Information Act; a ship without a radar
August 28, 2007
Last week the Kenyan media won a major battle, when President Kibaki rejected a clause in the Media Bill that would have forced editors to reveal their confidential sources.
In a surprising move ,uncharacteristic of your typical African leader, Kibaki (maybe under intense pressure months a way from the presidential elections) described the clause as “offensive and a threat to democracy” and effectively threw the Bill back to parliament to delete the repressive clause.
That was Kenya. Back home, the government is in the process of drafting regulations to provide the platform for accessing records/information from public institutions under the disputed Access to Information Act.
The Act which came into force early last year was intended to operationalise Article 41 of the Constitution which guarantees the right of access to information in possession of the State.
This means that all information and records on government operations- in ministries , departments, local governments, statutory corporations and bodies, commissions and other organs and agencies of the State unless exempted by the Act should ideally be released for public scrutiny.
And this is for obvious reasons; the right to information has been proven to be an effective tool in supporting participatory democracy, development, the fight against corruption and holding public servants accountable.
Unfortunately, the Access to Information Act and its attendant regulations, is a law that’s far from realising these values. Although the law was aimed at promoting an efficient and accountable government, it’s in practical terms more restrictive.
It’s shocking to note that there are more sections in the Act which limit access to information than empowering people to know how their government is managing State affairs.
Attempts have been made to test the application of the Act. Advocates have applied to access the agreements entered into between government and companies which are exploiting the country’s oil resources in the Albertine Graben. But the Attorney General has flatly denied access to these agreement citing the numerous provisions of the Act which empower him not to disclose such information because it's confidential. The matter is now before court.
For instance the Act prohibits disclosure of information about a person’s private life, commercial information of the third party, what government considers confidential information, protection of law enforcement and proceedings, defence, security and international relations.
The process of accessing information is equally regressive since one has to wait for a record 21 days for the decision of the information officer to release such data. The Act also mandates only one person, the chief executive officer (read information officer), in the public institution to release the information. So generally, the Act is well outside the internationally accepted standards for information access. The right to information encompasses all other human rights.
The legal principles about Access to Information which represent the collective thinking of African governments Uganda inclusive, under the African Union, provide clear grounds upon which governments can limit access to information. But the grounds must be reasonable and justifiable in an open and democratic society.
The limitations on access to information as outlined in our law are too abstract too meet these standards. The scope of exceptions should be as close to specificity as possible and subject to the strict tests of ‘harm’ and ‘public interest.’ Blanket exemptions are liable to manipulation by the State to deny its citizens information.
A refusal to disclose information is not justified unless the public authority can show that the information meets a strict test; that such disclosure threatens to cause gross harm to the country and that the harm supercedes the public interest in having the information.
A good access to information law should conform to the universal principles which call for maximum disclosure. The framers of the Access to Information Act, either panicked, or were intimidated or simply did a sloppy job. They need to go back to the drawing board.
The writer is a journalist