Legislate Freedom of Information Act and Repeal the Colonial Official Secret Act! Part 1
Alagi Yorro Jallow
Let us make election conversations meaningful, where development is felt, where impact matters and where people can attest that their lives are changing for the better. In this new Gambia, the people have opened the door to a new era of transparency in governance and they hope that this will lead to a domino effect across the globe. The people must know what the government has done and is doing with their tax money and recognize the trust they have invested in the government to govern them.
The Gambian people want the enactment of Access to Information, Right to Information and Freedom of Information (FOI) laws that would benefit not only the media but also the public, who need information to enable them to make informed decisions and debate the matters affecting them. These laws would enable them to help the government implement development projects in their areas. People will be empowered as an extension of the government’s rule to ensure that projects are planned and implemented on time, with the necessary quality requirements.
The freedom of the press is meaningless if elected officials can legally keep their actions and performances a secret. Indeed, the principle of the freedom of the press led to FOI laws. Since the adoption of the world’s first FOI law in modern-day Sweden and Finland in 1766, more than 90 countries have adopted such provisions. The challenges to building on the gains of a new democratic dispensation from dictatorship to democracy include (I) passing the FOI bill as a legislative anchor, (ii) making governance institutions capable of transforming transparency measures into accountability responses at all levels of engagement and (iii) scaling up access to information for the smallest communities, which means a greater and more effective national ICT infrastructure and more enhanced community outreach, especially to the poorest sectors.
The fact remains that the only commodity that is scarcer than meat in the Gambia is the truth. It is incredible how Gambians constantly receive contrasting and contradictory information from official government sources, suggesting an unacceptable level of incompetence or, worse still, intentional misinformation and deceit for propaganda purposes.
FOI can be defined as the right to access the information held by a public body and is deemed as one of the fundamental civil rights supporting democratic processes. FOI is required to ensure that citizens can vote in an informed way and that they can hold their governments accountable through public scrutiny.
The Official Secrets Act of 1922, in the interest of such concerns as national security and the public good, prevents journalists from publishing some information in the public interest. This colonial law makes it very difficult to access information; there are many secrets in government that we still cannot access and powerful people in our economy and politics remain corrupt. It is time to legislate the FOI Act and repeal and replace the Official Secrets Act, which curtails open access to information and allows government secrecy. States should be able to keep some information confidential in line with the legitimate purposes and processes set out in international human rights laws. However, information from administrative and executive authorities, concerning for example laws and public expenditure, should generally be accessible to everyone. Hence, FOI both helps provide oversight over governmental bodies and holds them accountable, and this right strengthens the relevance of press freedom and independent journalism. Journalists argue that any attempt to weaken their rights to protect their sources would discourage people with evidence of wrongdoing from approaching them. The role of journalists as watchdogs of public accountability would in turn be weakened, and society would be the worse for it.
Press freedom is enshrined in the more general freedom of expression. No distinction is made between the average citizen’s right to freedom of expression and the journalist’s right to the same freedom. The law only says that every citizen (including journalists) has the right to freedom of expression and that this freedom includes the right “to hold opinions and to receive and impart information without interference by public authorities.”
In a true democracy, the public are expected to have access to information on how they are governed. Such access to information is basic to the democratic way of life, and the tendency to withhold information from the public is an indication of unconstitutional, fraudulent or corrupt practices by government officials. The denial of access to information and attendant widespread ignorance in society does more harm than good. However, the level of secrecy in government is so ridiculous that every government file has the words “top secret” printed on its cover, even if all it contains are newspaper cuttings already in the public domain.
Many government officials say that the Official Secrets Act makes it an offence for civil servants to give out government information, preventing them from giving information to journalists and the citizenry. The enactment of an FOI law in the Gambia would remove most of the legal impediments that journalists used to face in trying to access information and records in the custody of government officials or government departments and agencies. The law would neutralize the negative provisions and consequences of restrictive laws such as the Official Secrets Act, the Criminal Code and the Penal Code. The FOI law would override the secrecy clauses that pervade many laws in the Gambia and provide protection from official reprisals for public officers who take the initiative to release information to the media in the public interest.
With the enactment of the law, therefore, public information ought to become more generally available to both the media and members of the public as it imposes an obligation on the government, its officials, departments and agencies to provide public access to documents and information that would enhance the capacity of the media to report freely on the exercise of political power. Where public officers are reluctant to disclose information or release documents, the media can ensure that they are compelled to do so.
Any journalist who truly wants to carry out investigative reporting will find the FOI Act a powerful tool for digging for information in government departments and agencies. It opens infinitely more possibilities for resourceful and creative reporters.
But I doubt that the FOI Act will be of any assistance to a lazy journalist. It does not eliminate the necessity for tenacity and the rigorous checking of facts. If anything, the enactment of the law imposes additional responsibilities on the media. Since the excuse of having no access to information and records is no longer available to the media, journalists are increasingly going to be subject to higher standards of accuracy, fairness and responsibility in their publications or broadcasts. The reading, viewing and listening public, to which the media are accountable, certainly have higher expectations. Journalists, therefore, must carry out more thorough research and investigation and check their facts more rigorously before publishing.
Interestingly, FOI laws also protect privacy under the Freedom of Information and Protection of Privacy Act. The law guarantees every citizen access to information about government actions, yet ensures their personal information is confidential. (Personal health records are none of anybody’s business.)
The Right to Information Act is the latest law that has codified the “freedom of speech and expression” guaranteed under Article 19(1)(a) in terms of the right to receive information. This law consolidates all the provisions facilitating access to information in different legislations. FOI has revolutionarily changed the so-called law of privilege where the government used to hold information in secret as a matter of principle and allow it to be disclosed only exceptionally.
Since the FOI law, the rule is disclosure and exception in withholding information. FOI overrides the Official Secrets Act of 1922 and all other legislation that contradicts or conflicts with the FOI Act. The provisions of privilege in the Gambian Evidence Act must give way to the disclosure of information. Official documents pertain to affairs of state; they cannot be withheld by the state as privileged documents under the Evidence Act, but must be disclosed under the Right to Information Act.