At the request of Namibia Media Trust (NMT), Africa Freedom of Information Centre (AFIC) provided comments and recommendations on Namibia’s Draft Access to Information Bill based on the draft Model Law on Access to Information for African Union Member States (the “AU Model Law”) and other AU member states legal frameworks on ATI as well as international best practices.
Upon review of the Bill, AFIC discovered that the Namibia ATI Bill does not make provision for consequential amendments in case there is a conflict with other existing laws. It would be important to provide for consequential amendments (most countries have laws that contravene the spirit of the access to information Act). Otherwise most public or private officials will rely on those other laws which seem to protect them when it comes to disclosure. In Uganda for example, there has been a long conflict between the Access to Information Act and the Public Service Standing Orders. Public officials usually think that the Public Service Acts and Orders are directly applicable to them hence disregarding the application of the Access to Information Law.
Clause 35 (6) in the Namibia ATI Bill provides that a requester must provide a reason for requesting access to information. All international treaties that guarantee the right to information only recognize protection on the basis of what is contained in a record i.e. whether disclosure would undermine national security or violate the privacy of an individual. The Indian RTI Act for example states that an applicant shall not be compelled to disclose the reason for seeking information. In Uganda, the ATI Act also provides that one should be granted access to information regardless of the reason he may give. If ATI is a fundamental Human Right, people should not be condemned to disclosing reasons for seeking information.
The Bill does not contain a provision for waiver of fees for requesters who may not be able to afford the costs but have the real need for such information. The proposed law should be alive to the challenges of these vulnerable groups. Many of our people live below the poverty line and yet they too have rights. In order to ensure that no one is left behind, the bill should put these groups into consideration. Because most of the time, they are the same people who need access to information to better their lives.
According to Clause 37 (2) of the ATI Bill, a response to a request for information shall be made within 21 days. There is a dire need for timeliness in response to information. The current situation of the global pandemic has proven to different governments that the delay in releasing information is costlier compared to proactively disclosing information. There are also good examples of AU states that have shorter timelines to respond to requests and they have been successful. For example, the Nigerian Freedom of Information Act provides for public bodies to provide the requested information within 7 days while the Freedom of Information Act of Rwanda provides for 14 days. This is a good illustration that public bodies can actually avail of information in the shortest time. In contrast, countries with longer timeframes like Uganda have used this to manipulate the public and release the information on the 21st day. By the time this information is released, chances are high that its value has been lost or not use again.
In order to have a progressive ATI law in Namibia, AFIC recommends the following:
- A provision should be added for consequential amendments. i.e., whenever there is any other law that contravenes the ATI Law, it shall be subject to amendment to the extent of its inconsistency.
- We recommend that political parties are subject to disclosure in terms of the application of the ATI Bill.
- A clause should be added to emphasize the fact that nothing in the ATI Bill detracts from the provisions of any other written law giving a right of access to the record of a public and private body.
- We recommend that to ensure transparency of the commission, clear reasons, and criteria followed in exempting such institutions should be published.
- Whereas Clause 35 (6) provides that a requester must provide a reason for requesting access to information, we strongly recommend that this requirement be removed or modified to state that giving reasons for the information request is only for purposes of enabling the Information Officer to determine exact records being requested and as such not stating the reason(s) given or agency believes an individual is requesting for information must not be the basis for determining whether to grant access or not.
- Whereas the Bill allows for access to information to be granted in a form other than that requested by a requester, we recommend that the requester be given a reasonable explanation as to why access will be given in a form other than that he/she had requested.
- The Bill should allow for free access to information for such people within reasonable limits.
- We recommend that the 21 days’ period be revised to 14 days. This will facilitate response to some urgent requests which the public may have.
- We recommend that the criteria of classification should meet the three-part test provided by Article 19 (3) of the International Covenant on Civil and Political Rights (ICCPR) and the limited exemptions under the ATI Bill. Article 19 (3) of the ICCPR provides a three-part test for analyzing state laws and restrictions like the one we have at issue in the draft bill.
- We recommend that a clause be added requiring that the decisions of the commission be published in contrast to the AU Model Law. Thus, a corresponding provision should be added.
- Whereas there is no obligation created under the bill for the commission to submit an annual report to parliament, an obligation should be added by Parliament to consider the Information Commission’s Report and issue necessary orders and/ or recommendations.
Many governments are confronted with the urgent need to improve their economy, reform their constitution, strengthen institutions, modernize the public administration, fight corruption, and address civil unrest. For these governments, access to information can be used to achieve all of these objectives.
With access to information law, governments must establish record keeping and archiving systems, which serve to make them more efficient, reduce discretion, and allow them to make better decisions. Changing a culture of secrecy to one of openness is a difficult task that can take generations. However, a first step is to have an Access to Information Law in place.