Work on African Model Laws Still Under Way

9 March 2012

Two efforts to draft model freedom of information laws in Africa remain active, with consultations continuing and the end in sight.

The ongoing deliberations over model statute on freedom of expression and access to information for West Africa continued March 5 in Abuju, Nigeria, at a meeting of legal experts.

The African Union process to create a model African FOI law now will likely come to a conclusion at the 52nd Ordinary Session of the African Commission on Human and People’s Rights in October/November 2012.

The final sub-regional consultation on the AU model law will be held in North Africa in May or June, after being rescheduled.  This delayed putting a final draft before the Commission in April. (The draft model law in English, French and Portuguese is here.)

All the comments received both at the consultations and electronically will be considered by the Working Group in the June/July period and the amendments will be agreed upon. Thereafter, the final draft will be submitted to the African Commission, according to persons following the process.

West African Experts Meet

The Draft Supplementary Act on the Uniform Legal Framework on Freedom of Expression and Right to Information in West Africa was considered March 5 in Abuju of the ECOWAS Technical Committee on Legal and Judicial Affairs.

Speaking for Nigeria’s Attorney-General and Minister for Justice, Mohammed Bello Adoke, Federal Attorney Victoria Umoren, described the draft as “a step in the right direction,” according to an Economic Community of West African States press release.

The Vice-President of the ECOWAS Commission, Dr. Toga Mcintosh, said the Uniform Legal Framework on Freedom of Expression, will ensure that member states maintain the standards agreed to in many international conventions as well as serve to entrench the independence of the media and to regulate operations of the print and broadcast media in the region,  the press release said. ECOWAS is made up of 15 West African nations.

ECOWAS Draft Text

The ECOWAS draft, dated January 2010,  addresses access to information in three articles, excerpted below.

Article 7: Guarantee of the right to information as a fundamental human right

1.Every person has the right of access to information held by public bodies and this right shall be elaborated in full by legislation.

2.The principle of maximum disclosure of information held by government and public bodies is hereby guaranteed.

3.The government and public bodies shall continuously disseminate information to the public on their constitutional and statutory mandate and activities, including making use of new information and communication technologies, such as websites to facilitate easy access to information, without any specific request from any person as an essential part of their responsibility to account to the people.

Extension of Coverage to private bodies

4.Private bodies whose activities include the provision of public services or are funded by the public purse or who exploit public resources shall be subject to an obligation of disclosure of information on such activities.  In addition, everyone shall have the right of access to information where the information is required for the exercise or protection of his/her fundamental human rights.

Procedure of access

5.The procedure by which information may be requested for and obtained shall be simplified and, and shall not be steeped in bureaucratic red-tape and be an obstacle to access.

6.There shall be no requirement on the part of the person requesting for information to provide reasons for the information requested for.

7.The fees for the information, where chargeable, shall be set at the barest minimum required for the reproduction of the information requested.

8.Information requested for shall be disclosed within a specified and reasonable time.

9.All public agencies shall have designated information officers responsible for proper record-keeping and to whom applications for information shall be addressed.

10.It shall be an offence for any official, who with intent to deny the right of access to information requested for, destroys, damages, alters, or conceals the information, or makes a false entry in the records.

11.The State Parties shall ensure the institutionalisation of efficient and effective information management and record keeping systems to give effect to the right of access to information and efficient and timely administration.

Exemptions

 12.   Any restriction on the right of access to information must be necessary to protect the rights and freedoms of the individual or the public interest and in particular any limitation shall be:

a)based on a sufficient harm and public interest test and the harm ought to be real and not imagined and there shall be a direct causal link between the disclosure and the harm.

b)reasonably necessary and narrowly formulated and proportionate to the legitimate purpose for which the exemption is necessary.

13.   Disclosure may be withheld if:

a)it is likely to cause a breach of real risk of harm or damage to national security, law enforcement, public order, public health, national defence, sensitive  economic information

b)      it is likely to prejudice the fair trial of a person or impartial adjudication of    a case by a court of law or quasi judicial body;

c)      it is likely to prejudice parliamentary privilege

d)     it will reveal confidential communication between a doctor and a patient  in connection with the patient’s medical diagnosis or treatment, communication between a lawyer and client, disclosure involves unreasonable disclosure of information concerning the personal affairs of the individual;

e)    it is likely to reveal a trade secret, technical, economic or financial secret  or business secret

14.There shall accordingly be no blanket exemptions or limitations to the right to information.

 15.Disclosure of otherwise exempt information is justified where disclosure reveals evidence of:

 a) contravention of, or failure to comply with, a law;

b)an imminent and serious risk to public safety, public health or the environment;

c)miscarriage of justice;

d)abuse of authority or a neglect in the performance of an official duty;

e)  greater harm than the harm that will be done by non disclosure and the benefits of disclosure outweigh the harm or danger that could occur in the event of non disclosure.

16.Information on public affairs classified as exempt shall cease to be exempt on the expiry of a reasonable period specified by law after the information came into existence    

Refusal of application and right to review

17. Where information is refused, the applicant must be informed in writing and the reasons for the refusal given. Failure to reply to an application for access to information within the stipulated time shall be considered a refusal to grant access to same.

18. A person aggrieved by decision in response to a request for information shall have the right to apply for a review of the decision, in the first instance to the information commission and thereafter to a court of law.

19. In proceedings for a review of a decision of a person who has authority to grant or refuse access to information requested for, the burden of proof that the decision is justified lies on that person.

20. No journalist shall be penalised for publishing classified or confidential information where she/he has herself/himself not committed a wrong in obtaining it. It is the responsibility of public authorities to protect legitimate confidential information they hold.

21. The information officer who refuses to disclose information requested for bears the burden of justifying his or her decision  

Article 8: Independent enforcement body – Right to information 

There shall be an independent body responsible for the enforcement, monitoring and implementation of the right of access to information legislation and for the mass education of the public and for the training of officials charged with the responsibility of providing information and for establishing effective training manuals and methods that promote international best practice. It shall also hear appeals emanating from requests to grant access to information requested for.

Article 9: Sanctions 

1. A person who with intent to deny a right of access in terms of this Act:

a. Destroys, damages or alters the information

b. Conceals the information or

c. Falsifies the information or makes a false record;

commits an offence and is liable on conviction to a fine or a term of imprisonment.

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