By Abdul Tejan-Cole
Earlier this year, Rwanda became the 11th country in Africa and the 94th in the world to enact a national legislation on the right to information. The new law gives every person in Rwanda a right to access information held by public institutions or bodies and relevant private institutions. The primary objectives of the said law as enunciated in Article 1, includes amongst others, promoting open government through maximum disclosure of information; facilitating the right of all persons to have access to information held by public authorities; promoting public participation in democratic and development processes; promote greater accountability of public authorities and private bodies and ensuring that public expenditure is subject to effective management and oversight.
Article 5 of the Rwandese legislation contains five exceptions under which confidential information may not be released to the public. These include if the information to be disclosed will cause serious harm to national security of the state; if it impedes due process of the law or ends of justice; involves unwarranted invasion of the privacy of an individual; if it violates the legitimate protection of trade secrets or other intellectual property right protected by law, of a public authority or a private body to which the law applies; if it seriously damages a public authority’s position in any actual or contemplated legal proceedings.
By enacting the right to information law, Rwanda joins Angola, Ethiopia, Guinea, Liberia, Niger, Nigeria, South Africa, Tunisia, Uganda and Zimbabwe as the only African countries that have enacted legislation on access to information in one form or another. It is important to note that the laws in Zimbabwe and Angola have been adjudged as falling short of the minimum globally acceptable standards on access to information.
Interestingly for Sierra Leone, both our Mano River Union neighbours have enacted all-embracing laws as has the regional super power, Nigeria. Many other countries in West Africa are in the process of enacting similar laws. Ghana is at an advanced stage and has already drafted a bill, which is currently making its way back to parliament, since the earlier version of the Bill could not be passed before parliament went on recess. Benin and Cote d’Ivoire both have constitutional provisions guaranteeing the public’s right to information and are also mulling over proposals to enact specific legislation that would give effective meaning to these constitutional provisions by providing detailed processes and mechanisms through which this right could be effectively utilized by members of the public.
The increase in the number of African countries with national legislation that promotes and protects the public’s right to information is a clear indication that the growth of good governance values has ignited this all important idea amongst both African citizens and their governments that the public governance processes must be made more transparent and accountable in order to make democracy more meaningful.
For young and fragile democracies like ours in Sierra Leone, access to information is an absolute necessity. It is the oxygen for a democratic society with constitutional imperatives of openness, transparency and accountability. It is a critical ingredient of democracy. Properly implemented, it will empower citizens and put them in a better position to elect their governments based on their record and accomplishment whilst holding positions of authority in both public and private institutions.
Both the government and citizens have a vested interest in accountability. The current distrust between the government and the governed that we see in many African countries will be a thing of the past if information is properly accessed. Accountability strengthens the confidence of the governed in the governance process and contributes to building trust in the government, raising the quality of democracy and strengthening civic capacity. Informed citizenry is the foundation of democracy and can only exist where the right of access to information is protected and advanced.
In addition, a right to information law is a powerful tool for socio-economic justice and very instrumental for citizens’ empowerment. With the right type of information, citizens can more effectively monitor the management of state resources. Without access to such information, such monitoring will be impossible. Public officials may be deterred from engaging in acts of corruption if they are aware that citizens can access information and monitor the use of public resources. Proactive dissemination of relevant information touching on matters of public policy and regular consultation with the public is a strong safeguard against corruption and will help promote efficiency in government. It also helps in creating the right environment of trust and confidence in the government which in turn helps in facilitating more effective, voluntary compliance by the public, with policies and programmes, including critical fiscal policies and programmes such as paying their taxes regularly, especially when they know what those are being used for.
The right to access information is a fundamental right recognized in many international treaties. Article 9 of the African Charter on Human and Peoples Right, provides that “(E)very individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law.” This article is reaffirmed in the earlier referenced Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples Rights at her 32nd Ordinary Session in Banjul, The Gambia, in October, 2002.
The Declaration seeks to promote the free flow of information and ideas and greater respect for freedom of information and expression. Part 4 of the Declaration provides inter alia 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.”
Other international instruments such as the International Covenant on Civil and Political Rights (ICCPR) provides in Article 19, 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.” A similar provision is contained in Article 19 of the Universal Declaration of Human Rights (UDHR). The enjoyment of the right to freedom of expression will be severely curtailed if individuals cannot access information.
A key reason advanced by a number of countries that have refused to enact a right to information law is national security. Many argue that giving citizens access to information may involve revealing secrets which may harm the security of the state. In most instances, what is national security is never clearly defined and it is used as an excuse not to disclose any information at all. Many public officials in Commonwealth Africa often rely on official secrets Acts, a holdover from the colonial era, which provides that official information is secret unless its release is otherwise authorised by the relevant public authority. Official Secrets Acts were enacted to provide for the preservation of state secrets and state security and not to block all access to information. Whilst state security is crucial and must be protected, it should not be an excuse to refuse public access to all information. Most of the information that the public is interested in is rarely legitimately classified as state security. The right balance can be found to ensure that the right to information and state security interest is both taken into consideration. The recently adopted, globally recognized, Tshwane Principles on the Right to Information and National Security provide ample guidance on the critical steps to be taken to strike the right balance between protecting the public’s right to know and safe-guarding the national security assets of any nation.
Far from being a threat to national security or a tool for media practitioners to expose and embarrass governments, access to information laws help promote the political, social and economic development of a country. Any government working in the best interest of its citizens has nothing to fear from a right to information law. Two years before he resigned as the President of the United States, Richard Nixon aptly stated that "(W)hen information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and – eventually – incapable of determining their own destinies." African governments will do well to heed this call.
