chri executive summary 2003: looking for the right to information in ...

CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH1

Commonwealth Human Rights InitiativeThe Commonwealth Human Rights Initiative (CHRI) is an independent, non-partisan, international non-governmentalorganisation, mandated to ensure the practical realisation of human rights in the countries of the Commonwealth.CHRI was founded by Commonwealth Associations in 1987 because they felt that while the member countries of theCommonwealth had a common set of values and legal principles from which to work, and also provided a forumwithin which to promote human rights, there was little focus on the issues of human rights within the Commonwealth.The objectives of CHRI are to promote awareness of and adherence to the Harare Principles, the Universal Declarationof Human Rights and other internationally recognised human rights instruments, as well as domestic instrumentssupporting human rights in Commonwealth member states.Through its reports and periodic investigations, CHRI draws attention to progress and setbacks to human rights inCommonwealth countries. In advocating for approaches and measures to prevent human rights abuses, CHRI addressesthe Commonwealth Secretariat, member governments and civil society associations. By holding workshops anddeveloping linkages, CHRI’s approach throughout is to act as a catalyst for activity around its priority issues.The nature of CHRI’s sponsoring organisations* – journalists, publishers, broadcasters, lawyers, legal educators,health professionals, trade unionists, and parliamentarians – ensures both a national presence in each country anda local network. More importantly, these are strategic constituencies, which can effectively steer public policy infavour of human rights by incorporating human rights norms into their own work and acting as a conduit for thedissemination of human rights information, standards and practices. As such, their individual members and collectivesare themselves capable of affecting systemic change. In addition, these groups bring knowledge of local situations,can access policy makers, highlight issues, and act in concert to promote human rights. The presence of eminentmembers of these professions on CHRI’s International Advisory Commission assures CHRI credibility and access tonational jurisdictions.Originally based in London, United Kingdom, CHRI moved to New Delhi, India in 1993. It now has offices in Londonand in Accra, Ghana.* Commonwealth Journalists Association, Commonwealth Trade Union Council, Commonwealth Lawyers Association,Commonwealth Legal Education Association, Commonwealth Medical Association, Commonwealth Parliamentary Association,Commonwealth Press Union and the Commonwealth Broadcasting Association.Copyright © Commonwealth Human Rights Initiative 2003Artwork by Neha Sharma. Cover design concept by Deepika Mogilishetty-Farias.Designed and produced by Spectra Visual Word. E-mail: spectravw@vsnl.net. Cover illustration by Simran Singh.ISBN: 01-88205-03-6COMMONWEALTH HUMAN RIGHTS INITIATIVECHRI New Delhi OfficeN-8, Second FloorGreen Park MainNew Delhi - 110016, INDIATel: +91-11-2653-5768, 2686-4678Fax: +91-11-2686-4688E-mail: chriall@nda.vsnl.net.inCHRI London OfficeC/o Institute of Commonwealth Studies28, Russell SquareLondon WC1B 5DS, UKTel: +44-020-7-862-8857Fax: +44-020-7-862-8820E-mail: chri@sas.ac.ukWebsite: www.humanrightsinitiative.orgCHRI Ghana OfficeC/o The British Council, Liberia RoadPO Box GP 771, Accra, GHANATel: +233-21-244744, 683068,683069, 683070, 683063Fax: +233-21-240330, 683062E-mail: chri@gh.britishcouncil.org2CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH

Open Sesame: Looking for the Right to Information in theCommonwealth“Freedom of Information is a fundamental human right and is the touchstonefor all freedoms to which the United Nations is consecrated”— United Nations General Assembly, 1946The 2003 report by the International Advisory Commission of the Commonwealth Human Rights Initiative, Chaired by ProfessorMargaret ReynoldsEdited by Maja DaruwalaCore writing and publication team: Deepika Mogilishetty-Farias, Debashish Sankhari, Charmaine Rodrigues and Clare DoubeResearch team: Nilza Leandro, Seema Kandelia, Aditi Datta, Sandy Feinzig and Nicole LeistikowPublished by theCOMMONWEALTH HUMAN RIGHTS INITIATIVEN-8, Second Floor, Green Park MainNew Delhi - 110016, INDIACHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH3

ForewordThe Commonwealth Human Rights Initiative’s 2003 report on the right to informationis extremely timely as it coincides with an era of global volatility when governments areresponding by placing further restrictions on their citizens and their access to publicinformation.Democracy depends on open, accountable government and the opportunity for citizensto actively participate, but this cannot occur unless we insist that the right to informationis fundamental to this process.A number of governments throughout the world have introduced a range of legislativemeasures to guarantee citizens’ access to information, but unfortunately only ten ofthem are in the Commonwealth. Even the Commonwealth Secretariat itself does nothave a disclosure policy. Public release of information is entirely at the discretion of thisadministrative body and member states.The Commonwealth must promote the right to information as a core activity providingtechnical expertise to governments to help establish appropriate mechanisms whichreflect the principle and practice of the right to information.The Commonwealth itself must set an example by implementing openness andtransparency at all its meetings to ensure that its functioning is in conformity with theseideals. An important first step for CHOGM 2003 would be full disclosure of both theagenda and decisions taken by Commonwealth leaders.A specific time-bound commitment by CHOGM 2003 to implementing the right toinformation in all its member states would facilitate an increased level of communicationand understanding between Commonwealth citizens and their governments.The Commonwealth needs to move from words to actions to enhance greater respectfor its work. We expect Commonwealth leaders to enhance their strategies of goodgovernance by adopting a coherent policy which fully accepts citizens’ right toinformation. Failure to do so violates peoples’ rights and undermines democracy.Professor Margaret ReynoldsChair, International Advisory CommissionCommonwealth Human Rights InitiativeCHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH5

Chapter SummariesThe Commonwealth Human Rights Initiative’s 2003 report, “Open Sesame: Looking forthe Right to Information in the Commonwealth”, contains the following chapters:Chapter 1 The Right to Information: Touchstone for Democracy and DevelopmentA liberal information-sharing regime guaranteed by law is the practical answer to theCommonwealth’s present search for deeper democracy and people-centreddevelopment. Access to information is both a practical short cut to achieving the goalsof poverty eradication and good governance and a long recognised human right.Human beings need information in order to realise their full social, political and economicpotential. Information is a public resource, collected and stored by government in trustfor people. The challenge is to share it equitably and manage it to the best advantageof all of society. But the human right to access information remains undervalued in theCommonwealth, both by member states and the Official Commonwealth. Only a handfulof member countries promote and protect the right. The institutions of theCommonwealth do not yet have disclosure policies. This situation needs to change asa matter of priority.Chapter 2 Balancing the Scales of Power: Legislating for AccessCommonwealth countries must put in place domestic laws that entrench the right toaccess information. Key principles which should be reflected in all access to informationlaws, along with examples from throughout the Commonwealth, are provided to givedirection to law-makers and activists on developing people-friendly laws. TheCommonwealth has some of the best-crafted laws to draw upon. International standardsand guidelines also provide assistance.Chapter 3 Making it Work: Entrenching OpennessLegislation is a valuable first step towards putting in place an access regime, but it isnot enough. Opening up government requires complementary systems that supportadministrative reform. Conflicting laws must be amended. Removing obstructions toopen government needs independent arbiters to monitor performance, adjudicateconflict, educate the public and promote good practice and training within bureaucracies.Most of all open government needs political will to overcome long-standing cultures ofgovernment secrecy because experience shows that changing mind-sets has provedvery difficult.Chapter 4 People Power: Civil Society Advocacy ExperiencesRecommendationsWhether working at the grassroots to support demands for economic justice, exposingscandals that save nations millions of development dollars, helping governments tocraft laws, or working across jurisdictions to promote best practice, the spur for opengovernment has often come from civil society. The techniques and strategies thesegroups have used and their success and setbacks are sources of inspiration, as well asproviding practical ideas, for other groups across the Commonwealth.6CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH

and performance. Records held by government include: international accords;negotiating briefs; policy statements; minutes of discussions with investors, donors anddebtors; cabinet deliberations and decisions; judicial proceedings; executive orders;intra-governmental memos; budget estimates and accounts; evaluations of publicexpenditure; charts on government structure; expert advice; transcripts of departmentalmeetings; statistical data; social surveys of health, education and food availability;assessments of demographic and employment trends; analysis of defence preparednessand purchases; maps; studies on the location and availability of natural resources;reports on the outcome of public inquiries; proofs of the quality of the environment,water and air pollution; detailed personal records; and much, much more.This vast and valuable stockpile of information is created as part of the legitimate androutine discharge of governments’ duties. It is gathered and stored for the benefit ofthe public. It is generated with public money by public servants paid for with publicfunds. Governments hold all this information solely as trustees on behalf of the peopleand cannot hoard it or unnecessarily keep it from the public.Information is not a giftof the government to bebestowed on a whim.Rather, the right toaccess informationsimply returns tocitizens what has alwaysbeen rightfully theirs.Access to Information is the Key to Democracy and DevelopmentGuaranteeing the right to access information offers the Commonwealth thedesperately sought after key that it is searching for to deepen democracy,speed development and eradicate poverty. In 1991 the Commonwealthrecognised in the seminal Harare Declaration “the individual’s inalienableright to participate by means of free and democratic political processes inframing the society in which he or she lives”. More recently, at Coolum in2002 the Commonwealth committed itself to “work to reduce the growinggap between rich and poor” and declared that “the benefits of globalisationmust be shared more widely and its focus channelled for the elimination ofpoverty and human deprivation”. The right to information lays the foundationupon which to build good governance, transparency, accountability andparticipation, and to eliminate that scourge upon the poor – corruption.As such, it should be embraced as much by the hard-headed economist asby the high-minded reformer.Poverty is the hallmark of the Commonwealth. At the turn of the millennium, all themembers of the Commonwealth came together in their broader membership of theUnited Nations and pledged their commitment to the Millennium Development Goals– the most comprehensive poverty reduction and development agenda the internationalcommunity has ever forged. Sadly, in 2003 few nations of the Commonwealth are ontrack. The Commonwealth continues to be beset by poverty. Many of the populationsthat are the worst-off live in India, Nigeria, Pakistan and Bangladesh – countries whosepopulations taken together amount to more than ninety percent of the Commonwealth.Much of the failure of development strategies in the Commonwealth is attributable tothe fact that, for years, they were designed and implemented in a closed environment– between governments and donors and without the involvement of people. Yet theCommonwealth insists that it is committed to development in partnership with peopleand civil society! Poor people know what they want but are out of the habit of questioningaloof governments. In any case, governments – and donors – have not been willing to8CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH

open up. In one extreme case, even parliamentarians in Ghana complained that theirinterim Poverty Reduction Strategy Paper and crucial decisions to take advantage of theHighly Indebted Poor Countries initiative were not referred to parliament at large. 2If governments are obligated to provide information, people can better manage theirown development destinies. They would be able to assess for themselves whydevelopment strategies have gone askew and press for changes to put developmentback on track.Access to information not only supports people-centred development, it is a core featureof participatory democracy. The underlying foundation of a democratic state is theexistence of an informed population able to thoughtfully choose its representatives andhold government accountable. In today’s Commonwealth however, many citizens areunable to meaningfully engage in the democratic process because of a lack ofinformation. In India, for example, citizens struggle to effectively exercise their votingrights during elections because information about the criminal background of candidatesis withheld from them. This is despite an order by the Election Commissioner that suchinformation should be made available to citizens. 3 Likewise, in numerous Commonwealthcountries citizens are unable to ensure that special interest groups do not co-opt theirrepresentatives because they are not permitted to examine the sources of donations topolitical parties – many of which are little less than bribes. With better information,citizens can decide when, how and to what end they wish to participate in the decisionsand activities that affect their lives. Their participation in the democratic process alsobecomes more informed and therefore more effective.The Commonwealth is relying on free markets and equitable economic growth toquicken development. The right to information provides crucial support to the marketfriendlygood governance principles of transparency and accountability. Markets, likegovernments, do not function well in secret. Openness encourages a political andeconomic environment more conducive to the free market tenets of ‘perfect information’and ‘perfect competition’. In turn, this results in stronger growth. Strong economiesrequire informed citizens who are able to access strategic information that will ensuretheir success in business. Economic equity, so important for poverty eradication, is alsoconditional upon freely accessible information. Guaranteeing the right to accessinformation ensures that information itself does not become just another commoditythat, though generated by public money, is corralled and cornered by the few for theirsole benefit. The free flow of information ensures that markets work for people ratherthan corporations. It helps level a playing field that is currently heavily skewed in favourof big business.A guaranteed right to access information is an essential, practical anti-corruptionmeasure. Corruption undermines democracy. It creates a culture of impunity destroyingthe rule of law and creating a class of overlords who need secrecy to keep their darkdeeds hidden in dark places. Crooked politicians care little for their representativeduties and serve those who can pay rather than those who elected them. In the worstinstances, this leads to the ‘criminalisation of politics’ and ‘the politicisation of criminals’.Lack of government accountability and transparency and habits of secrecy have alsomade certain that corruption is leaching away the economic lifeblood of manysocieties. The World Bank estimates that corruption can reduce a country’s growth rateMillenniumDevelopment Goals*• Between 1990 and 2015:– Halve the proportion ofpeople whose incomeis less than $1 a day– Halve the proportion ofpeople who suffer fromhunger– Ensure that childreneverywhere will be ableto complete a fullcourse of primaryschooling– Eliminate genderdisparity in primary andsecondary education– Reduce the under-fivemortality rate by twothirds– Reduce the maternalmortality ratio by threequarters– Have halted and begunto reverse the spread ofHIV/AIDS and theincidence of malariaand other majordiseases– Halve the proportion ofpeople withoutsustainable access tosafe drinking water• By 2020, have achieveda significant improvementin the lives of at least 100million slum dwellers• Integrate principles ofsustainable developmentinto country policies andprogrammes and reversethe loss of environmentalresources• Develop a globalpartnership fordevelopment.* This is a summary of theMillennium Goals and Targets.For a full list see UNDP (2003)UNDP Human DevelopmentReport 2003, New Delhi, pp. 1-3.CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH9

y 0.5 to 1.0 percentage points per year. It is not coincidental that countries with themost corrupt governments also have the lowest levels of development. The harmfuleffects of corruption are especially severe on the poor, who are least capable of payingthe extra costs associated with bribery and fraud, or surviving the embezzlement ofscarce public resources.Research shows however, that countries with access to information laws are alsoperceived to be the least corrupt. In 2002, of the ten countries scoring best inTransparency International’s annual Corruption Perceptions Index, no fewer than eighthad effective legislation enabling the public to see government files. Of the ten countriesperceived to be the worst when it comes to corruption, not even one had a functioningaccess to information regime. 4 Open government is the antidote to corruption. Theright to access information acts as a source of light which can be shone on the murkydeals and shady transactions that litter corrupt bureaucracies. Knowing that citizenscan scrutinise their actions should make governments more inclined to serve theircitizens and less inclined to swindle them.The right to information enables citizens and non-governmentorganisations to peel back the layers of bureaucratic red tape andOpen government is thepolitical sleight of hand and get to the ‘hard facts’. This knowledge,antidote to corruption.based on tangible evidence, gives people the confidence to take onpowerful interests on the basis of sound information rather than simplyThe right to accesstheoretical suppositions and vague assumptions. Armed with information,information acts as aeven the most marginalised of citizens can take action in their owninterests. For example, a daily wage earner can ask to see work registerssource of light which canto check if they are being paid what a contractor is claiming on theirbe shone on the murkybehalf from the government. A mother can challenge the basis on whichschool admission is given. A pensioner can check if personal recordsdeals and shadyheld by government are accurate or misinterpret their entitlements.transactions that litterA small business can sue for compensation if it discovers that a losttender was corruptly awarded to another bidder. A citizen’s group cancorrupt bureaucracies.lobby to stop a development project because they can access documentsthat indicate that it will have a detrimental impact on the environment.With assured sources of true information available, the media can alsoplay its watchdog role with accuracy and balance. In all, the guarantee of a right toinformation recognises that the power wielded by governments and officialsis disproportionately strengthened by its control over all information, and attemptsto redress this imbalance of power by moving the locus of authority back from thestate to the citizen.Openness and information sharing also contribute to national stability by establishinga two-way dialogue between citizens and the state. Over the years, instability andconflict have resulted in huge setbacks to development in the Commonwealth. Systemsthat encourage communication and give people the ability to personally scrutinisegovernment decision-making processes contribute to stability by reducing citizens’feelings of powerlessness, and weakening perceptions of exclusion from opportunity orunfair advantage of one group over another. It effectively reduces the distance betweengovernment and people and combats feelings of alienation.10CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH

The Commonwealth Has Recognised the Value of the Right to InformationTo its credit, the Commonwealth has recognised the fundamental importance of theright to access information on a number of occasions. As far back as 1980, theCommonwealth Law Ministers declared that “public participation in the democraticand governmental process was at its most meaningful when citizens had adequateaccess to official information.” 5 Collective policy statements since then have encouragedmember countries to “regard freedom of information as a legal and enforceable right.” 6The Commonwealth Secretariat has even prepared guidelines 7 and a model law 8 onthe subject.But the Commonwealth Remains ClosedThere should be no need to recall the importance of the right to information to thegovernments of the Commonwealth. Yet there is. Despite strong commitments toopenness and transparency, the Official Commonwealth itself has failed to lead memberstates by example in the area of information sharing. Unlike other multilateral bodiessuch as the UNDP and the European Union, the Commonwealth Secretariat does nothave a comprehensive disclosure policy in place – other than a rule requiring releaseof certain documents after thirty years. Despite some welcome good practice at recentmeetings of its officials, the Official Commonwealth continues to hesitate to engagecivil society in its working or functions.Open government is notoriously absent in the majority of Commonwealth memberstates, and citizens suffer as a result. Only 11 out of 54 Commonwealth countries haveaccess to information laws. Many Commonwealth countries actually have guaranteesof the right to information enshrined in their constitutions (usually as part of the right tofreedom of speech and expression, rather than as a separate right). However, only ahandful have actually practically implemented the constitutional guarantee of freedomof information through enabling legislation.Member States Continue To Resist Opening UpAcross the Commonwealth, governments and bureaucracies remain reluctant to releasetheir people from the shackles of secrecy. The assumption that information is secret hasalways been a major premise of the relationship between ruler and ruled in theCommonwealth. Traditional governance structures often positioned chieftains and triballeaders as the unaccountable arbiters of their people’s governance. Colonial authorities,which owed no duty to subject populations, purposefully used secrecy to signal theirpower and distance. A culture of secrecy permeated government, and systems to keepinformation from the public became embedded. Today, except in a handful of countries,governments enthusiastically retain and indeed embrace these symbols of supremacyas if there has been no intervening change from colonial to constitutional governance.Official secrets acts, preventive detention and anti-terrorist legislation, criminaldefamation laws, overly indulgent contempt and privilege laws, media and privacyregulations and restrictive civil service rules all remain very much intact. In truth, somany laws that protect and enshrine secrecy have been accumulated that bureaucratsnow often just play it safe and simply keep every piece of paper confidential. In Kenya,for example, a file full of nothing more than newspaper cuttings was observed asmarked “very confidential” and access to it denied without the permission of thepermanent secretary!CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH11

Status of the Right to Information in the CommonwealthExplicit Constitutional Guarantee onlyAccess RegimeSpecific guaranteePart of speech & expressionNo Access RegimeAustralia Ghana Antigua and Barbuda BangladeshBelize Malawi The Bahamas Brunei DarussalamCanada Mozambique Barbados, Botswana The GambiaIndia Papua New Guinea Cameroon MalaysiaJamaica + Uganda Cyprus MaldivesNew Zealand + United Republic of Tanzania Dominica NauruPakistan Fiji Islands NamibiaSouth Africa # Grenada SamoaTrinidad and Tobago Guyana SingaporeUnited Kingdom Kenya SwazilandZimbabwe* + Kiribati TongaLesothoMaltaMauritiusNigeriaSeychellesSierra LeoneSolomon IslandsSri LankaSt Kitts and NevisSt LuciaSt Vincent and the GrenadinesTuvaluZambiaVanuatu# Pakistan promulgated a Right to Information Ordinance in October 2002 but no access legislation has yet been passed.+ Not yet in operation.* The Zimbabwe law is so heavily qualified that it is tantamount to having no access legislation.Resistance to change is strong when vested interests have so much to lose.Consequently, Commonwealth governments unused to opening themselves up toscrutiny have been quick to offer justifications for not providing a guaranteedright to access information. None are compelling. In these turbulent times, anincreasingly common argument trotted out by governments is that openness willcause great harm to national security or other important interests of state. Thiscan be a legitimate concern. Clearly, sensitive information such as intelligencedata or international trade secrets may need to be kept confidential. Issues arealso sometimes raised about breaching privacy and damaging commercial interests.The reality is however, that the bulk of government-held information does notfall into sensitive categories. Much of the information requested by the public isuncontroversial. People want to know simple things: what the priorities12CHRI 2003 REPORT: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH

in health spending are; how government insurance schemes calculate the cost of theirpremiums; what colouring is permissible in food. In any case, well-drafted access lawsinclude exemptions for certain types of sensitive information, provided these are narrowlydefined and non-disclosure itself serves the public interest. Good legislation will alsoallow for the balancing of competing interests in difficult cases and permit externaladjudication where there is a dispute. The extent of disclosure – full or partial – can bedetermined according to the context. Thus, while it may not be in the national interestto disclose where a group of new aircraft is to be deployed, there is no reason why,merely because the Defence Department is involved, citizens should not be giveninformation on how much an air force jet cost or the details of the purchase agreement.Public officials have also claimed that openness is detrimental because it constrainsfree and frank discussions within governments, delays decision-making and inhibits thecandour of advice. Officials are concerned because every request for information hasthe potential to expose a scam, open up bureaucratic decisions to question, put uproadblocks on policy directions and carries the threat of public scandalif used by political opponents. But the risk of government embarrassmentis certainly not a sufficient justification for keeping government informationfrom the public. The formulation of policies in secret makes them almost Public servants whocertain prey to bias and unfettered discretion. In contrast, the possibilitygenuinely believe theyof scrutiny supports the honest bureaucrat, inhibits favour-seekers andimproves the overall quality of decision-making by ensuring that decisions are serving theirare grounded in careful analysis and not made arbitrarily.masters by denying theFinally, officials, particularly in developing countries, argue that public information forgetguaranteed access to information is a luxury that must await better times.that their masters areCountries also raise the cost of managing and disseminating informationas an insurmountable barrier to open government. This argument may the public themselves.initially appear to have some merit in countries that are struggling just tofeed their populations, but it is seriously flawed when one considers thatgood record-keeping is a basic and indispensable precondition foreffective governance. It also overlooks the amount that governments already spendon creating systems of secrecy and waste on distributing their own propaganda.For example, in the mid-1990s it was estimated that the Freedom of Information Act inVictoria, Australia cost about $3 million to administer, compared to the $75 millionspent each year by government departments providing brochures and booklets to thepublic. 9 The costs to private business and individuals of paying bribes to access importantinformation can also not be ignored. Expenditure incurred in opening up governmentis more than offset by the many benefits – economic and social – that result fromgreater transparency. Access to information is, in fact, a fundamental precondition fordevelopment and democracy.People-Friendly Access Regimes Must be Put in PlaceThe reality is that the development of a ‘culture of openness’ is beneficial to the publicand the government. The best way of achieving open government is by putting in placepeople-friendly access to information regimes. The first step is to design a legallyenforceable access law which makes open government the norm and removes allobstructions that hamper the realisation of the right.CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH13

Access laws must be based on the principle of maximum disclosure. Internationalstandards, guidelines and experience provide useful input on designing progressivelaws. The Commonwealth itself contains an excellent example of effective accesslegislation, by way of South Africa’s law. Developed with strong inputs from civil society,it was relatively quickly enacted and has been followed by other laws, such aswhistleblower protection legislation, and administrative reforms which focus oncomprehensively entrenching open governance.A law on access is essential but is not enough; by itself it will do little to change aclosed, secret, elitist environment into an open democracy. Lack of political will isperhaps the most serious obstacle to transforming government from closed to open.This most often manifests in delays in operationalising access legislation once it isenacted. Delays send mixed signals of government intention and pander to the penchantfor secrecy. Often justified on grounds that time is needed to put in place systems toenable efficient information-giving, delays often mask a battle against openness beingwaged within the bureaucracy. Delays can range between the reasonable, such as inAustralia and Canada where laws were operationalised within a year of enactment,and the unreasonable, such as the United Kingdom, which has been heavily criticisedfor insisting on a five year gap to get its house in order when it has already had in placea working code of access applicable to all central government-held information sinceMinimum Standards For Maximum DisclosureAccess to information legislation must:• Begin with a clear statement that establishes the rule of maximum disclosure and a strong presumption infavour of access;• Contain definitions of information and bodies covered that are wide and inclusive, and cover privatecorporations and non-government organisations where their activities affect people’s rights;• Strictly limit and narrowly define any restrictions on access to information. Any body denying access mustprovide reasons and prove that disclosure would cause serious harm and that denial is in the overall publicinterest;• Override inconsistent and restrictive provisions in existing laws;• Require governments to create and maintain records management systems that meet public needs;• Include clear and uncomplicated procedures that ensure quick responses at affordable fees;• Create powerful independent bodies that are mandated to review any refusal to disclose information, compeldisclosure, and monitor and promote implementation;• Impose penalties and sanctions on those who wilfully obstruct access to information;• Provide protection for individuals who, in good faith, disclose information that reveals wrongdoing ormismanagement;• Contain an obligation on government to routinely and proactively disseminate updates about structure, normsand functioning of public bodies including the documents they hold, their finances, activities and any opportunitiesfor consultation;• Contain provisions obligating the government to actively undertake training for government officials andpublic education about the right to access information.14CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH

1994. In India too, the national law has been passed by parliament but has not beenbrought into force. In a country notoriously slow to implement bureaucratic change,this does not auger well.Cultures of bureaucratic secrecy stand as major roadblocks to openness. They aredifficult to change as they are deeply embedded in the official psyche. This is as muchtrue of countries that have had legislation in place for decades as it is for those thathave enacted laws more recently. Experience shows that opening up is hard to do. Areview in 1995 of the Australian federal access law found that, even after thirteen yearsin operation, the bureaucracy still had not universally accepted the Act as an integralpart of democracy. 10 The Information Commissioner of Canada has also pointed outthat while Canada’s access law has risen to the challenge posed by “a deeply-embeddedgovernmental culture of secrecy…[and] shown its strength to overcome barriers ofunreasonable delay, fees and application of exemptions…there remains a deep nostalgiain the bureaucracy for the days when officials controlled information and the spin ofthe message. Officials have not given up the fight to weaken the law, but they havecome to realize that the only effective strategy left to them is to rewrite the law.” 11Change happens only when there is unequivocal political commitment to tearingdown all barriers to access and consciously espousing well-crafted and deliberatestrategies that can support each element of a new regime that will upholdtransparency, accountability and participation. Political leaders must set thetone and send a strong message of openness to officials and the public alike byunequivocally throwing their support behind open governance reforms.In practice, this means the commitment of resources – financial and human –tearing down allto entrenching comprehensive access to information regimes. For example,in Jamaica, the government quickly set up a dedicated Freedom of Information barriers to access.Unit in the Prime Minister’s office to oversee implementation. Public officialsLeaders must set theresponsible for collecting and disseminating information must be (re)trainedand educated and the public assisted to exercise their rights. The government tone by throwingmust also remove obstructions, such as old constraining legislation andtheir support behindcumbersome bureaucratic procedures. Concurrently, it must enact supportinglegislation which enables openness, such as whistleblower and sunshine/open open governancemeeting laws. Governments must ensure that record-keeping and informationmanagement systems are effective to collect and store information. Recordsreforms.management is often a neglected area. Poorly manned and under-resourced,it has been known to have cabinet papers, so valued for their secrecy, piled up on dustyfloors next to dog licences, and key reports being used for scrap paper. Technologicaldevelopments have totally transformed the area of information management, suchthat this task can now be undertaken effectively for a relatively small investment of timeand personnel.Citizens and civil society groups have a vital role to play in creating genuinely responsiveaccess to information regimes. Civil society organisations are effective at raising publicawareness, embedding the value of the right in the public psyche and breaking downresistance within government. In many Commonwealth countries, civil society has actuallybeen responsible for putting access to information on the agenda of governments.Change happensonly when there isunequivocal politicalcommitment toCHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH15

Unfortunately, though the Commonwealth has time and time again acknowledged therole of civil society, in many countries public involvement in policy development is stillnot valued. Advocates for the right to information should not need to battle for space.Rather, their presence should be welcomed by governments as an affirmation ofdemocracy. Involving people in the law-making process not only generates legislationand systems that are in tune with people’s needs, it also enhances the general level ofawareness among the citizenry and helps create an environment of openness whichgives real meaning to participatory democracy.Governments Have a Duty to Act Right Now!Four common problems impede development and democracy in the Commonwealth:inequality of power between government and citizen; the consequent lack ofaccountability and near impunity of politicians and officials; corruption; and exclusionof the public from participating in decisions that affect their lives. Open governanceand assured access to information offers the key to address these complex issues.In this interconnected, speeding information age, the combination of technology andeasy availability of know-how, coupled with guaranteed access to information, offersunprecedented opportunities for the radical overhaul of governance. Information mustbe harnessed to create short cuts to development and democracy. It must be sharedequitably and managed to the best advantage of all members of society. The meansare available, but sadly the will is often not. It is an indictment on the performance ofthe Commonwealth that so many member states continue to fail to live up to thedemocratic ideals that are reflected in the commitment to the right to information.This must change.Endnotes1Res. 59(1), 14 December 1946, UNGA, 65th Plenary Meeting.2(2000) “Who governs low income countries?: An interview with Charles Abugre on the Ghana Poverty Reduction Strategy Initiative”, IMF andWorld Bank News and Notices, Fall 2000, www.challenge globalization.org/html/news_notices/fall2000/fall2000-01.shtml.3Daruwala, M., Mohapatra, B., Nayak, V. (2003) The Right to Know: A Voter’s Guide, CHRI and VANI, New Delhi.4Transparency International (1998) “Press Release: Eight out of ten ‘clean’ countries have effective freedom of information”, http://www.transparency.org/pressreleases_archive/1998/1998.12.03.ford.html.5Communiqué issued by Commonwealth Law Ministers, Barbados 1980.6Meeting of Commonwealth Law Ministers, Port of Spain, Trinidad and Tobago, May 1999.7Annex 1, Communiqué issued by the Meeting of Commonwealth Law Ministers, Port of Spain, May 1999.8Freedom of Information Act [ ], Annex to Commonwealth Secretariat Document LMM(02)6, September 2002.9Ricketson, M. (2002) “Keeping the lid on information”, The Age, 28 November 2002.10Open Government: A review of the federal Freedom of Information Act 1982, (1995) ALRC 77, Report of the Australian Law Reform Commissionand Administrative Review Council, http://www.austlii.edu.au/au/other/alrc/publications/reports/77/ALRC77.html.11Reid, J. (2003) Annual Report: Information Commissioner 2002-2003, Ministry of Public Works & Government Services, Canada, p. 13.16CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH

RecommendationsIn the new millennium, good governance and democracy are the cornerstones ofnational and international politics. Governments that operate like a closed shop willno longer remain unchallenged. Zimbabwe and Pakistan’s suspension are examples ofthe Commonwealth’s unwillingness to tolerate governments that are not open to theirpeople. Commitments to open government must be taken seriously by members of theCommonwealth if they want to be taken seriously themselves. Putting in place peoplefriendlyaccess regimes is a way of sending a strong message of commitment todemocracy and development to the global community. It is long overdue for allCommonwealth countries to dispense with secrecy and information-hoarding and reapthe benefits of openness. Doing so might dismay autocrats, but it will be welcomed bydemocrats committed to building a more dynamic and prosperous society.CHRI recommends that:The Commonwealth must:• Call on member countries to introduce liberal access to informationlegislation. CHOGM 2003 should declare that the right to access information iscentral to democracy and development and should obligate themselves to adoptinglaws that are in conformity with international best practice by the next CHOGM atthe latest.• Assist member countries to put in place effective access to informationregimes. Containing vibrant civil society organisations and some states withexemplary laws, the Commonwealth is well placed to assist members to designand implement effective regimes. For example, the Commonwealth Secretariatcan facilitate cooperation with other member states and provide financial andintellectual resources to support the development of access regimes; its HumanRights Unit can provide training to government officials; and the CommonwealthFoundation can encourage public participation in the law-making process andbuild civil society capacity.• Be a role model of open governance. Each of the agencies of the OfficialCommonwealth must put in place a clear policy on disclosure, have mechanismsthat facilitate openness and must proactively disseminate information about theirgovernance structure, norms and functioning. To implement previous commitmentsto partnerships between the official and unofficial Commonwealth, theCommonwealth must open up its ministerial meetings and CHOGMs, whichcurrently remain so stubbornly inaccessible.• Introduce a reporting mechanism to monitor Commonwealthcommitments. Declarations of support and intent are not enough and a clearprocedure for systematically monitoring the implementation of pledges is essentialfor accountability. The Commonwealth should require its member countries toreport to each CHOGM on their implementation of Commonwealth commitments,including those on access to information regimes.CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH17

Member countries must:• Introduce liberal access to information laws by no later than CHOGM2005. These must include the minimum requirements listed on page 12. As withall legislation, the law-making process must be open and individuals and civilsociety groups must be encouraged to participate to the fullest.• Ensure that access to information is effectively implemented. Thisrequires recognition that structural and attitudinal obstacles exist, and the will toovercome them.• Report to each CHOGM on implementation of past Commonwealthcommitments. This includes reporting on progress towards realising the right toaccess information, as well as other key commitments.• Cooperate with the Commonwealth’s efforts to assist members tooperationalise open governance.• Demonstrate their commitment to open governance by disseminatinginformation about the structure, norms and functioning of publicbodies. This requires proactive publication of information about, for example,the basic activities of government departments, their rules of operation andprocedure, their decision-making criteria, performance indicators, points of publicaccess and financial information including expenditure.Civil society must:• Create public awareness of the value of a guaranteed right toinformation; act as a bridge between marginalised people andgovernments to ensure people’s information needs are known; andengage with government towards creating the legal regime thatbest serves the people’s interests.• Monitor the use and implementation of access to information laws.This includes testing and extending the limits of accessibility; reporting upon theextent of secrecy, the availability of information and the need for further reform;and reminding governments of their obligation to ensure access to information.18CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH

CHRI ProgrammesCHRI’s work is based on the assumption that for democracy and development to become a reality in people’s lives,there must be high standards and functional mechanisms for accountability and participation within the Commonwealthand its member countries. Accordingly, CHRI advocates access to information and access to justice. It does thisthrough research, publications, workshops, information dissemination and advocacy.ACCESS TO INFORMATIONRight to Information: In promoting and protecting the right to information, CHRI acts as a legal resource,catalysing agent and repository of good practices. It informs community level groups about the value of access toinformation and advocates with policy makers to ensure that laws reflect the real information needs of the community.In South Asia CHRI has pushed for state level and national legislation. In India a federal law was passed in January2003.In Ghana, CHRI coordinates a right to information coalition comprised of members of the National Media Commission,journalists, human rights activists, religious leaders and members of CHRI’s supporting Commonwealth organizations.It promotes participatory processes for law making and conducts awareness-raising seminars for civil servants andcivil society groups and, on the request of the Ministry of Justice, has made submissions on the draft law.Constitutionalism: CHRI believes that constitutions must be made and owned by the people and has developedguidelines to inform the making and review of constitutions through a consultative process. CHRI is engaged ingauging and promoting popular knowledge and understanding of constitutions.Human Rights Advocacy: CHRI makes regular submissions to official Commonwealth bodies including theCommonwealth Ministerial Action Group, and the Expert Group on Democracy and Development. To assist civilsociety groups with their own advocacy efforts, CHRI is developing a manual on human rights advocacy: this links toa new NGO initiative – the Commonwealth Human Rights Network – that will bring together diverse groups to buildtheir capacity and collective power to advocate human rights issues in the Commonwealth.ACCESS TO JUSTICEPolice Reforms: In too many Commonwealth countries the police are seen as oppressive instruments of state ratherthan as protectors of citizen’s rights, leading to widespread human rights violations and denial of justice. CHRIpromotes systemic reforms of police forces so that they may act as upholders of the rule of law rather than asinstrumentalities of any current regime. In India, CHRI’s programme aims at mobilising public support for policereform. In East Africa, CHRI is studying police accountability issues.Prison Reforms: The closed nature of prisons makes them prime centres of human rights violations. CHRI aims toopen up prison working to public scrutiny. Its programme is sharply focused on ensuring that the near defunct prisonvisiting system is revived. CHRI researches prison visiting and undertakes capacity building programmes for visitors,including developing a handbook.Judicial Colloquia: In collaboration with Interights, CHRI holds colloquia for judges in South Asia on issues relatedto access to justice, particularly as this pertains to the most vulnerable. The first of the series was held in 2002 and willcontinue over the next 3 years.Fact Finding Missions: Such missions are conducted as needed and investigate human rights concerns in membercountries. Since 1995, CHRI has sent missions to Nigeria, Zambia, Fiji and Sierra Leone.CHRI EXECUTIVE SUMMARY 2003: LOOKING FOR THE RIGHT TO INFORMATION IN THE COMMONWEALTH19