Ghana’s Failure to Pass RTI Law Comes Despite Promises

23 November 2016

By Toby McIntosh

Ghana’s persistent failure to pass a right to information bill comes despite its membership in the Open Government Partnership and promises made on the international stage by President John Dramani Mahama.

After the latest failure in Parliament, Mahama said limply, “I can’t force them [Parliament] to pass it.”

The situation revives questions about whether the OGP system sufficiently encourages passage of RTI laws and whether commitments are meaningful.

The Ghana government promised to pass an RTI law in two successive OGP National Action Plans, over a period of four years. The pledges have not been fulfilled.

No OGP Requirement for RTI Law

Ghana qualified for OGP membership in 2011 under a system that does not require having an RTI law for membership.

Under the OGP’s eligibility criteria, not having a law is virtually meaningless. A total of four points are possible in OGP’s RTI category, but three points are given for the existence of a constitutional provision guaranteeing access to information. To rate the full four points, a country must have a law.

Having a draft law can earn a country one point, but this does not apply in the case of Ghana, whose Constitution contains an access to information provision. “Countries with both a constitutional provision and a draft law under consideration will only be awarded the 3 points for the constitutional provision,” according to the OGP rules.

Ghana received 3 points for its constitutional provision, helping it win OGP membership in September of 2011, qualifying with 16 points.

The OGP eligibility formulation has long raised eyebrows among RTI experts who argue that constitutional protections are not meaningful until enforced with the institutional mechanisms provided by RTI laws.

The architects of the OGP system, wanting to encourage membership, set the bar only moderately high, anticipating that inclusion would encourage reforms.

No Improvement Necessary

In addition, the OGP does not ask its members to improve their basic eligibility scores after admission.

The idea of raising the bar for members has been broached internally because the criteria are considered as minimum core indicators of open government. But no such improvement requirement has been added to the OGP rules.

As a result, Ghana pays no penalty for its inability to pass a RTI law.

Once over the bar, a country’s backsliding on the eligibility criteria may be noticed in OGP’s periodic re-evaluations. Two OGP member countries – Papua New Guinea and Tunisia — in February of 2016 were judged to have fallen below the minimum standard for membership. The two countries were given a year to improve their eligibility scores under OGP rules. (See previous article.)

Possible OGP Reforms

“The OGP Eligibility Criteria have been widely criticised by civil society as setting the bar for entry too low, as has the failure to have clear benchmarks for progress once countries are inside the OGP,” said Helen Darbishire, director of Access Info Europe and a civil society member of the OGP Steering Committee.

“The OGP Criteria and Standards Sub-Committee is looking into this, and possibilities include having a better measure of quality of access to information laws prior to entry as well as setting clear markers for progress. Such a commitment has been included in the Paris Declaration, which at Action 6 includes ensuring that all members have access to information laws that meet international standards,” added Darbishire.

Brazil, Chile and Croatia, along with Access Info Europe and the OGP Access to Information Working Group have already committed to helping to take this action forward.

OGP members can select which parts of the 21-item Paris Declaration to endorse.

Lack of Action on Ghana NAP

Ever since joining the OGP, Ghana’s top leaders have made voluntary commitments in the OGP context to expand government openness. Its progress has been self-assessed and evaluated by an independent reviewer hired by the OGP.

Ghana’s OGP two National Action Plans over four years included such a promise. Passage “by December” of 2016 was a commitment in the latest Ghana National Action Plan. A similar promise in the first action plan (passage in 2013) also was not fulfilled.

The government claimed that first goal had been “largely implemented,” but the independent OGP reviewer disagreed. This finding, however, received scant attention.

Mahama’s Other International Promises

Inaction would also appear to be a personal embarrassment for the president, who has touted the right to information in various prestigious international arenas.

The failure to pass an RTI bill contradicts Mahama’s statements on the international stage.

Recently he was the keynote speaker at the first celebration of International Day for Universal Access to Information sponsored by UNESCO. (See previous report.) At the UNESCO conference in Paris Sept. 26, Mahama reiterated his support for passage an RTI bill in Ghana, but added, “I don’t know where it is.” He was also rather equivocal about the bill’s merits, commenting, “Some say if is too liberal, some say it is too tight.”

The Ghana RTI Coalition, in a Sept. 23 statement, termed UNESCO’s selection of Mahama as a speaker “ironic given that Ghana has failed for more than a decade to put in place an access to information legislation.” The Coalition hopefully added that the speech “presents an opportunity for the President to make concrete commitments on the passage of an effective and efficient RTI legislation before the current Parliament lapses in 2017.”

Dubious of his commitment, the RTI Coalition on Aug. 18 appealed to the president in a letter “asking him to intervene and expedite the passage of the right to information bill.” The letter recounted the bill’s history. (See report.)

In July, the Coalition commented, “There is nothing to show that the Executive is lobbying or working with Parliament to ensure that the Bill is passed before the elections.” (See article.)

In June, Attorney General Dominic Ayine, indicated that the RTI Bill would be passed by July 22.

In May, Mahama in a World Press Freedom Day speech in Finland noted that public access to information is now a international development goal, but he did not commit to passing the slow-moving bill in Ghana. (See article.)

Early Warnings

Hints about potential demise for the RTI bill came in late September of 2016 from Majority Chief Whip Alhaji Muntaka Mubarak as reported by Joy News. Speaking in reaction to the silent protest by advocates for the bill, he said:

“…And now some people want to say that the President should do something about it…what would you want the President to do? To come and force us [Parliamentarians]? The President could be frustrated but the president doesn’t control Parliament.”

He insisted that Parliament will not “rush things” and will allow their members to contribute if they find any controversial clauses in the bill.

Regional Coordinator of the Commonwealth Human Rights Initiative, Mina Mensah, Secretariat for the RTI Coalition, questioned whether the bill was being prioritizing.

“If they are saying that because they want to do a good job so the Bill should be dragged, then are they saying the Select Committee did not do a good job?” she said, according to Joy News. The article said, “She urged the legislators to walk it like they talk it `… and stop giving the rhetoric.’ “

In the final days of the parliamentary session, Attorney General Dominic Ayine took a major step to facilitate passage, introducing a bill inclusive of committee amendments on Oct. 18 (See article.) She specifically wrote to Parliament requesting that the Bill be considered under a Certificate of Urgency. The bill was passed on second reading Oct. 27.

Parliament rose on Nov. 3 without completing action on the RTI bill. (See article.)

The Coalition on RTI blamed a “lack of political will.” It called the inaction “an indelible indictment on Parliament and “a missed opportunity for all Ghanaians, for the [National Democratic Congress] government and the country at large.”

A small window exists for Parliament to pass the bill when it convenes for a brief session after the Dec. 7 election and before it dissolves Jan. 17.

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