Access to Information: time to advocate for change

By Reginald Ntomba

In December 2002, while I was completing my final exams in journalism school, various media organisations, including the Media Institute of Southern Africa (MISA), Press Association of Zambia (PAZA), Zambia Union of Journalists (ZUJ), Zambia Media Women Association (ZAMWA), and others collaborated to sponsor three Bills in Parliament.

The Freedom of Information (FOI) Bill, Independent Broadcasting Authority (IBA) Bill, and the ZNBC (Amendment) Bill were the culmination of years of effort by media bodies lobbying the government and Members of Parliament. The Private Members’ Bills were presented by then Lusaka Central MP Dipak Patel and his Livingstone counterpart Sakwiba Sikota.

Rather than supporting these Bills and suggesting areas for improvement, the government opted to draft its versions of the IBA Bill and ZNBC (Amendment) Bill, both of which were eventually enacted. Nevertheless, it marked a significant victory for media bodies, prompting the government to recognise its lagging stance.

The FOI Bill faced withdrawal after the government requested further consultation, setting a trend for the next two decades. The Bill was later renamed Access to Information (ATI) to broaden its scope.

Over the years, the ATI Bill underwent numerous reviews shuttling between the Ministry of Information and the Attorney General’s Chambers, with benchmarking studies conducted in Kenya, South Africa, the United Kingdom, and the United States.

Enacting the ATI law has consistently featured on the to-do lists of successive Ministers of Information, each pledging to present the Bill in the next parliamentary session.

Despite over ten ministers having come and gone, the Bill remained in limbo. Meanwhile, I pursued a career in journalism and eventually retired to my backyard garden.

In their 2021-2026 party manifesto, the governing United Party for National Development (UPND) promised to enact the ATI law, emphasising its crucial role in ensuring government transparency, accountability, and exposing any misconduct or waste.

This commitment, if fulfilled, would distinguish the UPND from their predecessors.

After what seemed like an eternity, the Minister of Information, Hon. Cornelius Mweetwa, finally presented the ATI Bill to Parliament on Friday, November 10, 2023

The Good

On the whole, the Bill is forward-thinking. The fact that it has returned to parliament presents an opportunity for enactment and subsequent public testing. Laws, when scrutinised by the public, often undergo refinement.

One notable strength is the Bill’s inclusive approach, covering both public and private entities as ‘information holders.’ This is particularly beneficial since private entities, through their interactions with public bodies, often become custodians of public information.

For individuals unable to submit written requests, the Bill accommodates oral requests, which the information holder must then formalise in writing and share with the requester, promoting inclusivity.

Sections 4 and 5 appoint the Human Rights Commission (HRC) as the oversight institution for public access to information. While other jurisdictions may assign this role to the Information Commissioner, starting with the HRC is acceptable, given that access to information is a fundamental right in a democracy.

Part III of the Bill (Section 6 to 20) meticulously outlines how the public can access information and delineates the roles and responsibilities of information holders. It even stipulates specific timelines for providing requested information.

An important provision mandates public institutions to designate information officers responsible for processing public requests, potentially compelling previously ‘opaque’ institutions to become more responsive to public information requests.

Section 8 specifically urges public bodies to be transparent about their mandates, fostering public accountability.

Under Sections 34 and 35, information holders are obliged to report to the HRC on how they fulfill their obligations, with the HRC empowered to impose administrative penalties for non-compliance. This further underscores the commitment to accountability.

The Bad

In its initial provisions within Part I, the Bill overlooks the essential task of defining ‘public interest,’ a concept frequently referenced throughout various articles and sections.

Leaving the determination of ‘public interest’ to information holders raises concerns, as they may unjustly deny access to information that rightfully belongs to the public.

While exemptions and limitations are typical in any law, this Bill includes a potentially problematic blanket provision that information holders could exploit.

Section 31 allows the denial of information on grounds of being “frivolous and vexatious.” The ambiguity arises in determining what qualifies as frivolous and vexatious, leaving room for subjective interpretation.

In contrast, the US Freedom of Information Act delineates nine clear exemptions, a model that the Zambian drafters could have adopted and consolidated into one section.

Instead, the drafters appear to have borrowed Section 14 from the UK Freedom of Information Act without making an effort to contextualise or define its application in the Zambian context.

The Road Ahead

Enacting the law marks just the beginning; the government faces a considerable task in operationalising it.

Firstly, there is a need for the government to re-equip and enhance the capacity of the Human Rights Commission (HRC) to effectively manage the increased responsibilities bestowed by the new law. The HRC will navigate uncharted territory as it engages with other information holders and assumes the role of overseeing the law’s implementation.

Secondly, a significant cultural shift within public institutions is imperative. Governments worldwide are not known for readily disseminating information; often, it needs to be actively requested or, in some instances, leaked.

Within the civil service, there exists a prevailing culture of withholding public information unnecessarily. The reluctance to share information is deeply ingrained, contributing to a substantial information gap on numerous issues within the country.

Fostering this shift in mindset will require extensive training and orientation, a responsibility explicitly assigned to the HRC by Section 5 of the Bill.

Thirdly, by facilitating access to information through this legislation, the government assumes the responsibility of educating the public about the implications of this law and how citizens can leverage it.

Fortunately, numerous civil society organisations dedicated to this cause are already in existence, serving as advocates for the law and playing a crucial role in raising public awareness.

With the Bill now in the public domain, stakeholders have the opportunity to submit their input to the Parliamentary Committee on Media, Information, and Communication Technologies.

The author is a journalist and political scientist