Vitus Azeem, Akoto Ampaw, O.B. Amoah and Abdul-Rashid Pelpuo have all been making inputs into the FOI Bill in Ghana.
Posted on: www.dailyguideghana.com
Story by William Yaw Owusu
Saturday August 27, 2011.
When U.S. President Barack Hussein Obama paid a historic visit to Ghana in 2009, he said that Africa needs strong institutions, and not strong leaders, to bring prosperity to people across the continent. He praised the strength of Ghana’s democratic institutions and emphasized the vital importance of good governance to sustainable development and the protection of human rights.
President Obama may have hit the nail right on the head, but the lack of free information on the continent is still a major impediment to the realization of the prosperous society the first black American President spoke about.
Democracy advocates uphold right to information laws as necessary ingredients for the promotion of good governance, transparency, and accountability. With strong provisions, an information bill can crack stonewalls around government, forcing into the public domain information about finances, procurement, business relationships, individual citizens, and internal communications or processes.
In Ghana, a right to information bill has been stalled in Parliament since 2003, when the John Agyekum Kufuor administration tabled a draft. It was reintroduced after the NDC took power under John Evans Atta Mills, but it still hasn’t been passed, a fact that puts this country behind regional neighbours like Nigeria and Liberia, and well in the rear of continental cousins like South Africa.
The delay
Since coming into office, the National Democratic Congress (NDC) government has made some of the right noises about passing the bill into law. Recently, a series of public input session came to a close, and they were praised by the Ghana Right to Information Coalition (GRIC).
But skeptical Ghanaians need only look to the erstwhile New Patriotic Party (NPP) government, which enthusiastically drafted the bill, but soon developed cold feet towards passing it into law. It seems an odd irony, given that the NPP was responsible for striking the Criminal Libel Law from national statutes.
The current government will not give a specific time in which the bill will be passed, although Deputy Majority Leader Abdul-Rashid Pelpuo is optimistic the bill will be passed before the end of 2011.
“It is possible we can wrap this up by the end of 2011,” says Pelpuo, who also sits on the Parliamentary Joint Committee on Constitution, Legal and Parliamentary Affairs and Communications, the legislative body tasked with overseeing the drafting of the bill. “We are happy to facilitate the passage of the bill so that Ghanaians will have unfettered access to information held by government officials.”
However, Osei Bonsu Amoah popularly referred to as O.B. is not so optimistic.
The NPP MP for Aburi Nsawam is also a member of the Joint Committee. “No,” he says of Alhaji Pelpuo’s timeline. “It’s not realistic. There’s no way the bill can pass by the end of the year. Currently, we are on recess and Parliament doesn’t even resume until October, after which we will go on another break again in December.”
O.B. Amoah doubts it will make the agenda by the end of the year. Even if it did, however, it would have to be picked apart clause by clause, and if any recommendations from the public panels are included in the draft, they too will have to be debated before the bill can be amended.
“I’m sure,” says O.B. Amoah, “when it gets to the floor of the house, other amendments will have to be made, and if you combine all these factors, the bill, in my opinion, is likely to be passed by 2012, before the general election.”
Akoto Ampaw is an experienced legal practitioner and GRIC leader. Along with the others in the public sphere, he has reservations about certain aspects of the bill and wants the house to address them before it is passed.
“We have raised at least some ten or so key problems that we think ought to be reviewed with respect to the bill, and one of them of course is the timeline,” he says. “The other is the provision of an independent commission. The third has to do with the fee regime. The fourth has to do with the need for the bill to cover certain categories of private bodies that are either funded by the public purse, or are carrying out public sanctions, or are exploiting the natural resources of this country.”
Justice and the conflict of interest
An obvious conflict of interest, GRIC advocates say, is the Ministry of Justice’s involvement in implementing the bill and overseeing some of its provisions. One such function is the ministry’s jurisdiction over access to information applications. If a member of the public or media request information, the Ministry decides whether or not to release it.
“We do not think Minister of Justice should be the official to look up to when someone wants to access information,” says Mr. Ampaw. “We are asking for an independent body.
“When there is an application for review and the minister rejects the application, your only next resort is the Supreme Court. That will virtually cut out more than 90 per cent of the population who will not have the resources, the time and the courage to go to the Supreme Court. If the situation remains as it is, it will serve as a way of denying them their ability to challenge any arbitrary decision of the minister.”
Affail Monney, vice president of the GJA and of Ghana Broadcasting Corporation, shares Mr. Ampaw’s views. “The GJA’s position is that the Minister of Justice is accountable to the government, who appointed him/her, and so he/she is obliged to toe the line of government, or sing the tune of the government with respect to certain provision that may appear when the law is passed,” he says. “The government will definitely not pass any law that will end up tying its hand.”
Even though O.B. Amoah supports the call for an independent body to supervise the implementation of the bill, he concedes that the Minister of Justice has the technical expertise to handle issues that may come up after the passage.
“Sometimes you have to look at technical issues,” he says. “The Ministry of Justice might be appropriate. But I think it should have a more independent institution to be able to look at it.”
But Mr. Ampaw insists that the Ministry of Justice is not structured well enough to carry out such functions.
“In the alternative, we have proposed that there should be an independent information commission like you find in other jurisdictions,” he says. “And that independent information commission will have the function of carrying our public education, of training information officers, of serving on a tribunal at which disaffected citizens can appeal in case of refusal.”
The importance of keeping good records
Mr. Ampaw also says Ghana needs to inculcate an effective record-keeping and maintenance and retrieval habit, or the right to information law will have no teeth.
“You can make an application for information,” he says, “and if the records have not been properly kept you may not be able to access the information. So the right to information bill should include in it a provision that places and obligation on all public bodies and private agencies covered by the bill to create, keep, and organize an effective and efficient system of record keeping, so as to give meaning to the right to information when citizens apply for information.”
He predicts: “If these matters are not addressed, we’ll have a right to information law which will in many respects become an obstacle to the citizens’ right to information.”
The breadth of exemption
There are several clauses in the draft that protect various corners of government from reach of the legislation. The GRIC is taking issue with these, and the NPP concurs.
“We think the exemption clauses are too many,” says Mr. Ampaw. “Many of them are too broad and are blanket exemptions which are completely contrary to the provisions of our constitution.”
O.B. Amoah shares the councilor’s concerns. He says the Office of the President is like a vault, and the legislation will not penetrate it, not even for correspondence. The Office of the Vice President has similar protections.
“I think it’s too blanket,” he says. “It is too wide. It is not everything that is confidential or security-like when it comes to correspondence or documents from the presidency. For example the Ministry of Private Sector Development is in the Office of the President. Are we saying that one cannot have access to information at the place?”
Fees and Timelines
Civil society is also crying foul over access fees and timelines. In the latter case, government can take over 150 days to respond to a request, a timeframe wide enough to render some information irrelevant. Fees as well have been underscored as too high, with civil society saying charges should come to no more than the cost of copying documents.
“The fees charged should be at the very minimum and should not be so high as to dissuade people from seeking information, fees charged should not be greater than the cost incurred in providing a copy of the information sought,” writes the Commonwealth Human Rights Initiative in an online critique. “The Law should also contain a provision for waiver of fees where the applicant is unable to pay the same.”
Alhaji Pelpuo is aware of all these objections. He says Parliament will debate them when the time comes.
“Every single line will be debated so that we decide on what is best for the country,” he says.
The progress of neighbours
In 2000, South Africa became the first country in Africa to adopt a freedom of information law. Two years later, Angola and Zimbabwe followed suit, with Uganda passing legislation in 2005 and Ethiopia in 2008. In 2010, Liberia led the way in West Africa, and Niger, Guinea, and Nigeria have all followed suit.
“Apart from South Africa, implementation is yet to take firm root in the rest of these countries,” writes Gilbert Sendugwa, coordinator with Africa Freedom of Information Centre (AFIC), in an email. “While the pace seems to be encouraging since the beginning of 2011, Africa has generally been too slow, as today there are over 90 countries with access to information laws around the world.”
According to Sendugwa, each country has a different back-story. For example, Zimbabwe’s legislation, passed without input from civil society, was actually designed to hamper the media, which had been critical of ZANU-PF party officials.
South Africa, on the other hand, was riding a wave of post-Apartheid constitutionalism in the years running up to the passage of its law. The Promotion of Access to Information Act built on previous legislation, reaching out to both private and government entities. The bill is often applauded in freedom of information circles because it is overseen by the South African Human Rights Commission, rather than a justice ministry, as is proposed in Ghana’s case.
In Liberia and Nigeria, civil society played an active role in drafting the laws.
“The main and important feature is establishing a right of access, time limits, oversight, reporting, appeals, sanctions for denial or falsification and protection of whistleblowers,” says Sendugwa. “The Nigeria law is particularly strong on the scope, as it narrows the extent of exemptions, has very progressive time limits of seven days with which public bodies must respond, and also reporting is very well constructed.”
Effects of FOI Legislation
Mr. Monney thinks a strong information bill could transform Ghana. Journalists, he says, would be better equipped to dig up stories on key facets of Ghana’s character, whether they be the new oil and gas industry, or older standbys like mining, cocoa, and timber.
And then there’s corruption.“The right to information legislation is a necessary tool in the fight against corruption,” says Vitus Azeem, executive secretary of Ghana Integrity Initiative, “because our civil society and the media would be empowered to investigate allegations of corruption.”
Mr. Monney agrees, noting that government currently exists in a vacuum of accountability.
“As we speak, nothing obliges officials to provide information which they’re holding on behalf of the very people they represent,” he says. “We have to support our MPs to expedite action on this bill so that we would have unfettered access to information.”
There are fears that when the bill is passed into law, it might be abused particularly, by a media critic accuse of mendacious mudslinging. Alhaji Pelpuo harbours exactly those kinds of concerns.
“I think that one is a very big problem to everybody,” he says. “That’s why I say I hope the information is used for reasons other than destroying the personal reputations of people.”
Mr. Monney is dismissive of such criticisms, saying the overall result of a repealed Criminal Libel Law is a positive one.
“Some people hold that the media can’t handle a law like this,” says Monney, “and they point to the repeal of the Criminal Libel Law and what they term as a culture of character assassination as a result. But I say that governments have become more transparent than before.
“The media are so agile. The media are so alert. The media are so robust. And the critical nature of the media is in direct relation to its freedom.”
Lack of political will?
The issue of whether or not government has the political will to pass the bill into law has received varied responses.
Mr. Ampaw says there has not been any justifiable reason given to explain why since the bill hasn’t been passed since it was first drafter in 2003.
“Whether they lack the political will or not is something for the general public to assess,” he adds.
Mr. Azeem thinks the issue of political will is just a perception.
“No politician will come out and say, ‘We don’t want to pass it because if we do it is going to tie our hands.’ But of course, these are just suspicions that because they are dilly-dallying it’s possible that that may be the reason.”
O.B. Amoah says the NPP could not pass the bill into law due to circumstances beyond their control.
“We believe the introduction of the Bill to the house is a very good step forward. It’s a bill that should make government more accountable and more transparent when it is passed.”
Sendugwa and the AFIC say countries that struggle with access to information laws usually have issues understanding the legislation, both at the public and governmental level. Concerns that such bills will expose government secrets or infringe on public privacy are common. Further, changes in government can often frustrate the process.
“Ghana has never come this close to adopting an access to information law and clearly a law would strengthen Ghana’s democratic credentials in Africa and the rest of the world,” Sendugwa says. “A major concern is that the bill has not received priority attention from both the executive and Parliament since it was tabled. In fact, there is not yet commitment that following consultations the bill will be quickly considered by parliament. Some of the clauses are troubling, but we trust that inputs from ongoing consultations will cure this problem if parliament listens to the voices of ordinary citizens.”
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