Pambazuka News 397: Freedom of information and the right to know
The authoritative electronic weekly newsletter and platform for social justice in Africa
Pambazuka News (English edition): ISSN 1753-6839
With over 1000 contributors and an estimated 500,000 readers Pambazuka News is the authoritative pan African electronic weekly newsletter and platform for social justice in Africa providing cutting edge commentary and in-depth analysis on politics and current affairs, development, human rights, refugees, gender issues and culture in Africa.
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CONTENTS: 1. Features, 2. Comment & analysis, 3. Pan-African Postcard
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Highlights from this issue
- Stella Chege on the right to know
- Mukelani Dimba gives us an overview of the right to know in Africa
COMMENTS & ANALYSIS:
- Mukelani Dimba and Juliette Fugier on how anti-terror laws are undermining freedom of information
- Anne Nderi on how African governments are limiting our right to know
- Mwangi Kibathi looks at the importance of political will in freedom of information legislation
PAN-AFRICAN POSTCARD: Bill Quigley on twenty things we should know about the US and the world
Freedom of information and the right to know
This year as we celebrate the “Right to know” week from 22nd to 28th September, and the “International Right to Know” day on Sunday September 28th, this special edition of Pambazuka News seeks to examine how the right to enhances democracy and how African countries are faring in the pursuit of the “right to know”.
One often finds that while the advocates of freedom of information under article 19 of the universal declaration of human rights, have a clear understanding of what the principle of the “right to know” entails, most ordinary people, have a harder time pinpointing exactly how the right to know affects their daily lives. More if they are from countries which are still under or have recently emerged from totalitarian rule- where freedom of speech and other rights are almost unheard of.
The idea or the right to know is much more abstract and difficult to conceptualise on a day-to day basis. Yet freedom of information is a cornerstone of democracy. Malcolm Fraser, a former Australian Prime Minister once said, “How can any community progress without continuing and informed and intelligent debate? ... How can there be debate without information?''
The principles underpinning democracy include people’s participation in all levels of decision making from an informed perspective yet many African Countries operate within a culture of official secrecy, suppression of media freedoms, freedom of expression and of information. A glimpse at any anti-corruption index shows that countries with freedom of information feature high on the list while countries those that curtail the right to information feature highly among the most corrupt. That there is a link between corruption and the lack of freedom of information there is no doubt.
This is a significant year for democracy in Africa. 2008 began with the crisis in Kenya, following the disputed December 2007 election, following which the country descended into chaos in the violence that followed the elections. The elections in Zimbabwe were also disputed and ended in a stalemate after a failed run-off election. In both of these cases, the solution was the formation of a coalition government, a dangerous precedent for democracy in Africa. In the middle of all this, there has been a severe crackdown on freedom of expression, freedom of information, gagging of journalists and in the case of Kenya, there was a suspension of live media broadcasts in the name of national security.
The right to know has for a long time been equated to the media’s right to access government information, to access information pertaining to a public personality, publish a “scoop”. The right to know goes beyond just press freedom, yet any government seeking to limit press freedom attacks all aspects of freedom of expression. A part of this is in lack of awareness of the different aspects of freedom of expression.
There is no doubt that for a democracy to thrive, there has to be open and free participation of people. Governments are simply custodians of our resources, but how can they hold them accountable if we do not know what they are and should be doing.
Mukelani Dimba gives a brief overview on the International instruments that deal with Freedom of information and attempts to give their effect to the right to information in selected African countries. He reviews the laws in each of the regional blocs in Africa and it is clear that the existence of the law doesn’t always guarantee the rights of individuals.
Juliette Fugier and Mukelani Dimba examine the impact of the American war on terrorism on freedoms in Africa and conclude that it has dealt a severe blow to freedom of information on the African continent. Even Countries like South Africa which 10 years ago passed some very progressive laws are reintroducing official secrecy acts or clauses in their laws “in the name of national security.”
ICJ Kenya’s article on FOI in democracy and Economic development argues that for citizens to make informed choices, they require information and often their access to information is hampered by state officials. Freedom of information is an important tool in fighting the corruption that is endemic in many African countries.
Mwangi Kibathi’s article draws examples from ancient Spartan democratic systems where population growth and increasing complexities of decision making led to the development of representative government. Since then, access to information has become a struggle between the rulers and the ruled. In Africa, the first few decades following independence, most countries were ruled under strict authoritarian systems and although there have been positive strides towards more open governance, we are still a long way away from the perfect open democracy. Freedom of information is vital to improve the quality of governance and should be upheld and protected.
* Stella Chege is Fahamu's (www.fahamu.org) Kenya programme manager.
* Please send comments to firstname.lastname@example.org or comment online at http://www.pambazuka.org/
The right to information in Africa
A brief overview
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 www.opendemocracy.org.za . 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@example.com 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.
Anti-terror laws or freedom of information?
Mukelani Dimba and Juliette Fugier
“Yes We Can!” What a brilliant slogan this is. The US presidential hopeful, Senator Barack Obama, certainly has a winner on this one. It denotes so many possibilities. It says we can change the world, we can change our way of life, we can strive towards a better tomorrow for all, and dare I say, we can consolidate democracy in Africa. Yes we can!
It is an irony that these inspirational words come from the United States, a country that for the last eight years of the Bush-Cheney administration has made it possible for African leaders to boldly say “No We Won’t!” or “No We Don’t Give A Damn!” when it comes to doing all they can to promote the culture of openness and transparency in structures of governance and public administration. It was the Bush-Cheney administration that first argued for, and entrenched, the notion that openness and transparency were the enemies of national security.
When the Bush-Cheney administration waged war on terror its enemies were not just Osama Bin Laden, the Taliban and Saddam Hussein; this list also included the civil liberties of American citizens, most especially Freedom of Information rights. The Bush-Cheney administration’s religious zeal in passing draconian anti-terrorism laws was only equaled by the administration’s resolve to weaken the Freedom of Information Act and other government-in-the-sunshine laws. African leaders took note.
Small wonder therefore that the government of Mr. Festus Mogae, the former President of Botswana, caused controversy in 2003 when it publicly stated that FOI was not a priority for Botswana. Two years later Mr. Benjamin Mkapa, the former president of Tanzania, is reported to have told a press conference that Tanzania would never have an FOI law as long as he ran the show. Mkapa’s Namibian counterpart took the cue and expressed the same sentiment. Further north in 2007 the former military ruler of Nigeria and born-again democrat, Mr. Olusegun Obasanjo, scuppered the impressive efforts by Nigerian civil society to have an FOI law passed when, for the most inane of reasons, he refused to sign in to law the FOI bill that had been approved and adopted by both houses of parliament. The least said about Robert Mugabe’s Access to Information And Protection of Privacy Act the better. “No We Won’t”, the African leaders have declared.
However when it comes to adopting anti-terror laws and sprucing up old public order and secrecy laws, leaders from Tanzania, Nigeria, Namibia and Zimbabwe have sang an impressive “Yes We Can”, in fortissimo. The tune has reached crescendo with numerous African leaders citing as their argument the old red-herring that access to information endangers national security. This silly argument has even been made by a group of people who should really know better; the South African parliament; The same parliament that passed the highly regarded Promotion of Access to Information in 2000. However the members of parliament here seem to be uncertain of the bold, courageous and progressive steps that they took in 2000 and the fear of terrorist ghosts under the bed has seen them pass an anti-terrorism law - granted, it is much more liberal than its kin on the continent, Europe and certainly the US. The South African parliament is now touting a protection of information law which is in effect an official secrets act purportedly because “we are sustaining heavy and concerted espionage even from countries we regard as our friends”, as one senior spymaster told members of the intelligence legislation committee during public hearings on South Africa’s Protection of Information Bill.
Sadly this sentiment even permeates the public service as recently evidenced, again in South Africa, by the statement of the municipal manager of the coastal city of Durban, a city that that lies on the shores of the Indian Ocean, who recently declared, in a style reminiscent of a low-budget version of Sir Humphrey, that “Information is dangerous”. Poppycock!
Fact of the matter is that, people that are starved of information will be dangerous to any state. No, we are not safer in the dark, it is in the dark that we are mostly likely to harm each other. This was clear for all to see in South Africa when two years ago the townships went up in flames again, like they did during the anti-apartheid struggle era, because people felt that the democratically elected government was not taking their socio-economic needs and service delivery concerns seriously. Research conducted by the University of the Free State in the wake of these service delivery protests showed that one of the major causes of these riots was the lack of information on service delivery.
A lot of harm has been done to Africa and her people in the name of national security. It is important therefore that, as the process of building and developing constitutionalism unfolds, Africans must have a dialogue amongst themselves on what constitutes “national security” in the African context and not derive the concept from a post-9/11 American framework.
Our leaders must be called on to accept that national security and public interest are not served by denying their citizens access to information and by violating their right to information. Properly crafted access to information laws and competent regulation of the access to information regimes do not endanger national security, in fact they promote national security. A properly crafted access to information will provide for justifiable protection of information whose disclosure is likely to cause harm to national security. There is no need for an extra piece of legislation such as an anti-terror law, a public order law or security law or indeed an official secrets law in order to provide legal protection of sensitive information. All that a drafter needs to do is establish a set of exceptions to the right of access to information and ensure that these exceptions would be regarded as justifiable limitations of the right in any free and democratic society. Next the drafter would have to clearly define what constitutes national interest or national security and then build into the law a general public interest override or defense.
In the dissenting minority judgment on the recent South African Constitutional Court case - the Independent Newspapers (Pty) Ltd versus Minister for Intelligence Services (CCT38/07)  ZACC 6 (22 May 2008) – Justice Sacks noted that:
“…the point of departure for the statute is that people have a general right of access to information possessed by the state, coupled with a more limited right of access to information in private hands. Exemptions, including those set out in favour of national security, are presented as exceptions, and not as the norm. Thus the relevant provision dealing with national security does not provide a blanket ban on disclosure of such information, but rather furnishes carefully delineated and objectively reviewable grounds for nondisclosure.”
Some countries have taken great care in attempting to balance national security concerns with the public’s right to know, others have not fared so well. Nevertheless, the result is that in law, the concept of national security or national interest is generally conceptualized in very broad, and subsequently, very confusing terms which gives leeway to arbitrary decision-making which more often than not violates fundamental rights such as the freedom of information. Long before the assault on civil liberties in the name of national security by the Bush-Cheney administration, the US Supreme court had proclaimed in New York Times Co v United States 403 US 713 (1971) that:
“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
In the Ugandan and the South African access to information laws, the drafters envisaged information that would have to be protected in the interest of national security would include information pertaining to law enforcement, defense, security, safety of persons, international relations of the country, and economic and financial interests of state. In terms of the defense, security and international relations exceptions, these laws go on to describe the types of information that would be protected which includes, among others, military tactics or strategy, military exercises, operations undertaken in preparation of hostilities, quality and quantity of weapons, capabilities and deployment of the armed forces, intelligence information, methods and equipment for collecting and handling intelligence information, diplomatic correspondence, etc.
The draft laws in Tanzania and Zambia follow a similar, but less comprehensive, treatment in defining national security considerations that may limit access to information. At the extreme end of the scale is South Africa’s new Protection of Information Bill which provides for the protection of information in order to prevent the “national interest” from being harmed. The term “national interest” is then defined in a very broad manner that includes “matters relating to the advancement of the public good”, or “matters relating to the protection or preservation of things owned or maintained for the public by the State”. The logical interpretation of this provision effectively means you can be denied information about the opening hours of your local public park or botanical gardens! The Kenyan draft Freedom of Information bill, is a bit more nuanced than the South African draft secrecy law in formulation of the national security exception to access to information. The Kenyan draft law states that “national security shall be reckoned in accordance with applicable international standards”. It is a bit vague and it may have the same effect as the South African draft law, granted without the venom.
It’s quite needless to say that such broad formulation of what constitutes “national interest” or “national security” can easily lead to unrestrained classification of information due to unconstrained interpretation of the provisions. Such interpretation is also easily in conflict with constitutional provisions for transparency and access to information and the right to seek, receive and impart information.
The Independent Newspapers (Pty) Ltd versus Minister for Intelligence Services case is quite instructive on the mater of national security versus access to information and open justice. In the case, the applicant, the Independent Newspapers, had sought to join in the matter between Mr. Billy Masetlha, the former head of the South Africa’s National Intelligence agency, and President Thabo Mbeki who had dismissed Masetlha from his job. The Independent Newspapers had sought to join the proceedings in order to obtain written arguments by both parties and other records related to the court proceedings including an affidavit that had been given in camera by Mr. Masetlha. The Minister of Intelligence Services opposed the release of the documents invoking the national security interests. There judges of the Constitutional Court had to establish the right balance between the security of the State and protection of open justice and access to information. Eventually the judges decided to release major parts of the documents withholding only a few paragraphs.
When delivering the majority judgment on behalf of the Constitutional Court Deputy Chief Justice Dikgang Moseneke noted that the pursuit to national security should always be tempered by other considerations such as the protection of open justice. The Deputy Chief Justice stated that:
“It follows that where a government official objects to disclosure of a part of the record before a court on grounds of national security, the court is properly seized with the matter and is obliged to consider all relevant circumstances and to decide whether it is in the interests of justice for the documents to be kept secret and away from any other parties, the media or the public…In my view, a court in that position should give due weight both to the right to open justice and to the obligation of the state to pursue national security within the context of all relevant factors…In deciding whether documents ought to be disclosed or not, a court will have regard to all germane factors which include the nature of the proceedings; the extent and character of the materials sought to be kept confidential; the connection of the information to national security; the grounds advanced for claiming disclosure or for refusing it; whether the information is already in the public domain and if so, in what circumstances it reached the public domain; for how long and to what extent it has been in the public domain; and, finally, the impact of the disclosure or non-disclosure on the ultimate fairness of the proceedings before a court.”
In concluding this article it is better to retrace our steps back to the situation in the United States. The Bush-Cheney administration marked the advent of the cutting of the United States from is moorings of supremacy of justice and liberty. Ronald Rumsfeld, John Ashcroft, Alberto Gonzales and Condoleeza Rice were all the all-too-keen assistants in this operation. Despite the effects of the foreign policy of the Bush-Cheney administration on consolidation of civil liberties in African states, we must all endeavour to proceed from the premise that secrecy does not exist to protect national interest or national security. Indeed national security should be preserved in order to protect the democratic system and other constitutional rights such as security of the person, the right to life, human dignity, political rights, socio-economic rights and, dare I say, the right to freedom of expression and the right of access to information. National security must not be made to hang like an albatross over any of these rights.
* Mukelani Dimba is the Deputy Chief Executive Officer of the Open Democracy Advice Centre (www.opendemocracy.org.za) and Juliette Fugier is a Post-graduate Law Student and a Research Assistant as the Open Democracy Advice Centre.
* Please send comments to firstname.lastname@example.org or comment online at http://www.pambazuka.org/
Freedom of information is democracy's cornerstone
Freedom of information is a fundamental human right and the touchstone of all freedoms to which the United Nations is consecrated . The right falls under freedom of expression (defined as the right to seek, receive and impart information). There can be no enjoyment of the right to freedom of expression if people do not have access to information.
This right imposes a duty on the government to facilitate public access to information. Freedom of information involves access to information held by public officials and by private bodies that carry out activities that affect the public in general.
The right to freedom of information is encapsulated in International Instruments. It is enshrined in Article 19 of the Universal Declaration of Human Rights and protected in international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on Human and Peoples’ Rights.
Article 19 of the ICCPR provides that everyone shall have the right to hold opinions without interference, everyone shall have the right to freedom of expression; this includes 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 choice.
The UN Special Rapporteur on Freedom of Opinion and Expression has also stressed the overriding importance of freedom of information. In his 1995 report to the UN Commission on Human Rights he stated that freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked .
Freedom of information and freedom of expression may however be restricted in limited cases. These are cases where enjoyment of such rights threatens national security or privacy. Article 19(3) of the ICCPR states that the exercise of the rights may be restricted in cases provided for by law and that are necessary. These are: For respect of the rights and reputations of others; and for the protection of national security or of public order (ordre public), or of public health or morals.
In Kenya, Freedom of expression is enshrined in the constitution. Section 79(1) of the constitution provides that, “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference (whether the communication be to the public generally or to any person or class of persons) and freedom from interference with his correspondence .
This section gives a right to freedom of expression but does not include freedom to seek or access information or ideas. There is need for free flow of information if citizens are to freely express their ideas in an informed manner. This can only be achieved where the information is easily accessible. Information should freely flow from the government to its citizens to encourage public participation in government affairs. Section 79 of the constitution further imposes restrictions on public officials especially with regard to how they handle public information. This goes against international law standards providing for disclosure. International standards require that governments disclose information except in cases where withholding of information is necessary and justifiable in a democratic society.
In many African countries, Freedom of information has further been hampered by the official secrets Act, which protects the states interest with regard to information as opposed to public interest. The Kenyan official secrets Act states that official information is secret unless its release has been specifically authorized and provides for severe criminal penalties in case of un authorized disclosure. The case in Kenya as in other countries in Africa, existing laws work to hamper access to information rather than disclosure. It is no wonder that only five countries in Africa have a specific Freedom of Information law. To enhance democracy in a government of any country, the government should not withhold information unless it is justified to do so.
The Official Secrets Act was enacted to provide for the preservation of state secrets and state security. In the absence of any other legislation providing for access to information, the official secrets Act takes precedence. In a democratic state, however, the government should withhold information only in exempt cases where non-disclosure is justifiable and provided for in law. Provisions of the official secrets Act therefore impede democracy.
Freedom of information promotes good governance, democracy, trust and accountability in government. Public Information is collected using tax payers money and should therefore be easily accessible. Governments often hold this information secret and attempts by the public to gain access it are often frustrated by government officials. Records should be made available and provided to members of the public when needed, with the government acting as a custodian of information.
Access to information eases government’s decision-making process as a result of the participation of an already informed citizenry. Citizens can only exercise their rights or influence decision making if they have access to reliable and adequate information. Most African Countries claim to be democratic but true democracy cannot be achieved or be felt if the citizens have no access to information. Democracy is achieved when people engage with their leaders and influence decision making process. Leaders are often elected based on mere political slogans but essentially, the public needs information to properly exercise their democratic rights. They will be better placed to choose their leaders based on information giving their record rather than mere political talk. Citizens can then hold their leaders accountable for policies and decisions made while in government.
With access to information, citizens will then be empowered to demand action against the corrupt and recovery of diverted development expenditure. Lack of free flow of information impairs and slows down economic and social development. For most African countries, economic development is often undertaken in participation with private contractors and /or international donors. It is important that all those involved in such economic deals are held accountable to the public. This can only be realized if information on development deals is shared with the public. Members of the public through access to information will increase their economic opportunities. Members of the public are aware of government funds available and make use of them in improving their lifestyles, business persons can find out about licensing requirements, taxation and trade regulations, workers access information about labour regulations and their entitlements. Provision of such information increases economic opportunities for the less powerful as well as for big players.
Freedom of information is a vital tool to fighting corruption which best thrives in an uninformed society. Citizen’s right to seek information from the state on any issue promotes transparency and accountability in government. Freedom of information also promotes transparency and openness in public and private decision making process. Statistics reveal that in countries where freedom of information has been enforced, positive results have been realized in terms of reduction in corruption, inefficiency and mismanagement .
Statistics show that in 2005, of the ten countries scoring best in transparency International’s annual corruption perceptions index, no fewer than nine had effective legislation enabling the public to peruse government files and of the ten counties that were perceived to be worst in corruption, only two had freedom of information legislation. Freedom of information reduces corruption and promotes transparency in governments, since citizens are empowered through information. Demystification of rules and procedures, proactive dissemination of relevant information touching on matters of public policy and regular consultation with the public is a strong safeguard against corruption.
Freedom of information is important for the achievement of meaningful democracy. With access to information citizens are better placed to choose their representatives on the basis of strength of their record, hence they can hold their governments accountable for the policies and decisions it promulgates. Democracy is further enhanced when people meaningfully engage with their institutions of governance and form their judgments on the basis of facts and evidence, rather than just empty promises and mere political talk.
Freedom of information reduces electoral fraud and promotes proper public participation in elections. Documents such as the voters’ register should be available to the public long before elections to avoid cases of rigging and inconsistency in voter turn out. Democracy is further enhanced when the public engage with public institutions and form their judgment on the basis of facts and evidence rather than just empty promises and meaningless political slogans. With freedom of information, the government is more sensitive, accountable and responsive to the needs of its citizens.
In a democratic state, access to official information is vital to ensure that the people remain in ultimate control over the functions of government. Freedom of information allows citizens to scrutinize their officials, to participate in decision-making and to exercise their rights and responsibilities in an effective and informed manner. Fundamentally, official information belongs to the public. It is a national resource, which should be used solely for public purposes. As the Australian Law Reform Commission pointed out, the information which public officials, both elected and appointed, acquire or generate in office is not acquired or generated for their own benefit, but for purposes related to the legitimate discharge of their duties of office, and ultimately for the service of the public for whose benefit the institutions of government exist and who ultimately fund the institutions of government and the salaries of officials .
*Anne Nderi works in the Policy research and Advocacy Program - Kenyan Chapter of the International Commission of Jurists.
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1. The United Nations General Assembly in 1946 Resolution 59(1)
2. UN Document E/CN.4/1995/32, para, 35. See also Special Rapporteur’s annual reports to the UN Commission on Human Rights each year since 1995.
3. Section 79,The Constitution of Kenya.
5. Re Eccleston and the Department of Family Services and Aboriginal and Islander Affairs, (1993), 1 QAR 60, at 73. Quoted in Australian Law Reform Commission, Report Number 77, 1995, http://www.alrc.gov.au, Chapter 2 paragraph 4.9
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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Twenty things we should know about the US and the world
A social justice quiz
How many of the following 20 social justice questions can you answer...correctly?
Social justice, as defined by John Rawls, respects basic individual liberty and economic improvement. But social justice also insists that liberty, opportunity, income, wealth and the other social bases of self-respect are to be distributed equally unless an unequal distribution is to everyone's advantage and any inequalities are arranged so they are open to all. Therefore, we must educate ourselves and others about how liberty, opportunity, income and wealth are actually distributed in our country and in our world.
1. How many deaths are there world-wide each year due to acts of terrorism?
2. How many deaths are there world-wide each day due to poverty and malnutrition?
3. 1n 1965, CEOs in major companies made 24 times more than the average worker. In 1980, CEOs made 40 times more than the average worker. In 2007, CEOs earned how many times more than the average worker?
4. In how many of the over 3000 cities and counties in the US can a full-time worker who earns minimum wage afford to pay rent and utilities on a one-bedroom apartment?
5. In 1968, the minimum wage was $1.65 per hour. How much would the minimum wage be today if it had kept pace with inflation since 1968?
6. True or false? People in the United States spend nearly twice as much on pet food as the US government spends on aid to help foreign countries.
7. How many people in the world live on $2 a day or less?
8. How many people in the world do not have electricity?
9. People in the US consume 42 kilograms of meat per person per year. How much meat and grain do people in India and China eat?
10. How many cars does China have for every 1000 drivers? India? The U.S.? 11. How much grain is needed to fill a SUV tank with ethanol?
12. According to the Wall Street Journal, the richest 1% of Americans earns what percent of the nation’s adjusted gross income? 5%? 10%? 15%? 20%?
13. How many people does our government say are homeless in the US on any given day?
14. What percentage of people in homeless shelters are children?
15. How many veterans are homeless on any given night?
16. The military budget of the United States in 2008 is the largest in the world at $623 billion per year. How much larger is the US military budget than that of China, the second largest in the world?
17. The US military budget is larger than how many of the countries of the rest of the world combined?
18. Over the 28 year history of the Berlin Wall, 287 people perished trying to cross it. How many people have died in the last 4 years trying to cross the border between Arizona and Mexico?
19. India is ranked second in the world in gun ownership with 4 guns per 100 people. China is third with 3 firearms per 100 people. Which country is first and how many guns do they own?
20. What country leads the world in the incarceration of its citizens?
Answers to Social Justice Quiz 2008
1. 22,000. The U.S. State Department reported there were more than 22,000 deaths from terrorism last year. Over half of those killed or injured were Muslims. Source: Voice of America, May 2, 2008. “Terrorism Deaths Rose in 2007.”
2. About 25,000 people die every day of hunger or hunger-related causes, according to the United Nations. Poverty.com – Hunger and World Poverty. Every day, almost 16,000 children die from hunger-related causes – one child every five seconds. Bread for the World. Hunger Facts: International.
3. Today’s average CEO from a Fortune 500 company makes 364 times an average worker’s pay and over 70 times the pay of a four-star Army general. Executive Excess 2007, page 7, jointly published by Institute for Policy Studies and United for Fair Economy, August 29, 2007. 1965 numbers from State of Working America 2004-2005, Economic Policy Institute.
4. In no city or county in the entire USA can a full-time worker who earns minimum wage afford even a one bedroom rental. The U.S. Department of Housing and Urban Development (HUD) urges renters not to pay more than 30% of their income in rent. HUD also reports the fair market rent for each of the counties and cities in the US. Nationally, in order to rent a 2 bedroom apartment, one full-time worker in 2008 must earn $17.32 per hour. In fact, 81% of renters live in cities where the Fair Market Rent for a two bedroom rental is not even affordable with two minimum wage jobs. Source: Out of Reach 2007-2008, April 7, 2008, National Low-Income Housing Coalition.
5. Calculated in real (inflation adjusted) dollars, the 1968 minimum wage would have been worth $9.83 in 2007 dollars. Andrew Tobias, January 16, 2008. The federal minimum wage is $6.55 per hour effective July 24, 2008 and $7.25 per hour effective July 24, 2009.
6. True. The USA spends $43.4 billion on pet food annually. Source: American Pet Products Manufacturers Association, Inc. The USA spent $23.5 billion in official foreign aid in 2006. The government of the USA gave the most of any country in the world in actual dollars. As a percentage of gross national income, the USA came in second to last among OECD donor countries and ranked number 20 at 0.18 percent behind Sweden at 1.02 percent and other countries such as Norway, Netherlands, Ireland, United Kingdom, Austria, France, Germany, Spain, Canada, New Zealand, Japan and others. This does not count private donations which, if included, may move the USA up as high as 6th. The Index of Global Philanthropy 2008, page 15, 19.
7. The World Bank reported in August 2008 that 2.6 billion people consume less than $2 a day.
8. World-wide, 1.6 billion people do not have electricity. 2.5 billion people use wood, charcoal or animal dung for cooking. United Nations Human Development Report 2007/2008, pages 44-45.
9. People in the US lead the world in meat consumption at 42 kg per person per year compared to 1.6 kg in India and 5.9 kg in China. People in the US consume five times the grain (wheat, rice, rye, barley, etc.) as people in India, three times as much as people in China, and twice as much as people in Europe. “THE BLAME GAME: Who is behind the world food price crisis,” Oakland Institute, July 2008.
10. China has 9 cars for every 1000 drivers. India has 11 cars for every 1000 drivers. The US has 1114 cars for every 1000 drivers. Iain Carson and Vijay V. Vaitheeswaran, Zoom: The Global Race to Fuel the Car of the Future (2007).
11. The grain needed to fill up a SUV tank with ethanol could feed a hungry person for a year. Lester Brown, CNN.Money.com, August 16, 2006
12. “According to the figures, the richest 1% reported 22% of the nation’s total adjusted gross income in 2006. That is up from 21.2% a year earlier, and is the highest in the 19 years that the IRS has kept strictly comparable figures. The 1988 level was 15.2%. Earlier IRS data show the last year the share of income belonging to the top 1% was at such a high level as it was in 2006 was in 1929, but changes in measuring income make a precise comparison difficult.” Jesse Drucker, “Richest Americans See Their Income Share Grow,” Wall Street Journal, July 23, 2008, page A3.
13. 754,000 are homeless. About 338,000 homeless people are not in shelters (live on the streets, in cars, or in abandoned buildings) and 415,000 are in shelters on any given night. 2007 U.S. Department of Housing and Urban Development (HUD) Annual Homeless Report to Congress, page iii and 23. The population of San Francisco is about 739,000.
14. HUD reports nearly 1 in 4 people in homeless shelters are children 17 or younger. Page iv – 2007 HUD Annual Homeless Report to Congress.
15. Over 100,000 veterans are homeless on any given night. About 18 percent of the adult homeless population is veterans. Page 32, 2007 HUD Homeless Report. This is about the same population as Green Bay Wisconsin.
16. Ten times. China’s military budget is $65 billion. The US military budget is nearly 10 times larger than the second leading military spender. GlobalSecurity.org
17. The US military budget of $623 billion is larger than the budgets of all the countries in the rest of the world put together. The total global military budget of the rest of the world is $500 billion. Russia’s military budget is $50 billion, South Korea’s is $21 billion, and Iran’s is $4.3 billion. GlobalSecurity.org
18. 1268. At least 1268 people have died along the border of Arizona and Mexico since 2004. The Arizona Daily Star keeps track of the reported deaths along the state border and reports 214 died in 2004, 241 in 2005, 216 in 2006, 237 in 2007, and 116 as of July 31, 2008. These numbers do not include the deaths along the California or Texas border. The Border Patrol reported that 400 people died in fiscal 2206-2007, 453 died in 2004-2005, and 494 died in 2004-2005. Source Associated Press, November 8, 2007.
19. The US is first in gun ownership world-wide with 90 guns for every 100 citizens. Laura MacInnis, “US most armed country with 90 guns per 100 people.” Reuters, August 28, 2007.
20. The US jails 751 inmates per 100,000 people, the highest rate in the world. Russia is second with 627 per 100,000. England’s rate is 151, Germany is 88, and Japan is 63. The US has 2.3 million people behind bars, more than any country in the world. Adam Liptak, “Inmate Count in US Dwarfs Other Nations,” NYT, April 23, 2008.
* Bill Quigley is a human rights lawyer and law professor at Loyola University New Orleans. This quiz first appeared at www.countercurrents.org
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Fahamu - Networks For Social Justice
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