RIGHT TO INFORMATION LAW: WE DON’T WON’T A TOOTHLESS BULLDOG.

By E. Kwame Mensah, a right-based development Journalist

The current public concern about the delay in the passage of the Right to Information (RTI) Bill has brought to the fore the need to ensure that utmost care is taken to fashion an RTI legislation that actually meets the national purpose and is consistent with international good practice. It is useless to pass a bill that instead of facilitating maximum disclosure of information stifles the people's right to demand accountability from governments.

The Constitution is clear in reminding all of us that the powers of the State are held in trust by the government for the people. The first article of the 1992 constitution thunders powerfully: “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised…” Therefore it is the obligation of governments to report to the people on how the business of the State is being conducted. There must therefore be no unnecessary stumbling block to any person who is seeking information on matters pertaining to governance and expenditure of national resources. The constitutional provision in Article 21: 1 (f) is unambiguous: “all people shall have the right to “information, subject to such qualifications and laws as are necessary in a democratic society”.

This is why it is worrying that some of the provisions in the current RTI Bill must be looked at closely and reviewed before its passage into law. There are six provisions, inter alia, in the current RTI Bill which need urgent reconsideration. These are related to blanket exemptions, the need of an independent information commission, time periods for the release of requested information, the inclusion of relevant private bodies, payment of fees upon request of information and the appeal processes.

1. Blanket Exemptions not not acceptable
First is the issue of exemptions. As a matter of course, we can't have a RTI law that necessitates the divulging of all State information to all persons all the time. Yet it is critical to ensure that blanket exemptions are avoided and that any information considered exempt should pass the test of satisfying us that the divulging of such information will cause harm to legitimate public interest or legitimate private right. We can't have a law that says that all information at the presidency or elsewhere is classified when we haven't satisfied ourselves that the withholding of such information is indeed necessary for the safeguarding of public interest. Any unhealthy culture of secrecy should not find refuge under blanket exemptions. It may be understandable to exempt some information relating to public health, for example, if the release of such information may cause large scale pandemonium and that its withholding by the relevant state agency would serve the public better. Similarly information relating to national security, such as when disclosed would hinder the military's ability to protect the public, or the States competiveness in foreign relations, or the technological advancement of the nation in such a manner as to harm the public interest; may be exempt. We must insist that unless it is clearly proven that the release of any information held by a state agency is inimical to the legitimate public interest or legitimate private right, such information should be made available upon anybody's request.

2. Need of an Independent Information Commission and Commissioner

It should go without saying, that an independent body is best suited to host the administration and facilitate the implementation of the RTI law. It is not healthy to have a government controlled agency to do this function because there will be conflict of interest. The implementation of RTI invariable would occasion swings between government and the people. It is a “game” between two sides, and the referee must be independent. This also means that the appointed commissioner must be nominated by as broad a consensus as possible and should be one that is relatively untainted by any partisan and/or political coloration. The wisdom we found in setting up independent electoral and human rights, commissions, should guide us do same in this matter.

3. The time required for accessing requested information must not make the information redundant

Information is power. But in this day and age when speed is of great essence to the leverage of information, it is easy to have information that is of no use just because of lapse in time. As the RTI bill stands now, it is possible to take more than 150 days (over five months) to have access to any requested information from a state agency. This is not acceptable. The Bill must be reviewed to ensure that the one who requests for legitimate information receives it early enough. In Nigeria and Liberia it takes less than a forth night and a month respectively, to access requested legitimate information. In the current Bill it could take up to twenty-one (21) days before one would know whether the information one has requested would be granted or not. Then another twenty-one days for the information to be retrieved, and a possible 90 days, then another 21 days of further delay. By which time, the utility of the requested information may have dwindled heavily. This should be avoided.

4. Fees should not be deterrent to the request for information

As much as possible fees charged by the agency providing the requested information should not be such as would discourage people from accessing their right to information. That retired old woman in her village who w=may want to know why her District Assembly is not providing access to portable water for the village folk should not be turned away because she's unable to pay for the fees required to process the information she's asking for. As the Bill stands now, the one requesting for information would even have to pay some fees even if the information is eventually unavailable to him or her. Is this acceptable?

5. Private bodies serving the public interest should be accountable

Is it not necessary to ensure that private bodies that gain from a mandate to appropriate national resources and/or serve the public interest are accountable to the public? Should not, for example, a private construction firm paid to build a road be accountable for the quality of service it delivers?

6. A cumbersome appeal process will do more harm than good.

As the RTI Bill stands now, any applicant initially refused the requested information would have to appeal to the Minister of the agency responsible and if further refused, would then have to appeal to the Supreme Court. First, the minister may be too busy with his/her core functions to attend to the appeal. So it may be better to designate a senior staff to serve as the information officer to handle appeals. Second if the Supreme Court is where we would all have to go when our legitimate request for information is refused by a government agency, then this is a huge deterrent; because ordinary citizens are generally reluctant to face the Supreme Court and the court is unlikely to have the time to attend to these appeals. Furthermore, appeals to the Supreme Court may take “forever” to address.

In the light of the above, it is important for parliament to do a good work on the RTI Bill, without excusing itself from the urgency to have the Bill passed into law promptly, as they have promised all of us.