The African Commission on Human and Peoples’ Rights (ACHPR) released a ‘draft model law’ on Access to Information in February 2013. Below is the introduction to a report accompanying the draft law. To read the full report and to view the draft legislation click here.
A Model Law is typically a detailed set of provisions embodying the international, regional or sub-regional standards on a particular subject, developed for purposes of facilitating the adoption of national legislation. As the word ‘model’ suggests, a Model Law need not be adopted by States in its exact form, but should be adjusted to suit the legal and other realities of each State. Thus, unlike treaties, which are binding once ratified and impose vaguely worded obligations on States Parties, a Model Law is a non-binding document crafted specifically as a tool to guide law makers in translating obligations emanating from international treaties into detailed national legislation.
Article 1 of the African Charter on Human and Peoples’ Rights (African Charter) obliges States Parties to ‘adopt legislative, or other measures to give effect’ to the ‘rights, duties and freedoms enshrined’ therein. To assist states in fulfilling this obligation, the African Commission on Human and Peoples’ Rights (African Commission) has since its establishment in November 1987, sought to elaborate on the scope and content of some of the
rights contained in the African Charter, through the adoption of ‘soft law’. An example is the Declaration of Principles on Freedom of Expression in Africa (the Declaration), adopted by the African Commission in 2002 to supplement article 9 of the African Charter which provides that ‘every individual shall have the right to receive information’. While these and other ‘soft law’ adopted by the African Commission have expounded on State obligations under the African Charter, they do not specifically provide guidance on the form and content of the legislation to be enacted to give effect to these obligations at the domestic level. This Model Law is thus an attempt by the African Commission to go a step further, by providing detailed and practical content to the legislative obligations of Member States to the African Charter with respect to the right of access to information, while leaving the specific
form in which such the laws will be adopted to individual Member States. Ultimately, each Member State will have to decide on the nature and scope of adjustments to the content of this Model Law that is required, based on the provisions of its Constitution and the structure of its own legal system. The adoption of Model Laws by the African Union on issues of shared importance on the continent is by no means a recent phenomenon. Earlier examples of Model Laws include the African Union Model Law on Biosafety in Technology 2000, and the African Union Model
Law on the Rights of Local Communities, Farmers, Breeders and Access 2000. Increasingly, there is growing recognition in Africa of the importance of using Model Laws to shape the development of national legislation in conformity with regional standards, as evidenced by the on-going development of a Draft African Model Law on Counter-Terrorism and a Draft African Union Model National Law on the Ratification of Treaties.
During its 48th Ordinary Session held from 10 to 24 October 2010, the African Commission by Resolution 167 (XLVII), decided to begin a process of drafting model access to information legislation for Africa. In its decision, the Commission mandated its Special Rapporteur on Freedom of Expression and Access to Information (Special Rapporteur) to lead this process. The Draft Model Law is the product of a two-year long drafting process coordinated by the Centre for Human Rights, University of Pretoria, under the auspices of the Special Rapporteur. Several expert meetings were held, the first of which resulted in the establishment of a ten-member Working Group of Access to Information (ATI) experts to develop the text of the draft Model Law. The initial draft of the Model Law was subsequently presented to the African Commission in April 2011. To ensure further and more in depth consultation with stakeholders, between June 2011 and June 2012, four sub-regional consultations were held in Mozambique, Kenya, Senegal and Tunisia, to elicit feedback on the draft Model Law. Additionally, a public call for comments on the draft Model Law was made. The feedback received from these consultations, together with those received electronically, were considered and informed the finalisation of the Model Law by the Working Group.
THE NEED FOR A MODEL LAW ON ACCESS TO INFORMATION FOR AFRICA
Access to information is of growing international and regional concern, and is a topic on which African States are increasingly undertaking legislative reform. Properly implemented access to information legislation holds the promise of fostering good governance by improving information management, and by enhancing transparency, accountability and greater participation of persons in public affairs. By exposing corruption and mismanagement
of resources, increased transparency is likely to lead to improvements in the enjoyment of socio-economic rights and to contribute to the eradication of under-development on the continent. In recent years, several regional treaties have echoed the need for States Parties to prioritise the adoption of access to information in the context of democracy, fighting corruption and ensuring service delivery. The African Charter on Democracy, Elections and Governance,
which has as one of its objectives the promotion of the necessary conditions ‘for citizen participation, transparency, access to information, freedom of expression and accountability in the management of public affairs’, obliges States Parties to ‘implement programmes and carry out activities to promote good governance by ensuring transparent and accountable administration’. Similarly, The African Union Convention on Preventing and Combating
Corruption obliges States Parties to adopt such ‘legislative and other measures to give effect to the right to access to any information that is required to assist in the fight against corruption and related offences’.
More significantly, the African Charter on the Values and Principles of Public Service and Administration devotes an entire section to the right of access to information, albeit in the context of public administration. Furthermore, several other continental treaties such as the African Youth Charter, the African Charter on Statistics and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa also recognise the importance of access to information in the African context. At the sub-regional level, the Southern African Development Community (SADC) Protocol Against Corruption requires States Parties undertake to ‘adopt measures to create, maintain and strengthen mechanisms to promote access to information, to facilitate eradication and
elimination of opportunities for corruption’. Similarly, the Economic Community of West African States (ECOWAS) Draft Supplementary Act on a Uniform Framework for Freedom of Expression and the Right to Information sets out key sub-regional standards on access to information to be observed by its Member States. While some States Parties have responded to the increased regional and sub-regional emphasis on access to information by enacting access to information legislation, most have failed to do so. The access to information legislative landscape in Africa is thus sparse, with only 11 (Angola, Ethiopia, Guinea, Liberia, Niger, Nigeria, Rwanda, South Africa, Tunisia,
Uganda and Zimbabwe) of the 54 African Union Member States having adopted access to information legislation, each with varied degrees of compliance with regional and international standards. Numerous States Parties have also have access to information Bills, which are at various stages of the legislative process.
AIM OF THE MODEL LAW
The following are some key reasons for developing this Model Law: Guiding the development of new ATI legislation and the review of existing legislation. In the absence of a regional legislative framework to guide States in their development of access to information legislation, States Parties have relied on access to information legislation developed in other jurisdictions in their adoption process. The result has been that many existing and draft access to information laws in Africa do not adequately take into consideration factors such as the poor record keeping culture and pervasive culture of secrecy within the public service in Africa, high levels of illiteracy and poverty, as well as limitations in respect of access to justice for most Africans. These factors are however a reality across Africa and must be addressed to ensure the effectiveness of any access to information legislation on the continent. This Model Law thus aims to ensure that legislative drafters and policy-makers address all of the relevant areas in their adoption or review of access to information legislation and aims to serve as a benchmark for measuring compliance with regional and international human rights standards in the adoption and review of access to information legislation by AU Member States.
An advocacy tool to encourage the adoption of ATI laws
The adoption of this Model Law has the potential to highlight the importance of access to information within specific national contexts, thereby bringing to the fore the need for the adoption of access to information legislation or review of existing ones. The Model Law therefore aims to serve as a tool for access to information advocates across Africa to stimulate public debate on access to information at the national level. Thereby, it aims to raise awareness on the cross-cutting nature of the right of access to information, and the potential of this right to address issues such as poor service delivery, underdevelopment and the effective functioning of the justice system.
Compilation of best practices
Beyond guiding States in the adoption, review or amendment of existing laws, the Model Law also aims to build upon best practices, in terms of legislative drafting that have emanated from the adoption and implementation of existing laws in Africa and around the world. In this regard, the Model Law seeks to assist States Parties in mitigating potential challenges and avoid common pitfalls from relevant lessons learned in other jurisdictions, while strengthening provisions that have proven effective in the implementation of existing legislation.
Reinforcing a common approach and harmonisation of ATI laws
Lack of access to information deprives citizens of their right to participate in the decision making process and hold elected representatives accountable for their acts or omissions and creates an environment in which corruption, maladministration and mismanagement of national resources thrives. By and large, these conditions exist throughout Africa, making the adoption of access to information a common approach to a common problem. This Model Law thus seeks to reinforce a commonality of approach on access to information in Africa, while at the same time leaving room for States Parties to adapt its provisions on the basis of their own legal systems and constitutional frameworks.
Member States may elect to adopt this Model Law as it is or adapt it. They may adopt it as a whole or in part. Whatever the manner in which a State decides to utilise the Model Law, efforts must be made to ensure that in the process adoption or review of national legislation on access to information, the principles and objectives of the Model Law are observed to the utmost. It is only by adherence to the spirit and objective of this Model Law, that its potential to establish transparency, accountability and public participation in the decision-making process can be realised.