Samson’s Take: Dear MPs, pass a credible RTI law

The Right to Information Bill should soon become law, hopefully. Majority Leader Osei Kyei-Mensah Bonsu had promised it will be passed two weeks after the committee working on it had presented its report to the House. We are in the third week now and I am happy it has not been passed in the current state. This is because there are genuine concerns and I had the privilege Wednesday 27th June 2018, on behalf of CDD-Ghana and its partners, the RTI Coalition and the RTI Action Group Campaign, to present some of these concerns to the leadership represented by the Minority, the Majority Leader and the 1st Deputy Speaker of Parliament. The presentation at the Crystal Ball Series in parliament is reproduced below.

Right to Information (RTI) Bill and matters arising

CDD-Ghana would like to applaud the leadership of the joint committees Legal, Constitutional and Parliamentary Affairs and Communication and the entire members of the committees for the close collaboration between the Joint Committee and the key stakeholders since the RTI Bill was referred to the Joint Committee by the Right Honourable Speaker. CDD-Ghana as a member of the Steering Committee on RTI Coalition and the RTI Action Campaign Group had the unique opportunity to contribute to the memoranda which were submitted and also the invitation from the Joint Committee to the stakeholder conference and the clause by clause review of the RTI Bill. This is a rare opportunity and again we are grateful for the privilege.

CDD-Ghana believes that the object of inviting key stakeholders to submit memoranda to support the work on the RTI Bill was to assist the Joint Committee to have information that will help to have a robust RTI law that befits the over seventeen years of waiting and also meet international standards. Unfortunately, the laying of the report by the Joint Committee a few weeks ago has given all key stakeholders cause for great concern because we observed from the report that a number of very important recommendations were not considered.

We have not lost hope, we have trust in our Parliament and the leadership just as the House worked so hard to pass a fairly good OSP Bill, we believe there is still a window of opportunity for the House to consider very critical areas of the RTI bill so we can have an RTI law that will serve Ghanaians well and meet international standards and expectations.

Hon. Members, kindly permit me to take you through a few areas that are of great concern to CDD-Ghana and its partners, the RTI coalition and the RTI Action Campaign Group.

Provisions that must be deleted or amended

1. Clause 13 must be deleted

The Right to Information is guaranteed under the 1992 Constitution in Article 21 (1) (f). In a democracy, it means that information collected by public institutions are collected on behalf of citizens and should be made accessible to them. That is why any good RTI law emphasises the principles of maximum and proactive disclosure. However, it is recognized that in certain circumstances it will be useful not to disclose information. There are two main limitations provided by the Constitution and they are very specific: public interest including national security and public health and privacy.

To satisfy the principles of clarity, narrowness and specificity required for any limitation to the right to information, the Bill provides exemptions in relation to information at the Presidency, Cabinet, international relations, law enforcement, defence and privacy, among others. However, after providing this elaborate limitation to our human rights then in Clause 13 it proceeds to provide a blanket exemption for information held by public institutions. Please indulge us to read Clause 13 ….

Clause 13 states:

Internal working information of Public Institution

13 (1) Information is exempt from disclosure which, if disclosed would reveal

a) an opinion, an advice, a report or a recommendation prepared or recorded or

b) a consultation or a deliberation held in the course of or for the purpose of making a decision in the public service or a public institution and which can reasonably be expected to frustrate or inhibit the candid and deliberative process of a public institution or between public institutions.

Clause 13 goes on to state under subclause 2 that if the information is already public as a basis of a public policy or contains statistical information then the information is not exempt.

This provision, if kept, fundamentally undermines the entirety of the Bill. First, the rationale for excluding such basic information is outside of the limitations that the Constitution provides (public interest including national security and public health and privacy). Second, the practical effect of Clause 13 is that almost all documents in the public service will become exempt information. Memos, advice and evaluations are at the core of the propriety of decision making in public institutions. In fact, if you keep Clause 13 you can delete all the public interest exemptions currently in the bill because they become redundant. What this provision is telling us is that documents like evaluation documents of an Entity Tender Committee is exempt information or the report of a technical committee to a minister to make a decision in the public interest is exempt information. Clause 13 thus provides a blanket exemption, which is inconsistent with the Bill itself, which says exemptions must be narrow and specific relating to the public interest imperative and protection of privacy; this is untenable and must be deleted.

It has been argued that Clause 17 that provides for a harms test is sufficient to cure this problem. It does not. The harms test is the last resort where information that is exempt under law can be disclosed because the benefits of disclosure outweigh the harm that non-disclosure will. This is not information that should be exempt in the first place for one to use the harms test. In addition, by making Clause 13 an exempt clause, the bill would have shifted the burden of proof from the public institution to the citizen. So now we have to prove that there must be disclosure because the public interest benefit outweighs the harm it may have caused if disclosed. This again is untenable. [Refer to harms test as discussed by Justice Anthony Yeboah in Lolan Sagoe Case – bus branding saga]

2. Office of the President must be defined under Clause 5

Parliament should define ‘Office of the President’ under clause 91 (interpretation section). Clause 5 states that information is exempt if prepared for the submission or submitted to the Office of the President and Vice President. There are so many offices under the Office of the President; is it the case that information prepared or submitted to the Ghana Aids Commission or the Ministry of Special Development Initiatives, for example, who are under the Office of the President, are exempt? We are very sure that is not the intention of the bill because it will take it outside reasonable limitations under the Constitution. We are asking for this provision to be defined in Clause 91.

3. Clause 12 should be deleted

Clause 12 states that information obtained from a tax return or gathered for the purpose of determining tax liability is exempt information. The effect of this clause is to invariably make information relating to tax administration exempt information which defeats government’s own objective on tax governance and increasing domestic resource mobilization, a major indicator in the Ghana Beyond Aid agenda. Payment of tax is a legal obligation and must be applied in a transparent manner. It is a contradiction that this is the same State that seeks to fight tax evasion and illicit financial flows. That objective is not going to be achieved by throwing a blanket over the activities of the GRA.

We are asking for clause 12 to be deleted altogether because the genuine objective of Clause 12 is to protect personal tax information which is already provided for in clause 16 under Disclosure of Personal Matters which includes information likely to reveal “confidential professional, commercial or financial affairs”.

4. Clause 8 and 9: Delete ‘prejudice’ and keep ‘Damage’

In Clauses 8 and 9 the Bill established very different thresholds for determining whether information is exempt in relation to international relations and defence/security. An information officer making this decision can either choose the higher threshold of information reasonably expected to cause ‘damage’ to the lower threshold of information reasonably expected to ‘prejudice’ relations or defence of the State. Certainly, if human right to information is to be limited it must require a higher threshold. This creates a big loophole for public institutions to deny information because it is likely to embarrass government.

5. Clause 85 and 92: Delete clause 85 and 92 and replace with a new clause dealing with primacy of the Act

The current provision dealing with the primacy of the RTI law is inadequate and must be addressed to avoid unnecessary litigation. The RTI Bill seeks to elaborate on the constitutionally guaranteed right and should, therefore, be the reference point for all enactments dealing with the right to information. The current provision in Clause 92 subjecting all enactments to RTI law is not comprehensive. For example, it refers to all enactments providing for the disclosure of information, not enactments relating to state secrets and an oath that obliges non-disclosure of information.

We propose that Clause 92 also refers to enactments providing for non-disclosure of information.

6. Clause 89: Application to the relevant private sector should be mandatory, not discretionary

The Bill struggles with extending the law to relevant private sector entities and actors. This is because it seeks to expand the conditions for an extension to go beyond a private sector receiving public resources. To cure the problem, it gives the Attorney-General discretionary power to extend the law to cover private sector through a legislative instrument. Our position is this; there is no ambiguity that a private entity using public resources should be subject to the provisions of the law. So if the Bill wants to consider other conditions outside of it, it must oblige the AG within a specific time frame to do the extension. [But why at all is this necessary after we have redefined “public institution” to which information is accessible to include any private organization “which receives public resources”?

7. Clause 18: Now citizens must show an ID card to access information

The Joint Committee is proposing an amendment to Clause 18 to require citizens to show an ID when they apply for information. In this day of technology are we suggesting that people should physically throng public institutions to apply for information? It is not practicable and not progressive. Certainly, it is important for people to identify themselves but if the information is supposed to be provided to the general public then it is not essential to worry about the identity of the applicant.

8. Clause 38: Applicants are to apply to the Supreme Court when they are denied information

The Joint Committee is proposing that applicants should head to the Supreme Court if they are denied access to information. The proposal to invoke the original jurisdiction of the Supreme Court is erroneous in this instance. Article 33 of the 1992 Constitution is very clear that the High Court is the forum for enforcing all rights under the Constitution. [The basis of the RTI is Article 21 which is a chapter 5 right. These rights are enforceable via Article 33 also under chapter 5]. Article 135 has to do with the disclosure of documents during judicial proceedings when national security considerations are raised.

9. Clause 3: Expand the list of types of information to be disclosed

To provide the appropriate guidance on the types of information that should be disclosed proactively, the Bill should adopt the proposals of Article 7 of the Model Law on Access to Information in Africa. These include:

(a) manuals, policies, procedures or rules or similar instruments which have been prepared for, or are used by, officers of the body in discharging that body’s functions, exercising powers and handling complaints, making decisions or recommendations or providing advice to persons outside the body with respect to rights, privileges or benefits, or to obligations, penalties or other detriments to or for which persons may be entitled

(b) any prescribed forms, procedures, processes and rules for engagement by members of the public with the public body or relevant private body; the particulars of any arrangement, statutory or otherwise, that exists for consultation with, or representation by, members of the public in relation to the formulation or implementation of its policies or similar documents;

(c) whether meetings of the public body or relevant private body, including its boards, councils, committees or similar other bodies, are open to members of the public and, if so, the process for direct or indirect engagement; but where a meeting is not open to the public, the body must proactively make public the contents of submissions received, the process for decision making and decisions reached;

(d) detailed information on the design and execution of any subsidy programmes implemented with public funds, including the amounts allocated and expended, the criteria for accessing the subsidy, and the beneficiaries;

(e) all contracts, licenses, permits, authorizations and public-private partnerships granted by the public body or relevant private body;

(f) reports containing the results of surveys, studies or tests, including scientific or technical reports and environmental impact assessment reports, prepared by the public body or relevant private body; and

(g) any other information that may be applicable.

Conclusion

CDD-Ghana and its partners would like the House to consider these critical areas and diligently work to give the nation a Bill that will make it easy for citizens’ to access information, support the efforts to fight corruption and put Ghana on the international level as a country that took its time to have a good RTI law. Already international organizations like the Center for Law and Democracy have done analysis and ratings on the RTI Bill and the results are not the best. We are pleading with the leadership to lead on this issue to help pass the RTI Bill in a more progressive form.

Thank You

I conclude My Take by inviting all to observe what appears to me to be a rather curious development. This was an earlier concern I deem valid though the process may have passed a stage to revert to comply with article 106. What informs or is the purpose for removing section 82 on application of the law to chieftaincy. It is instructive to note that this is perhaps the only and first ever formal and legal attempt to place an obligation on chiefs and chieftains to account to their ‘subjects’ especially for the use of mineral resources.

I am interested in learning about the compelling justification for the removal of the provision which exited in the 2016 Bill. All that was required was to first do them the honour of introducing it to them even if the Constitution had not required in article 106 clause 3 that a bill affecting the institution of chieftaincy ought to have prior reference to the National House of Chiefs.

Samson Lardy ANYENINI

June 30, 2018