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Building an open society: the case fora freedom of information Act for the Gambia

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By Almami Fanding Taal

“There is no doubt that the media remains the most important and if not the only source of information. It is common knowledge that information on human rights violations is always gotten from the media. The Genocide in Rwanda, the human rights abuses in Burundi, Zaire, Congo, to name but a few, were revealed by the media’. (African Commission on Human and Peoples’ Rights, Comm. Nos. 147/95 and 149/96 (2000).

Information is recognised as one of the major drivers of the global economy, a factor of production alongside land, labour, and capital – critical to economic growth and sustainable development. It is often said that information is power, without which decisions are untimely, irrational, and misdirected. It makes it possible to link producers and consumers to the markets. Availability of information enables the public to participate meaningfully in governance issues, promotes transparency and accountability in the management of national affairs. If poverty reduction programmes are to succeed, information has to be availed to people at all levels in the Gambia in order to increase opportunities for wealth creation as well as guarantee active participation in poverty reduction programmes. Over the last two decades, the advances made in the telecommunications industry and the convergence between computing and broadcasting technologies have made it much easier and faster to process, distribute or access diverse information resources. The way information is accessed and transmitted around the world, for example through Internet has fundamentally altered how societies organise and govern themselves and conduct commerce and trade. Today, ICTs form the backbone of industries such as global financial industry, travel and tourism, distance learning and are increasingly becoming a value-adding component in everyday life events such as education, health, security, entertainment, and communication. ICTs are also a critical component for accelerating innovation, business competitiveness, promoting efficiencies in delivery of services, democratic governance, human development, and economic growth. The extent to which the Gambia can benefit from this revolution largely depends on the strategies and actions for development of our “information infrastructure” – the increasing convergence of telecommunication networks, computing hardware and software, and value-added services required for the efficient collection, processing, storage, and transmission of information, together with the legal and institutional frameworks. Which in turn depends on the quality of governance and the effectiveness of our institutions in the generation and use of information? The Social Contract between the Citizens and the Governments in Africa is creaking at the seams. The citizens expect competent and accountable governance, and the Governments want to stay in power indefinitely and would do anything to restrict and control the flow of official information. For this reason, oppressive Colonial laws that were made precisely to repress the citizens have been refurbished and amended to keep a tight lid on the citizens.

There is little justification, if any, in maintaining   archaic laws restricting the generation and dissemination of information in the statute books of the nation and use them frequently against Media Practitioners.     Dissent and open discussions of national issues have transformed Ghana into an effective and functioning democracy that have had two competitive and legitimate change of government within the last decade. The Africa Union (AU) does not recognize Coup D’états (Mauritania is concurrently considered a pariah state in the AU) and the AU has gone a step further by establishing the Peer Review Mechanism, which is mandated to gauge the quality of governance in Member States that voluntarily submit themselves to Review Process. Again, in our neighbourhood, Ghana has submitted itself to the Review Mechanism and came out with favourable ratings. Continental efforts of this nature are necessary to engender a culture of accountable governance. However, the main drawback of the African Peer Review Mechanism is the voluntary nature of the process and the absence of an enforcement mechanism. Unsurprisingly, only African Governments with robust and responsive governance institutions have so far submitted themselves to the Review Process.  Africans everywhere yearn to be free from the rule of one man or one family or one group, will continue to struggle against the rule of man, and will make any sacrifices necessary to ensure the establishment and effectiveness of the rule of law. For any government to endure for long it must be based on the consent of the governed. Increasingly, the African people are demanding that such consent must be “informed consent.” This is what history has taught us: Whether it was the elegance and eloquence of the American declaration of Independence or the storming of the Bastille by the peasants of Paris shouting:  Liberte! Egalite! Fraternite! A mature democracy like the United Kingdom has found it necessary to enact a Human Rights Act and a Freedom of Information Act just a few years ago. Presumably, to place beyond controversy the inalienable rights of her majesty’s subjects. Great Britain is the birthplace of the Magna Carta, and some of most liberal and progressive ideas about liberty. Ideas of people like A.V Dicey who expounded the political theory of the rule of law and the need to have “checks and balances” between the three arms of government. These powerful ideas still find resonance in democratic and open societies today. What is Freedom of Information?

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The right of freedom of information is independent of the right to freedom of expression and freedom of the Media, which is explicitly guaranteed alongside, related fundamental human rights of assembly, association, free movement, and freedom of belief under Section 25 of the 1997 Constitution. Comprehensive freedom of information, however, requires the recognition of all these rights. For example, the media has the right to report and publish freely and should be accorded the fullest possible facilities for access to public information.

The right to speak and publish freely would be diminished by the absence of a right to acquire information to be published and debated. In any event the right to freedom of information is underscored by three fundamental constitutional principles outlined in the 1997 Constitution:

1. The government’s legal and political authority is derived from the sovereign will of the people.2. Individuals exercise powers of the State on trust and in accord with their responsibilities to the people.3. Sustained trust for the exercise of power can only be maintained through open, accountable, and transparent Government and informed democratic choice. The fundamentals of all freedom of information legislation are an appreciation that a democracy’s health and longevity depend upon public trust and confidence in government and that this trust is nourished by free access to information. The arguments in favour of freedom of information focus on accountability, openness, participation, and development. Free expression is essential to a democratic society. Free expression distinguishes democratic from non-democratic countries. Self-government requires that citizens have accurate, adequate, and current information about issues facing their society. When ideas can be heard, examined, and questioned, society can develop culturally, economically, and scientifically. Free expression also allows people to vent their anger or frustration with the government and with other problems. It therefore decreases the likelihood that people will turn to violent means to express themselves. Freedom of expression remains one of the most basic rights in a democracy. A paragraph of the preamble of 1997 Constitution states: “This constitution provides for us a fundamental Law, which affirms our commitment to freedom, justice, probity, and accountability. It also affirms the principle that all power emanate from the sovereign will of the people”. Therefore, the Constitution mandates the state to actively promote the welfare and development of the people by introducing measures that will guarantee accountability, transparency, integrity, and financial probity, which by virtue of their effectiveness will strengthen confidence in public institutions. However, constitutional guarantees without supporting statutory provisions or jurisprudence do not in themselves ensure freedom of information. Therefore, the introduction of freedom of information legislation in the Gambia would demonstrate that the government and its leaders firmly back the constitutional guarantee and seek to establish it in the consciousness of both the public and the executive. Freedom of expression and accountability will therefore become inseparable. After all the government should be responsible to individuals and communities, who have a right to know what the government is doing on their behalf or in their name. Openness of this kind can contribute to better government decisions, rational policy choices and an enhanced political process. Public participation in the decision-making process depends on the existence of open government and access to a range of information which the individual, rather than the state, considers relevant to the issue under discussion. Even after a government decision is made, particular narrowly defined grounds should be accepted for withholding certain information, because subsequent analyses of the decision, its consequences and alternatives are critical to improving the decision-making process and ensuring the legitimacy of the government. Such examination requires the availability of relevant information at a later date. Freedom of information is also critical in development. Freedom of information legislation must not be seen as an obstacle to improved economic and social conditions, but as an asset. Open debate and transparency in government and society are crucial elements of peace and development. This requires an information policy that guarantees active exchange of information and opinion among all members of society. Such a policy includes allowing for the formation of independent human rights groups and other non-governmental organizations and encouraging their active participation. In addition, free and open debate of policy alternatives on, for instance, the creation of jobs and provision for other social needs is essential to ensure that democratic principles are not set aside in favour of development, even though development of course remains a central and valid aim of government policy. In the Ghana constitution, Chapter 12 deals with freedom and independence of the media. Articles 3 to 5 are clearly explicit as to the intention of the drafters'(3) There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a licence as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information.(4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications.(5) All agencies of the mass media shall, at all times, be free to uphold the principles, provisions, and objectives of this Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana. These impressive provisions of the Constitution of Ghana ought to be read with the caveats that confidential or classified information or information that is sensitive in respect of national security should be exempted and protected. The existence of such restrictions on classified and confidential information is necessary in an open and democratic nation. Beyond this legitimate exception a competent and effective government would not hide behind the cloak of secrecy or non-existent national security threats to withhold information from the people. Furthermore, within the African continent, the African Charter on Human and Peoples Rights (1981) also espouses the right of individuals to receive information, to express and disseminate opinions. “The African Commission in its decision on communication 101/93 laid down a general principle with respect to freedom of association that “competent authorities should not enact provisions which limit the exercise of this freedom. The competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution or international human rights standards”. This principle therefore applies not only to freedom of association but also to all other rights and to freedoms for all these reasons, the Government of the Gambia should consider enacting a Freedom of Information Act (FOI) now and repeal all legislations that encourage a culture of silence and secrecy. The Media and Civil Society organizations should campaign for FOI as a minimum requirement for the realization of the fundamental Human Rights guaranteed in Chapter IV of 1997 Constitution.

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Almami Fanding Taal is a legal practitioner with a special interest in human rights, media laws, and good governance and institutional development.

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