The Right to Access Information Act, 2013 (RAI), commonly known as the Freedom of Information Law (FOI), is the legislation which allows access by the general public to data held by public officials, agents and institutions of the national government. The law allows citizens to make requests for information held by government or its agents, to be received freely or at minimal cost, subject to statutory exceptions. The law also imposes a duty on government to provide mechanisms for the public to request and obtain information from government and its agents, and to publish information and promote opennessas a fundamental value of public service.
The General Assembly of the United Nations Organization, in 1946, recognized Freedom of Information as a fundamental human right. Subsequently, the International Covenant on Civil and Political Rights gave international legal status to the right to access information, as enshrined in Article 19 (2) of the said document thus: “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”.
Sierra Leone is perhaps the latest country,out of over 90 in the world, to have enacted the Right to Access Information Bill. The Bill was passed into law in the Parliament of Sierra Leone on Tuesday October 29th 2013, and received the President’s Royal Assent on 30th October 2013.The enactment of the Bill however comes with mixed fillings among citizens. It is believed that no sooner President Koroma affixed his signature to the Act, than Sierra Leone automatically became a member of the US Open Governance Partnership. Critics accordingly believe that the RAI Bill was enacted in a disguised bid for the Sierra Leone government to qualify for the Millennium Challenge Corporation (MCC) grant, which could bring hundreds of millions of dollars in aid. Such criticism is probably prompted by the fact that the campaign for governments of Sierra Leone to enact a Freedom of Information law went on in vain for over a decade, and that the unanticipated decision of Parliament this time to finally pass it into law beautifully coincides with our government’s quest to qualify for the MCC grant. It holds true, I believe, that “it doesn’t matter whether a cat is white or black; as long as it can catch mice, it is a good cat”. The law has been passed anyway, and it is generally a good law.
The question that has been hastily asked by many Sierra Leoneans though is whether this can actually be reckoned as a plus to our democratic credentials; or is it just a political ruse? Being law, the Act is of course a lasting document and its practice is supposed to be permanent. However, many describe the buoyant expectations and the excitement that followed the enactment of the law as a bubble that is going to burst. This is partly because many of the country’s laws are either weakly implemented or wholly abandoned. Additionally, we have yet to see government’s seriousness about and commitment to fully implementing the law, especially with regard to sections of the Act that need to be implemented with proactive action. Early days yet, but the Government needs to appoint and train public information officers, and to develop information communication facilities and adequate technology to digitalize and systematize information for easy access.
Also, there are definitely some loopholes in the law, and as such there are manifold problems that the government has to grapple with and which will need to be overcome to enhance openness in the conduct of state affairs, or these would pose a monster-big threat to implementation in particular and in general, the success of our emerging democracy. First, most public authorities indulge in ingrained bureaucratic cultures of confidentiality and red tape, in addition to the sad fact that an awful lot of these authorities do not understand the law. In order to combat this challenge, public servants in all government institutions and at all levels of governance need to be adequately au fait with the detail of the Act, especially with regard to the exemption clauses, to avoid misuse of the said clauses and to prevent any tendency of Information Officers to reject applications on improper grounds. Information Officers in particular should be trained on the interpretation and application of the law.
Another legitimate concern is that the Act excludes or does not have legal dominion over the private sector, given that it is “…an Act to provide for the disclosure of information held by public authorities or by persons providing services for them….” In other words, rights under the Act do not guarantee access to information held by the private sector, unless it is voluntarily offered. This limitation has far-reaching ramifications. A considerable amount of government business is transacted between the public sector and private sector. Some public authorities, knowing this loophole in the law, could destroy information that has the potential to incriminate them. Although this would constitute an offence, the punitive measure stipulated in the Public Archives Act 1965 is simply a slap on the wrist. There would definitely be duplicates of information relating to such transactions in the possession of private bodies, which definitely would evade public scrutiny, even where there is imperative need for that, since private individuals or institutions cannot be forced to comply. Thus, loads of information and astronomical evidence vital for unearthing corrupt deals and transactions between the public sector and private entities would be left in the hollow of the private sector’s hands, while the originals of these records in public offices could have beenforged, destroyed, misrepresented or altered. My fears are legitimate, for the situation can get as bad as that, considering the unenviable attitude of the majority of our public servants. Also, this could just be the perfect margin of safety for graft, for this gap provides a leeway for those public officials with the tendency to defraud the state and line their personal pockets with ill-gotten wealth.
The apparent intention of Parliament in passing the RAI law, and that of H.E the President in giving it his assent, probably includes buoying up the fight against the seemingly unassailable pillage in this country. But these apertures in the law, if not tapered, have the potential to turn this intention of Parliament on its head. In this regard, government should take steps to reduce the loopholes in the law and to enhance proactive and expeditious implementation of the law in the face of the numerous challenges. Government needs to build the capacity of Information Officers, through training programmes, in handling, preserving and digitalizing information, as well as separating confidential material from information permissible for public consumption. There is need for an awareness-raising drive, as people need to be educated on their rights under the RAI law and the extent to which they can push for these rights, and this should be not only the business of government but of civil society, political parties, media organizations and all government ministries. For instance, both print and electronic media institutions need to give a supporting hand by ensuring that their members are adequately educated on their rights and limitations under the law and how these relate to the Independent Media Commission (IMC) Code of Practice, and the law on defamatory andseditious libel as stipulated in the 1965 Public Order Act, which are still operational. There is also need to review the 1965 Act to expunge or amend such anachronistic and ineffectual clauses as the provisions for the seven hundred Leones and one thousand Leones fines for ‘defamatory libel’ and ‘knowingly publishing a false defamatory libel’, respectively. This way, the 1965 Act could serve as a serious check on the tendency of some over-adventurous media practitioners, relying on the FOI Act, to wantonly publish defamatory material and to infringe on individuals’ privacy, a case that has yet to be seriously addressed by any government of this country without prejudice.
Further, there are too many categories of information that have been exempted by the Act from disclosure to the public. It is of course reasonable enough to have the Act prohibit disclosure that has the potential to compromise national security. Yet these exemptions must be further clarified and specified to prevent unscrupulous public authorities from using the exemption clauses as a cloak for fraud. Worse still, some officials can be hostile or simply dismissive, or may give lame excuses in a bid to evade compliance. Moreover, the fear of persecution has made nobody’s business what is supposed to be everybody’s business. Many believe that it would be foolhardy to report bureaucratic impropriety without any legal support or protection. Such tendencies couldbe forestalled by complementary legislation or a speedy amendment of the Act, to include laws which impose rigid penalties for officers who may be found wanting for destroying or altering records, and also to protect whistleblowers and preserve their anonymity where necessary.
To sum up, it is popular opinion in this country that Sierra Leoneans have wizardry indrafting brilliant policies and laws, but that the bottom always falls out when it comes to implementation.If the citizens of this country should gain any benefit from the law on access to information, then efforts in that direction must be taken beyond mere legislation. In other words, it is not enough to merely enact the Bill and then leave it to gather moss on the shelves. It would be in the best interest of the citizens of this country and of democracy and accountability if the government should take proactive action to fully implement the law and to establish, support and maintain all structures and mechanisms necessary for the proper implementation of the law.
The free flow of information and citizens’ unimpeded access to it serve as a massive boost to the security of human rights and the drive to foster accountability, engender trust between government and citizens, promote press freedom, increase transparency, and narrow the gap between government and the people.Thus, the Right to Access Information Act 2013 may be fraught with shortcomings, yet its significance as a gloss on our democratic culture, as a ray of sunshine to efforts towards fostering accountability in governance, and as victory for participatory democracy, cannot be overstated.