How to fix the Freedom of Information Bill.. with 9 easy Principles

After reviewing the history of the FOI Bill in Tanzania, we can that there has been an obvious inaction on the part of the government on this issue. However that is only half the problem, the other half concerns us, the ordinary citizens who stand to benefit most from information being made public. We also share the blame for inaction that is causing this whole process to move at a snail’s pace.

In the second part of this series, we will use a barometer of 9 principles designed by the transparency advocate NGO Article19 as a yardstick to measure the constitutionality of the FOI Bill of 2006 and how we can improve it.

Before we begin, however it must be pointed out that the initial FOI bill that was published in 2006 had merged the Freedom of Information (or Right to Access of Information) with the Media Services Bill. This incited a lot of the criticism by the stakeholders and they recommended, as we do too, to introduce these two bills separately because despite being related, they do not address the same issue. For the section below we will discuss only the Right of Access to Information which is commonly referred to as the Freedom of Information (FOI) Bill.


Summary of Uhuru Blog's Proposed Changes to FOI Bill 2006

1. Submit the Right to Information/Freedom of Information Bill as a separate bill and not together with the Media Services Bill
2. Remove any exemption to the right of access from public bodies such as Commission of Enquiries [Section 2] especially after the investigation is complete and findings have been submitted.
3. Set a maximum limit for costs of providing information (i.e could be per page, per CD/DVD etc).
4. FOI Bill must explicitly state that its principles of disclosure must take precedence over any other Act including National Security Act 1970, Newspapers Act 1976, Civil Service Act 1989 and any other Act which may be used to block requests for information [Ref: Section 56].
5. The Bill should not exempt public information that is submitted to/by the Cabinet. If the information is sensitive at the time of deliberation, a strict timeframe (for example 6 months) should be set out after which it can be accessed. [Section 27].
6. Appointment of an Information Commissioner (neutral, respected member of society and must ratified by two-thirds majority in parliament) who is responsible for oversight of the Right to Information Act. The draft FOI Bill calls for a Privacy Commissioner (Part IX) who is tasked more with protecting privacy of information rather than promoting its free access. This may hamper the attitudes that citizens and public officials will have towards this bill. An Information Commissioner should be more focused on promoting transparency as other rights (such as privacy) as adequately covered in this bill and the constitution of Tanzania

The Bill must be praised for its strict adherence to the public interest defence and that any exemption may be overruled in the interest of the public. Also it must be praised for extending the Right to access information from corporation and individuals if sufficient proof can be produced that it is in the public's interest. [Section 2]

From our analysis, it is clear that not a lot of changes are required to make the FOI Bill a truly acceptable bill , one which shows the government's commitment to openness and transparency. Therefore we at Uhuru Blog strongly urge the government to consider changes suggested by the Tanzania's Right to Information Coalition of Media stakeholders as well as urge all concerned Tanzanian's to put pressure on the government  so as a new bill is prepared and passed into law as soon as possible. 

Article19.org has a model freedom of information bill based on global best practices which can be used as a template to make it easier for policymakers. http://www.article19.org/resources.php/resource/1796/en/model-freedom-of-information-law

*Relevant sections in the Freedom of Information Bill 2006 (found here) are shown in brackets [ ].

Sources:

1. Article19.org Public's Right to Know: Principles of Freedom of Information http://www.article19.org/data/files/pdfs/standards/righttoknow.pdf

2. Stakeholders reasons for rejecting FOI Bill http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/tanzania/stakeholders_reject_draft_foi_bill.pdf

3. TOWARDS A STATE OF THE ART MEDIA AND INFORMATION LEGAL REGIME IN TANZANIA: IDEAS ON HOW TO GO BEYOND THE BILLS! By Deus M. Kibamba 

History of Freedom of Information legislation in Tanzania

Freedom of information and the right to access this information is enshrined in almost all constitutions of democratically elected countries. It grants citizens broad access to any information that may impact their lives, including state-held information. Section 18 of the Constitution of the United Republic of Tanzania explicitly spells out these freedoms; 

Section 18 (b) has out right to seek, receive and, or disseminate information regardless of national boundaries; (d) has a right to be informed at all times of various important events of life and activities of the people and also of issues of importance to the society. 

United Nations and African Union have also issued strong statements regarding disclosure of public information such as the following excerpt from the 2004 UN Joint Declaration:

"The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions."

However, in Tanzania as in many other democracies, such constitutional rights are not backed by specific legislation which mandates the government to release all state-held information to its people on a regular basis or when requested to. These laws collectively are called the Freedom of Information Act (also known by other names such as Promotion of Access to Information) and according to the NGO Article19 over 90 countries globally have enacted such laws to date and many others have these laws in various stages of the parliamentary pipeline.

So how has Tanzania fared when it comes to Freedom of Information laws? An effort was made in 2006 with the introduction of a Freedom of Information Bill (2006) which packaged together Right to Access of Information and Media Services Bill. After consultation with different stakeholders brought together by the Media Council of Tanzania (MCT) and the Media Institute for Southern Africa Tanzania Chapter (MISA-TAN), this bill was rejected due to a number of inconsistencies pointed out by various experts. Following this, the stakeholders produced an alternative FOI bill, containing a number of changes which was submitted to government for deliberation in 2007. No concrete submissions (draft bills, recommendations etc) regarding FOI Bill have been made since, and the government have yet to respond to changes made by the various stakeholders including MCT, MISA-TAN and the Tanzania Media Women's Association.

Some comments have been made by various government officials under whose mandate the FOI falls. In 2010 when asked in a parliamentary session to clarify the procedures for accessing information (for MPs in this case), then Minister of State in the Prime Minster's Office Phillip Marmo had this to say:

“The conditions include the ones I enlisted as part of my supplemantary answer, but let it be reminded here that there are huge demands and worldwide, where there is a huge public demand including parliamentarians to access information from government offices there have been some processes including laws providing greater details. Such, is normally called, Freedom of Information Act. In our country, for all this time, we have not received any such demand for such a Law from the general public, parliamentarians or even from the media. This is why we have continued to use the current practice”.

Former Minister of Information and Culture Dr Emmanuel Nchimbi has made a number of comments over the years regarding the Freedom of Information Bill. In January of 2011 he said to a meeting of media stakeholders; 

“The government will do everything possible to make sure that the bill is enacted and implemented accordingly”. 

As recently as March 2012, the Minister again informed media personalities during an award ceremony that the writing of the new freedom of information bill is at an advanced stage. Media stakeholders and CSOs are becoming increasingly concerned about such blatant disregard for and delays in submission of an FOI Bill by the Government. It has been almost 5 years since any significant progress was made and we are no way near to enacting a freedom of information law. As concerned citizens, we at Uhuru Blog strongly urge fellow citizens to follow this issue closely as the potential gain from such an important piece of legislation is immense.

In the next part of this series we will analyse the FOI Bill of 2006 in more detail and propose our own solutions based on global best practices.


Sources:
1. Commonwealth Human Rights Initiative http://www.humanrightsinitiative.org/index.php?option=com_content&view=article&id=59&Itemid=80
2. MISA-TAN press release on rejection of FOI Bill http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/tanzania/stakeholders_reject_draft_foi_bill.pdf
3. Africa Freedom of Information center http://www.africafoicentre.org/index.php?option=com_content&view=category&layout=blog&id=293&Itemid=561
4. IPP Media article Stakeholders: Enact freedom of information law http://www.ippmedia.com/frontend/index.php?l=25257
5. MISA TAN article on Efforts in search of a FOI Bill Tanzania http://www.tz.misa.org/index.php?option=com_content&view=article&id=66:efforts-in-search-for-right-to-information-must-not-be-neglected-by-the-government-of-tanzania
6. Tanzanian Constitution 1977 (with amendment in 2005)
7. Freedom of Information Draft bill published in 2006 http://www.humanrightsinitiative.org/programs/ai/rti/international/laws_papers/tanzania/draft_foi_bill_2006.pdf

Uhuru Blog covers Freedom of Information in Tanzania

Stay tuned for a two part Uhuru Blog special next week where we will cover extensively Freedom of Information legislation in Tanzania . In the first part, we will trace the history of the FOI bill from when it was first published to the subsequent criticisms raised by various civil society organizations and where it is currently at.  In the second part of this coverage, we will critically examine different sections of the bill, pointing out the problematic areas and ways to remedy them  using global best practice. We hope this series will  raise awareness about Freedom of Information legislation in Tanzania and demonstrate why, with just a little support from legislators and a big push from civil society, such legislation should be easy to institute. As always, we look forward to your comments regarding all our articles.

Freedom of Information: An African Example

In 2000, South Africa passed one of the most comprehensive freedom of information laws called the Promotion of Access to Information Act (also referred to as PAIA and can be found here) and together with its progressive post-apartheid constitution has made it the darling of open government activists in the world. South Africa has taken such a strong lead in granting broad freedoms to its citizens (The SA constitution has one of the broadest definitions of discrimination!) partly due to the nature of the repressive apartheid regime that discriminated against the majority of its population for many generations. South Africa also has a vibrant culture of civil activism, which traces its history to apartheid-era protests, and this was instrumental in passing Promotion of Access to Information Act.

Some of the highlights of this law are:

• Any person can request government bodies for information without having to show a reason. Government officials must respond within 30 days of the request.
• This law is unique in that it also applies to private bodies and corporations when sufficient proof can be provided that it is necessary for the exercise or protection of people's rights.
• There are certain exemptions within the law however most of these are balanced against the "public interest defence" which means the potential harm of the request must be compared to the potential benefits to the public. This means that no information can be strictly classified and is open to challenge via the application of strict harm-benefits test usually via a high court judge or an impartial enquiry commission.

PAIA in South Africa has had many successes, but the most notable one is getting the government to provide free anti-retrovirals in public hospitals to pregnant HIV positive women. Initially, the government had refused to provided this service citing lack of resources. However, local NGOs led by Treatment Action Campaign (TAC) managed to obtain government policy documents using PAIA which showed that the Ministry of Health did not have a plan to deal with HIV mother to child transmission. This together with further evidence provided by TAC showing the effectiveness of ARVs and the lack of counter evidence from the government, the Health Ministry was mandated by the courts to immediately provide access to life-saving ARVs. 

All that said, freedom of information even in a country with a progressive constitution such as South Africa is fragile. In 2011, the government introduced a bill called the Protection of State Information Bill (POIB) which among other things will curtail some of the right to access information as set out in PAIA. This bill, also dubbed the "Secrecy Bill" by civil society organisations, gives power to officials in almost all state organs to classify information which then puts it out of reach of even PAIA regulations. Furthermore, this bill does not include the all important public interest defence and imposes harsh punishments of upto 25 years in prison for anyone disseminating information that has been classified. This issue has not been taken lightly by activists in the country. There has been strong backlash against this bill particularly by a coalition known as the Right2Know Campaign which has spearheaded efforts to introduce robust checks and balances into the Secrecy Bill so as to prevent its misuse by government officials to hide acts of corruption. Currently, the ruling party ANC has relented to pressure from activists and is considering amendments to the bill including a public interest defence.

What this exchange between the Government and civil society shows is that far from being broken, the political system in South Africa is functioning as it should. On the one hand we have the policymakers in the Executive trying to enact laws that would ease regulation and make it easier to govern where as civil society only accepts those laws that are in their collective best interests while vigorously opposing ones which restrict their freedoms! A lesson to be learnt for all.

Sources: 

History of PAIA in South Africa http://www.freedominfo.org/regions/africa/south-africa/

South Africa's fight for access to medicine http://www.article19.org/data/files/pdfs/publications/ati-empowerment-right.pdf

Promotion of Access to Information Act http://www.sun.ac.za/university/Legal/dokumentasie/access%20to%20information.pdf.

Right to Know Campaign http://www.r2k.org.za/

Further reading 

Success stories using Freedom of Information laws http://right2info.org/resources/foi-in-action#section-29

Freedom of Information legislation in OGP member states

In the last post, I argued that the Freedom of Information Act is an essential requirement for the success of the Open Government Partnership. Just as all our other freedoms such as freedom to life and of owning property are protected by laws lest it be violated, a similar legal protection must be accorded to our right to access information. If we consider all the countries in the OGP as those that are fully committed to transparency and openness of state-held information, let us look at how they fare when it comes to setting up freedom of information legislations. Here, we are only using the existence of a freedom of information legislation passed by the parliament and not whether this is implemented correctly as the latter is more open to interpretation. Only 4 countries, including Tanzania, who have joined the OGP do not have either a Freedom of Information Law or a draft bill in parliament.

* Information sourced from www.freedominfo.org

OGP COUNTRIES WITH NO FREEDOM OF INFORMATION LEGISLATION:

HONDURAS
PHILIPPINES
COSTA RICA
TANZANIA



OGP COUNTRIES WHICH HAVE PASSED FREEDOM OF INFORMATION LEGISLATION:

ALBANIA
ARMENIA
BRAZIL
BULGARIA
CANADA
CHILE
COLOMBIA
CROATIA
DENMARK
DOMINICAN REPUBLIC
ESTONIA
GEORGIA
GREECE
ISRAEL
ITALY
INDONESIA
MONTENEGRO
MEXICO
NETHERLANDS
NORWAY
ROMANIA
SLOVAK REPUBLIC
SOUTH AFRICA
UKRAINE
UNITED KINGDOM
UNITED STATES
URUGUAY
AZERBAIJAN
CZECH REPUBLIC
JORDAN
LATVIA
LIBERIA
MACEDONIA
PARAGUAY
PANAMA
SERBIA
SOUTH KOREA
SWEDEN
TRINIDAD AND TOBAGO
TURKEY
GUATEMALA
MALTA
PERU
MOLDOVA
EL SALVADOR
MONGOLIA
RUSSIA
LITHUANIA

OGP COUNTRIES THAT HAVE INTRODUCED A BILL OR DRAFT OF A FREEDOM OF INFORMATION LEGISLATION:

SPAIN
KENYA
GHANA

The Uhuru Project

This will be our first project at Uhuru Blog. Tanzania has taken a brave step in joining the OGP, one of five African countries to do so, and has also secured a seat on the steering committee. Given the ambitious commitments put forward by the government and the praises which it has received for doing so, we think its only fair that someone should monitor this process.

Therefore in keeping with the spirit of citizen engagement which forms one of the core values of the Open Government Partnership, we at Uhuru Blog have decided to track the 25 commitments laid out in the draft action plan. We have a right to know whether our government is capable on delivering on its promises and to do this we need to track the promises in a systematic way.These commitments will be judged as either having been kept, broken or comprised depending upon its implementation (or lack thereof!). On our homepage you can quickly glance at the scorecard to see how well the OGP is progressing but for more in-depth analysis of individual commitments click on the The Uhuru Project tab.

If you are interested in helping us research any of the commitments please drop us a comment with your email contact details and we will get back to you!

Tanzania and OGP: Why it is going to fail.

As an ardent supporter of increased Openness and Transparency in government, I was delighted to hear that Tanzania had taken the bold step of joining the Open Government Partnership (OGP). Finally the years of promising a highly transparent government, as a means to fight the corruption problem, was making the transition to reality.

First, a brief history of the Open Government Partnership. This is a group currently comprising of 55 countries that have come together and formally declared a commitment to increase transparency and citizen engagement with the governance process so as to fight corruption and improve service delivery. The countries have also embraced the use of new technologies to give citizens unprecedented access to government-held records. This partnership not only involves governments, but also consults widely with civil society organisations in all member countries hence making sure that it gets a buy-in from all parties that will be involved in this process. Tanzania's commitments are outlined in a draft action plan that is available for public discussion before it is submitted to the OGP (which can be found here). This draft consists of an ambitious 25-point plan that promises things such as websites for posting government data, a platform where citizens can request information, setting up regular forums with CSOs to assess progress made in the OGP among other commitments. It is surprising to note that Tanzania is one of only 5 African countries to join the OGP, in a region that desperately needs to raise governance standards this is a shockingly low number.

The logic for joining such an initiative is sound. Giving civil society access to information will allow them to monitor government operations with the aim of uncovering illegal dealings and corrupt practices. This raises the stake for government officials to perform with the best interest of the citizen at heart or risk being exposed and potentially jailed. With the obvious benefit in mind, it would be wise to question the true motive of the Tanzanian government for joining this initiative. A question that begs to be asked: Is this an honest effort to clean up corruption and letting people judge the performance of their elected leaders on the basis of information made freely available or is it just another condition imposed by the rich donor countries for continued aid support? 

But now to come to the point of why I think Tanzania is going to fail in its OGP commitments. It is easy to come up with an action plan for improving government transparency. Many models are available and globally a number countries have been active in this area for many decades. The problem lies in the fact that the OGP treaty is not legally binding on any of its signatories and holds only on their good faith and trust, and therefore it is essential to setup some measure to enforce this within national boundaries. You can call me a pessimist, but I have little faith in the ability of bureaucrats to implement policies that may eventually expose the illegal activities of some of them. 


The solution? A law that lays down explicitly the conditions under which the government is legally bound to provide its citizens with information when requested. This law is commonly known as the Freedom of Information Act (FOIA). Even though most constitutions have guarantees regarding right to information, when this is not made formal by a FOIA, it becomes useless as citizens have no recourse when their request to access information is denied. A similar dilemma arises within the OGP for Tanzania. Despite all the ambitious promises made, these are not backed by any legal power which would force their implementation. Within the draft action plan, a commitment has been made to study global best practices of freedom of information laws for preparation of a POTENTIAL Freedom of Information Bill. It totally glosses over the fact that a submission of a freedom of information bill was made in 2006 but after serious concerns were raised this bill was sent to CSOs for deliberation and feedback, which dutifully reported back with its suggestions. Nothing has been heard of the bill ever since. It has been over 5 years and it appears that the bill has been shelved indefinitely! If the government of Tanzania is serious about its commitments to OGP, policymakers need to re-introduce the bill as soon as possible or else the OGP will just be another failed initiative.

Calling all Youths in Tanzania!

Uhuru! Freedom! For Tanzanians, as for all other Africans, this phrase evokes a strong sense of national pride, a triumph of justice over unjust, exploitative rule. However, for the majority of us, this feeling is a reconstruction of what we have gleaned from History textbooks in school and TV programs aired on the 9th of December every year. What then does Freedom mean to today's Tanzanian youth? Freedom, as it should be and has always been, remains a fight against the injustices that plague our society. These injustices have evolved over the last 50 years, from colonial rule to contemporary problems faced by all Tanzanians.

If one was to ask the simple question, "What is wrong with Tanzania?" the first answer would undoubtedly be "Poverty". We constantly find Tanzania near the bottom of the list of countries ranked by GDP per capita and an overwhelming majority of the country survives with under $2 a day. And poverty comes with its own host of problems such as dismal health and education levels in the country.

The second problem which any Tanzanian will brandish without hesitation is "an inefficient corrupt government".   Despite the abundant natural wealth and the peace which our country is blessed with, Tanzania remains one of the largest recipients of developmental foreign aid in the world (some sources place it just behind Iraq and Afghanistan!). Stories about corruption, some at the highest echelons of government offices, are commonplace. Millions of dollars are squandered on ill-thought, sometimes plain illegal, government policies and contracts.

The next natural question that we should ask ourselves, since the answers to the first question are so clear, is "How can we, the youth, correct what is wrong with Tanzania, and thus protect our Freedoms?" Combating poverty, in theory, is straightforward. Raise incomes by creating well-paying jobs in diverse sectors and ensure these sectors are staffed with locals who have received quality education and/or trained to acquire the useful skills.

The problem of corrupt government can be tackled by changing the attitudes and practices of the government from one that is self-interested and protective  (and here I dont imply that everyone who is in government behaves this way!) to one that is more accountable and concerned for the citizens to not only achieve re-election, but out of a sense of civic duty and national pride in wanting all Tanzanians to prosper. Now this is where we come in. Tanzania is a young country and by young I mean close to half the population of is under 15 years of age. If one was to consider the number of people under the age of 25 years that number would undoubtedly be somewhere around three-quarters of the 40-odd million citizens. The power of that, by sheer numbers alone, is immense. Compound that with the recent proliferation of education (however modest) and technology such as the internet  which the youth are more adept at using, you have a force that can seriously challenge the deeply entrenched culture within political spheres. Any government should strive to be more accountable, receptive to criticisms and willing to address concerns of its electorate. But this is only half the story, we the governed make up the other half of this equation. And as equal partners, we must strive to be more knowledgeable and involved in the running of our country. The onus is on everyone, but especially the youth, as we have more to gain (and also lose!) from the fruits of an improved Tanzania.

With this blog I hope we can discuss and debate some youth-driven initiatives that can lead to a better Tanzania for us all.

More to come.. I promise you that!