12: Access to Information
More than half of all African countries guarantee the right to access information held by the state and relevant private bodies – in their national constitution or in other legislation. The first country to introduce such legislation was South Africa in 2000, Malawi in 2017, Namibia in 2022 and Zambia in 2023.
A lot of work in regard to access to information still lies ahead. Many states do not have any legislation on the matter, in others the existing laws need to be brought up to date to apply to data and to the private sector where public interest is involved. In any case, adoption of a law does not automatically mean implementation.
THE NEED FOR ACCESS TO INFORMATION LEGISLATION
Information comes from all sorts of sources: the media, citizens themselves, government departments, public bodies and private institutions, to name just the most important ones. What we are dealing with here is:
- information held by government institutions which tend to assume that such material is their property and for their eyes only, and
- information held by relevant private companies which commonly argue that they can’t disclose vital ‘business secrets’.
Legally guaranteed access to such information enables citizens to participate more actively in governance processes – and hold power to account by enabling transparency. Where effectively implemented, access to information laws can contribute positively to governance by promoting openness, improving service delivery and fostering a culture of openness and responsiveness in government – and big businesses.
Access to information should include equitable access to data, encompassing statistics, datasets and research findings, which is essential for nurturing a just, informed and inclusive society in the digital era. Such extended access can promote democracy and facilitate the exercise of various human rights. It will also enhance transparency and accountability in governance. This was recognised in 2024 by the African Commission on Human and Peoples’ Rights in resolution 620.
Access to information will deter officials from participating in unlawful or illegitimate actions as they may be exposed publicly for such behaviour. It helps to uncover instances of fraud, corruption and the misuse of funds. Open contracting data has shown that women need to be preferenced more in terms of winning public tenders. It also means that honest officials can be exonerated of untrue allegations.
The African Union’s Declaration of Principles on Freedom of Expression and Access to Information says the right of access to information shall be guaranteed by law in accordance with the following principle:
“Every person has the right to access information held by public bodies and relevant private bodies expeditiously and inexpensively. “
Public and private bodies
A public body means any institution established by law, by statute or which forms part of any level or branch of government – the Office of the President or Prime Minister, Parliament, ministries/departments and courts of law at all levels, national, regional and local. Also included in this definition are institutions owned, controlled or substantially financed through public funds such as public corporations or parastatals.
Relevant private bodies are companies that carry out a public function on behalf of a public authority (maintaining roads or operating railway lines) or have substantial interests in, for example, mining, farming, or industrial sectors where public interest is impacted. Citizens have the right to know information that is relevant to defending their rights, i.e. to a clean environment or transparency on company ownership as well as land titles.
GOOD ACCESS TO INFORMATION LEGISLATION
Generally, the law should place an obligation on all public bodies or authorities to publish on their own accord relevant documents such as policy manuals or ministry and audit reports (proactive disclosure).
If specific information is requested this should be available without any questions asked. There will, of course, be a few exemptions (see later in this INFO BITE), but the so-called ‘presumption in favour of access’ should be the rule.
Requesting procedures should be simple, rapid and low-cost – easy to understand, accepted electronically, orally or in writing, with fees to be paid, if any, being at least only nominal. If a request is refused, a requester should be notified of the reasons for rejection and how to appeal.
Cases where access to information and data may be denied should be clearly defined. The regime of exceptions should protect legitimate secrecy interests and personal privacy, but exceptions must not be overly broad or lead to unjustified rejections of requests.
Secrecy provisions are often included in several laws and some officials may routinely label documents as secret, whether or not they should be. The Declaration is clear on that matter:
“Access to information laws shall take precedence over any other laws that pro0hibit or restrict the disclosure of information”
If a request for access to information is refused, there should be the right to appeal. The first layer of appeal available may be an internal appeal. Internal appeals may be speedy, but they do not often result in changing a refusal into an approval, given that the public authority will essentially be reviewing its own earlier decision.
If the internal appeal fails, or if none is available, the next level of appeal is to an external body – a body that has no vested interest in refusing to disclose the information sought and often has specialised knowledge on right to information issues. This may produce better results. Best practice worldwide is to provide for a dedicated oversight body, like an Information Commission or equivalent (like a Human Rights Commission).
The next level of appeal is to the courts.
Sanctions should be applied to officials who wilfully obstruct people’s right to information as enshrined in law. Sanctions should be administrative in nature (fines or disciplinary measures) rather than criminal.
A country that is committed to openness often has a whistle-blower protection law, as a complement to an ATI law. There should be legal protection for whistle-blowers who publish information of public interest out of conscience and often at great personal risk, in order to expose wrongdoing or law-breaking that may otherwise have remained secret.
In order to promote knowledge about the possibility to access information, the law should provide for information officers or units with specific responsibility to ensure that public bodies comply with their information disclosure obligations. Fourteen African countries currently have such provisions. In Kenya, for example, the official agency overseeing that country’s law says it has trained more than 20 000 officials. Civil society groups with the necessary expertise could assist in such training.
LEGITIMATE EXEMPTIONS
The Declaration of Principles on Freedom of Expression and Access to Information provides a list of specific requirements for the state to justify refusal of access. Here are a few examples for reasonable exemptions:
- personal information of a third party, that is any individual or entity other than the person requesting the information and the institution holding the information;
- information that could cause substantial prejudice to a legitimate commercial or financial interest of a third party;
- disclosure that could endanger national security and defence of the state;
- information that could put information required to be held in confidence under international law risk;
- details that could jeopardise the prevention and detection of crime;
- disclosure of confidential communication between medical practitioner and patient, lawyer and client, journalist and sources.
Just citing reasons of ‘national security’ or other ‘protected interests’, however, is not sufficient for keeping information secret. Access to information may be denied only where disclosure would demonstrably cause substantial harm to one of the protected interests. As the Declaration puts it:
“Information may only be legitimately withheld where the harm to the interest protected under the relevant exemption demonstrably outweighs the public interest in disclosure of the information.”
The public interest test – or public interest override – is a hallmark of good ATI provisions: The authorities need to show – not just assume – that disclosure of information would cause real harm. Access to information is a basic human right, and it is always for the State to justify any limitations on these rights.
Good ATI law is one thing, but for it to have real impact, there needs to be a change of mindset in officialdom. Public servants must be confident they will be protected by the law when releasing information. And they must be aware of their accountability to the public, not just to a senior officer intent on not ruffling any feathers. Being open may indeed elicit criticism, but the outcry will be even greater when information kept secret without legal justification leaks out – as it very often does.
THE ROLE OF CIVIL SOCIETY
Getting access to information does not per se depend on a law – in some cases, a bad law may even limit access. Even the best access to information legislation, however, will have no real impact if it is not known – to the holders and seekers of information.
Civil society organisations often play a crucial role in informing the public about ATI rights and ATI laws. They can mobilise and support communities to use the law to obtain information to enhance their engagement. Topical issues include, for example, physical infrastructure allocations and whether there is due diligence by the state when authorising hazardous industries.
They can also ensure that the benefits of access to information are reaped by every section of society. Often poor, rural and marginalised groups will find it difficult to make active use of the law, even though they may be the groups most likely to benefit from it.
When civil society organisations embark on impact assessments of government programmes and evaluation studies, they often use the ATI law. For media, this offers an angle to fulfil its watchdog role, since such investigations could uncover declining service provision or corruption. Therefore, networking between such organisations and journalists can be beneficial for both parties.
IN SUMMARY
Access to information legislation is an important cog in a working democracy, and key for development that benefits everyone. It is possible where all citizens have an equal right to all information and data that concerns them and the public interest. Having legal access to information and data – from both the public and private sector – is critical for empowerment. The practice of this right should be facilitated.
Note, though, that access to information legislation is not a necessary precondition for good journalism. Professional journalists should be able to dig out information for themselves. If they have a nose for stories of public interest and a network of sources within the halls of power, political or commercial, then they can expose corruption or other wrongdoing under their own steam. Such investigative journalism is practised all over Africa – every day. But a working ATI system can do a lot to help.
This INFO BITE is selected from the online course on Media
and Digital Policy in Africa, offered by Stellenbosch University
in association with Namibia Media Trust.
There are free and paid options available for the full course.
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