Sixty five years ago, the United Nations General Assembly under resolution 59 declared, “Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated”. Two years later, in 1948, the Right to Information was given international legal status enshrined under Article 19 of the Universal Declaration of Human Rights which states that the fundamental right of freedom of expression encompasses the freedom to “to seek, receive and impart information and ideas through any media and regardless of frontiers”.
Over time, the right to information (FOI) has been reflected in a number of regional human rights instruments, including the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the European Charter of Human Rights. This has placed the right to access information firmly within the body of universal human rights law. And since then it has been well integrated, promoted and protected within national constitutions across the world.
The right to information is a very basic human right and one that we sometimes take for granted. Only when it is removed or curtailed do we realize the gaping hole it leaves behind. A Freedom of Information Act provides for an open yet responsible information sharing regime, guaranteed by law, and is an essential characteristic of a people-centered democracy and development. The responsible two-way flow of information helps citizens to articulate and exercise their rights and to make informed political and economic choices, and for a state to dialogue, receive feedback and provide a response. When practiced in this way, it is a win-win.
What happens without such freedoms? Citizens are unable to participate in the broader governance of their communities and countries. There is no check on the wielding of excessive powers, or on the levels of efficiency and effectiveness of development policies and programmes. Institutions of the state and of civil society do not course correct as they have no mirror on what is going right and what is not. Information as the ‘oxygen of democracy’ is not only essential for citizens in a democracy but is also an essential part of good government.
A body of compelling empirical studies attests that Freedom of Information, when instituted as an Act of legislation, also advances equity and access to basic social services and protection. The lives of the poor, and particularly women and girls in poor households, can be transformed by ensuring their access to information that protects their rights, ensures redress when wronged, and opens doors to development resources such as land, markets and credit. Abusers are put on notice, those who suffer from violence now know how to report and how to seek redress. However, having the information alone is not enough. The right information at the right time can help re-balance much in society that is unjust or unequal.
Over the past 10 years, the Right to Information has been recognized and formalised by an increasing number of countries, both developed and developing, through the adoption of Freedom of Information Acts or Regulations. In 1990, thirteen countries had adopted national freedom of information laws. Today, there are more than 80 countries that have done so, with a further 20-30 of them under consideration. This latter category includes Zambia.
The numbers are limited in the Africa region. Only six African countries have passed national freedom of information laws. These are Angola, Ethiopia, Liberia, South Africa, Uganda and Zimbabwe. Zambia can once again show the way to those watching and waiting, as it has done with the peaceful conduct of elections and transition of power.
Here in Zambia, Article 20 (1) of the Constitution states “Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence.” The time may now be here to move this broad principle into freedom of information legislation that has been under discussion and consideration since 2001.
An Act means little if it cannot be implemented. Therefore, while debating and developing an Act, there must also be a discussion on implications for implementation. It means developing an information disclosure policy and being able to manage the findings, it means accessibility and reliability of data, it requires a quick turn-around time in response and hence business and management efficiencies, it means staff who are well on trained in information management systems and analysis, it means a full commitment to a more open system of public relations and engagement. These capacity and systems investments have to be well planned and costed as part of the debate on the Act itself, and cannot be an afterthought. Too many finely crafted Acts sit on too many shelves around the world.
So as Zambia deliberates on these issues, let us reflect on the following:
First, while demanding the freedom of information, we must also accept that there are limits that have to be negotiated and agreed. This would mean promoting the principle of maximum disclosure of information, and then subjecting it to limited, tightly drafted exemptions. Freedom of Information legislation reflects the fundamental premise that all information held by governments and quasi-government institutions is in principle public and may only be withheld if there are legitimate reasons, such as to protect an individual’s privacy and national security. Even in such cases, countries have adopted statutes of limitation, which allows for access to undisclosed information after a period of time, sometimes fifty to hundred years later.
Second, this cannot come at a heavy long term cost to public institutions, in terms of money and time. If all every public service officer did was respond to public queries and not get much else done, the FOI system would not be serving its intended purpose. Data access, information management systems and data sharing and analysis procedures must be user-friendly, cost effective, and easy to use. The start-up cost to archive data, organize information, modernize and computerize across sectors and also at sub national level – these require a heavy initial cost. Once the systems and processes are set up, there is an easing of outlays.
Third, a well-trained and judicious media plays a key role. FOI provides better and timely access to reliable information, facilitates fact checks and encourages investigative reporting. This enables the media and civil society organizations to perform their roles as vigilant watchdogs, with credibility and professionalism.
Fourth, the demand for information, or the right not to disclose could require arbitration or the involvement of local courts. Such an Act, in its implementation, would need an independent, impartial institution, such as an Information Commissioner or other regulating body to ensure fair play. Such a body may permit penalties to be imposed on officials for non-compliance with the law.
Fifth, how much does such a law impact private citizens and the private sector? Country experience differs on the extent to which such an Act focuses on the institutions of government, and how much on private sector entities, non-government organizations and the public at large.
And finally, it takes mind-set change at all levels. Education and training helps, and facilitates the functionality of the FOI and ensures a better sense of rights and how best to access information and respond to information from the other end. But this is not enough. It is about a public dialogue also about responsibility and accountability, and about managing such in a more open space in the public domain. It is often not an easy step to take, and not all are ready to do so at the same time. But when such a step is taken together, it is much less daunting and can be in fact exhilarating and liberating to both institutions and to individuals. There is much less to hide and to hide from.
A Freedom of Information Act even in full implementation cannot do it all when it comes to increasing transparency and accountability. However, by increasing awareness and engagement, by urging citizens to ask the right questions and to look for answers, it opens up those egalitarian spaces for a more people centered democracy and for human development to thrive.
*Kanni Wignaraja is UN Resident Coordinator and UNDP Resident Representative and Sirak Gebrehiwot is UN Communications Officer in Zambia