Ghana needs to enact Freedom of Information Law

By Lawrence Carter, Commonwealth Human Rights Initiative

In his recent visit to Africa President Barack Obama praised the strength of Ghana’s democratic institutions and emphasised the vital importance of good governance to sustainable development and the protection of human rights. Obama’s message was clear, America will provide aid and support only to those nations, like Ghana, that exhibit strong democratic institutions and a record of transparency and accountability: ‘governments that respect the will of their own people, that govern by consent and not coercion.’

Fundamental to realising this culture of transparency and participation is the legal right of the public to access information produced by the government and relevant private bodies. While Ghana has unquestionably made great strides towards establishing itself as a vibrant and robust democracy, it currently lacks this vital access to information regime. The visit of President Obama, while certainly designed to honour the democratic achievements of Ghana to date, also highlighted how the struggle for democracy is an ongoing process. Even citizens of the most established democracies must be unceasing in their supervision of those in positions of authority.

The importance of the Right to Information (RTI) to the realisation of people’s democratic rights cannot be understated. Indeed, in 1946 the United Nations General Assembly went so far as to recognise that ‘Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated.’ This is because, without information, people do not have full control over their own lives. A gulf is established between ruler and ruled and the principles of dignity and equality that form the basis of international human rights law are undermined.

Without information, for example, citizens cannot know whether politicians are truly acting in the interests of the public and are therefore unable to make reasoned decisions when it comes to casting their vote in an election. This in turn can foster conditions in which corrupt and self-serving political elite are able to flourish. The right to information can also help citizens and civil society organisations to monitor how taxpayer’s money is spent and to expose corruption. The benefits of this to people centred social and economic development are clear. Informed communities are infinitely better equipped to take on the authorities over the provision of essential public services and infrastructure projects. Through the right to information people are able to make the government work for them.

This fact has been recognised by both the African Union in the African Charter on Human and People’s Rights and The Economic Community of West African States (ECOWAS) in its Protocol on Democracy and Good Governance. Ghana was the first nation to ratify the latter document, which recognises that freedom of information is fundamental to the realisation of ‘democracy, peace, political stability and social justice’ in West Africa. Unfortunately, of the eighty three countries in the world with RTI laws, only Uganda, South Africa, Angola and Zimbabwe are in Africa. Moreover, South Africa is the only African country implementing its RTI law, while Zimbabwe’s legislation actually functions to curtail freedom of information. This state of affairs is clearly lamentable but also presents Ghana with an opportunity to lead the way, particularly amongst ECOWAS nations, as an exponent of transparent and accountable governance. While Article 21(1)(f) of Ghana’s constitution does indeed protect ‘the right to information subject to qualifications and such laws as are necessary in a democratic society,’ there are currently no legislated rules or procedures in place to operationalise this guarantee. Despite the fact that a Right to Information Bill was first drafted by government in 2002, seven years later the people of Ghana are still waiting for the government to recognise this fundamental human right. This delay can in part be attributed to problems with infrastructure, such as poor record keeping practices, and funding. Yet it is a perceived lack of political will that civil society groups such as the Coalition on the Right to Information have highlighted as being the principle impediment to the Bill’s enactment. In the 2008 general elections however, all four major parties made promises relating to RTI legislation, including the ruling National Democratic Party. In his maiden State of the Nation address before Parliament, President Mills reiterated his manifesto pledge to pass the RTI Act. This apparent strengthening of political will to see the people’s right to information recognised in law is certainly a step in the right direction. However, while it is imperative that the Bill is enacted as soon as possible, of even greater importance is that the legislation conforms to international standards of best practice, such as the African Union’s Declaration of Principles on Freedom of Expression in Africa 2002.

In order to ensure that RTI legislation succeeds in supporting the people’s ability to access information it must take into account several crucial standards. For instance, the law should apply not only to government agencies but also to other State agencies. Private institutions that carry out public functions or impact on citizen’s rights must also have the obligation to disclose relevant information. Moreover, in addition to permitting the public to submit requests, institutions must be mandated to proactively disseminate information related to their functioning. This is particularly important, since it places information that citizens may not have known existed into the public domain, while also reducing the number of requests submitted to authorities. Perhaps most importantly, limits on disclosure must be minimal and extremely specific. The general standard must be one of maximum disclosure, with the burden of proving that restricting access is in the public interest resting with the authorities. The process of requesting information should also be as simple, inexpensive and swift as is feasibly possible. Finally, for the system to function effectively it is imperative to establish strong independent bodies to oversee appeals and impose penalties upon those who deliberately obstruct access to information.

In a report compiled by the Commonwealth Human Rights Initiative for the Freedom of Information Bill Coalition, a significant number of shortcomings were identified in Ghana’s proposed Right to Information Act 2007 that required amendment. Unfortunately these recommendations have not been taken into account in the redrafting of the Bill and problems persist with regards to overly broad exemption clauses, the lack of an independent enforcement mechanism, excessively long timelines for access, an arbitrary fee system, weak public interest override provisions and, significantly, the fact that the Bill does not supersede previous non-disclosure laws, such as the State Secrets Act. These issues could severely compromise the efficacy of the Bill in establishing an environment of free and easy public access to information held by government institutions. Nevertheless, if the government continues to consult civil society, as it has commendably done to date, such problems can be addressed. Of the utmost importance is that the law is formulated in the spirit of mutual respect and dialogue that it is intended to promote.

President Obama’s visit to Ghana was a powerful endorsement of everything the country has achieved to date. While the audience of parliamentarians were quick to applaud his call for citizens to hold their leaders accountable, and ‘to build institutions that serve the people’, the true measure of their commitment to participatory democracy will be seen in the ultimate fate of the long overdue Right to Information Act.