Right to Information Bill & Politics in Ghana

A Rejoinder by Prof Lungu (Part 1)

The last we checked, more than seventy countries (Sweden, Canada, US, UK, Norway, etc.), had implemented a “Freedom of Information” legislation in one form or the other. These laws, better known as “Freedom of Information Act,” “Open Records Laws”, “Sunshine Laws,” etc., establish rules whereby citizens, foreign nationals, corporate bodies, and associations, etc., can request access to, and receive information held by government agencies.” Freedom of Information is not a new “invention” and many people will agree that the US and Canada have some of the best practices in the world. In Zimbabwe where it is known as Access to Information and Privacy Act (AIPPA) of 2002, AIPPA guarantees “right” only by those words, allowing the government to control the press by requiring registration and trivializing this international principle and practice. But there are universal standards nonetheless for Freedom of Information laws, the key word being “Freedom,” as in Freedom to have the government render an account of all expenditures and program details.

BACKGROUND

If there is any one thing people in Ghana, Diasporans outside Ghana, Ghana supporters, and everyone on Ghanaweb agree on, it is that Ghana needs an honest, accountable, and responsive government to steer the “Ship of State.” Many agree that there is too much corruption, bribery and nepotism because of lack of transparency of official actions and records, and lack of freedom (power) by individuals, media and other organizations to request information on government expenditures and to receive that information in a timely, accurate, and complete manner. At bottom of this deficiency is failure of government to empower people to know and understand how sails the ship of State, as is only possible though a strong Freedom of Information Bill (Act) law. Fundamentally, a FOIB contributes to public understanding of the operations and activities of the government. FOIB promotes citizenship; it supports public education, responsible socio-cultural and physical development, and engenders public trust in government agencies and officials.

ROUGH COST OF CORRUPTION IN DARKNESS:

Your pick, but take just any number (5% all the way to 12%) of the 2006 Ghana budget of approx. $3.9 billion (revenues, operating expenditures, and capital expenditures). Now, imagine your favorite number as percent of the $3.9 billion lost though corruption, bribery, nepotism, and sundry official vices currently undetectable because no one can effectively challenge the government on expenditures, programs, and plans. Don’t have a calculator? Don’t worry!! How about a loss from the low $195 million to a high $429 million, annually, lost through lack of accountability. But there are others who will say it is greater, given the 10-percents “expected” on all government contracts. To boot, this “hidden cost” does not even include recurring damages being done to the Ghana economy as in the highly probable case of Ghacem where the current government has done absolutely nothing, even as a foreign government and a private corporation is endeavoring to hold its citizen and former employee accountable.

ARE WE THERE YET?

The current draft of the Ghana Freedom of Information Bill makes interesting reading. A review of the document titled, “Right to Information Bill 2003” tells us
(1) this bill is seriously long overdue, (2) shows that it is not sufficiently informed by experiences of countries with the longest track records, (3) shows that Ghana wants to do it the cheap way even though many people will agree that a significant percentage of Ghana’s income is squandered every year through illegal deals unsupported by records, (4) shows that Ghana is headed towards a ship wreck should the FOIB be passed in that form, and more fundamentally (5) shows that no serious person can predict that anything will change if the current draft is passed in that form, without a needless and immediate turnaround (revision) by a more responsible administration, after such passage. In my opinion, the current draft provides elephant-size loopholes and exclusions so large seven 747 Boeing jets can fly through undetected. This is not appropriate.
In comparing Ghana’s “Right to Information Bill” to the FOIA of the United States federal government, those of several of the 50 states, and to the UK FOIB, one gets the impression there is an attempt by “the drafters” of the Ghana proposal to invent and re-invent lots of things that are not germane to the freedom of the people to know what the Government of Ghana is doing and expending. While the US records are the more substantial “public interest records,” compared to say the UK, the Ghana “drafters” borrow so heavily from the UK that a fair mind will conclude that there is a lack of judgment, lack of attention to Ghana’s public interest requirements, and an attempt by the “drafters” to provide some cover to Ghana politicians and the entire Ghana bureaucracy.

ITEM:

In Prof Lungu’s opinion, if passed in its current form, the only things that will be available to a Freedom of Information requestor will be the agency organizational chart, quarter-century old reports and manuals, and Mount Afadjato-high FOIB denial slips. It is that simple and disconcerting. It is a shame! If anything, this is one area where Ghana should be more like the US, Ghana-centered, and less like the UK, even as Barclays Bank was recently chastised by the President of Ghana to be more like Ghana.
ITEM:
With respect to FOIB, Ghana should be more like the US and Canada. The US federal government, the 50 separate US states, and local authorities have far more history, experience, and best practices with respect to FOIB. And there is no language barrier. There is absolutely no need for the Ghana “drafters” to borrow so sheepishly, and so uncritically, from the UK. And while Prof Lungu is not a lawyer or lawyer-trainee, Prof Lungu believes that any small group of 3rd year law students can produce a more Ghana-centered and effective FOIB law, one more in line with international norms, than the draft being paraded in Accra. Accra has a problem in this instance!!

CRITIQUE & SUGGESTION FOR A STRONGER FOIB LAW:

In the following section I identify several other aspects of the Ghana draft that should be of concern to all persons interested in the development and institutionalization of an honest, accountable, and responsive Ghana Government bureaucracy, whether national, regional, district, local, related to the chieftaincy institution, or the military. Where possible, I provide alternatives to what is contained in the draft version.
1. COVERAGE - WHAT AGENCIES DOES FOIB APPLY:
There ought to be no exclusion for any Ghana government agency, except for those specific exclusions identified on account of the nature of the document/information. The current Ghana draft has general statements about “government agencies” as in “An application for access to information held by an agency shall be submitted in writing to the agency. The Ghana statute has to be more accommodating and specific and should provide that all Ghana public agencies, corporations in which Ghana has any interest, law enforcement agencies, security agencies, the military departments, and the chieftaincy institution are subject to the provisions of the Ghana FOIB. The reader is informed that the FBI, the CIA, and the entire US Department of Defense must comply with the US FOIA or show cause why a particular document or information may be withheld. It should not be any less for Ghana. All Ghana agencies and corporations should have a set procedure to comply with all FOIB requests.
2. LANGUAGE & SYMBOLISM:
Change the title to Ghana Freedom of Information Bill. Freedom is a far stronger concept than a “Right.” A right may be taken by a government any time, but a Freedom is analogous to, and an extension of Liberty. (This may explain why Zimbabwe went the other way).
3. WHO MAY USE THE FOIB PROVISIONS?
The current Ghana draft does not specify who may use the FOIB. Fortunately, there is a global standard: Anyone, of any nationality, and living anywhere in the world” should be able to make a written request for information, and expect a response. For the majority, there should be no charge, particularly if they are Ghana citizens, or if the person is already in Ghana.
3. FORM OF FOIB REQUEST:
A request for information under the Ghana FOIB, and in all places, must be in writing. However, Ghana’s “drafters” go overboard with their UK copy in providing that the requestor “is not obliged to give a reason for the application except where the person requests that the application be treated as urgent.” In this particular case, the ‘drafters” have it wrong and backward at the same time. Suffice to say that is it smart to require that the requester state that the request is “pursuant to the Ghana FOIB.” Further, the agency the subject of the request has no business knowing whether the information is urgently needed. All requests for FOIB should be treated as urgent and should be assigned to the “Next” available position on the FOIB request list. This goes to the purpose of the FOIB.
4. CHECKS & BALANCE:
Atsu Amegashie did talk about this aspect of the problem. We agree. The current draft allows too much power to Ghana’s ministers, and mimics what prevails in South Africa. Ghana’s ministers should not be in a position to decide one way or the other who gets access to public information and who does not. A review process manned by “Sector Ministers” is a conflict of interest and a fraud in the making. Similarly, to say that the Chief Information Officer (CIO) may delegate the FOIB functions to anyone without specifying the competence of the person thus so delegated that authority, or without stating the minimum acceptable qualification or position within the agency, shows a lack of intent to serve the people professionally, competently, and responsively, by providing information through the Ghana FOIB law. It is that important.
Further, designation of the CIO to determine “manifestly frivolous or vexatious” requests should be evaluated carefully. This “manifestly frivolous or vexatious” FOIB characterization is one of the British provisions that ought to be expunged form the Ghana FOIB law. The interesting thing here, though, is that even the British clarify this foolish provision by the following conditional statement which is missing from the Ghana draft:
“Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request”
Finally, in the matter of Checks and Balances for Ghana’s FOIB, there ought to be an impartial Information Commissioner and Information Tribunal that will serve as appeal bodies after denial by the CIO of any agency. Ghana ministers are not impartial in this business. They are not experts in agency information assets or technology. And there is no need to further saddle the court system or to put requestors through 120-day-plus loops and rigmaroles. In this instance, one wonders why the Commission on Human Rights and Administrative Law and Justice (CHRAJ), the Public Service Commission, and the Head of the Civil Service have absolutely no implementation role for the Ghana FOIB. The other interesting question is what role these agencies and functions played in the development of the draft. To get back to the discussion, if the Information Tribunal is unable be adjudge the case, then send the case to the last but one highest judicial court, before the Supreme Court of Ghana. (The reader should note that the South African Human Rights Commission (SAHRC) oversees the implementation of the Promotion of Access to Information Act (PAIA)).
5. COST TO REQUEST PUBLIC INFORMATION:
In my opinion, lots of unreasonable financial burden is placed in the requestor by the current draft. Everywhere, most FOIB requests are free for the asking. To complicate matters, the draft bill requires advance payment in many cases. This is unreasonable particularly where there is no record that the requestor in the past failed to pay for services/products requested.
More important, FOIB cost (fees) ought to be limited to the document search, duplication, and review by the FOIB officer. The Ghana FOIB should make that declaration. Moreover, as in other more accountable governments, there ought to be no fee if the application is for non-commercial purposes and the application is in the public interest (by the media, non-profit associations, educational institutions, and other public interest organizations).
SUMMARY:
The Ghana Freedom of Information Bill law is a crucial “good government” mechanism that ought to be approached with all the Ghana-centeredness it deserves, and the people want. Politicians and the “drafters” should recognize that there is a significant cost to the darkness in the government, and to the delay in passage of the FOIB law. The current draft does not identify one central executive agency designated to oversee the functioning of the Ghana FOIB. This is a fetal flaw (omission), and needless to say, a departure from the universal principles of FOIB laws.
Ghana is well endowed with natural resources, including location, and having people who work very hard every day. Yet, Ghana remains heavily dependent on international financial aid and foreign technical assistance. This is ridiculous. A strong FOIA should help in wrestling this national identity and resource crises to the ground. The Ghana FOIB should be passed swiftly. This is absolutely one area where there is no need for invention by any Ghanaian or advisor: just Ghana-centered and critical in all aspects related to promoting access to public/government information, as part of the program to support the Ghana democracy enterprise.
Pass the Ghana FOIB bill and let Ghana develop in all its promise.
NEXT (PART II) In Part II of this Rejoinder, I will try to discuss Exemptions, Access to Information held by Private Bodies, and a few other details. I will then suggest possible linkages to other mechanisms to promote more transparency and accountability within the halls of government in Ghana.
Prof Lungu thanks Mr. Ben Tetteh for bringing the Ghana “Right to Information Bill 2003” draft document to Prof Lungu’s attention. Further, Prof Lungu recognizes persons who have provided articles on this item in the past, and the many persons who are contributing to this debate on Ghanaweb and elsewhere, including Ghanaweb, all in support of a strong Ghana democracy enterprise.