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The Importance of Ghana Adopting a Right to Information Act – Expert View by Helen Darbishire

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Brussels, May 2018 – As and when Ghana adopts the access to information law that is currently before Parliament, it will become one of the world’s 125th Access to Information law[1].

Although there has been a long campaign by civil society to ensure adoption of the access to information law, it’s important to recall that the passage of an Act is just the first step in a change in societal and administrative culture that the right of access to information implies.

For Ghana, the RTI bill is generally solid, but there are some particular issues to which attention must be paid in preparing for and in implementing the act.

The first is that a huge effort will be needed to educate both public officials and the general public on their respective obligations and rights under the act. Experience from elsewhere has shown that until requests are submitted, public bodies don’t prepare well for the implementation of access to information laws. So encouraging citizens to exercise their right to request information should be a priority. In particular, civil society organisations should submit requests, and take cases to the Information Commissioner to challenge refusals and other systematic bad practices such as administrative silence.

The Information Commissioner itself has a huge responsibility to promote the law, and, once appointed, will need support and cooperation from civil society to help get its work done. Journalists can also play a role here by writing about the new right and how to exercise it,  therefore supporting the Information Commissioner in its work to educate the public.

There will no doubt be some challenges when implementing the law.

One will be a tendency to over apply the exceptions, which often happens in the early days of a right to information act. The way to solve this is through appeals (again, the role of civil society, journalists, and active citizens) and through education of public officials (the role of the Information Commissioner).

A particular challenge with the future Ghana RTI Act is that the exceptions do not have strong enough harm and public interest tests. The harm tests are complicated, and some exceptions lack them all together. So, for example, information containing ‘an opinion, an advice, a report, or a recommendation’ are totally excluded from the scope of the law. This means that legal opinions by official legal services would be excluded, as well as reports on activities that have happened or recommendations on future actions. Such exclusions are not permitted by international standards.

Next, the public interest test is too limited, and can only be invoked in extreme cases such as threats to public health or safety, or miscarriages of justice, or abuses of office. This means that the broader public interests of participation in public debate or general accountability for decisions taken, cannot be invoked. This, again, runs counter to international standards on the right of access to information.

Even more problematic, are the exceptions that exclude certain classes of information. These include exclusion from the scope of the law of information on decisions and other material submitted to or originating from the offices of the President, Vice President and the Cabinet. Although statistical information may be accessed, these exclusions directly undermine a key feature of the right of access to information, which is that it opens up government decision making.

It may eventually be the case that these provisions are struck down by the Constitutional Court as being unconstitutional, given that the Constitution establishes a right to ‘information, subject to such qualifications and laws as are necessary in a democratic society’ (Article 21(f)). There is no necessity in a democratic society to limit access to an entire class of documents related to the decision making of the highest organs of government. Indeed, the converse is true: in a democratic society it is essential that citizens are able to know the decisions made by government officials of all levels, in particular at the highest levels.

It should be noted here that right of access to information is now recognised as a fundamental right that should apply to all information held by all bodies. This is something that has been confirmed by the UN Human Rights Committee (2011) and the European Court of Human Rights (2009).

Furthermore, the exceptions to the right of access to information established by international standards (including those established by the Council of Europe Convention on Access to Official Documents, which were agreed following negotiation by the 47 countries members of the Council of Europe), do not permit such blanket exceptions.

Another important dimension of the right of access to information is proactive publication of information. The proactive provisions in the Ghanaian law are rather limited to basic information about public bodies. Nevertheless, Ghana is already in advance of this with publication of information on its open data portal, which currently contains 133 data sets from 25 agencies.

On the one hand, ensuring that all public bodies in Ghana comply with Article 3 of the law on proactive publication will be a challenge for the Information Commissioner (it will require monitoring and establishment of clear reporting requirements), but, on the other hand, Ghana’s membership of the Open Government Partnership could be used as an incentive to advance proactive publication and open up even more data to the public.

Given global trends, with increased recognition of the right of access to information and the movement towards open government, it’s clearly high time that Ghana adopts its RTI bill into law, and takes the next steps on the road towards transparency.

 Helen Darbishire, Access Info Europe Founder and Director and Media4Democracy.EU Expert (UK, Spain)

Helen Darbishire is a human rights activist specialising in the public’s right of access to information (freedom of information), and the development of open and democratic societies with participatory and accountable governments. Helen is founder and Executive Director of the Madrid-based NGO Access Info Europe, established in 2006 to promote the right to information in Europe and globally.

Helen has over 25 years of experience, having also worked at Article 19 (1989 to 1998), and for the Open Society Institute (1999-2005). Helen has provided expertise to UNESCO, the Council of Europe, the OSCE, and the World Bank. She sits on the boards of a number of right to information organisations, is a founder of the Freedom of Information Advocates Network, and a current member of the Steering Committee of the Open Government Partnership. She holds a degree in History and Philosophy of Science from Durham University, UK. Resident in Madrid, she speaks English, French and Spanish.

[1] Source: Access Info Europe