TALKING POINT : Major omissions in the Access to Information Bill, 2016

MPs are scheduled to congregate in Dodoma for the fourth meeting of the 11th Parliament from next Tuesday. Traditionally, this session is for legislative bills.

Draft legislation lined up include the Access to Information Bill, 2016, whose actual name should have been the Right of Access to Information Bill, 2016. Why have the words “right to” been dropped? What are other areas still calling for improvement?

As stated in the Bill’s Objects and Reasons, the aim of the proposed law is to promote the provision, publication and dissemination of information in the hands of public authorities or private bodies whose information happens to be of significant public interest. Hence, the name of the bill should have taken into consideration such objectives.

My take is that this draft legislation should have been named The Right of Access to Information Bill, 2016, and whose aim should have been to expand the right of access to information by way of proactive and requested disclosure.

The proposed law is meant to be an extension of the Right to Information established under Article 18 of the Constitution of Tanzania, 1977. If this is to be the case, the Constitution bestows the right to information on everyone, not just citizens of Tanzania.

This is also the practise in international law, whereby information is a right of persons, both natural and juristic and regardless of national frontiers.

In this case, the spirit of Article 18b especially needs to be made the foundational raison d’etre of the law to be enacted. The law should also be focused on promoting transparency and accountability of ministries, agencies and local governments as part efforts to curb the culture of secrecy in public service.

Beyond the foundational objects and reasons, the proposal that the Bill’s locus be Tanzania mainland only is justified by two reasons. First, information is so far not a union matter.

Also, Zanzibar has for years maintained a separate regime on the right of access to information.

At some point, some of us thought the isles would be the first in legislating the right of access to information as a means to promote information rights as provided for under Article 18 (1) and (2) of the Constitution of Zanzibar, 1984 as revised in 2010.

It is public knowledge that bills for non-union matters must secure the approval of the House of Representatives for them to have jurisdictional effect in Zanzibar. Extending the application of the law to include Zanzibar may have led to undue delays in the course of executing the constitutional requirements of laws on non-union matters covering the two sides of the United Republic of Tanzania.

A clause is also be missing in the bill that was supposed to take the RTI law above all others insofar as the right of access to information is concerned. Consequently, a provision needs to be added to the text of the law requiring that the Right of Access to Information Act override all laws guiding the provision, publication and dissemination of information in Tanzania Mainland.

For the sake of clarity beyond any doubt, some meanings must be attached to terms such as public, economic and business interest, distortion of information as well as national security. For this purpose, I wish to refer to the Court of Appeal’s decision in Civil Appeal No. 30, AG versus SISI Enterprises Limited, that “public interest includes a purpose, aim or object in which the general welfare or wellbeing of the community overrides that of any individual person or institution”.

Like administrative law would teach, good legislation will leave little or no room for ambiguity, hence this proposition.

Finally, the Bill is weak in dealing with information holders who decide to unreasonably deny access to information. International best practise makes it an obligation for information officers to give information in lieu of requests made except where such requested information was qualified or exempted by law.

Beyond this practise, it must be clear that discretionary refusal of information shall be deemed as a violation of the Right of Access to Information legislation and shall attract a fine to be imposed on the individual officer, not his or her organisation.

Among Commonwealth of Nations, India practises this and it has helped deal with undue refusal of information based on personal negligence or arrogance.

In line with domestic and international practise, I suggest that information requests must have deadlines as to when such information shall be secured.

For instance, three working days is the timeline for acknowledging receipt while a detailed response as to the availability of the requested information should be within one week of the request. Ideally, the complete cycle of information requests should not exceed a fortnight.

Deus Kibamba is trained in Political Science , International Politics and International law