Gilbert Sendugwa,
Executive Director
African Freedom of Information Centre (AFIC)
Introduction and observations
Adoption of ATI laws in Africa started very late and slowly. The first ATI law in Africa was adopted in the year 2000, nineteen (19) years after the adoption of the African Charter on Human and Peoples Rights and when 85 other countries from other regions of world had already adopted ATI laws. Between 2000 and 2009, only five African countries had adopted ATI laws- South Africa, Angola and Zimbabwe (2002), Uganda (2005) and Ethiopia (2008). The laws were generally weak.
Successes and Utility of the Model Law
The model law has contributed in two main ways:
i. First, tool to support advocacy campaigns for adoption of ATI laws. Awareness and sensitisation of African governments, CSO groups and journalists created appreciation and urgency for the law. Whereas 10 ATI law were adopted in 13 years preceding the Model Law i.e. between 2000 and 2013. 17 countries have been adopted after the model and new draft bills are being considered for adoption.
One can argue that although the Model hadn’t been finalised and approved, the process for the model law also influenced ATI laws adopted just before it such as Nigeria.
ii. Second and more importantly, improving the quality of laws. According to the AU model law, good ATI law should fulfil the following key elements, namely;
i. the right for everyone,
ii. public access override
iii. covers public and relevant private bodies, and protection of rights
iv. easy and straight forward procedures for requesting information
v. limited scope of exceptions and refusals
vi. Appeals- internal and external administrative and courts, uncostly,
independent and fast
vii. Promotional measures
AFIC reviews draft Bills against the Model Law and provides recommendations for consideration in improving draft Bills. As a result, most laws that were adopted after the Model Law reflect progressive elements. For example:
extend the right of access to information to everyone irrespective of
citizenship e.g. Namibia, Malawi, etc
both public and private bodies e.g., Namibia
proactive disclosure, e.g Seychelles and Ghana
public access override other laws e.g. Malawi
easy access and short statutory timelines, e.g Rwanda
Independent Oversight bodies, e.g South Sudan and Kenya,
Promotional measures, e.g Seychelles (and Nigeria).
Other notable achievements/ developments
i. Formation of the African Network of Information Commissions (ANIC), a network of information regulators and oversight mechanisms in Africa to facilitate knowledge sharing and peer support. Si far it has 14 members from countries that established them.
ii. ATI recognised included by the UN in the Sustainable Development (SDG)
framework under SGD Goal 16.10 in which member states committed “to
ensure public access to information and protect fundamental freedoms,
in accordance with national legislation and international agreements”
iii. Proclamation by UNESCO General Conference and UN General Assembly of September 28 th as the International Day for Universal Access to Information both resulting from African led campaigns
iv. Declaration of Principles on Freedom of Expression and Access to Information in Africa which in Principle 26 states that, “the right of access to information shall be guaranteed by law….” the African Commission on Human and Peoples’ Rights in November 2019
v. Resolution on the Right to Freedom of Information and Expression on the Internet in Africa – ACHPR/Res. 362(LIX) 2016
vi. Resolution on the Protection of Women Against Digital Violence in Africa ACHPR/Res. 522 (LXXII) 2022.
Worries and challenges
i. Declining momentum for adoption: Only two countries have adopted ATI laws since the 2020 in spite of the above stated ACHPR and UN resolutions and commitments.
ii. Restrictions of access to information online through internet shutdowns, networks disruptions, surveillance and harassment across the continent.
iii. Poor implementation of existing ATI laws.
iv. Capacity and lack of funding e.g. South Sudan Information Commission not funded, Liberia Information Commission yet to submit annual report to Parliament after 10 years
v. Countries that adopted ATI laws before the Model Law have not amended them to bring them in line with the model law
vi. Exclusion of access to information in practice based on gender, age, disability,
location, technology, etc
Conclusion
The model law has been an important instrument for rallying the support for the adoption of strong ATI laws in Africa. Greatest success has taken place where CSOs have actively worked with the ACHPR Special Mechanism on freedom of expression and access to information to engage states parties to apply the model law. Changing landscape for CSOs has undermined CSO campaigns and slowed down the pace of adoption of ATI laws in Africa. This is undermining the development of democracy and giving rise to unconstitutional change of governments in Africa.
