By
In the decade
since 2004, the number of countries with freedom of information (FOI)
laws in Africa has grown from four to thirteen. Countries that have adopted
these laws include Sierra Leone, Niger, Tunisia, Angola, Côte d’Ivoire,
Ethiopia, Guinea, Liberia, Nigeria, Rwanda, South Africa, Uganda, Zimbabwe.
But passing a law
is one thing; turning it into a tool that gives citizens genuine access to
information about the workings of their governments is another. For those
countries which have FOI laws in place, the focus is now on implementation,
even as more countries work towards joining their ranks.
Among those who do
have FOI laws on the books, an incipient body of practice and court decisions
is being established by civic groups and members of the public, seeking to use
these new laws to enhance local accountability, promote transparency in public
procurement and governance generally; and uphold economic, social welfare and
cultural rights.
Some other areas in which advocates are using these new laws
to good effect include access to public and reproductive health information,
and access to basic needs such as power, sanitation and water.
Although the legal
texts vary from country to country, the problems confronting the implementation
of FOI laws in various African countries are similar in many ways.
Technical capacity has been a major constraint. In some countries, such as
Uganda, delays in the preparation of implementation regulations required by
their respective access to information laws stalled the effective
implementation of the law for nearly five years, until the regulations were
eventually established by the government with the support of civil society
actors in the country and beyond.
There have also
been challenged with ensuring that the courts have sufficient expertise
in both applying FOI laws, and resolving disputes on disclosure and
exemptions. Nigeria has undertaken steps to upgrade judicial capacity in
this respect.
With the assistance of the Open Society Foundations and the UK’s
Department for International Development, Nigeria’s National Judicial Institute
(NJI) organized a path-breaking judicial studies programme in May 2014 on FOI
adjudication for over 350 senior judges drawn from the 77 Superior Courts of
Record across the country.
The faculty for
the course included experts in access to information law and practice as well
as senior judges from other common law countries, including Sandile Ngcobo,
South Africa’s immediate past Chief Justice, and Kenneth Kakuru of the Ugandan
Court of Appeal. Following the success of this course, initiatives are now
underway to organize a similar programme for judges in Sierra Leone and Uganda.
Another area in
which innovation and adaptation has been required is in monitoring and
overseeing innovation and compliance. In Nigeria, the Justice Minister who has
statutory responsibility for overseeing compliance with the FOI Act, has
established a website—www.foia.justice.gov.ng—through which he provides regular
reporting on compliance with disclosure requests.
To also facilitate oversight
of compliance, Nigeria’s House of Representatives created a new Committee on
Reform of Government Institutions responsible for overseeing compliance with
the law. This committee holds regular hearings and undertakes regular visits to
government departments to encourage establishment of systems for implementing
the law effectively.
Perhaps not
surprisingly, although regrettably, public officers, departments and agencies
in most countries often appear unhappy with the requirements of proactive
disclosure.
The African Commission’s Special Rapporteur, Faith Pansy Tlakula, has identified this as an
area for intervention by her mechanism. In July 2014, she secured the
commitment and support of the Executive Secretary of the Southern African
Development Community (SADC) to establish and implement clear protocols on
proactive disclosure within the SADC.
A joint technical team constituted by the
SADC Secretariat and the Special Rapporteur will oversee this process. On its
part the AUC’s Department of Political of Affairs is also working with the
African Commission’s Special Rapporteur to develop a joint work-plan for
advancing the cause of access to information in Africa, which would hopefully
kick-in in 2015.
Perhaps the
biggest single constraint to the effective implementation of access to
information in Africa is the regional challenge of insecurity and mass-casualty
terrorism. Negotiating the balance between guaranteeing public safety and
security on the one hand and open and transparent government on the other has
not been easy.
On this, the new global Principles on National Security and
Freedom of Information, adopted in Tshwane, South Africa in 2013 provide some
guidance. Adopted with the support and participation of the African Commission
on Human and Peoples’ Rights, the Tshwane Principles are now under
consideration by various governments in Africa, including Nigeria, Rwanda, and
Uganda, for ideas that can assist their elected governments in managing
counter-terrorism under an elected government.
Meanwhile, more
countries are continuing work towards passing FOI laws of their own, a task now
made easier by the passing by the African Commission on Human and Peoples’
Rights in April 2013 of a new “model law” on access to information in
Africa—essentially a template that any country can adapt to create a law,
rather than having to start from scratch each time.
The model law,
which has also been endorsed by the African Union, appears to have accelerated
efforts to adopt access to information laws in some countries such as Malawi,
Mozambique, Ghana, Kenya, Sierra Leone, Cote D’Ivoire, Rwanda, Tanzania, and
Namibia. The model law has also contributed to the standards for the SADC
disclosure protocols discussed above, which may in turn lead to it becoming a
model for SADC countries generally.
Africa has made
and continues to make significant progress on adoption of access to information
law. Advocates in various countries are also slowly addressing obstacles in the
implementation of these laws. The experience has been mixed; progress has been
uneven but the experiments being modeled in different countries show promising
examples of how advocates are working to confront and overcome the obstacles to
the realization of open government in Africa.
Chidi Odinkalu is senior legal officer
for the Africa regional work of the Open Society Justice Initiative.
Maxwell Kadiri is associate legal
officer on the Africa regional work of the Open Society Justice Initiative.
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