A REVIEW OF GHANA’S RIGHT TO INFORMATION BILL, AND WHETHER IT AIDS IN THE FIGHT AGAINST CORUPTION
James Madison, the fourth president of the United States and a co-author of the First Amendment to the American Constitution, explained the right’s salience as early as 1822: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” This statement, so frequently quoted by American scholars, jurists, and politicians, is perceived as the explanation for why freedom of information contributes to and is a foundation of substantive constitutional democracy. According to this widespread view, the right to information is a precondition for the exercise of procedural political rights, such as the freedom of expression.
By 2003, over 50 countries had comprehensive laws to facilitate access to official information and more are enacting such legislation. Governments increasingly recognize the importance of access to information for enhancing democratic engagement, building confidence in government institutions and strengthening their credibility and effectiveness. However, in many States practicing democracy, people are still routinely denied access to information that should be in the public domain. Only 30 of the countries in which UNDP is present have laws requiring the disclosure of government records.
The right to information is a fundamental human right guaranteed by the country’s 1992 Constitution and recognized as a right under international conventions on human rights.Clearly, the right to information has been provided for by the Constitution in article 21, but how to access that vital information has become the challenge. The bill, when passed, will embolden Ghanaians to hold their leaders, especially the government, to be accountable.
Over the years, there has been a lot of push especially from the media and civil group to get the government to ensure the full enactment and the full implementation of what seems to be the long awaiting bill since the inception of the constitution. There can be no democratic participation in decision-making without transparency and sharing information. Secretive government is nearly always inefficient in that the free flow of information is essential if problems are to be identified and resolved. Furthermore, a secretive governing culture fosters suspicion and encourages rumors and conspiracy theories. In such a culture, the public is likely to treat all government information with skepticism including public education campaigns, such as those dealing with important health issues like HIV/AIDS or those which may be particularly sensitive. People are more likely to be politically malleable, skeptical of government and its intentions, and resistant to change unless sanctioned by informal opinion leaders.
Right to information laws are critical tools in the fight against corruption, which allows inefficiency to thrive and distorts the potential for growth. Although corruption exists in all societies, it has a particularly pernicious effect on less developed countries. Corruption discourages foreign investment and eats away at the budgets allocated to public procurements which enable basic infrastructure such as roads, schools and hospitals to be built. It also debilitates political institutions by reducing public confidence in their operation. If unbridled corruption continues to infect a society or political system, it may eventually lead to social unrest due to the division it creates between those who have easy access to goods and services and those who remain excluded. It is the poor who always bear the greatest burden of a corrupt society.
Right to information as a tool against corruption
In Thailand, the campaign for right to information legislation dates from the May 1992 uprising against Prime Minister, General Suchinda. In an attempt to restore order, General Suchinda implemented an information and media blackout, imposing a news embargo and enforcing curfews. Consequently, the transparency of information was a cornerstone of the emergent post-May 1992 democracy movement in Thailand, culminating in The OfficialInformation Act and the implementation of a new constitution in 1997.
Following the financial crisis that overwhelmed the Argentinean government in 2001, there was widespread public disillusionment with government and public concern about corruption. The government’s own anti-corruption unit played an important role in stimulating debate about the need for right to information legislation, whose form was itself influenced by regulations on the right to information at the municipal level of Buenos Aires.
In Peru, concern about corruption drove the campaign for more information. With the fall of the regime of President Alberto Fujimori in the year 2000, an important opportunity arose in Peru to break with the culture of secrecy which had characterized his government. The release of incriminating videos revealing the then Intelligence Chief engaged in acts of bribery, acted as a catalyst for the unravelling of the administration and drew public attention to the high levels of corruption engrained in public life. An important first step in the campaign for access to State-held information in Peru was the drafting of the document, The Principles of Lima: Freedom of Expression and Access to Information in Possession of the State. Written by a group of national and international experts, and presented on 16th November, the day it was announced that Ex-President Fujimori had fled the country, the Principles of Lima were signed by the then Special Envoys for Freedom of Opinion and Expression from the UN.
Both civil society and the media can play various crucial roles in furthering the demand for right to information legislation.In Peru the campaign for a right to information law took place with vigor, due to a series of activities organized by civil society groups, among them, the establishment of a free telephone line to receive complaints from citizens to whom the public administration had denied information. In parallel, a working group met regularly to draft legislative proposals. In a groundbreaking and unique development, members of all the Armed Forces participated in meetings in order to contribute to the drafting of documents on national security. Given the role played in internal politics by the armed forces, it was necessary to reassure them that a right to information law did not threaten their ability to defend the country. The Transparency and Access to Public Information Law N° 27806 was finally approved on 3 August 2002 after being submitted to two rounds of votes and approved unanimously.
Many countries will have a constitution which provides for a general right to information but this will often lack real teeth without specific right to information legislation. Information rights and real openness needs to become part of the institutional fabric rather than an option for public officials. Legislation provides this fabric. UNDP has a role in promoting the importance of legislation in moving towards a more open and democratic culture.
Some countries that are undertaking democratic transitions, such as Thailand, Nepal and the Philippines, have incorporated a right to information into their constitutions. Across the world the picture is varied. A number of African countries, including Malawi and South Africa, possess the constitutional right to information whilst many Latin American Constitutions tend to focus on one dimension of the right to information, habeas data, which is the right of anyone to access personal data, whether held by public or private bodies and where necessary, to update or correct athanasy right to information bill which was drafted in 2009 is supposed to be law to give a significant effect to article 23 of the 1992 constitution.
It is generally accepted therefore, that the most effective way of guaranteeing the right to information is to pass a specific law protecting this right and granting people the right to official information. Ghana’s right to information bill is one of such instruments which specifically deals with the peoples’ right to access information from public officials. Such a law is best understood as a process right and in its legal form sets out a series of procedures. Any such law should have the following three characteristics:
I. The maximum information possible is disclosed, which means a presumption that all information held by public bodies is open;
II. Any exceptions to this (i.e. information that is withheld) should apply only in very limited circumstances, and these circumstances should be defined in law rather than left ambiguous;
III. Finally, there should be an effective and efficient appeals mechanism in the event of an information request being denied.
Applying these characteristics to Ghana’s right to information bill, the last two characteristics are not very visible in the bill. Sections 5 to section 18 focuses on exceptions. However, it is submitted that, in order to make the law very effective, there should limited exceptions in the law.Again, the last process as stated earlier is not present in the bill. There should be an independent body that should receive appeals whenever an individual request for an information is denied. This point is explained in later sections.
The principle of maximum disclosure
The principle of disclosing maximum information means there is a presumption that all information held by public bodies can be accessed by members of the public and that any restrictions should only apply in very limited circumstances. More specifically this principle assumes that:
• Public bodies have a duty to release information and, in turn those members of the public have the equivalent right to request that piece of information;
• The right of access to information is one that can be claimed by any resident in the country (as is the case with any other human rights and recognizing the fact of mobile populations in the modern world); The state should not require any person requesting information to demonstrate a need for or interest in the information. If a public body does not want to release the information requested, it is for the public body to justify that refusal at every stage of subsequent proceedings, not for the individual to justify their interest;
• Not only that public bodies release information if specifically requested to do so, but that they also publish and disseminate information of significant public interest, (such as details of budgets and spending programmed). The type of information that is to be published will obviously depend on the public body concerned. Any law should therefore establish the general obligation to publish information and key categories of information that must be published.
The applicability must be inclusive
The law should apply to all branches of government (that is, the executive, legislative and judicial) as well as to all functions of government (including, for example, security and defense bodies). The Ghana’s right to information bill only makes provision for the government thus executive and legislature but is silent on the judiciary. Nondisclosure of information must be justified on a case-by-case basis.
Effective and efficient appeals mechanisms
In Ghana, one section that also has to be reviewed is Section 38;
(1) Except as otherwise provided in this Act, a person aggrieved by a decision of the information officer of an agency may submit an application for review of that decision to the Minister responsible for the agency.
Wherever practical, if an information request is refused, there should be some mechanism for making an internal appeal to a designated higher authority within the public body who can review the original decision.
In all cases, the law should allow individuals to appeal to an independent administrative body if an information request is refused. This could be to an existing body, such as an Ombudsman or Human Rights Commission, or one especially established for this purpose, such as an Information Commissioner. Whichever is chosen, it should meet certain standards and have certain powers. Its independence should be guaranteed, both formally and through the process by which the head and/or board is/are appointed.
In order for the bill to aid in the fight against corruption, there are a number of other factors that need to be considered and provided. These include:
• The cost of gaining access to information held by public bodies should not be so high as to deter those seeking information, given that the whole rationale behind access to information laws is to promote openness.
• Right to information legislation should also require that other legislation be interpreted, as far as possible, in a way that is consistent with its provisions. Where this is not possible, other legislation dealing with publicly held information should be subject to the principles underlying the freedom of information legislation. Over the longer term, a commitment should be made to bring all laws relating to information into line with the principles underpinning the freedom of information law. A particular need is to set the right to information law alongside any data protection laws – the right to information cannot be used to access data of a personal nature held by the state to enable it to provide services. But data protection laws should not be used to conceal personal information whose release maybe in the public interest – such as any illegal financial transactions carried out by public figures.
The bill should cover the private sector
The South African right to information law includes private sector companies in the scope of the legislation. This untypical measure was introduced as part of the wave of constitutional radicalism that marked the birth of the new South Africa. A right of information against a private company is sometimes known as a horizontal rightas it is directed ”horizontally” at another private actor rather than ”upwards” to the state. It is significant, because it represents an unprecedented experiment and a unique opportunity to impose accountability through transparency in relation to private as well as public power.
The Writings of James Madison 103 (Gaillard Hunt ed., 1910). Reinforcing Madison’s explanation is a comment made by the former president of Israel’s Supreme Court, Meir Shamgar: “The democratic system of government is nourished by—and is dependent on—the public and free flow of information, which focuses on the core issues that influence community and individual life. Therefore, many view the free flow of information as a ‘key’ to the operation of the entire democratic system.” HCJ 1/81 Sharan v. The Broadcasting Authority 1981 Sirs 35(1) PD 365, 378.
Ghana’s right to information bill is a good step in the right direction which undaughterly will aid enormously in the fight against corruption. However, there is the need for some reviews to be made for the bill to be passed into law to give its full effect in curtailing corruption in Ghana. Since 1996, the bill has experienced 138 amendments.
In recent times, corruption has been one of the topmost evils which is crippling the development of the nation. There have been high recordings of officials who have engaged themselves in corrupt acts and this claim is evident in the undercover investigations done by some journalist in the media fraternity. Most of them could have been prevented if the right to information bill had been passed.