the system of selection and enrolment in public schools.

However, in countries where freedom of information legislation has not yet been passed, citizens cannot claim the protection it might provide. In an area near the Tanzanian capital of Dodoma, schools were built with donor support on condition that the donor and the government would provide match funding for the money paid by parents towards their running costs; the funds would be controlled by local authorities and school principals. However, inefficiency and some reported cases of corruption have left some of these schools in a state of disrepair. There is simply no accountability for the use of these funds. Local people have no recourse open to them, short of social mobilisation, which in itself require access to information. But Tanzania does not yet have a freedom of information law.

In neighbouring Kenya, citizens have complained about the mismanagement of constituency development funds (CDF), which are funds controlled by members of parliament to fight poverty at regional levels. CDFs are also used to run educational and bursary schemes and constitute about 7.5 per cent of the government’s revenue. However, in Kenya the CDFs are popularly called ‘corruption devolvement funds’. Kenyans have very little recourse to ensure that they receive the services to which they are entitled because Kenya does not yet have a freedom of information law.

Slightly more fortunate are a group of women in KwaZulu-Natal, one of South Africa’s poorest provinces. Villagers in the hamlet of Emkhandlwini noticed that those in neighbouring villages were receiving water from municipal tankers while they were not. Their water source was a dirty stream that they shared with their livestock. Luckily, some villagers were aware of their basic civil rights because they had had some training, but they did not know how to seek solutions to the water problem without relying on an unresponsive local government political representative who had until then failed to deal with the issue.

In 2004, and with the assistance of the Open Democracy Advice Centre, the villagers used South Africa’s freedom of information law, the Promotion of Access to Information Act, to ask for the minutes of the council meetings at which the municipality had decided on programmes of water provision. They also asked for the municipality’s integrated development plan and budget. It took a frustrating six months before the information was released, but it showed that while there were plans to provide water, no-one had thought of sharing these with the community. With these plans in hand the women started asking difficult questions of the authorities regarding the delivery of water. The media also covered the case, which may have created sufficient pressure to prompt the municipality to act. Almost a year after the initial FOI request, fixed water tanks, replenished a couple of times a week, were installed in the village and mobile water tankers began delivering water, while the municipality worked on a more permanent solution of laying down pipes.

This case demonstrates how socio-economic rights can be realised through the use of freedom of information and public pressure rather than through litigation. Public pressure to influence resource allocation can only be effectively applied if there is sufficient transparency in the process of resource allocation. Freedom of Information creates the conditions in which decisions about the allocation of resources can be challenged.

I strongly believe that in countries plagued by socio-economic imbalances inherited from undemocratic systems of government, it is crucial that the products of democratic transition, such as freedom of information legislation, must be used to address these imbalances. In the field of socio-economic rights, as the cases above show, FOI creates a basis for contestation and justification of government decisions on resource allocation. It creates a basis for a fair and reasonable manner of decision-making.

I wish to conclude this article by quoting South Africa’s leading legal academic on administrative law, the late Professor Etienne Mureinik, who once wrote:

‘If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification – a culture in which every exercise of power is expected and justified, in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.’

*Mr Dimba is the Deputy Chief Executive Officer of the Open Democracy Advice Center (ODAC), Cape Town. This essay was presented on behalf of the Open Democracy Advice Centre (ODAC) on the occasion of the international conference on Right to Public Information, organized by the Carter Centre, 26–29 February 2008, Atlanta, Georgia.

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