Blanket "Exemptions" For Govt Officials Weaken Ghana's Right To Information Bill
Ghana's President Mahama
[The Media And Justice]
An access to information bill currently under consideration in Ghana will do more harm than good, according to the Coalition on the Right to Information in Ghana, which has called for a review of the proposed legislation.
The Right to Information (RTI) Bill, which was reintroduced to Parliament for approval in November 2013 and is on the agenda for 2014, is the product of extensive consultation between Parliament and civil society organizations for some 13 years. But the coalition has expressed misgivings about whether parliament will scrutinize the bill sufficiently and address its shortcomings before passage.
While some journalists have called for passage of the bill, members of the coalition, an umbrella group of civil society organizations and human rights activists advocating for passage of effective right to information legislation in Ghana, has warned that passage of the bill in its current form will obstruct access to information because it fails to provide for maximum disclosure of information.
The executive director of the Media Foundation for West Africa, Kwame Karikari, who is also the co-chair of the Coalition on the Right to Information in Ghana, urged Parliament in a recent article to amend certain provisions. He and others have expressed concerns over record keeping, broad exemptions on information, timelines on providing access to information, the bill's enforcement regime, and fees to obtain access to information.
"The coalition believes that it would be better for Ghana to have no RTI law than for parliament to pass the bill in its current state," Karikari said.
Law students in the United States have reached similar findings. In March 2013, Duke University School of Law professor Joseph Blocher led a group of law students on a 10-day fact-finding trip to Ghana to interview stakeholders including the coalition, government representatives from Parliament and the National Media Commission, members of the Ghana Bar Association, community radio stations, and journalists. The students also spent months studying Ghanaian history, media law, and proposed legislation.
The Duke group concluded that while legislation is necessary to implement the right to information guaranteed in Article 21(1)(f) of the Ghanaian Constitution, Parliament should hesitate to pass legislation that will not fully protect Ghanaians' fundamental human rights.
While the default position of the bill is that access to information should be granted, the bill carves out 13 broad classes of exempt information that the government need not ever divulge. The Duke Law Report proposes that any exemptions should be "narrowly formulated and proportional to [a] legitimate purpose." Rather than providing blanket exemptions for the offices of the president, vice president, and ministers, these offices should be required to demonstrate "a direct causal link" between disclosure and a sufficient harm to the public interest or the rights and freedoms of others. Moreover, the bill should reinforce the Ghana Public Records and Archives Administration Act, which requires public bodies to maintain records. As the Coalition on the Right to Information in Ghana has noted, if record-keeping is not addressed, "the right to information becomes illusory."
According to the Duke Law Report, the bill's enforcement scheme, fee structure, and time extensions are overly complex and would impose significant burdens on applicants.
The bill's current enforcement scheme is problematic because of a potential conflict of interest it creates for the Minister of Justice. The minister is both responsible for implementing the bill and ensuring that the government adheres to its requirements, but the minister also has obligations to the government. Instead, the RTI Bill should mandate oversight by an independent body to ensure fair and equitable treatment and effective implementation and to adjudicate disputes arising from denied requests for information. The current bill provides for appeal of denied requests to the Supreme Court, but many Ghanaians lack the resources for such a costly and time-consuming appeal.
The bill's fee requirements and timelines should also be limited. Under the current bill, applicants must pay costs associated with locating, retrieving, and preparing information for disclosure, and applicants must pay more when the government needs more time to locate information. This would penalize applicants for the government's inefficient record-keeping apparatus. Instead, any fees should be limited to the "actual cost of reproduction of information." Additionally, all applicants have a right to receive, process, and act upon information within a reasonable time. The current bill allows for extensions that, if applied, could add up to more than five months.
Although review of the current bill is necessary, the RTI bill represents a significant step toward realizing Ghanaians' constitutional right to information. The coalition stated it best in their petition to Parliament: "Access to information offers the key to deepening democracy and quickening development that Ghana is seeking. It lays the foundation upon which to build good governance, transparency, accountability, and eliminate corruption."
CPJ Guest Blogger Nina Gupta is a third-year student at Duke Law School in Durham, North Carolina.