CUTS Access To Information – Press Statement

Cuts Programe Officer Allan Chitwamali

CUTS Programe Officer Sylvia Kagulurah

Access To Information – Press Statement

By Allan Chitwamali & Sylvia Kagulurah

Program Officers

The Consumer Unity and Trust Society (CUTS) Lusaka, wishes to commend the current government, who legitimately are the guarantors of civil liberties, stalwarts and defenders of the Fourth Estate, for the relentless fight they have waged on behalf of every Zambian, for Freedom of Information. There is a recognition that there is need to enhance access to information which is aimed at advancing the fight to increase civil liberties that has been going on since 1990 when the previous government together with the then Movement for Multiparty Democracy (MMD), called for the enactment of the law to increase media freedom and promote freedom of information. It goes without noting that the current government has continued from successive regimes to forward citizens welfare by ensuring that citizens continue to exercise their human rights through enhanced access to public information.

Historically, in 1946, the United Nations, under resolution 59, declared that Freedom of Information was vital and a necessary precondition for the attainment and enjoyment of all other freedoms. The world has only recently woken up to this great declaration, with the majority of countries enacting the law just in the last 20 years. This comes against the backdrop of Zambians having championed for this law as far back as 30 years ago. Despite being ahead of even the most technologically advanced countries such as the United Kingdom at some point in the need to enact this bill, the process has been stifled and the law never got past the first reading in the National Assembly, first in 2002, then in 2013 and finally in 2018 when the Bills were drafted.

In recognition of the significance of increased access to public information, CUTS and other CSOs, have endeavoured to create spaces in defence of the inalienable citizen rights by championing the enactment of the Access to Information (ATI) law, which is also referred to as the Freedom of Information (FOI) law. Worthy of note is that the need to create pathways for effectively informing citizens and contributing to policy analysis has led many CSOs to a crossroads in as far as access to information is concerned. Further, there also has been a general realisation that fighting for better regulation of Public Debt, inclusive leadership, improved lives of the vulnerable and marginalised, and all Zambians in general, demands the lifting of unnecessary restrictions on the access to information. It calls for a concerted effort to have freedom of information, knowing full well that knowledge is power.

Currently, with a new draft Bill, the 2021 Access to Information Bill, there is a realisation that some issues within the current draft needs further consideration, this is in recognition of the fact that the content of the Bill is more important than the Bill itself. To be more precise, freedom of information globally is premised on a number of key principles. Topmost among them is the principle of maximum disclosure. This is closely followed by the principle of limiting exceptions, the reduction of cost, the simplification of procedure, the shortening of disclosure times, the periodic release of information by public bodies and the protection of whistle-blowers.

Armed with these principles, the chances of passing a law that is fit for purpose are high. While it may appear that such a law will strip public officials of all protection and privacy, there is a three-part test that serves as a safety measure: 1) Is there a legitimate claim? 2) Is there substantial harm? 3) Is it in public interest? We believe that these are the only questions that should be asked, the only concerns that should be raised whenever a member of the public demands for information. Having outlined the principles, we wish now to turn our attention to the content of the circulated Access to Information Bill 2021 that is now in public domain. Here below are our views:

(a) Section 3. dealing with application of the law, introduces an exception clause which we feel waters down the strength of the Access to Information law. We recommend the reinstatement of Section 4. of the Freedom of Information Bill 2002, as this clearly places the Access to Information law above all other statutes, and only inferior to the Constitution. This is in line with global best practices, and it will serve to enhance the tenets of democracy, particularly transparency, accountability, rule of law, good governance and public participation.
(b) Section 4. In light of what we have stated above, Section 4. should be expunged in its entirety and replaced with Section 4. of the 2002 Freedom of Information Bill, for the same reasons.
(c) Section 8. outlines the functions of the Commission. We are of the considered view that the omission of the critical word ‘review’ after the phrase ‘to receive and to consider’ weakens the Commission. Powers of review of decisions made by public bodies are inherent to any Commission globally, and create necessary oversight on draconian tendencies of public servants. Merely receiving reports and considering does not punish the offender, nor does it correct any anomalies. We recommend the replacing of Section 8. with Section 7. of the 2002 Freedom of Information Bill as these cover oversight aspects in a comprehensive manner.
(d) Section 9. the composition of the Commission includes the Attorney General, and the chairperson is appointed by the minister. This goes against the very logic of an access to information law. The Executive must have no role whatsoever in controlling the access to information body. Allowing this would be allowing the Executive to be the judge in its own case. The purpose of this law is to hold public officers accountable. We recommend the replacing of Section 9. with section 8 of the 2002 Freedom of Information Bill, and including a member each from a CSO and an FBO.
(e) Section 14(3). must be expunged in its entirety as this creates an outrageous limitation on access to information and the proactive publication of information by public bodies.
(f) Section 29. the right of access to information is unnecessarily fettered with use of the conditional ‘if’. We are of the considered view that limitations to access should be governed by the globally recognized three-part test: legitimate aim, substantial harm and public interest. This will lead to maximum disclosure. Allowing other statutes to control information is as good as not having an access to information law altogether. We recommend the replacing of Section 29. with Section 10. of the 2002 Freedom of Information Bill.

With the concerns listed above, commendation to the government for the steps taken towards making this law a reality is advanced but this goes without highlighting the inadequacies that the current bill has which may render the bill ineffective in its aim to ensure that information that will be key in holding duty bearers accountable, ensure transparency and the prudent use of public resources is made available. If these are left unattended, the efforts of all stakeholders involved would be rendered futile. Therefore, CUTS and other concerned CSOs call upon the involvement of all stakeholders and interested parties (especially the youth and media alike) to firmly rally behind this call to have the bill enacted but more importantly to have the concerns addressed so that this bill becomes a comprehensive law that will stand the test of time and will be the bedrock for providing the necessary checks and balances of Public Office bearers.