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Opinions of Thursday, 11 August 2011

Columnist: Ameyibor, Francis

Civil Society Faults Ghana’s Right To Information Bill

, Proposes Amendments

Written by Francis Ameyibor

Wednesday, August 10, 2011

Ghanaian civil society activists through the RTI Coalition has faulted some provisions of the country’s Right to Information (RTI) Bill presently before Parliament and called for their amendment. The group in a statement in Accra said that a critical review of the bill reveals that while Clauses 2 and 3 provide for proactive disclosure, the information that should be proactively disclosed is rather limited.

According to the coalition in a statement jointly signed by Ms Caroline Nalule, Africa Regional Co-ordinator of Commonwealth Human Rights Initiatives; Nana Oye Lithur, Executive Director of Human Rights Advocacy Centre; Mr. Akoto Ampaw, Accra-based private legal practitioner; and Mr. Francis Ameyibor, an Accra-based media practitioner:

International RTI standards revealed that exemptions should be narrowly formulated so as not to defeat the purpose and object of access to information.

Therefore Ghanaian Civil Society Activists through the RTI Coalition recommends that; all exemptions in the Bill should be subjected to “a harms test”: That is to say, exempt information will remain exempt where it is proved that the harm in disclosure is greater than the public interest in disclosure.

This is vital to include as the Constitution specifically states that the right to information is ‘subject to such qualifications and laws as are necessary in a democratic society’. Hence the exemptions need to meet this standard.

The Bill needs to do away with blanket exemptions as those currently exempting all information in the office of the President, the Vice-President; information relating to the cabinet, information relating to law enforcement, public safety and national security. The harms test should be applied to all exemptions.

While clause 18 provides a public interest override, it sets out categories of public interest, and yet public interest may go beyond the listed categories. Hence Clause 18 should be opened up (e.g. by stating that “instances in which exempt information shall be disclosed ‘include the following’) and not restrictive.

TIMELINES WITHIN THE BILL

One of the principles of the right to information is that information requested for from a public body should be provided in a timely or expeditious manner. This is in recognition of the fact that information is needed for a specific purpose within a specific time.

The times stipulated within the Bill defeat this principle as well as the right to information. Twenty-one working days in which officer shall notify one of decision on application (Clause 23(1); 14 days within which to give access (Clause 23 (3) (a); 21-days working days extension at the discretion of the officer (Clause 26) and 3-months extension where the Minister so permits; 30-days within which to notify the applicant on the decision on extension (Clause 26 (3).

In addition, to these long time lines, applicants need to give a reason for the application when it is urgent, Clause 1 (4) in the Bill. This is unreasonable considering that it is the duty of the government to avail information and one should not give a reason for exercising this right.

THE TIMELINES IN THE BILL NEED TO BE SHORTENED.

The 21 working days within which the information officer should decide whether or not he or she will give you the information should be done away with. Upon application, the information Commissioner should be given 10 working days to handle the application.

The 30-day time limit to notify the applicant under Clause 26 (3) of the Bill is inconsistent with Clause 26 (2) of the Bill; Revise Clause 26 (3) of the Bill.

INCLUSION OF PRIVATE BODIES

The scope of the Bill is rather limited. It should be a law that applies to all Public Bodies and not government agencies (as it currently provides).

The term ‘government agency’ is too restrictive and excludes private bodies and chieftaincy institutions. The preamble should replace the term ‘government agency’ with ‘public body’ and add the term ‘private body’ alongside the term ‘public body.

Private bodies which are, (i) owned, controlled or substantially financed directly or indirectly by funds provided by government, but only to the extent of that financing; or (ii) carrying out a statutory or public function, but only to the extent of that statutory or public function; (iii) companies that are engaged in exploitation of natural resources should be brought under the Act.

The RTI law should also contain a provision which allows for access to information from a private body where the information may assist in the exercise or protection of any right. The application may state the right which is sought to be protected or exercised.

There is no need for the Minister to come up with a separate set of legislation for private bodies and yet the Act can clearly and simultaneously stipulate the obligations of the relevant private bodies.

INCLUSION OF CHIEFTAINCY INSTITUTIONS/TRADITIONAL AUTHORITIES

Under Article 36 (8) of Ghana’s 1992 Constitution, it is clearly stated that: “the state shall recognise that the managers of public, stool, skin and family lands are fiduciaries charged with the obligation to discharge functions for the benefit respectively of the people of Ghana, of the stool, skin, or family concerned and are accountable as fiduciaries in this regard.”

To the extent that they carry out public functions and need to account to the people with whom they have a fiduciary relationship, chieftaincy institutions or traditional authorities should be included in the Act.

Hence, they should included as part of the public bodies within the purview of the Act, but only to the extent of their fiduciary functions e.g. information on royalties received, how such monies are spent etc.

These institutions should also designate information officers who would have the duty to provide such information to the public.

FEES PAYABLE UNDER THE BILL

Fees payable under the Right to information law should not be such as would in effect deny one of his or her right. Information to be accessed under the law should be available in as inexpensive a manner as possible.

The Bill is providing for different unjustifiable fees to be paid and restricts access where these fees are not paid. An application shall be accompanied by a relevant fee: Clause 19 (1) (f) in the Bill.

Where the information officer decides to give access, the notice shall state the fees payable for dealing with the application, Clause 23(4)(d). Information can be denied where the required deposit or fee is not paid, Clause 23(6).Requires advance deposit if cost of dealing with application exceeds application fees, Clause 25 in the Bill.

If advanced deposit is not paid, the agency can neglect request, Clause 25 (2) in the Bill. Denies applicant redress if deposit unpaid, Clause 23 (6) in the Bill. If application is rejected, applicant is still coerced to pay without granted access, Clause 23 (4) (d) in the Bill. Minister of Justice determines fees for search, retrieval, preparing information, and postage, Clause 50 in the Bill.

The fees that should be emphasised by the law are the actual cost of reproduction of the information requested. Availing information is a duty of the government and not a business venture. One should not be required to pay a fee upon lodging or filing an application e.g. a deposit fee.

One should not be required to pay a fee in relation to time spent by a body in searching for the information required. One should not be required to pay a fee where information sought is personal information.

The requirement to pay an application fee for public information is absurd! The fees structure within the Bill should be consolidated in one section as it is currently scattered and would create room for abuse.

INTERNAL REVIEWS AND APPEALS

Internal Reviews – Under Clause 38, the Bill allows for applications for review of an information officer’s decision to be made to the Minister responsible for the agency.

While this is an appropriate provision to settle issues at administrative level, the Sector Minister would usually have a heavy workload and reviewing information application requests may not be his or her priority.

While Bill allows for this power to be designated under Clause 41; it is recommended that the power to conduct internal reviews be given to a senior ranking officer within the Ministry. This will make Clause 41 unnecessary and should be deleted.

APPEALS

Where information is denied, Clause 42 (1) provides that the applicant may apply for a judicial review within 21 working days to the Supreme Court! Other than being the final Court of Appeal, the Supreme Court is only situated in Accra.

It is usually backlogged with numerous cases and it is not easily accessible (in terms of distance, time, finances and stature) to ordinary citizens. If such jurisdiction should be given to any Court, it should be the High Court.

Notwithstanding, the right to information law should provide for an independent commission that would handle appeals from internal review mechanisms. This would be a specialised body that would be in a position to arbitrate such issues in a timely and cheaper manner.

INDEPENDENT COMMISSION

Clause 53 bestows the power to implement the Bill onto the Minister for Justice. The Minister for Justice/Attorney General has a huge workload as the case may be. They have a huge backlog of cases pending before the Courts and in many instances; cases do get adjourned because there is no representative from the Attorney-General’s department!

They also have the duty to oversee a number of other laws e.g. Anti-corruption laws, which they are not in position to do! How then can the critical task of implementation of the right to information law be bestowed upon the minister?

Furthermore, the minister of justice would be in a conflict of interest situation as a minister of Government and then as overseer of implementation of the law. There is an apparent lack of objectivity. This conflict is well brought out by Clause 54 which states that the Attorney General shall be a party to all proceedings in the Supreme Court.

The Attorney General and the Minister of Justice are the same person! We need an independent commission that will not only monitor implementation of the law; but will develop the expertise to do so and be in position to carry out public education on the same.

In addition to the monitoring and education mandate, it would also act as an arbitral/ adjudicative body in instances where appeals may be made from internal reviews.

An independent commission can play the multiple roles of monitoring, promotion, and enforcement which currently no established body can do effectively. Just as an independent media commission; an electoral commission were set up for their various roles, so too would the independent information commission.

IMPLEMENTATION

The Bill does not provide a commencement date of the law. It does not specify which sections of the Bill should be implemented immediately e.g. development of manuals by all MDAs should be something that can be embarked upon immediately. Where a time-limit for implementation of the Bill is not set, it will delay implementation or result into non-implementation.

The law should fix maximum time limit for enforcement. Another consideration may be phased implementation where the law specifies key MDA to implement in the first year or given time-frame.

The following provisions can commence 3-4 months after enactment of the law: Filing information requests Amendment of information in personal records Proactive disclosure of already existing information

RECORD-KEEPING

While one of the biggest problems in our public bodies is record-keeping; the Bill is silent on recordkeeping and yet it is very vital that proper records are kept and maintained by public institutions. The information they hold is held on behalf of the public.

The RTI Bill should reinforce the Ghana Public Records and Archives Administration Act, 1997 (Act 535). The Bill should have an explicit duty for public bodies to create, keep, maintain, and organize proper records.

TRAINING OFFICERS

Public and civil servants need to be trained on their duties/obligations under the Law. They need to be trained on the provisions of the law so that it can be effectively implemented. The law should therefore impose a duty on all institutions to train their officers to enable them comply with the provisions of the law.

PUBLIC EDUCATION

The public need to be educated on the law so that they can effectively utilize it. This is a duty that should be included in the Act and it can be carried out by the independent commission. It can do this in collaboration with other existing bodies with parallel obligations such as the National Commission for Civic Education. This duty should be clearly spelt out in the law.

Ghanaian Law Makers over to You!!!!

CIVIL SOCIETY FAULTS GHANA’S RIGHT TO INFORMATION BILL, PROPOSES AMENDMENTS

Written by Francis Ameyibor Wednesday, August 10, 2011

Ghanaian civil society activists through the RTI Coalition has faulted some provisions of the country’s Right to Information (RTI) Bill presently before Parliament and called for their amendment. The group in a statement in Accra said that a critical review of the bill reveals that while Clauses 2 and 3 provide for proactive disclosure, the information that should be proactively disclosed is rather limited.

According to the coalition in a statement jointly signed by Ms Caroline Nalule, Africa Regional Co-ordinator of Commonwealth Human Rights Initiatives; Nana Oye Lithur, Executive Director of Human Rights Advocacy Centre; Mr. Akoto Ampaw, Accra-based private legal practitioner; and Mr. Francis Ameyibor, an Accra-based media practitioner:

International RTI standards revealed that exemptions should be narrowly formulated so as not to defeat the purpose and object of access to information.

Therefore Ghanaian Civil Society Activists through the RTI Coalition recommends that; all exemptions in the Bill should be subjected to “a harms test”: That is to say, exempt information will remain exempt where it is proved that the harm in disclosure is greater than the public interest in disclosure.

This is vital to include as the Constitution specifically states that the right to information is ‘subject to such qualifications and laws as are necessary in a democratic society’. Hence the exemptions need to meet this standard.

The Bill needs to do away with blanket exemptions as those currently exempting all information in the office of the President, the Vice-President; information relating to the cabinet, information relating to law enforcement, public safety and national security. The harms test should be applied to all exemptions.

While clause 18 provides a public interest override, it sets out categories of public interest, and yet public interest may go beyond the listed categories. Hence Clause 18 should be opened up (e.g. by stating that “instances in which exempt information shall be disclosed ‘include the following’) and not restrictive.

TIMELINES WITHIN THE BILL

One of the principles of the right to information is that information requested for from a public body should be provided in a timely or expeditious manner. This is in recognition of the fact that information is needed for a specific purpose within a specific time.

The times stipulated within the Bill defeat this principle as well as the right to information. Twenty-one working days in which officer shall notify one of decision on application (Clause 23(1); 14 days within which to give access (Clause 23 (3) (a); 21-days working days extension at the discretion of the officer (Clause 26) and 3-months extension where the Minister so permits; 30-days within which to notify the applicant on the decision on extension (Clause 26 (3).

In addition, to these long time lines, applicants need to give a reason for the application when it is urgent, Clause 1 (4) in the Bill. This is unreasonable considering that it is the duty of the government to avail information and one should not give a reason for exercising this right.

THE TIMELINES IN THE BILL NEED TO BE SHORTENED.

The 21 working days within which the information officer should decide whether or not he or she will give you the information should be done away with. Upon application, the information Commissioner should be given 10 working days to handle the application.

The 30-day time limit to notify the applicant under Clause 26 (3) of the Bill is inconsistent with Clause 26 (2) of the Bill; Revise Clause 26 (3) of the Bill.

INCLUSION OF PRIVATE BODIES

The scope of the Bill is rather limited. It should be a law that applies to all Public Bodies and not government agencies (as it currently provides).

The term ‘government agency’ is too restrictive and excludes private bodies and chieftaincy institutions. The preamble should replace the term ‘government agency’ with ‘public body’ and add the term ‘private body’ alongside the term ‘public body.

Private bodies which are, (i) owned, controlled or substantially financed directly or indirectly by funds provided by government, but only to the extent of that financing; or (ii) carrying out a statutory or public function, but only to the extent of that statutory or public function; (iii) companies that are engaged in exploitation of natural resources should be brought under the Act.

The RTI law should also contain a provision which allows for access to information from a private body where the information may assist in the exercise or protection of any right. The application may state the right which is sought to be protected or exercised.

There is no need for the Minister to come up with a separate set of legislation for private bodies and yet the Act can clearly and simultaneously stipulate the obligations of the relevant private bodies.

INCLUSION OF CHIEFTAINCY INSTITUTIONS/TRADITIONAL AUTHORITIES

Under Article 36 (8) of Ghana’s 1992 Constitution, it is clearly stated that: “the state shall recognise that the managers of public, stool, skin and family lands are fiduciaries charged with the obligation to discharge functions for the benefit respectively of the people of Ghana, of the stool, skin, or family concerned and are accountable as fiduciaries in this regard.”

To the extent that they carry out public functions and need to account to the people with whom they have a fiduciary relationship, chieftaincy institutions or traditional authorities should be included in the Act.

Hence, they should included as part of the public bodies within the purview of the Act, but only to the extent of their fiduciary functions e.g. information on royalties received, how such monies are spent etc.

These institutions should also designate information officers who would have the duty to provide such information to the public.

FEES PAYABLE UNDER THE BILL

Fees payable under the Right to information law should not be such as would in effect deny one of his or her right. Information to be accessed under the law should be available in as inexpensive a manner as possible.

The Bill is providing for different unjustifiable fees to be paid and restricts access where these fees are not paid. An application shall be accompanied by a relevant fee: Clause 19 (1) (f) in the Bill.

Where the information officer decides to give access, the notice shall state the fees payable for dealing with the application, Clause 23(4)(d). Information can be denied where the required deposit or fee is not paid, Clause 23(6).Requires advance deposit if cost of dealing with application exceeds application fees, Clause 25 in the Bill.

If advanced deposit is not paid, the agency can neglect request, Clause 25 (2) in the Bill. Denies applicant redress if deposit unpaid, Clause 23 (6) in the Bill. If application is rejected, applicant is still coerced to pay without granted access, Clause 23 (4) (d) in the Bill. Minister of Justice determines fees for search, retrieval, preparing information, and postage, Clause 50 in the Bill.

The fees that should be emphasised by the law are the actual cost of reproduction of the information requested. Availing information is a duty of the government and not a business venture. One should not be required to pay a fee upon lodging or filing an application e.g. a deposit fee.

One should not be required to pay a fee in relation to time spent by a body in searching for the information required. One should not be required to pay a fee where information sought is personal information.

The requirement to pay an application fee for public information is absurd! The fees structure within the Bill should be consolidated in one section as it is currently scattered and would create room for abuse.

INTERNAL REVIEWS AND APPEALS

Internal Reviews – Under Clause 38, the Bill allows for applications for review of an information officer’s decision to be made to the Minister responsible for the agency.

While this is an appropriate provision to settle issues at administrative level, the Sector Minister would usually have a heavy workload and reviewing information application requests may not be his or her priority.

While Bill allows for this power to be designated under Clause 41; it is recommended that the power to conduct internal reviews be given to a senior ranking officer within the Ministry. This will make Clause 41 unnecessary and should be deleted.

APPEALS

Where information is denied, Clause 42 (1) provides that the applicant may apply for a judicial review within 21 working days to the Supreme Court! Other than being the final Court of Appeal, the Supreme Court is only situated in Accra.

It is usually backlogged with numerous cases and it is not easily accessible (in terms of distance, time, finances and stature) to ordinary citizens. If such jurisdiction should be given to any Court, it should be the High Court.

Notwithstanding, the right to information law should provide for an independent commission that would handle appeals from internal review mechanisms. This would be a specialised body that would be in a position to arbitrate such issues in a timely and cheaper manner.

INDEPENDENT COMMISSION

Clause 53 bestows the power to implement the Bill onto the Minister for Justice. The Minister for Justice/Attorney General has a huge workload as the case may be. They have a huge backlog of cases pending before the Courts and in many instances; cases do get adjourned because there is no representative from the Attorney-General’s department!

They also have the duty to oversee a number of other laws e.g. Anti-corruption laws, which they are not in position to do! How then can the critical task of implementation of the right to information law be bestowed upon the minister?

Furthermore, the minister of justice would be in a conflict of interest situation as a minister of Government and then as overseer of implementation of the law. There is an apparent lack of objectivity. This conflict is well brought out by Clause 54 which states that the Attorney General shall be a party to all proceedings in the Supreme Court.

The Attorney General and the Minister of Justice are the same person! We need an independent commission that will not only monitor implementation of the law; but will develop the expertise to do so and be in position to carry out public education on the same.

In addition to the monitoring and education mandate, it would also act as an arbitral/ adjudicative body in instances where appeals may be made from internal reviews.

An independent commission can play the multiple roles of monitoring, promotion, and enforcement which currently no established body can do effectively. Just as an independent media commission; an electoral commission were set up for their various roles, so too would the independent information commission.

IMPLEMENTATION

The Bill does not provide a commencement date of the law. It does not specify which sections of the Bill should be implemented immediately e.g. development of manuals by all MDAs should be something that can be embarked upon immediately. Where a time-limit for implementation of the Bill is not set, it will delay implementation or result into non-implementation.

The law should fix maximum time limit for enforcement. Another consideration may be phased implementation where the law specifies key MDA to implement in the first year or given time-frame.

The following provisions can commence 3-4 months after enactment of the law: Filing information requests Amendment of information in personal records Proactive disclosure of already existing information

RECORD-KEEPING

While one of the biggest problems in our public bodies is record-keeping; the Bill is silent on recordkeeping and yet it is very vital that proper records are kept and maintained by public institutions. The information they hold is held on behalf of the public.

The RTI Bill should reinforce the Ghana Public Records and Archives Administration Act, 1997 (Act 535). The Bill should have an explicit duty for public bodies to create, keep, maintain, and organize proper records.

TRAINING OFFICERS

Public and civil servants need to be trained on their duties/obligations under the Law. They need to be trained on the provisions of the law so that it can be effectively implemented. The law should therefore impose a duty on all institutions to train their officers to enable them comply with the provisions of the law.

PUBLIC EDUCATION

The public need to be educated on the law so that they can effectively utilize it. This is a duty that should be included in the Act and it can be carried out by the independent commission. It can do this in collaboration with other existing bodies with parallel obligations such as the National Commission for Civic Education. This duty should be clearly spelt out in the law.

Ghanaian Law Makers over to You!!!!