Right to Information and Access to Legal Information

Transcription

1 Right to Information and Access to Legal Information Emi MacLean Legal Officer, Open Society Justice Initiative

2 Overview I. Key principles of the right to information (RTI) II. III. IV. Why RTI matters RTI law and practice in Africa Proactive disclosure and relevance for access to legal information

3 I. Right to Information: Presumptive right of access Key Principles Info held by public bodies or private bodies performing public functions, or where information necessary for the exercise or protection of a right Limited exemptions Free and accessible Available to all people Limited restrictions defined in law Reactive disclosure: duty to reply and right to appeal Proactive disclosure: duty to publish

4 II. Why RTI matters Public engagement in decision-making Information necessary for the preservation and protection of fundamental rights, and for access to government services Accountability of public institutions

5 III. RTI Law and Practice in Africa International law protections Constitutional right of access to information Explicit right to freedom of information Freedom of information protected as part of freedom of expression guarantee Statutory right of access to information All-encompassing RTI laws RTI provisions in other laws Policy and practice Also: Bills

6 Int l Commitments: African Union African Charter on Human & Peoples Rights (1981) Art. 9(1): Every individual shall have the right to receive information. African Charter on Democracy, Elections and Good Governance (2007) Art. 19(2): Each State Party shall guarantee free access to information African Convention on Preventing and Combating Corruption Art. 9: Each State Party shall adopt such legislative and other measures to give effect to the right of access to any information that is required to assist in the fight against corruption and related offences. AU Rapporteur on FOE and ATI - mandate extended to ATI in 2007; monitors and advises states regarding compliance with RTI standards

7 Int l Commitments: African Commission Declaration of Principles on FOE in Africa (2002): Principle IV 1. Public bodies hold information as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law. 2. The right to information shall be guaranteed by law in accordance with the following principles: right to access information held by public bodies; right to access information held by private bodies which is necessary for the exercise or protection of any right; right to appeal to an independent body and/or the courts; duty to publish important information proactively; no sanction for good faith release; no sanction for release of info regarding wrongdoing, or that would disclose serious threat to health, safety or environment; secrecy laws shall be amended as necessary.

8 Int l Commitments: Other Instruments Universal Declaration of Human Rights - Article 19, UN General Assembly Resolution (1948): RTI protected as part of the right to freedom of expression International Covenant on Civil and Political Rights (ICCPR), Art. 19: RTI protected as part of the right to freedom of expression UN Convention Against Corruption (2003) Art. 10. Public reporting: States may adopt measures to allow public to obtain information on decisionmaking of public administration Art. 13. Participation of society: States should ensure public has effective access to info

9 Constitutional Protections Explicit constitutional RTI guarantees: 16 countries South DRC, Madagascar, Malawi, Mozambique, South Africa West Burkina Faso, Cameroon, Cape Verde, Ghana, Guinea Bissau, Senegal East Eritrea, Tanzania, Uganda, Kenya North Morocco Uganda Art. 41(1): Every citizen has a right of access to information in the possession of the state or any other organ or agency of the state except where the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to privacy.

10 Constitutional Protections Additional 17 countries guarantee limited right to receive info as part of right to freedom of expression South Angola, Botswana, Lesotho, Mauritius, Namibia, Swaziland, Zambia, Zimbabwe West Liberia, Mali, Nigeria, Sierra Leone, Togo East, Central and North Africa Chad, Central African Republic, Ethiopia, Tanzania

11 Right to Info Laws 10 countries, with differing levels of protection Angola (2002) Ethiopia (2008) Guinea (2010) Liberia (2010) Niger (2011) Nigeria (2011) South Africa (2000) Tunisia (2011, decree) Uganda (2005) Zimbabwe (2002)

12 Other Laws with RTI or Transparency Provisions Archives Laws Evidence and Administrative Codes Civil and Criminal Procedure Codes Anti-Corruption Sectoral Health Environment and extractive industries Budget monitoring Sub-national (i.e., state, provincial, local) legislation

13 Model Law Model Law for AU Member States on Access to Information (draft, pending endorsement) For more info:

14 III. Proactive Disclosure The obligation of public bodies to make law and policy documents openly and freely available Important for the public and for public bodies Improves reliability and accuracy of information: disclosed automatically Allows for anonymous access Reduction of burden on processing requests for reactive disclosure (under RTI laws) Ensures timely equality of access (without burden of requests)

15 Proactive disclosure: Principles Available Findable Relevant Accurate Comprehensible Free or low-cost Up-to-date

16 Proactive disclosure: core categories Institutional information, i.e., regulations, functions, powers Organisational information, i.e., structure, names Operational information, strategies, plans, policies Decisions and acts Public services information Budget information Open meetings information Decisionmaking and public participation Public procurement and subsidies Lists, registers, database Information about information held, and publications

17 Proactive Disclosure and the Judiciary Oversight of functioning of the judiciary Importance of objectivity and perceived objectivity of judicial decisions Judicial independence: less room for discretion and corruption Perceived objectivity increases public support for functions Importance of understanding judicial reasoning for public, including lawyers, and the lower courts Principle of rule of law requires that laws, and their enforcement, are known Improved information management, greater efficiency

18 Core categories of judicial information Website with basic information regarding courts Rules and regulations Statistics on cases filed, resolved and pending Courts agenda Budget, salaries, background of relevant officials Bidding and procurement information for contracts Judicial decisions

19 Why RTI Matters Public engagement in decision-making Information necessary for the preservation and protection of fundamental rights, and for access to government services Accountability of public institutions

20 For more: International Websites Africa Africa Freedom of Info Centre (AFIC), Int l School for Transparency, U of Cape Town, with U of Södertörn, Sweden & ODAC, programs for public servants, African Network of Constitutional Lawyers (ANCL), RTI Committee, Africa Governance Monitoring and Advocacy Projects (AfriMAP), monitors and promotes compliance with requirements of good governance, democracy, human rights and rule of law International FreedomInfo, Justice Initiative Right2Info, Article 19, Carter Center,

21 For more: Civil Society Organisations REGIONAL: Southern Africa Open Democracy Advice Centre (ODAC), Media Institute of Southern Africa (MISA), West Africa Media Rights Foundation for West Africa, Ghana, Citizens Governance Initiative, Cameroon, Right2Know Coalition, Nigeria, East Africa Hurinet, Uganda: MISA-Tanzania: Int l Commission of Jurists-Kenya,