CIHRS at the African Commission:<BR>North African states must adopt legislation to protect the right to access to information

In African Commission for Human and Peoples' Rights by CIHRS

656554th Session of the African Commission for Human and Peoples’ Rights

Banjul – 27 Oct. 2013

Oral Statement by the Cairo Institute for Human Rights Studies

Item 10: Freedom of Expression and Access to Information

Delivered by: Christopher Roberts

The Cairo Institute for Human Rights Studies appreciates the exemplary work that has been done by the African Commission in adopting the model law on access to information. Inspired by the work of the Commission, the Cairo Institute has conducted a survey of legislation in North Africa to determine the extent of compliance with this model law. Unfortunately only one country in North Africa, Tunisia, has a legal framework governing access to information, based on decree number 41 of May 26, 2011. It is crucial that countries which do not currently provide a legal basis for the right of access to information pass laws to do so and that all such laws be brought into compliance with international human rights standards. Based upon its work assessing laws on access to information in North Africa and throughout the Arab region, the Cairo Institute would like to emphasize the particular importance of the following elements of an access to information law:

First, the law should not impose restrictions on who can file a request for information and should define “information” in the broadest terms possible. Laws should similarly be clear that all governmental authorities, as well as other bodies linked to government, are covered, and laws should explicitly require interpretation that favors disclosure in order to combat the tendency for access to information laws to be interpreted restrictively. Unfortunately, whether by intention or omission, we have encountered access to information laws that define information narrowly, thus sharply limiting the effectiveness of the laws. While the Tunisian decree is positive in terms of who can make requests, it can be improved by broadening and clarifying the scope of information and bodies covered.

Second, in order for an access to information law to be effective, it must make the process of requesting information simple and accessible. The Tunisian law is positive in that it provides for a simplified form with which to request information; it should be further strengthened by allowing requests in any form, including orally. No reasons should be required for making requests, in contrast to the provisions of other laws we have surveyed. States should also emulate the positive example set by article 9 of the Tunisian decree, which requires government authorities to assist requesters where appropriate. Access to information laws should detail the steps that the authorities must take in responding to information requests; here too, the Tunisian example is generally positive, including by requiring prompt responses.

Third, in certain cases the authorities may refuse to respond to the request. The Tunisian decree is positive here, too, requiring that refusals be justified and allowing for administrative appeals as well as an ultimate appeal to the courts. While this procedure is positive, our survey of laws has revealed that the grounds upon which countries can refuse to provide information are frequently defined too broadly, and Tunisia is no exception, allowing information not to be revealed where it pertains to ‘political strategy of the government,’ for instance, as well as protecting ‘secrets’ and a category defined as ‘information protected by other legislation’. In other laws surveyed, we have seen exceptions drawn based upon the legislation being ‘classified’ and the protection of information based on national defense, security, or foreign policy reasons, with little limitation on the scope of such grounds. In practice, providing for limitations to access to information based on such grounds leads to far more information being withheld than is appropriate, and we encourage all states to take account of international standards, and in particular the work done by the African Commission, in better defining standards in these areas.

Fourth, in order for an access to information law to be effective it must provide for the appropriate administrative structures. The Tunisian decree does little in this regard, and we would encourage the Tunisian authorities to consider requiring the appointment of information specialists as well as the creation of an independent body with a mandate to promote access to information. Such a body should be charged, among other powers and duties, with receiving appeals of decisions to withhold information prior to appeals to a court, conducting inspections where improper behavior relative to access to information is suspected, issuing monetary sanctions for infringements of government duties under the access to information law where appropriate, and regular reporting to parliament and the public as to the effective implementation of the right of access to information.

Fifth, an access to information law should provide for proactive disclosure of extensive categories of information in a manner and a form that is easily accessible and easy to comprehend. The Tunisian decree provides for such disclosures but should be amended to provide greater clarity as to the categories of information that must be disclosed and the manner in which disclosure should be made, in order to ensure full implementation.

Sixth, penalties should be imposed on those who restrict access to information. While article 20 of Tunisia’s decree requires administrative action, this should be strengthened by introducing criminal penalties for the deliberate concealment or destruction of information, the presentation of misleading information, or attempts to intimidate information requesters. At the same time, the law should stipulate that the release of information in violation of the access to information law will never be punished in cases where the releaser of information acted in good faith, with punishment defined to include harassment, the filing of lawsuits and the like, where motivated by the release of information. Unfortunately, this principle has been violated in laws we have surveyed, with the apparent intent of maintaining government discretionary control of the information the public may and may not access.

Finally, laws on access to information should be complemented by whistleblower protection. Access to information systems are rarely perfect; as such, fulfillment of rights in this area is enhanced by providing a strong legal framework under which individuals who witness wrongdoing are able to share information about that wrongdoing without suffering punishment or retaliation. States should comply with the Global Principles on National Security and the Right to Information in this regard, including, crucially, by protecting disclosures in the public interest and recognizing an enhanced ability to present information publicly where internal reporting mechanisms are inadequate. Excessive punitive measures against whistleblowers, including charges of espionage or sedition, should be recognized as a human rights violation, with whistleblowers who suffer such a violation of their rights entitled to appropriate remedy.

In conclusion, we wish to reiterate that while we have recommended certain changes to the Tunisian legal regime, Tunisia is the only country in North Africa that has an access to information framework, and the Tunisian decree has many positive elements, in contrast to certain other laws we have surveyed which appear primarily designed to promote a state’s image without effecting substantive change. As such, the Tunisian model should be emulated, and by implementing the changes recommended Tunisia may strengthen its role as an example of good practice in this area. Indeed, the Tunisian government is currently undertaking a review of the decree, with the intent to pass a law that will build and improve on the framework currently in place; we support this effort and urge the Tunisian government to incorporate the above suggestions into its new law. We urge other countries in North Africa and the continent to take note of this positive example, together with the model law adopted by the African Commission, and to pass serious access to information legislation in their own polities as well.

The Cairo Institute has previously called attention to challenges related to freedom of opinion and expression in North Africa, including illegitimate restrictions on speech challenging those in power or prevailing social and religious norms. The ability to speak freely is only one component of the right to freedom of expression, however; to fully exercise the right to freedom of opinion and expression, individuals must be able to seek and receive information, particularly from and concerning their governments, in order to form their own views in an independent and informed manner. In particular, as the citizens of North Africa struggle to define a democratic future, access to information takes on fundamental importance, as only informed citizens are able to actively and effectively take part in the political life of their country, to check abuses by those in power, to fight corruption, and to take meaningful action to improve the economic, political, and social welfare of the whole community.

This post is also available in: العربية