South Sudan Approved Right to Information Law in 2013

17 December 2014

South Sudan has a right to information law (text).

The little known development occurred a year ago. President Salva Kiir signed the bill on Dec. 9, 2013, and the signing remained unknown for several months, according to African RTI experts, giving rise to speculation that the signature was backdated.

The Right of Access to Information Act, 2013 was passed by Parliament in July 2013 but the president through a memo rejected signing it, seeking that certain changes be incorporated.

“The Act is in our assessment progressive and offers sufficient legal framework for ensuring the realisation of RTI,” according to Henry O. Maina, director of Article 19 Kenya/Eastern Africa.

In a revised tally of nations with access regimes, the 2013 signing makes South Sudan the 99th such nation. Afghanistan’s new law is the 102nd. (See related report.). Mozambique’s president is expected to sign a law there, which will be the 103rd. (See report.) In 2014, other new laws were adopted in The Maldives (see report) and Paraguay (see report.)

Public Bodies Covers, Private Bodies Sometimes

The law applies to public bodies, defined to include bodies established by law at any level or branch of government. The law also covers bodies “owner, controlled or substantially financed” by he national or state governments and bodies that carry our “a public function.”

“Private bodies” also are covered, when information they hold “is necessary for the exercise or protection of any right,” subject to the other exemptions n the law. A private body is defined as “a natural or legal person, excluding a public body that carries on any trade, business or profession.”

Citizen Aid, Fee Limits, Commissioner

Officials are told to help citizens fashion requests and oral requests are permitted for those unable to speak the official language.

No fees can be charged if deadlines (seven working days to respond) are not met.

An information commissioner position is created and all agencies have to designated information officers. A commissioner has yet to be named,

There’s a proactive disclosure section mandating disclosure lots of basic organizational material, including rules and contracts.

The burden of proof for nondisclosure is placed on the public or private body, requiring a demonstration that the harm of release would outweigh the public interest in disclosure of the information.

Clauses Give Latitude to Government

Several provisions (Sections 31 and 32) appear to offer the government multiple ways to avoid disclosure.

Denying the existence of a record or providing the information is allowed when a request would “unreasonably interfere with effective operation” of a government body” or result in “diversion” of government resources.

Such refusals also are permitted “in the public interest,” if the information “would likely prejudice the ability of Government to manage its economy or harm its economic interests,” or if disclosure would “prejudice formulation or development of government policy.” However, these exemptions would not apply “to facts, analysis of facts, technical data or statistical information.”

Commercial information is protected unless disclosure “would facilitate accountability and transparency of decisions made by the public or private body,” relates to the expenditure of funds or “would reveal misconduct or deception.”

Citizens seeking information from a private body must identify “the right” they are seeking “to exercise or protect” and explain how getting the information would aid in the exercise or protection of the right.

Broader Transparency Picture

Creation of the RTI law comes against a backdrop of criticism of the South Sudanese government for lack of transparency about human rights abuses and oil revenues.

A May report by a United Nations Mission found “gross violations of human rights and serious violations of humanitarian law have occurred on a massive scale.” A report by a government ministry has not been released, the UN report observed, one of numerous transparency gaps cited.

The Natural Resource Governance Institute website reports number of transparency deficits concerning information about oil revenues. “South Sudan has expressed interest in becoming an Extractive Industries Transparency Initiative candidate,” according to the group, but the country a “failing” score of 31, ranking 50th out of 58 countries on the Resource Governance Index.

Among other things, “A confidentiality provision in the Petroleum Law, allowing information to be withheld if it might damage industry competitiveness, could undermine attempts to promote transparency.”

Global Witness recently called for more transparency in an oil deal the Government is negotiating with Star Petroleum for the exploitation of two of the country’s remaining oil concessions.

Restrictions on free expression and the media are highlighted in a chapter by Riva Jalipa, Legal Officer for ARTICLE 19–Eastern Africa, in a recently issued State of Right to Information in Africa Report 2014. The report was issued in September, with Jalipa’s chapter urging passage of an RTTI law.

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