A GNA feature by Francis Ameyibor

Accra, April 8, GNA - The 1992 Constitution guarantees the Right to Information as a fundamental human right of all persons in Ghana. But it is a sad commentary that almost 16 years into the Fourth Republic, the various governments and parliaments have failed to ensure the passage of the Right to Information Law.

It is more frustrating for media practitioners in their quest to secure information for the benefit of the public in fulfilment of their Constitutional mandate to encounter public officials who refuse to give out what they are holding in trust for the people. In Ghana, everybody seems to be interested in withholding information, whether classified or not, research findings or just newspaper cuttings. We are interested in keeping documents in our safes and cabinets to gather dust instead of releasing them. It is completely unjustifiable in this information age that public officials do not provide the public with access to the huge amounts of valuable information that they produce as part of the routine discharge of their duties.

Such officials need to be told that they do not own the information that they create and collect. Information belongs to the public - it is created with public money by public servants, paid from the public treasury. It is a national resource. Our choice of democratic governance entails an active participation by all in the governance of the country. In this participatory democracy, the right to information is particularly relevant. It is essential in ensuring good governance.

It is only when those who are to participate in governance are well informed, that they can contribute meaningfully to governance. This can only be achieved if they have access to the relevant information. Thus right to information requires that there is in existence the requisite data or information.

This realisation of the importance of the right to information and the desire to ensure that there is transparency in governance, constitutes the foundation for empowering the citizenry to contribute to the good governance and rapid development and progress of the country. The right to information, however, needs to be qualified in accordance with the Constitution.

The primary conceptual foundation for the right of citizens to information is the principle of sovereignty of the people. It is in this regard that the very first article and provision of the 1992 Constitution - Article 1 Clause 1 affirms the sovereignty of the people in these immortal words:

"The sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution," Article 1(1)".

The right to information is an important mechanism for securing social justice and the rights of the people.

In an interview with Ghana News Agency at Sunyani during the recent regional workshop on the RTI Bill, Mr Akoto Ampaw, a member of the Ghana Bar Association (GBA), said it was the obligation of government generally to be proactive in disclosing information to its citizens without waiting for any specific request.

He explained that in a democratic dispensation, the government was simply an elected and mandated agent, the representative of the people. "It ought to be obvious that any information in the hands of governmental agencies or public bodies is by that very fact information that is held for and on behalf of the people by that government agency or body."

Mr Ampaw said the right to information assures and enhances probity and accountability, two very important principles that the 1992 Constitution upholds both in its preamble and in various provisions scattered in the body of the Constitution. A memorandum to the Bill categorizes it into two broad subject areas, the first area dealing with information held by government agencies, and the second area with general and miscellaneous matters. Clause 1 provides for access to official information held by a government agency. Except for information specified as exempt information, a person has a right of access to information held by government agencies and does not need to give a reason for the request for access, unless that person requests that the application be treated with urgency.

Maximum disclosure in relation to governance is provided for in Clause 2 which requires the Government to make non-exempt information on governance available to the public without the need of an application. This provision is meant to ensure transparency in Government and to equip the public with the necessary knowledge and information to contribute meaningfully to national development. This provision and indeed any other mandatory provisions may, like any of the provisions of the Constitution on fundamental human rights, be enforced through an action at the High Court as specified in Article 33 of the Constitution.

The compilation and publication of an up-to-date manual on official information, at the instance of every Minister in consultation with the Public Services Commission and the Head of Civil Service, is covered by Clause 3.

Clause 4 requires the Public Services Commission in consultation with the Minister responsible for the implementation of the Act to provide guidelines for the preparation of the manual under Clause 2 of the Bill.

The Attorney-General will be responsible for the implementation of the Act and any other enactment that relates to access to official information in the custody of an agency.

Exemptions are provided for in Clauses 5 and 6(a) from disclosure of information submitted or meant for submission to the President or the Vice President.

A certificate signed by the Secretary to the President or the Vice President establishes whether or not information that relates to the office of the President or the Vice President is exempt, and is only subject to article 135 of the Constitution from disclosure of information submitted or meant for submission to the Cabinet and official information of the Cabinet which has not been published or released to the public, as well as decisions, deliberations and discussions of the Cabinet.

Subject to Article 135 of the Constitution a certificate signed by the Secretary to the Cabinet establishes whether information that relates to the Cabinet is exempt or not. In spite of the exemption from disclosure of information relating to the Cabinet, the Cabinet has the power to grant access to information relating to its work. This is another provision intended to enhance transparency in governance.

Clause 7 exempts information that relates to law enforcement, public safety and national security from disclosure. This provision is necessary for the protection of national security, public order and public health.

Clauses 8, 9 and 10 provide, among other things, for the exemption from disclosure of information that is likely to damage or prejudice the relationship between this country and any other countries or an international organization, the defence of the country or of a friendly foreign country, and its economic or financial interest. Clause 11 exempts from disclosure confidential information which would reveal a trade secret or which relates to research, scientific, technical or commercial subjects or to labour where the disclosure of the information would prejudice the economic or financial interests of a person or group of persons.

In Clause 12, provision is made for the exemption from disclosure of information obtained on a tax return or for the purpose of determining tax liability, whiles Clauses 11 and 12 together protect the rights of third parties in respect of information held by government agencies, which affects the interests of the third parties. Other issues captured in the Bill include the responsibility of the Minister in respect of access; exempt information - information from the Office of the President and of the Vice-President; Information relating to the Cabinet, Information relating to law enforcement, public safety and national security; Information affecting international relations and Information that affects the defence of the country.

Other exemptions cover economic and any other interests; economic information of third parties; information relating to tax; Internal working information of agencies; Parliamentary privilege, fair trial, contempt of court; Legal profession and any other privilege under law; Medical professional privilege; Disclosure of personal matters and disclosure for the protection of the public interest.

The Bill also makes procedure for access which focuses on the application for access to information; person to deal with application; transfer of application; deferred access; decision on application; information that cannot be found or not in existence; payment of advance deposit; extension of time to deal with an application; refusal to process for failure to pay deposit; refusal of access and manner of access.

Other aspects are amendment of personal records in custody of an agency; application for amendment of information; dealing with an application to amend records; incomplete applications; action on application to amend record; refusal to amend records; notice of decision and notations to be added to records. Internal reviews and appeals internal review by the Minister; action by the Minister; decision of the Minister on review; delegation of power by the Minister; application for judicial review; application to the Supreme Court for judicial review; powers of the Supreme Court; ruling of the Supreme Court and right to a lawyer or any other expert are also captured.

General and miscellaneous provisions focus on burden of proof; appointment of information officers; protection in respect of certain criminal actions; fees and charges of agency; waiver of fee on basis of financial hardship; fees and charges not part of the Consolidated Fund; responsibility of the Attorney-General and Attorney-General as a party to proceedings.

The rest are annual reports by agencies; report by the Attorney-General to Parliament; limitation of period for exempt information; information held by the national archives, museums and libraries; application of Act to existing and future information; offence of disclosure of exempt information; other offences; extension of time; application to the private sector and other regulations.