29 September 2021 –
What are effective ways civil society can advance access to information at the national level? What are the obstacles to effective access to information? These questions were at the center of the third regional meeting on access to information for the Sub-Saharan Africa region, attended by 15 civil society representatives from across the continent.
As a core element of fighting corruption, the UN Convention against Corruption (UNCAC) requires states to make information available about their activities and to engage with civil society. Article 10 requires states to take measures to enhance the transparency of their public administration, including by adopting procedures facilitating public access to information “on the organization, functioning and decision-making processes of its public administration.” States also have to publish information on corruption in the public administration. Article 13 commits states to guarantee public participation by “Respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption” and “ensuring that the public has effective access to information.”
This regional meeting explored experiences from Rwanda, Nigeria and a regional perspective from the Africa Freedom of Information Centre (AFIC) based in Uganda. The discussions were premised on the provisions of the UNCAC which require public disclosures and the dissemination of specific information relating to the functioning of public administration and their anti-corruption measures. Below is a summary of the interventions made by speakers:
A Regional Perspective on Freedom of Information and Access to Information
Mr. Gilbert Sedungwa, Executive Director of the Africa Freedom of Information Centre (AFIC) with membership of 46 CSOs across 23 countries in Africa, gave some insight into the work of the Centre which engages in advocacy campaigns for the adoption of good access to information (ATI) legislation and the monitoring of ATI Acts (where they do exist). In Africa, the lack of ATI laws is alarming – 29 countries are yet to adopt ATI laws, despite the importance of ATI raised in 6 African Union treaties and the general regional commitment to the implementation of the SDGs.
Mr. Sedungwa highlighted the importance of the passage of good quality legislation, which is as crucial as the existence of the law; but also, the importance of citizens’ knowledge of the laws. By 2011, 6 years had passed since the adoption of the ATI law in Uganda, but citizens were not using it to file FOI requests, therefore one could argue that its objectives were not being achieved due to a lack of use by citizens.
Citizen empowerment is essential when it comes to knowing how to use ATI laws. This was demonstrated by way of example: after AFIC trained and conducted workshops for CSOs, in one district 52 requests had been filed within 12 weeks. AFIC then trained some public officials who assisted with the responses to meet the demand for information, with 71% of the requests responded to. Civil society can play a role in building demand and also in fostering responsiveness from public institutions which understand their obligations and are able to respond to information requests.
In Malawi, a request for information on school books allowed public institutions to rectify a wrong concerning the procurement of books which were promised but not delivered within 2 years. Following this request for information, the government followed up with the contractor to provide the supplies.
In Kenya, the government paid a supplier to distribute sanitary pads for secondary schools, yet did not deliver. In Uganda, a contract issued to construct a school was not completed by the contractor who did sub-par work, even issuing a certificate of completion of the work, which was approved and paid for. By the time a request for information was filed 2 years later, the infrastructure built was not usable. The request facilitated the government’s identification of the shoddy job, and compelled the contractor to redo the work.
Mr. Sedungwa specifically spoke about the importance of civil society in the implementation of ATI laws. Civil society has several roles to play in this regard: standard-setting, advocating for the adoption of good ATI legislation, building demand for ATI legislation and monitoring it. Research is important to inform citizens of their right to access information – AFIC has in fact undertaken a study on the state of ATI in the region, covering around 18 countries.
Challenges with ATI laws abound, including a lack of provisions for independent oversight mechanisms allowing for promotion measures and capacitation of officers within agencies. Most national ATI legislation does not provide for information commissions, Ombudsmen or appeal courts. Ordinary citizens, youth, women and individuals with disabilities may find it expensive to access ATI mechanisms. Furthermore, public education on the right of access is a challenge coupled with a lack of capacity in public agencies, which plays a critical role in determining whether or not the agencies respond to requests. Some of the information people request is refused by authorities. This breeds a culture of impunity, with people keeping quiet and not fighting for their rights.
Ultimately whether a country adopts an ATI law, and whether its institutions implement this law depends on whether civil society raises awareness about and promotes the importance of ATI.
Access to Information in Rwanda
Ms. Colette Ndabarushimana (TI Rwanda) noted that there is an ATI law in Rwanda which was passed in 2013 and whose enforcement has been entrusted to the office of the Ombudsman to monitor its implementation. The purpose of the law is to enable the public and journalists to access information which is possessed by public organs and some private bodies, therefore Rwanda’s law, according to article 3, is applicable to the state as well as private bodies.
There are several restrictions on the types of information that can be accessed by citizens. Information exempted from public access includes information that may interfere with the privacy of a person or intellectual property rights, information related to ongoing legal proceedings, information related to defence and national security, inter alia. The information classification is justified by the protection of national security, i.e. information that would destabilize national security including military tactics or strategy, intelligence, foreign relations, or “critical” economic interests and infrastructure security, among others (Articles 4 and 5 of Ministerial Order N°005/07.01/13 of 19/12/201).
The Office of the Ombudsman shall also establish regulations and procedures to promote the publication and dissemination of information. Access to information applications are free in Rwanda, unless any equipment or tool is used for the request that necessitates an extra charge.
Some challenges are experienced when it comes to the implementation of the ATI law and its benefits. There is low awareness by citizens of the law, but also by those who are supposed to (mandatorily) provide information: they do not know that is it mandatory to provide information; and journalists are subject to censorship. There is a need for collective action and greater awareness campaigns to inform citizens and the general public.
Access to Information in Nigeria
Rev David Ugolor, Executive Director of the Africa Network for Environment & Economic Justice (ANEEJ) noted that ATI is implemented under the Freedom of Information (FOI) Act of 2011 in Nigeria.
Mr. Ugolor focused on ATI in procurement and contracting processes, particularly using the Open Government Partnership (OGP) framework. Nigeria joined the OGP and it is hoped that through its process, commitment to the fight against corruption will be intensified. A lack of openness and widespread corruption has meant that resources earmarked for development have been redirected through a culture of opacity. The OGP framework has created an opportunity for co-creation with various stakeholders including civil society, and operationalizing the principles of transparency, accountability and public participation in access to information. The OGP has been a key element in promoting and ensuring that citizens also have access to information.
Nigeria’s National Action Plan spans four key thematic areas: fiscal transparency, anti-corruption, access to information and citizen engagement. Some of the key deliverables are open budgeting, open contracting, revenue transparency and a publication of a register of beneficial ownership, especially in the extractive industry.
It was noted that in the past, contracting information was not available, but things have changed through open contracting data standards. Contracting data and documents can be published in an accessible, structured and computable way to promote transparency. The open contracting data standard enables disclosures of data and all documents at all stages of the contracting process and increase contracting transparency. This helps the government in connecting with the public, by informing them of different types of government involvement.
A CSO public procurement monitoring working group was established in 2017, and works closely with the Bureau for Public Procurement (BPP). Nigerian CSOs are currently monitoring contracts and projects using the open contracting portal across the country. Effective ways to ensure ATI at the national level include the implementation of FOI, CSO monitoring and a full operationalization of open contracting data standards.
There are obstacles to effective ATI, one being the inability of government to institutionalize the OGP process in Nigeria. Secondly, not all government agencies are using the open contracting portal. Poor compliance with ATI legislation by government agencies is a huge challenge, compounded by a lack of capacity of CSOs and citizens to assess and use procurement and budget data made available by government, if this data is made available to them in a timely manner.
A common thread emerging from the presentations as well as comments from the participants was the emphasis on the importance of good quality ATI legislation and even more crucially, the capacity of civil society and a country’s citizenry in making requests and engaging with data requested.
The next regional meeting for Sub-Saharan Africa will take place in November, and is tentatively scheduled to discuss the topic of Beneficial Ownership Transparency.