WHY FREEDOM AND ACCESS TO INFORMATION ACT MATTERS - TANGO -16th December 2009
First of all I would like to extend my heartfelt condolences to the family of Deyda Hydara, his colleagues and indeed the Gambian population and the rest of the world on this solemn occasion of the 5th anniversary of his murder. We pray that sooner than later the Almighty will expose the killers so that justice can take its course; they will realize that impunity and crime do have a lifespan indeed. As we celebrate the life and work of Deyda, and not his death, which has now become a source of inspiration and a cry for justice and truth worldwide, I would also like us to remember fellow fallen heroes in the persons of Norbert Zongo of Burkina Faso, Lasantha Wickrematunga of Sri Lanka and Anna Politkovskaya of Russia and indeed all journalists who were murdered by the enemies of freedom and truth.
Mr. Chairman, as a way of introduction let me say that Freedom of Information Legislation, also described as open records or sunshine laws are laws which set rules on how the public can access information or records held by government bodies. Over 70 countries around the world have implemented some form of such legislation. Sweden's Freedom of the Press Act of 1766 is thought to be the oldest, and which will be extensively discussed in this discourse. A basic principle behind most freedom of information legislation is that the burden of proof falls on the body asked for information, not the person asking for it. The requester does not usually have to give an explanation for their request, but if the information is not disclosed a valid reason has to be given.
The good thing about such laws is that they reduce the incidence of rumours and speculations and also make the people have confidence in their government. Given that the information will be delivered openly, which can then be contested by members of the public, the law therefore serves to guide the government in ensuring that it gives accurate and truthful information which in turn makes the people have trust in the information, and consequently in their government. Failure to divulge information by the government to the people can only give rise to speculations and distrust, and sometimes violent opposition to the government in the final analysis.
The Gambia does not have an FOI law yet but has ratified all the other international instruments aimed at protecting human rights and media freedom, even though the Gambian constitution does not recognize these instruments, i.e. they have neither been incorporated into our constitution nor are they domesticated in any form, except for the UNCRC which is now the Children's Act 2005.
Chairman,
The Freedom of Information Act became law in the Unites States in 1966 and went into effect the following year. The act allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States Government. While this law was ratified in the US 43 years ago, coincidentally this is 200 years after what is believed to be the first Freedom of Information Legislation, or Sweden's Freedom of the Press Act, in 1766. This Act is now an entrenched clause of the Swedish Constitution
In the 18th century, after over 40 years of mixed experiences with the parliamentary system, public access to Swedish government documents was one of the main issues with the Freedom of the Press Act of 1766. The Act was seen as a forceful means against corruption and government agencies' unequal treatment of the citizens, increasing the perceived legitimacy of government and politicians. The Act provides that all information and documents created or received by a public institution must be available to all members of the public. It also states that all public institutions must do everything in their power to give anyone access to any information that he or she might want as soon as possible.
The only exceptions to this rule are regulated in the Publicity and Secrecy Act, detailing what government agencies can keep secret, what type of document, under what circumstances, and towards whom. According to the Freedom of the Press Act, "The right of access to official documents may be restricted only if restriction is necessary having regard to:
1. The security of the kingdom or its relations with a foreign state or an international organization;
2. The central finance policy, monetary policy, or foreign exchange policy of the kingdom;
3. The inspection, control or other supervisory activities of a public authority;
4. The interest of preventing or prosecuting crime;
5. The public economic interest;
6. The protection of the personal integrity or economic conditions of private subjects;
7. The preservation of animal or plant species."
This list is exhaustive and the Parliament may not legislate any restrictions outside the scope of this list, and any restrictions have to be legislated into the Publicity and Secrecy Act previously mentioned. Secrecy is limited to a maximum time of 70 years (when relating to individuals that is 70 years after the person's death).
In UK, the Freedom of Information law was created in 2000 and Section 1 of the Law states that,
(1) Any person making a request for information to a public authority is entitled -
(a) To be informed in writing by the public authority whether it holds information of the description specified in the request, and
(b) If that is the case, to have that information communicated to him.
Mr. Chairman
I have deliberately and extensively referred to these laws from other lands in order to give an alternative view of prevailing conventional wisdom in most developing countries such as the Gambia where calls for right to access to information is countered by arguments that the security of the state will be jeopardized. But as we can see, for 43 years, the United States of America has this law. For 243 years, this law has been in force in Sweden yet these states continue to grow from strength to strength.
If there is any lesson to learn it is that such laws do not only empower individual citizens, but also protect the government and public institutions and individuals thereby ensuring the security of the state. More importantly such laws give practical meaning to democracy and the rule of law. Let me say loud and clear that democracy and the rule of law are in the interest of each and every citizen. It is only under conditions of democracy and the rule of law that everyone's security and development is promoted and protected. This means that in the absence of democracy and the rule of law, not only each and everyone faces threat and insecurity, but the very foundation of the existence of that society is tremendously undermined.
In fact according to the Office of Public Sector Information of UK, the custodian of the Freedom of Information Act, the, "The intention of the Act is to increase visibility into the work of public bodies, to ensure that policy-making processes are fair, democratic and open." It is worth mentioning that in furtherance of open and honest government, President Barack Obama, in January 2009, issued an Executive Order that encourages openness, transparency and accountability in government records. By this order, Obama has revoked an earlier Executive Order of 2001 by former President George Bush which restricted access to the records of former Presidents. This clearly shows that freedom of information is one of the major avenues available to citizens to monitor and evaluate public institutions and holders of public office to determine how useful or not, or how wasteful or not they have conducted themselves to the public good.
Mr. Chairman, Freedom of Information Act cannot be discussed, much less implemented in the absence of freedom of the press and of speech. For the law to become a reality there has to be recognition of the right to free speech and of the media in the first place. But what is free speech? Freedom of the press or media is the guarantee by a government to allow free public speech for its citizens and their associations.
The press has been referred to as the Fourth Estate and used to be compared with the other three arms of Government, i.e. the Executive, Legislature and the Judiciary. In fact it was Edmund Burke, a Scottish philosopher who was reported to have said that, "three Estates in Parliament; but in the Reporters Gallery yonder, there sat a Fourth Estate far more important than they all."
Generally we claim that the role of the media is to inform, educate and entertain. Be that as it may, a closer look at the history and the role of the media around the world will show that the media is indeed not only a liberation tool used by all people's everywhere to fight for freedom and justice, but media has also continued to be used as a means to empower and amplify the voices of the people. It can be said that a free press therefore is a determinant of the extent of freedom of speech in society. Where there is a free press, there is also a free and open society. Conversely a muzzled press is a reflection of an oppressive society that is lacking in freedom of speech which is usually characterized by fear and discontentment.
Ladies and gentlemen, the struggle for liberty and democracy has always utilized the press as a tool which can be seen in the histories of liberation struggles around the world. For example in the US, revolutionary leaders at the time had identified the press as one of the elements of liberty that must be preserved. The Virginia Declaration of Rights (1776) proclaimed that, "the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments."
The Constitution of Massachusetts (1780) declared, "The liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restrained in this commonwealth."
The First Amendment (1791) to the United States Constitution restricted Congress from abridging the freedom of the press and speech. In his second inaugural address, President Thomas Jefferson proclaimed that a government that could not stand up under criticism deserved to fall, while Joseph Pulitzer had always argued that the future of any nation is inextricably linked to the press - he said,
"Our Republic and its press will rise or fall together. An able, disinterested, public-spirited press, with trained intelligence to know the right and courage to do it, can preserve that public virtue without which popular government is a sham and a mockery. A cynical, mercenary, demagogic press will produce in time a people as base as itself. The power to mould the future of the Republic will be in the hands of the journalists of future generations." - Unquote.
In our Dear Africa, the growth of media in West Africa for example was ignited by the demands for representation, justice and liberty at the height of colonialism. Notable newspapers included the West African Pilot by Nnamdi Azikiwe of Nigeria, The Leader by J.E. Cassely-Hayford of Ghana and the Gambia Outlook and Senegambian Reporter by EF Small of the Gambia. In fact EF Small?s newspaper carried so many of his petitions to the British Government demanding representative institutions, that he was labeled a, "self-appointed champion of non-existing grievances felt by an imaginary body of citizens ""he seems to find agitation irresistible."
While the contributions of the press to liberation and development around the world cannot be over-emphasized, one would still note that various forces have always expressed tendencies to kill the press. But what we have to realize is that any attempt to curtail press freedom is essentially aimed at silencing the people. More seriously, such attacks on the media are indeed targeted at keeping the general public in the dark. That notwithstanding, the press has always continued to defy legalized control and censorship from all quarters in spite of the apparent dangers that the profession continues to contend with, unabated. The people need a free and independent press for freedom, development and peace and justice. Someone had said, and I quote,
"It upsets us when we read about politicians who are forced to resign because of corruption. But at the same time we should also be grateful that such information is published and reaches the public. In 1974 the so-called Watergate scandal eventually forced American president Richard Nixon to resign. This, as you know, was mainly the result of efforts by two journalists at the Washington Post. What if they had lived in a country where they had not been allowed to pursue that story? What if, during their investigative work, they had been told by their editor-in-chief that they should stop their work immediately because the president is above criticism?"
And it was Nelson Mandela, who noted that,
"A critical, independent and investigative press is the lifeblood of any democracy. None of our irritations with the perceived inadequacies of the media should ever allow us to suggest even faintly that the independence of the press could be compromised or coerced."
In the light of the foregoing, it is clear that not only are democracy and national development inconceivable without a free press, but a free press is also an indispensable guarantor of justice and stability, hence the lack of a freedom of the media endangers the nation.
Media freedom, coupled with fundamental rights, is guaranteed in all major international human rights instruments, which emphasise the importance of the media in a democratic society.
Article 19 of the Universal Declaration of Human Rights provides that,
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
Article 9 (2) of the African Charter on Human and Peoples? Rights states that, "Every individual shall have the right to express and disseminate his opinions within the law." The African Commission on Human and Peoples' Rights, which is the organ responsible for the enforcement of the Charter has now developed principles to inform the application, and guide the development of Article 9. These principles, contained in the Declaration of Principles on Freedom of Expression in Africa were adopted in its 32nd Session held in Banjul in 2002.
The Declaration affirms that the establishment, maintenance and fostering of an independent, pluralistic and free media is essential to the development and maintenance of democracy in a nation. The Declaration urges African states to take positive measures to guarantee the establishment of media freedom.
The International Covenant on Civil and Political Rights (ICCPR) is an elaboration of the civil and political rights set forth in the UDHR and aims at transforming the rights spelt out in the latter into legally binding obligations. Media freedom is protected under Article 19 (2), "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."
The article mentions not only oral, written and printed communication, but also 'other media' and this is important for both radio and television.
The UN Special Rapporteur on Freedom of Opinion and Expression has regularly stressed the overriding importance of freedom of information. In his 1995 report to the UN Commission on Human Rights, the Rapporteur stated that, "Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked."
Mr. Chairman, I did make mention of media laws in America and Sweden, but this is not say that African governments do not have similar regard to right to access information. The case of Ghana is exceptional in that the Ghana Constitution, Chapter 12 Section 162 Subsection 3 and 4, the role of the press has been so much established that two fundamental provisions allow the free establishment of media outlets and non-interference with their work on account of the views and opinions they express:
(3) There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a license as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information.
(4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications.
These aforesaid rights have also been strongly entrenched in the South African Constitution and Bill of Rights.
The foregoing argument clearly emphasizes that press freedom and free speech are prerequisites for democracy and development in any society. Furthermore the experiences of various countries and international conventions establish that the right to information is a fundamental human right that must be respected by all governments. If democracy is defined as the government based on the consent of the people, it therefore follows logically that citizens who constitute that government have the right to know at anytime what that government is supposed to be doing or did or plans to do.
Mr. Chairman, having said these, let me say that Freedom of Information Act does not give a carte blanche to anyone to seek and obtain any information. Certainly there are reasonable restrictions to ensure the security of the country and protect the rights of individuals. However freedom to seek public information cannot become reality if there is limited freedom of speech and the media in any given country. As mentioned earlier freedom of information is in the interest of the government and public institutions and individuals. It provides an internal self-regulatory mechanism since all stakeholders are aware of the dynamics of the law which empowers individuals to challenge any information that is given by the government. It also means that individuals cannot have the excuse to create rumours and speculate on matters of national importance. The recent spate of rumours about arrests of individuals in the security apparatus, imams and other citizens could have been easily avoided if there was a freedom of information law which would have allowed anyone to walk to the doors of the government and demand to know the state of affairs on any particular matter.
Mr. Chairman, freedom of information ensures not only openness but also breeds accountability from both the government and the media. Most of the burden on the media may have been removed if there was such a law in the country because it means the onus of obtaining information will not now rest with the press alone. But also, such a law will place a huge responsibility on the media to ensure that it reports truthfully and in good faith. Thus, a freedom of information law will empower and encourage professionalism in the media and journalists. This is because such a law creates a level playing field and removes any possibility of misrepresentation or misinterpretation. It promotes a system of checks for which both the government and the media, and indeed citizens will have a common standard and interaction on the basis of which information is produced, and which no other party can abuse or misuse.
In the public domain, freedom of information has a lot of advantage, as it will fundamentally encourage professionalism and honesty in public servants, and make our public institutions equally accountable, efficient and proactive. One of the major reasons for the overwhelming professional deficiency facing our public institutions is simply because they wield incredible power and monopoly over everyone else, without any regard to the interest of the citizens for whom these institutions are set up in the first place. They neither seek the consent and input of the general populace even for projects they intend to bring to communities, nor do they engage the public in assessing the impact and efficacy of the products and services they provide to the people. In a nutshell, our public institutions and corporations are not accountable to the people. This is why a freedom of information law will serve as a platform for empowerment of the people to demand answers from the Government and public institutions in the way and manner they run national affairs and manage public resources. In this way, public institutions are bound to exercise not just caution and ensure proper records keeping and management, but also ensure an efficient and ethical conduct of business.
In the light of the foregoing, I wish to demand the Government of the Gambia to practically consider creating a freedom of information law in the country, as a means to promote open and accountable governance, improve efficiency in state institutions and public officials and as well as promote professionalism in the media and the public sector. Overall such a law will empower the people of the Gambia. The right to access public sector information will create a sense of public ownership of state institutions, and develop a relationship of trust and confidence in the people towards their government, which will augur well for national cohesion and peace building. In the final analysis, a freedom of information law enhances the governance environment. It must be noted that good governance is the cornerstone of development, and as indicated by the World Bank, better governance helps in the fight against poverty and improves living standards. Research by many scholars including the authors of the World Governance Indicators shows that improved governance strengthens development and not the other way around. When governance is improved by one standard deviation, infant mortality declines by two-thirds and incomes rise about three-fold in the long run. Of the six indicators used by the World Bank to measure good governance, Voice and Accountability, which refers to the extent to which a country's citizens are able to participate in selecting their government, as well as freedom of expression, association, and the press, has been placed at number 1. The other five indicators are:
1. Political Stability and Absence of Violence
2. Government Effectiveness
3. Regulatory Quality
4. Rule of Law
5. Control of Corruption
All of these indicators refer, in various ways to the extent of the existence of peace and stability in a particular country. They also refer to the quality of public services, and the capacity of the civil service and its independence from political pressures. The indicators further look at the ability of the government to provide sound policies and regulations that enable and promote private sector development. The indicators emphasize the rule of law and looks at the extent to which agents have confidence in and abide by the rules of society, including the quality of property rights, the police, and the courts. Finally the governance indicators measure the extent to which public power is exercised for private gain, including both petty and grand forms of corruption, as well as elite "capture" of the state.
In the light of the foregoing, it is clear that good governance is therefore a key ingredient of development, peace, security and social justice, which can be tremendously enhanced with a law on the right to access public sector information.
The primary role of the Media is to hold the Government, (i.e. all the three arms of the State) accountable to the people. By this way the media therefore promotes accountability and transparency and ensures professionalism, ethics and integrity in the public sector particularly. While the press holds the government accountable to the people, let us also realize that the media holds the people and their associations accountable to the government as well and to the members of society as a whole. The media enables a people to choose their leaders and determine their manner of government by providing necessary information which most of us may not, for various reasons, be able to obtain. The Press serves as a medium through which the government hears and knows the feelings and opinions of the populace, and people in turn informed of the programmes and activities of the government, hence the media can greatly enhance the development of the Gambia. The more newspapers, radio and televisions stations we have the better for the people to access information and empower themselves. Thus on this occasion, I wish to urge the Government to give massive support to the development of the media. In this regard, the National Assembly and the Judiciary, as well as the civil society organizations have a singular role to play, individually and collectively in ensuring media freedom in the country.
Mr. Chairman, allow me to close with a few recommendations that I consider quite pertinent in facilitating a freedom of information law in the Gambia.
In the first place there is an urgent need to create a Freedom of Information law and an executing authority to ensure its effective implementation. That institution should embark on a massive public awareness campaign to educate the masses on the ways and means of utilizing this law and the advantages that it brings for each and every citizen regardless of one's station in life.
Secondly, while the 1997 Constitution guarantees freedom of speech and of the media, it is also a fact that a number of laws were later created which seriously neutralize the rights that have been guaranteed in the basic law of the land. Therefore the following laws and decrees should be seriously considered for abolition as they pose a threat to not only free speech and freedom of the media, but also systematically serve as obstacles to citizens' right to access public sector information:
1. Decrees 70/71, whose origin is a 1944 colonial law and now worsened under the Newspaper Amendment Act 2004 and the Newspaper Registration Act 2005;
2. The Newspaper Amendment Act 2004, calls for annual registration with very stiff requirements;
3. The Criminal Code Amendment Act 2004 & 2005 - this Act creates the following offences:
I. Seditious Intention makes criminal a host of behaviour based on a publication which is deemed insulting the President or causing ethnic conflict or simply to cause one to dislike the government;
II. Publishing false news is based on the criterion of causing fear or alarm, which in themselves are subjective;
III. Official Secrets Act makes an offence of any publication which the government deems to be breaching national security
IV. Public Order Act empowers the Minister of Interior to determine which publication is fit for public consumption or jeopardizes public order
These laws are not only unnecessary and counter-productive to national development, but have also seriously diluted our democracy and the empowerment of the people, and earned the country an unenviable and undeserved international attention that serves no one's interest. It will amaze you to know that Nigeria, under the Abominable Sani Abacha expunged sedition laws from their statutes in 1983! It was just very recently that Senegal decriminalized all media offences. Mr. Chairman, ladies and gentlemen, need we argue any further that the Gambia must also do the same and decriminalize media offences? I think not!
4. In order to bring the country at the same level with international standards of best practice in good governance, I would also like to call on the Government to create necessary constitutional provisions for the adoption, incorporation or domestication of international human rights instruments.
5. There is an urgent need for the unfavorable conditions in which the media operate to improve and a complete stop to media harassment. Furthermore all closed media houses need to be opened to resume operations, and all cases of harassment and murder be thoroughly investigated and offenders prosecuted accordingly.
I want to leave you with a quote from the Swedish Minister for International Development Cooperation, Gunilla Carlsson, who spoke on the role of the media in a democratic society to the Press Faculty of the University of Social Science and Humanity in Hanoi, Vietnam in April 2007; he said,
"Democracy and poverty reduction can never be guaranteed by politicians alone, whether they are elected or self-nominated. In the end, it is a question of people's opportunities to influence their situation, claim their rights and being able to voice their concerns. But to exercise these rights presupposes that citizens have access to information that has not been filtered, censored or distorted. How can I claim my rights if I don?t know what they are? How can I voice my concerns if I risk being prosecuted for doing so? These are a few examples of why the role of media is crucial to the development of a country. The quality of the information an individual is able to access will, by necessity, greatly influence his or her ability to participate in the political process. In other words, journalists have a responsibility towards their fellow citizens to provide correct and analytical information."
I thank you for your kind attention.