Struggles for freedom of information in Africa
The ‘third wave’ of transitions to democracy has been amply studied. Over the last two decades, scholars have produced hundreds of texts that compare, contrast, and draw lessons from the world phenomenon of democratization. One of the central lessons of the more recent texts is that new democracies are plagued with problems of accountability. Despite the fact that they are democratically elected, leaders of state tend to behave like short-term dictators; they often act without informing the public and, for the most part, are not subject to sanctions for wrongdoing. Some scholars have gone so far as to claim that many new democracies are best termed ‘delegative democracies’ since the public is left virtually powerless between elections.1
- J. M. Ackerman and I. E. Sandoval-Ballesteros
In the previous chapter we examined some of the different ways in which the demand for freedom of information rights has grown and been dealt with in America south of the United States, in Asia, and in Russia considered as a transitional state. The core elements of the concept of an information access right are obviously common in all these varied situations. The case studies show the extent to which implementation and maintenance of access rights depends critically on highly specific features of the social history of particular societies, including such abstract factors as how bureaucracy and citizenship are conceived.
On the African continent, the conditions that have made access rights both important and hard to implement in the global south generally, are found in their most extreme forms. This chapter, therefore, does not consist of a series of stories in which virtue triumphs over oppression. On the contrary, the fragility of post-colonial and post-settler state formations in Africa, the linguistic, cultural and ethnic diversity within particular countries, widespread violent conflict, the absence of adequate economic and social infrastructure, and the near-universal replacement of politics-as policy- making by the politics of patronage under the aegis of the Bretton Woods institutions and the World Trade Organization, all mean that demand-driven state compliance with the requirements of transparency and freedom of information is rarely seen.
More specifically, as far as freedom of information is concerned, good record-keeping and archival practices – an essential pre-condition for compliance – are often lacking, and bureaucracies themselves are disorganised and poorly trained. In many African countries the post-colonial languages of administration – English, French, Portuguese, Arabic – may make such documents as are available incomprehensible to the majority of the population.
By themselves, these explanatory factors are necessary but insufficient, particularly as they lead all too easily to the conclusion that it is the backwardness of the political and judicial systems in African countries, and perhaps even inadequacies in actual African people, that have prevented this ‘essential right for every person’2 from attaining universal recognition on the continent. But it is also legitimate to ask what it might be about the universalised paradigm of freedom of information that is an obstacle to its own success. Makau wa Mutua has written persuasively in a broader context of a grand narrative of human rights discourse [that] contains a subtext that depicts an epochal contest pitting savages, on the one hand, against victims and saviors, on the other [. . .]
This rendering of the human rights corpus and its discourse is uni-directional and predictable, a black-and-white construction that pits good against evil.3 Makau wa Mutua goes on to describe this phenomenon as ‘deeply unsettling’, as it indeed is.4 If he is correct about this subtext in the human rights context, then his strictures must apply to freedom of information in Africa and elsewhere in the global south – a narrative that is heir not only to the righteousness and power of the broader discourse but also to the incredulity shown towards it.5
The data presented in Chapter 2 showed that the number of African countries where battle has been successfully joined between civil society alliances and the legislatures over the need to pass freedom of information laws is tiny, with only a handful of the 53 countries on the continent having enabling laws actually in place. The ‘veritable wave’ that has been ‘sweeping the globe’6 has passed the African continent almost completely by, for reasons that merit examination. The data in Chapter 2 may even have presented an exaggerated picture, since neither Zimbabwe nor Angola makes any serious pretence that the laws on their statute books are intended to encourage a new kind of relationship between state and citizen.
Table 7.1 presented below, of African countries and their status with regard to access rights, is derived from a 2008 survey by Roger Vleugels, and reveals in detail a dismayingly widespread lack of interest and engagement with the issue.7 Of the 53 independent African countries, 36 (or 68 per cent) have so far given no indication of any interest in freedom of information, according to Vleugels’ data; there is no lobbying activity, no NGO alliance and no draft legislation on the horizon. Another eleven (or 21 per cent) have draft legislation or bills underway, but as the Nigerian example shows us, such processes can be lengthy with no guarantee of a successful outcome.
Two countries have some undefined lobbying activity going on. With the exception of Cameroon, which is officially bilingual, not a single French-speaking sub-Saharan African country has apparently manifested any detectable public interest in freedom of information. There is consequently little that can be said about Francophone Africa with regard to this issue. A meeting of activists that discussed the broader media situation in the entire continent in May 2007 concluded bluntly that ‘the situation of journalists and freedom of expression activists in Africa [. . .] remain[s] dire’, and it is hard to disagree with regard to information access rights as well.8
A note of caution is necessary, however. The absence of information regarding activity may not necessarily mean that there is no public or political interest in freedom of information, merely that it goes unreported. There is some evidence that this is the case in at least some of the African countries listed above as giving ‘no sign’, and we return to this point below.
In this chapter we examine the realities of freedom of information behaviours in five countries, four of which were involved in armed struggle for independence and democracy, and in two cases, prolonged post-independence conflict as well. As a result, these countries have had mixed levels of success in breaking free of a political discourse in which opposition is construed as enmity, and in which the dominant metaphor is one of violence rather than persuasion. The case studies presented here do not pretend to contribute to the building of a representative picture, if such a thing were possible, of the African situation.
No Arabic-speaking countries are examined, nor for obvious reasons are there any French-speaking examples, while two of the five Lusophone African nations are described in detail. The regional distribution is skewed, with four of the chosen countries located in southern Africa, and one in West Africa: there is no study of an eastern or North African nation. This is consistent with our contention that the most important – and indeed, the most definitive – factors in any struggle over access to information are local rather than universal.
A selection of case studies that attempted linguistic or regional balance by systematically representing simple groupings would implicitly endorse the idea that it was offering some sort of typology. If a typology is to be found in these five studies, or in some different set, then it is likely to be discernible in layered, complex and unexpected sets of local characteristics rather than in the obvious and conventional ones. In Zimbabwe, legislation with the phrase ‘access to information’ in its title is used in practice only to stifle the free press and independent journalism. Nigeria is the one country analysed here that experienced peaceful decolonisation.
Nonetheless, the near break-up of the postcolonial state during the Biafra war in the 1960s has left enduring political and social scars. A civil society coalition has waged a lengthy and courageous struggle for legislative action for over 15 years without it bearing fruit. In Mozambique and Angola, both former Portuguese colonies, the authoritarian and dirigiste legacies of both colonial-fascism and local forms of Marxism have yet to be fully overcome. In South Africa, while model legislation is in place, demand for access remains at a low level, and even data collection on the use made of the law is difficult.
Zimbabwe: through the looking glass
The social history of first Rhodesia’s and then Zimbabwe’s attitude towards freedom of information is full of ironies. Colonial and settler Southern Rhodesia, with its strongly British self-image, was never in any sense an open society; on the contrary it was highly stratified by race and ethnicity as well as class. Rhodesian society was characterised by a ‘virulent racism’ on the part of the white settlers, not only with regard to people of colour, but also towards Afrikaners and Portuguese, nominally also white.9 The story is well known: the settlers attempted to declare a unilateral and illegal independence from British rule in 1965, and democratic majority rule was eventually achieved only after a brutal war that lasted from 1966 to 1979 and may have cost as many as 30,000 civilian casualties.
The transformation to democratic behaviours that was required – at least formally – at independence in 1980 was only possible within the framework of a silent policy of ‘reconciliation’ between black and white that consisted essentially of burying the past. [T]he bargain, which is never discussed but is generally understood, is basically that the whites who are in independent Zimbabwe can stay, continue to operate their businesses and farms, and lead the ‘colonial life style’ that they are accustomed to for the rest of their lives. However, their children, in general, are discouraged from staying. The racial bargain has been implicitly signalled by a myriad of government actions and statements [. . .]10
At the time of independence in 1980 the settlers understood clearly enough the political necessity of covering their tracks regarding the war that they had just lost fighting against African nationalism. Like the British colonial government in Kenya, like the apartheid state in South Africa, the Smith regime set about systematically burning or otherwise disposing of potentially incriminating records in an orgy of pre-emptive destruction. All accounts agree that this was a large-scale operation. [I]ntelligence organisations invariably destroy or avoid written records [. . .] in 1980 [. . .] the Zimbabwe-Rhodesian authorities destroyed many official records.11
The historians Bhebe and Ranger state bluntly that ‘Rhodesian army and police files were either burnt in a great holocaust of documents or smuggled to South Africa’,12 and the right-winger Peter Stiff, in a lengthy passage, refers to ‘the biggest bonfire you’ve ever seen. Everything is going’.13 With the slate wiped clean, it was hoped that the new project of an independent and democratic Zimbabwe could move forward relatively unencumbered by its own brutal past. As in other parts of southern Africa, the liberation movement carried the bellicose discourse of the armed struggle over into the new political context, often seeing political opponents normatively as political enemies and political information as political intelligence.
The constant emphasis on war and revolution, on vigilance and struggle, and on a binary essentialism in politics, has continued to hinder the development of a minimal shared political agenda across race and class. In such circumstances, instilling a culture of government transparency, regardless of who is in power, is likely to be a slow and difficult process.
The unspoken agreement between the settlers and the African population held the political system together until 1998, when it was dramatically torn apart by the war veterans’ violent land occupations and their aftermath.14 Regardless of the rights and wrongs of the land issue, the economic and political situation in Zimbabwe since the collapse of the Zimbabwe dollar, as a result of pressures attributed to Mugabe’s land distribution and pension policies, has been catastrophic. Ongoing hyperinflation has been accompanied by spreading hunger and poverty, and by the disappearance of the rule of law.15 This prolonged disaster has been widely and continuously reported in the world – and especially the British – press.
The ruling clique’s blank refusal to release the results of the legislative and presidential elections of 29 March 2008 for over five weeks demonstrated in an extraordinarily unequivocal and ruthless manner their clear understanding of the direct relationship between knowledge and power.16 Even though it was widely understood – indeed ‘known’ – that Mugabe had lost the presidential election, it was unclear if his opponent, Morgan Tsvangirai of the Movement for Democratic Change (MDC) had won the necessary absolute majority. By simply behaving as if there were no requirement to publish the result, the government was able to relegate this question to irrelevance, to gain enough time to organise the repression that it believed would win a second round, and by then ‘winning’ the second round, to begin negotiating with the exhausted opposition from a position of power.
[I]nfluential hardliners in the party and military [would] not simply hand over power to the MDC. They and Mugabe likely manipulated the presidential results to show a run-off was necessary and [. . .] put in place a strategy to retain power through force.17 Given this history, it is not surprising that the World Bank and UNDP indicators cited in Chapter 2 rank Zimbabwe low on a scale to measure political freedom. The irony is that Zimbabwe does nominally have freedom of information legislation in place. The Access to Information and Privacy Protection Act (hereafter AIPPA) became law in early 2002.
The inclusion of Zimbabwe in any list of countries with freedom of information legislation would be highly ironic, as Banisar notes, since the law has been used to stifle the free press rather than to encourage any kind of information access right.18 AIPPA is only one of a battery of laws adopted by the Zimbabwean government for the control of information and the suppression of criticism.
AIPPA has the expressions ‘access to information’ and ‘protection of privacy’ in its title, and recognises those rights in an extremely limited way in its provisions. Section 5 grants a nominal access right to state information, as well as requiring the state to limit the uses that it can make of personal information collected about citizens. But the list of exceptions is both extensive and broad.
Access can be refused if the requested information consists of records containing teaching materials or research information of employees of a post-secondary educational body, any record that is protected in terms of the Privileges, Immunities, and Powers of Parliament Act and material placed in the National Archives or the archives of a national body by or for a person or agency other than a public body [. . .] public bodies do not have to provide information where granting access ‘is not in the public interest’ [. . .] exceptions from the duty to disclose information [. . .] include all cabinet documents, including draft legislation, advice or recommendations provided to public bodies [. . .] information whose disclosure would affect relations between different levels of government or [. . .] result in harm to the economic interest of the public body [. . .] non-citizens and any mass media outlet which is not registered do not have the right to request information [. . .]19
This is a very wide-ranging list indeed. The use of the catchall term ‘public interest’ to justify a refusal to release information is, as the Article 19 organisation notes, an extraordinary inversion of usual practice, which is to use public interest as an overarching reason to make information available. In addition, other exception clauses of AIPPA do not require the state to make any argument regarding possible harm that might result from making information available, a standard practice elsewhere. In one notorious provision, the possibility that publishing information might ‘affect relations’ between central and local government is offered as grounds for refusal. As Article 19 points out ‘the effect [. . .] might be entirely salutary’.20 The mechanism for appeals against refusals is manifestly inadequate, as it relies on judgements by a state body, the Media and Information Commission.
Even without these defects, any possibility that AIPPA might be usable as a weapon against the state can be discounted: as of 2006, ‘there [had] only been one reported instance of the access to information provision being used by the opposition party’.21
The real purpose and actual use of AIPPA is the control of mass media, including the activities of journalists and newspapers. AIPPA’s provisions serve to give the government extensive powers to control the media and suppress free speech by requiring the registration of journalists and prohibiting the ‘abuse of free expression’.22 Some of AIPPA’s provisions are harshly punitive, such as the constitutionally dubious section 80 which criminalises what it terms the ‘abuse of journalistic privilege’ with sentences of up to two years’ imprisonment and massive fines for publishing ‘falsehoods’.23 Because of the difficulties in defining what a false statement consists of, this provision has had a stifling effect.24
It is not only journalists and news media that are subject to control: other potentially subversive forms of expression, such as popular music, are also subject to the restraints of what amounts to a pre-censorship law:
[AIPPA was] shrewdly crafted by Jonathan Moyo to bar singers [. . .] from reporting on the misdeeds of officials in both the government and the private sector [. . .]25 The ideological roots of this particular piece of legislation, despite its title, are deeply embedded, not in the universalising discourse of human rights, but rather in an exclusionary politics that is paramilitary in character – a deformed nationalism that elevates the virtues of discipline and obedience above those of independent analysis. Yet, historically, Zimbabwe has been one of the few African countries with the material conditions to realise genuine access rights.
Into the 1990s, it continued to take the training of registry clerks and other records management staff in the public sector seriously. The Records, Archives and Information Management Association of Zimbabwe (RAIMAZ) still had around 50 members in 1998. Training in records management was available within the Public Service Commission, at Harare Polytechnic, and from private consultancy companies.26 This tradition may well be in the process of disappearing. This rare capacity co-exists with a total absence of government willingness to comply even minimally with freedom of information practices and behaviours.
A prolonged struggle: secrecy and corruption in Nigeria
Nigeria is a very different case, but like Zimbabwe, it is an African country that is often seen in the world press as near collapse. In the words of Karl Maier, ‘the very name Nigeria conjures up images of chaos and confusion, military coups, repression, drug trafficking and business fraud’.27 Of course, this is a parody of a more complex truth: Nigeria is a country in a permanent and chronic state of crisis, constantly afflicted both politically and socially by a combination of corruption, criminality and incompetence, all leading to serious and ongoing human rights violations. The battle – in the ‘specific conditions of competition for political power’28 – to implement meaningful access to information measures has a particular sharpness, since so much depends upon a successful outcome. The story is one of frustration and prolonged struggle that is still incomplete.
The post-independence political history of this huge and multifaceted country has been turbulent, marked by a fierce civil war over the attempted secession of Biafra from 1967 to 1970, and with brief interludes of usually weak and ineffective democratic civilian government alternating with much longer periods of brutal military rule.29 The last of these military autocracies, which lasted for 14 years, came to an end on 29 May 1999. Subsequently, the Nigerian government has conspicuously failed to deal effectively or decisively with such abuses as the apparent impunity of the police, or violence between religious or ethnic communities over sharia law which is in force in 12 of the country’s 36 states.
Other ongoing crises involve the status of so-called non-indigenes, and armed conflict in the Niger River Delta, where impoverished communities live next to or even on top of huge oil resources with no benefit to themselves.
At the same time, Nigeria is far from being a basket case. The giant of Africa, it is a major trading nation, especially as an oil producer, and is a significant trading partner of the United States. It is the most populous country in Africa, with close to 140 million people. It is culturally vibrant, counting such eminent writers as the Nobel laureate Wole Soyinka (1934– ) and Buchi Emecheta (1944– ), and distinguished musicians such as the late Fela Anikulapo Kuti (1938–1997) among its famous sons and daughters. Nigeria under President Olusegun Obasanjo (1937– ) has also been a major international player in such issues as the Darfur crisis.
The human rights records of various Nigerian military regimes have been extremely poor, and civilian governments have not been much better. Over the years Nigerian citizens have been denied political, economic and social rights as successive military regimes systematically looted state resources, condemning the vast majority of people to a life of poverty.30 Unhappily, the government gains credibility from trade and diplomacy, combined with Nigeria’s importance as an oil producer. The United Kingdom and the United States, as well as the African Union and the Commonwealth, are seen as reluctant to censure Nigerian administrations for human rights abuses that are well documented externally as well as internally.
For its part, the Nigerian government does little to address such questions.31 Corruption and impunity are major economic as well as political issues. For example, a significant segment of the unaccountable ruling elite, unable even to agree effectively on the division of spoils, routinely resorts to the massively under-reported practice of illegal oil bunkering, which accounts for the theft of up to 10 per cent of Nigeria’s crude oil production. Crude oil is simply siphoned off by armed gangs into private ships for subsequent resale in what amounts to the country’s most profitable private sector business activity, in an example of a completely unregulated ‘free market’. Such large scale crime can only rely on the tacit agreement of the powerful, as well as – importantly for our purposes – the silence of the media, for its continuation.32
Given this context of widespread, ongoing and largely unaddressed human rights abuses, international and local freedom of information activists – again, the ‘conventional doctrinalists’ – argue powerfully that Nigeria is a country that urgently needs to enact freedom of information legislation.33 This must go further than merely passing a law, and should involve implanting the roots of freedom of information behaviour and creating a freedom of information culture, in order to remove the barriers of secrecy and opacity that corrupt politicians and civil servants hide behind.
Freedom of information may not be a sufficient condition for cleaning up Nigerian political life, but in the clearly expressed view of Nigerian activists themselves, its absence may make the task virtually impossible. They argue that accountability and transparency in Government [are] crucial to any meaningful anti-corruption crusade [. . .] accountability and transparency [are not . . .] possible if citizens have no right of access to information held by the State or its agencies or if no mechanism exists for giving practical effect to the right to freedom of information.34
The long-running campaign for freedom of information in Nigeria started at a low point in the country’s political history. In 1993, independently of each other, three Nigerian organisations decided to agitate for freedom of information legislation. They were the Media Rights Agenda (MRA), the Civil Liberties Organisation (CLO) and the Nigeria Union of Journalists (NUJ), all based in Ikeja, Lagos. This was a year of crisis even by Nigeria’s own exciting political standards. On 12 June, free elections had been held to choose a civilian president to take over from the military.
Unfortunately, when it became clear that the people’s choice was Chief Mashood Abiola, who was unacceptable to the generals, Ibrahim Babangida annulled the elections, and after a brief struggle within the soldiers’ ranks General Sani Abacha emerged as the country’s new and possibly most brutal dictator. Abiola was arrested and died in prison in mid-1998. The three Nigerian civic organisations quickly agreed to cooperate with each other in a joint drive for freedom of information legislation.
This kind of organised approach was still relatively new in the early 1990s, although the tradition of individual struggle for human and civil rights stretched back for decades. As in other African countries, what was innovative at this time was the emergence [. . .] of open and self-professed human rights organizations. Especially since the late 1980s, these voluntary associations of citizens have taken on the task of monitoring abuse of human rights, educating the people about their rights under national and international law, and making recommendations to governments about how to improve their protection of human rights.35
In Nigeria especially, these organisations were well-informed and able to work with international counterparts around the development of normative human rights standards. They possessed appropriate institutional and staff structures with clear plans and well-defined mandates and were among the best in West Africa at what they did: While there are still growing pains within many of these groups, this type of planning process has resulted in the Nigerian human rights community’s being far ahead of its anglophone neighbors in putting human rights institutions into place.36
What was the campaign up against, and who were its likely allies? On the one hand, Nigeria boasts an outspoken press and a network of experienced, well-organised, tough-minded human rights groups that are accustomed to working cooperatively. Harassment of these groups, and of journalists, is commonplace. In 2005, for example, two newspaper offices were ransacked after they had published stories about corrupt behaviour by the wife of the then president, Olusegun Obasanjo.37 Nigeria also has an obdurate and highly secretive bureaucracy and scores high on most indices of opacity and corruption.
Embedded in both law and precedent is a multiplicity of prohibitions, often carrying criminal penalties, against making state information publicly available.38 Even apparently innocuous legislation such as the ‘Architects (Registration) Act’ includes barriers to transparency. Nigeria still has a British-style Official Secrets Act on the statute book, and some bureaucrats are even required to take an oath of secrecy upon taking up their appointments.
Government documents must be categorised into classifications including ‘Secret’, ‘Top Secret’ and ‘Confidential’. The courts have no recognised jurisdiction under existing law to require or compel even limited access to state information.39 In the words of the activist group Media Rights Agenda, a veil of secrecy surrounds the conduct of government affairs. Officials of government do not only routinely deny citizens, whom they supposedly serve, explanations for actions undertaken on their behalf, they also block citizens’ access to even the most mundane of publicly held information.40
Nigeria was one of the countries surveyed by the Open Society Justice Initiative and reported on in 2006. Unsurprisingly, in the absence of any freedom of information legislation and given the powerful tradition of bureaucratic secrecy, the results were not encouraging. The response to nearly half the 140 information requests submitted – 44 per cent – was mute refusal.41 Only two requests, or less than 1.5 per cent, resulted in access to the requested information.42
There is little constitutional basis for the assertion of a right of access to information. Article 39 (1) of the Federal Constitution of 1999 guarantees freedom of expression in general terms, but avoids any explicit mention of an access right: Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.43 This provision appears to descend from the original sense of the Universal Declaration’s article 19, dealing with the publication and reception of ideas and opinions.
The other sections of article 39 deal with ownership of the mass media, and it concludes with a provision, no. 39 (3) (a), regarding the prevention of ‘the disclosure of information received in confidence’. There is, therefore, only the weakest of guarantees in the Nigerian constitutional framework upon which an access law might rely. Partly as a result, and partly because of delaying tactics from sections of the political class, progress towards the adoption of freedom of information legislation in Nigeria has been agonisingly slow.
A draft bill inched its way towards approval for several years from 1999, and in September 2006 was still under consideration in the Nigerian Federal Senate. At one stage it had been held up because President Obasanjo regarded the fact that access rights were recognised for both Nigerian citizens and non-citizens alike as ‘unrealistic’, and wanted rather a ‘home-grown’ piece of legislation.44
In April 2008, after a nine-year struggle, Nigeria’s Federal House of Representatives rejected the Freedom of Information Bill, despite the fact that it was itself engaged in investigating past abuses and corruption by previous administrations.45 It seems likely that struggles for access to state information in Nigeria may have to rely for some time to come on tactics that do not depend on formal structures of bureaucratic compliance.
Oil, secrecy and law in Angola
When it comes to Angola and freedom of information, the question ‘what happened to the oil money?’ is really the only show in town. As Human Rights Watch has rather more formally put it, ‘fiscal transparency, political accountability, and human rights are inextricably intertwined in Angola’.46 It is the misappropriation, embezzlement and unaccounted use, over many years of war against the União Nacional para a Independência Total de Angola (UNITA), of billions of dollars of oil revenue that sets the context for any discussion of government transparency or access to state information.47
The country produces about 1.3 million barrels of oil a day, second only to Nigeria in sub-Saharan Africa, and oil income has traditionally constituted by far the main source of government financing: Between 1995–1999, oil revenues comprised approximately 70 to 89 percent of government revenues and approximately 85 to 92 percent of exports, according to the IMF. In 2000, oil accounted for US$3.26 billion of government revenue.48
Virtually none of the income received has been used over the years for development purposes. Instead, it has been the oil money that has quietly and secretly ‘generated most of the resources enabling the government to pursue its conflict with [. . .] UNITA’.49 Angolan government budgeting and accounting procedures throughout the 1980s and 1990s were so opaque as to have even raised concern in multilateral financial institutions such as the IMF. According to reports, up to US$8.45 billion of oil revenues were simply not accounted for, over the five years between 1997 and 2001.50 In such an environment, unsurprisingly, ‘fraud [has] occurred at the highest levels’.51 Angolan newspaper reports claimed in 2003 that 20 senior government figures, including President Eduardo dos Santos, had allegedly amassed personal fortunes of over US$100 million each, while twice as many were allegedly worth over US$50 million each.52
After the death of Jonas Savimbi in 2002 had opened the way for a negotiated peace, concern about the opacity of the Angolan state accounts began to grow rapidly among multilateral financial institutions, civil society organisations and international corporations, and pressure has been exerted on the Angolan regime to behave in a more accountable way.53 Because Angola does not need concessionary lending, the situation has been described as ‘delicate’. According to one Western point of view, the Angolan government was unable to decide whether accepting an international responsibility to account for its own behaviour constituted a ‘loss of sovereignty’ or was rather, in fact, ‘the only way toward international prestige and a normal country integrated into the global economy’.54
The international community exerted pressure on Angola to accept an IMF programme that included a component for monitoring oil revenues, known by the technical name of the Oil Diagnostic. This programme, first mooted in April 2000, was to be a forward-looking agreement to monitor oil revenues; to help the Angolan government develop an effective mechanism for determining how much revenue the central bank should receive from oil production; and to encourage good governance.55
Progress has been slow. In March 2006 there were still many questions unresolved from the most recent Oil Diagnostic study which had been issued in May 2004, and ‘to which the government ha[d] not yet made a comprehensive response’.56 The Angolan government has also shown cautious interest in the Extractive Industries Transparency Initiative, or EITI, which other African oil producers such as São Tomé e Príncipe and Nigeria already support, as well as some of the major multinationals such as Chevron, BP and Total.57 All these initiatives have been mainly driven by the international financial organisations, the oil companies and foreign governments, with Angolan civil society playing a relatively minor role.
In general, Angolan NGOs have been weak, and often intimidated by government. Writing in 2003, Simão Cacumba Morais Faria commented on the general frailty of Angolan civil society organisations, especially with regard to human rights issues, such as freedom of information: Angolan civil society has been weak to publicize or lobby on human rights abuses [. . .] many Angolan NGOs are careful about what to say and do in public, especially ‘on the record’. Privately, they are more open. When they seek minimal rights [. . .] it is often at great risk to them. When they have acted collectively to promote basic civil and socio-economic rights, they have been met with suspicion and hostility by the authorities. Many of these grassroots associations are very fragile [. . .]58
Other sources agree that although the situation is improving as more organisations emerge, the sector is still struggling to define an appropriate function in the post-war situation: Despite the significant upsurge in civil society organizations in the last decade, civil society itself is still grappling with defining its role and identity. This process is accentuated by the [. . .] shift in activities from emergency to development [. . .]59 In such circumstances, it is hardly surprising that Angola’s record regarding freedom of the press – and indeed other human rights issues too – is poor. From the notorious ‘Baton da ditadura’ incident of 1999, to numerous other cases of harassment of and violence towards journalists, it is clear that the government has a low threshold of tolerance towards those who expose its misdeeds.60 But what is surprising is the fact that Angola does actually have freedom of information legislation in place.
The story of how it came to be adopted is far from clear, as is its subsequent social and legal impact.61 The Lei de Acesso aos Documentos Administrativos [Law on Access to Administrative Documents], law no. 11/02, is closely modelled on the Portuguese legislation of the same name, and entered into force on 16 August 2002. It rests on the extremely broad provisions of article 89 (b) of the ‘constitutional law’ of 25 August 1992. This simply states that ‘the Assembleia Nacional shall have full and sole legislative powers on the [. . .] rights, freedoms and basic guarantees of citizens’. In other words, there is no specific constitutional foundation for freedom of information, other than parliamentary initiative.62
The current status and impact of the Angolan legislation remains obscure, even to presumably well-connected advocacy groups. For example, the Article 19 group stated in May 2006 that ‘to date we have not been able to ascertain if any of its provisions have been implemented’.63 Banisar is similarly cautious: The law has not been particularly implemented. The Media Institute of Southern Africa reports that many public bodies have appointed information officers but there are ‘major difficulties’ for journalists to obtain information.64
Occasional glimpses of activity have been reported: in 2002, three legal staff members from the Angolan parliament visited the Portuguese Assembleia da República under a cooperation agreement and were briefed on the constitutional principles of open access and organisational questions.65 Despite this, puzzling questions remain. How did this particular piece of legislation come to be adopted by the National Assembly? What, if anything, does it have to do with the oil money question? And precisely why has it been so ineffective?
Mozambique: the development of ‘informal’ access rights
From a freedom of information point of view, the case of Mozambique, one of the poorest countries in Africa, is interesting because it is a country with a weak tradition of individual human rights, and an apparently strong culture of government secrecy, having moved directly from a regime of colonial-fascism under Portuguese rule, to a one-party Marxist-Leninist system under Frelimo (the Front for the Liberation of Mozambique) after independence in 1975.66 At present, government information is widely available, yet an initiative to pass a conventional freedom of information law has met with failure.
The war for independence against the Portuguese lasted from 1964 to 1974. Mozambique subsequently suffered a damaging internal conflict waged by a rebel group, RENAMO, which relied heavily on support from Rhodesia’s white settler regime, and later from the apartheid government then in power in South Africa. Fighting continued from the late 1970s until a negotiated ceasefire came into effect in October 1992. This agreement and the events surrounding it resulted in major policy shifts. Marxism as ideology and economic planning as practice were already being abandoned. Political pluralism in the form of multi-party elections was introduced for the first time. Frelimo has nonetheless managed to remain in power, winning successive general elections in 1994, 1999 and 2004.
During the period of single-party rule, Frelimo was genuinely challenged by questions about the role of ‘information’ in its attempt to achieve revolutionary social change in a country where the forces of production remained severely underdeveloped. Although Portuguese was the working language of the liberation movement as well as of the colonial state, and was adopted as the official language in independent Mozambique after 1975, it was and remains accessible only to a small, mainly urban minority. Newspapers and magazines are consequently distributed only in big cities and are largely unobtainable in the countryside.
Radio broadcasting, in various local languages as well as Portuguese, is the main source of news and information for most people.67 Since social communication through the printed word reached only a fraction of the population, it was necessary to rely heavily on the transmission of information through the bureaucratic hierarchies of the state or the political party. As the conflict with RENAMO intensified in the 1980s, the already limited channels through which the government and the citizenry could communicate narrowed even further, although after the 1992 peace agreement some independent newspapers were launched.68 Mozambique has thus been characterised as a ‘low information society’, in a not entirely convincing attempt to explain low levels of popular demand for, among other things, information access rights.69 But the authoritarian traditions deriving from Portuguese colonial-fascism and Frelimo’s dirigiste political style may have as much to do with the phenomenon as perceived low levels of information availability.
Ironically, there is some anecdotal evidence first that ad hoc access to government information is by no means impossible, and second that there is some demand for information as a ‘leverage right’, in the assertion of other rights claims. Petitions to the national parliament (the Assembleia da República) or to the Ministério da Função Pública support this latter idea.70 Nevertheless, in formal terms it may be that availability in fact exceeds demand, especially as much of the use made of documentation is by organised pressure groups and some journalists and researchers.71
Reports can often be obtained simply by asking for them, and government websites include increasing quantities of important documents, despite gaps in such key areas as election data. Concrete examples are census data, and the series of increasingly detailed annual reports by the Procurador-Geral da República (attorney general). Of course, this is true mainly for residents of Maputo who know the ropes, and those with internet access, who constitute only a small minority of the total citizenry. In addition, scattered and disorganised availability of this kind does not really satisfy the core demand of freedom of information, that the state must support the citizen by facilitating access in a systematic manner.
Within the by now familiar framework of freedom of information diffusion, however, a couple of meetings on the concept of access to information organised by activist groups were held in Maputo from 2000 onwards, but with little in the way of concrete outcomes.72 The campaign for freedom of information access rights in Mozambique was finally properly launched at a conference of local and international NGOs and other bodies held in Maputo in September 2003. After this initial intervention, the local branch of the Media Institute of Southern Africa, MISA-Mozambique, has made much of the running in pushing the freedom of information agenda in the country.
It was MISAMozambique that was responsible for having the much-criticised draft law drawn up.73 MISA and the NGO-based campaign have also been censured for a lack of inclusiveness regarding civil society organisations generally, and a failure to take account of constructive criticism, especially of the inadequacies of the draft law. Some critics also argue that neither the demand for access nor the conditions for compliance actually exist in Mozambique, because a broad alliance does not exist.
[I]n countries where an [Access to Information] law was passed without any civil society involvement or impulse, the law has tended to fail, atrophying for lack of usage and legitimacy [. . .] The wider the call for a law [. . .] the more likely it is that a critical mass on the ‘demand’ side will be built and sustained [. . .] activists are increasingly recognizing an important paradigm shift in the collective understanding of the conceptual community value of the right to know [. . .]74 The apparent failure of the MISA initiative in Mozambique is an interesting example of the potential weakness of freedom of information initiatives led by ‘conventional doctrinalists’. There was no preparatory evaluation of potential obstacles to freedom of information behaviours and practices.
There was no effective lobbying of parliamentarians to muster support for the draft law before it was entered into the Assembleia da República. Last, it was a strategic error for MISA-Mozambique to sponsor the draft law, since the organisation is merely the local chapter of a Southern African regional body with strong international links, and the initiative appeared to be a foreign one. To what extent these kinds of mistakes have been committed by freedom of information activists in other national contexts remains a largely unexplored area of research.
Certainly it appears that a collective grasp of what the access to information right really means is not deeply rooted in a Mozambique that is polarised along party lines and in which political power remains highly centralised. For example, local archivists have raised the question of the sustainability of an access right based on democratic values in the context of Mozambican material conditions. They have muddied the waters rather than bringing clarity to the issue.
For example, Leonor Celeste Silva places the cart before the horse, seeming to believe that a generalised social ‘right to information’ exists, under which access to archival registries would fall as a subordinate category: Assuming that the right to information, under which falls access to archival documentation, gained status with the emergence of constitutional government based on popular sovereignty, it is appropriate that the values and concepts, with which one must seek to sustain it, should be examined.75
The idea that the material conditions for successful implementation of freedom of information legislation may not exist in Mozambique was strongly argued in the Shenga and Mattes study.76 Relying heavily on survey data, the authors reported that one fifth of Mozambican respondents agreed that the state should have the power to close down newspapers and media outlets that publish ‘false information’.77 Although this was hardly an indication of strong support for the idea that citizens may legitimately challenge government meta-narratives, or for the access right, the method itself is open to the criticism that respondents may be quite adept at avoiding what they consider to be politically delicate issues.
Shenga and Mattes concentrated on the extent to which Mozambicans can recall political information from memory, their ability to form opinions about the government and the state, and their tendency to hold critical (i.e. negative) views about the performance of the government. In all three of these areas, Mozambicans appeared to be functioning below levels reported for other poor African countries. Shenga and Mattes describe the situation as ‘a distinctive and problematic [. . .] profile of uncritical citizenship’ consisting of low levels of information recall, a high proportion of ‘don’t know’ responses to questions, and a generally positive view of the government.78
But their conclusions must be treated with great caution, since democratic behaviours (in this case participation in electoral processes) do not necessarily depend directly on high levels of access to information, as we have argued earlier. The extraordinary results of the 2008 mayoral election in Beira, where a popular independent candidate, Daviz Simango, was elected with 62 per cent of the vote, supports the idea that the Mozambican citizenry is not at all apathetic when genuine political competition becomes possible.79 Despite all this, there is a history in Mozambique of struggle around broader press freedom issues, dating back to the independence period.
Some Mozambican journalists, like their colleagues elsewhere, have from time to time taken stands on matters of principle. Examined closely, these issues of principle are not, in an unproblematic, linear or positivist way, identifiable with the normative and ideologically-constructed Western idea of the ‘free press’. In 1989 Schiller wrote that the success of the media conglomerates in propagating the free press idea in the global north rests on twin foundations, namely their ‘command of vast material assets and the near-universal acceptance of [their] own definition and description of its role and function’.80 He went on to ask whether it is necessarily true that the word free in the phrase ‘free press’ must mean privately-owned, and by implication whether the word owned in ‘state-owned’ press inevitably implies editorial control.
As in the concept of the ‘free market’, the choice of terminology loads the ideological dice: [A] certain amount of popular skepticism and unease do exist [but] the trust that the private informational system has been able to create, maintain, and insulate itself within is remarkable. Rarely is there a murmur from any influential quarter that the information lifeline [. . .] is totally in the hands of vast, private, unaccountable domains.81 There was little doubt in the immediate post-independence period in Mozambique that it was the state’s business to run newspapers and radio stations, and that the private sector could not be trusted to do so. The Portuguese word for information, informação, was used ambiguously at this time, meaning both ‘information’ (that which was transmitted, content) and also something structural, the channels of information, the media themselves.82
Information in these senses was something valuable to ‘the enemy’, and at the same time had a functional, militant character.83 ‘Information’ was a front in the struggle. Jorge Rebelo, a leading Frelimo intellectual, wrote in 1977 that it was necessary [. . .] to create a structure that would guarantee the transmission of information from the headquarters of the Department of Information and Propaganda and its dissemination in the provinces and abroad.84
‘The enemy’ was the subject of speeches, newspaper reports, radio broadcasts and pamphlets with titles such as ‘How the enemy acts’ and ‘We must know who the enemy is’.85 Even academic research was treated with extreme caution as far as its dissemination was concerned. In the late 1970s and early 1980s, the mimeographed research reports of the Centro de Estudos Africanos (Centre of African Studies or CEA) at Eduardo Mondlane University on such topics as migrant labour, the cotton industry or containerisation at Maputo port were not handed out freely to anybody: Most of these reports, produced in small print-runs, are unfortunately not for sale, and a good number are even ‘restricted’ which is to say that their distribution is carefully limited and controlled for political reasons. 86
Even a figure such as Carlos Cardoso – who was in conflict with Frelimo virtually from independence onwards, and was regarded by the ruling party as an ‘ultra-leftist’ – was committed to the revolution, and applied unsuccessfully in 1976–1977 to join the party.87 Cardoso was jailed briefly in 1982 for a failure to follow guidelines in reporting on Angola and Mozambique. In November 2000, he was gunned down in the street for his relentless pursuit of the story of how US$14 million was stolen during Mozambique’s bank privatisation process.
The story of his approach to journalism, within a critically-oriented and emancipatory epistemology, is not the story of somebody fighting for a ‘free press’ in the sense criticised by Schiller. His career has rather been characterised by one of his biographers as being ‘against all orthodoxies’.88
If the depiction of Mozambique as a low-information society in which ‘uncritical’ citizens remain largely incurious about the activities of government has any merit, it may well be that a legislated access right, should such a law be adopted, would have little immediate impact. The tradition of independent investigative journalism in Mozambique was embodied most famously by Carlos Cardoso, but may well have died with him. On the other hand, there is some hope in the fact that the state is making information increasingly available (if not easily accessible), even though newspapers, broadsheets and other media are not systematically using access to information to hold the political class accountable in new ways.
It is to be hoped that a critical citizenry will both demand and help to create a high-information society in which real democratic practices become, if not inevitable, at least possible.
South Africa: an incomplete transformation
In some parts of the global south, where the bureaucratic structures of the state are weak and where the record-keeping function is inadequate, the paper trails can be hard to follow, and forgetfulness and silence overtake public consciousness quickly. South Africa is a special case, since it was run under apartheid by a moderately efficient if unimaginative bureaucracy, which was needed to administer the absurdly detailed and pseudo-scientific system of racial classification and separation. Indeed, from 1950 onwards, under the leadership of Hendrick Verwoerd, the Department of Native Affairs was transformed into a ‘great super-ministry whose tentacles extended into every aspect of government policy’ with an army of functionaries to accompany it.89
‘Surveillance’ in Foucault’s sense of the term underpinned every aspect of the functioning of the apartheid state, since all the subjects of the state had to be assigned racial identities on which in turn depended rules that governed the most private aspects of their personal and professional lives, rules about where they could live and work, whom they could marry, and even with whom they could have sex. At a superficial level the publication of government information and disinformation in the apartheid period was reasonably well systematised, with printed gazettes and other documents produced by the Government Printer and available for sale to the public.
But much if not all of the material was overtly intended not to inform but to reinforce policy, and as the country was gradually splintered into various self-governing homelands or ‘Bantustans’ – some of which were nominally independent of Pretoria – government publishing proliferated out of control. After 1980, the various departments were permitted to decide for themselves what the print runs of their published documents would be, and what distribution channels to use.90 Behind this system, the state bureaucracy was apparently all too conscious of the need to pre-emptively destroy potentially incriminating documents.
A whole chapter of the Truth and Reconciliation Commission (TRC) report (Volume 1, Chapter 8) is devoted to the ‘Destruction of Records’, pointing out that this process amounted to nothing less than the silencing of the voices of the oppressed: The story of apartheid is, amongst other things, the story of the systematic elimination of thousands of voices that should have been part of the nation’s memory [. . .] the former government deliberately and systematically destroyed a huge body of state records and documentation in an attempt to remove incriminating evidence and thereby sanitise the history of oppressive rule [. . .] the urge to destroy gained momentum in the 1980s and widened into a co-ordinated endeavour, sanctioned by the Cabinet and designed to deny the new democratic government access to the secrets of the former state.91
The most extraordinary aspect of this story is not that records were destroyed, but that meta-records were kept that documented the process. The cover-up was not itself covered up. According to the account in the final report of the TRC, early guidelines were drawn up as far back as 1978, in the aftermath of the 1976 Soweto uprising. These procedures were signed by the then Prime Minister and circulated to all government departments, and authorised heads of department to destroy documentation. As the TRC comments, the new rules ‘did not explicitly challenge the authority of the Archives Act; they simply authorised destruction without mentioning the Archives Act at all’.92
But the destruction of records is not in and of itself evidence of malicious intent and good governments destroy records as do bad ones. Professional archivists know only too well that the vast majority of written records in any government system will end up in the shredder or the furnace, simply because no purpose is served by keeping them, and no archive will ever be large enough to do so. The proportion of public records that are kept permanently in both the United States and in Great Britain is around 1 per cent; in South Africa it may be as high as 15 per cent.93
The question is who decides what to destroy, and under what rules? Since 1953, South African law, in alignment with international practice, has assigned the responsibility for deciding what gets kept and what gets destroyed to the State Archives – and the Archives are empowered to ‘supervise the management of every official record [. . .] from the moment of its creation’.94
The problem in the South African case has been first that the law was widely ignored, and second that even if enforced, still permitted key exemptions, including the documents of ‘offices of record’, the records of the Bantustans, intelligence and military records, and some others.95 The perpetrators of human rights violations throughout the apartheid period had every motive to take advantage of all possible legal loopholes, as well as extra-legal methods, in covering their tracks. This combination of legislated exemptions, ignorance, malice and incompetence was in the end fatal to the integrity of South Africa’s documented historical record, despite the fact that the country boasted highly qualified, committed and reflective professional archivists.96
By the time Mandela was released and the African National Congress (ANC) and other banned political organisations were legalised in February 1990, it had become clear that a new ‘human rights’ approach to the political system as a whole was likely. One of the earliest indications that the ANC was committed to legislate for freedom of information appeared in October 1991, ironically in a report complaining that the ANC had covered up a poisoning: Albie Sachs [. . .] is now engaged in composing an entrenched provision for the constitution on the lines of the [US] Freedom of Information Act, protecting the right of the public to have full knowledge of matters which fall within the public interest.97 In August 1993 newspaper stories began to appear reporting that government departments had been instructed – yet again – to destroy large quantities of classified information.
The written order, itself a classified document, mandated the destruction of ‘everything that did not have immediate value for administrative purposes’.98 But the ANC-led and democratically-elected government that took power in South Africa in 1994 was committed to a constitutional regime, with a bill of rights embedded in the constitution and a programme of enabling legislation to follow. As promised in 1991, Section 32 of the South African Constitution of 1996 did indeed guarantee information access in quite explicit terms:
- Everyone has the right of access to
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
- National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.99
The implementing legislation that translated this into a justiciable right, a right that could be asserted and enforced in the law courts, was the Promotion of Access to Information Act, no. 2 of 2000.100 This law was intended to:
- (a) to give effect to the constitutional right of access to
(i) any information held by the State; and
(ii) any information that is held by another person and that is required for
the exercise or protection of any rights.
- (b) to give effect to that right
(i) subject to justifiable limitations [. . .]
(ii) in a manner which balances that right with any other rights [. . .]101
But despite the fact that the South African legislation as drafted and adopted has been recognised as exemplary and has even been termed the ‘gold standard’ for freedom of information laws,102 the uncomfortable truth is that, as far as it is possible to tell, citizen demand remains low and bureaucratic compliance inadequate: South Africa’s citizens simply do not seem to be making significant use of their right to know. Part of the difficulty is that, even leaving aside the normative idea that high usage (however defined) is a good indicator of something, the available data are incomplete and ambiguous.
Under South African legislation, all public bodies must make what is called a ‘Section 32’ report to the national Human Rights Commission (SAHRC), detailing the number of requests received, the number granted in full, the number granted under Section 46 (mandatory disclosure in the public interest), the number of partially and fully refused requests, and some other statistics. The SAHRC then tabulates this data and includes it in its annual report to Parliament. The public bodies are grouped as national public bodies, provincial departments, local government and ‘Chapter 9’ institutions (the various commissions on human rights, gender, and so forth).
The SAHRC itself was subjected to scathing criticism in a published report by a parliamentary sub-committee chaired by Kader Asmal in mid-2007. The report comments that it is ‘unclear whether the Commission has fully grasped the nature of its legal obligation’, describes the appointment of commissioners as a ‘shambles’ and, with regard to freedom of information rights, recommends the appointment of a special Information Commissioner within the organisation.103 The report calls attention to the ‘urgent need for the Commission to pay particular attention to its functions and obligations in terms of the Promotion of Access to Information Act’.104
In the five years (2003/2004 to 2007/2008) since the SAHRC started publishing Section 32 reports, compliance with the reporting requirement has been consistently poor, and the body of data available for analysis is seriously compromised as a result. The Commission has been unable to enforce the reporting requirement: The submission of section 32 reports over a five year period has revealed worrying trends in relation to the implementation of [the Promotion of Access to Information Act]. These trends are evidenced throughout the public sector [. . .] Compliance with section 32 for all levels of public bodies has been consistently low.105
In the SAHRC annual report for April 2007 to March 2008, for the first time, data are provided on bodies that have been non-compliant with Section 32 in the reporting year. At national level, only 17 out of 39 departments and other bodies submitted reports. Out of 89 provincial bodies only 20 per cent submitted statistics and less than 5 per cent of the country’s 284 municipalities reported.106 As the SAHRC points out: Local government in general usually forms the first interface between the South African public and government whether for service delivery or otherwise. The widespread non-compliance with section 32 in this sector therefore raises grave concern when monitoring implementation.107
Even the data that are available in the five SAHRC reports published so far are highly problematic and difficult to analyse.108 The instrument used to gather data has itself been subjected to criticism on the grounds that it lacks clarity in places and that the relationship between various categories is often unclear. For example, the requirement to report on ‘the number of times each provision of this Act was relied on to refuse access in full or partially’ is interpreted by the SAHRC, and apparently by all the bodies submitting reports, to mean simply the total number of refusals that relied on this or that provision of the Act.
It has been argued that a more probable interpretation is that the intention was to collect statistics for each type of exemption as defined in Sections 34–45 of the Promotion of Access to Information Act.109
There are other problems. To pursue a point made previously, in the 12th annual report, the SAHRC for the first time lists bodies that have not complied with Section 32. But non-compliance with Section 32 does not mean that the non-reporting body did not receive any requests, and tells us nothing about whether such requests were granted or refused. It can easily be established from other sources that such requests were made by various NGOs and other groups.110 The data tell us nothing about the kind of information requested, and nothing about the level of mute refusals. Above all, they tell us little by themselves about the level of transparency in the country.
For the sake of argument, if the state were pro-actively compliant, placing significant amounts of appropriate and useful government information on websites, or making information easily and freely available through non-adversarial procedures outside the framework of the Promotion of Access to Information Act, then request and complaint figures would presumably fall. In such a case ‘low’ levels of demand would not be an indication of opacity.
Most requests for politically sensitive information appear to originate from a small group of activist NGOs. Dale McKinley complained in 2004 that in two years of operation of the Promotion of Access to Information legislation, the vast majority of requests for access to both the [Truth and Reconciliation Commission] archive and related information on human rights violations have been submitted by one organisation [. . .]111 namely the South African History Archive (SAHA) in Johannesburg, while the remainder came mainly from the Centre for the Study of Violence and Reconciliation (CSVR) in Johannesburg with an office in Cape Town, the Freedom of Expression Institute (FXI) in Johannesburg, the Khulumani network, and the Open Democracy Advice Centre (ODAC) in Cape Town.
SAHA is ‘an independent human rights archive dedicated to documenting and providing access to archival holdings that relate to past and contemporary struggles for justice in South Africa’.112 SAHA runs a Freedom of Information Programme that is specifically intended to exploit the Promotion of Access to Information Act, and thus ‘extend the boundaries of freedom of information’.113 Since 2001, the programme has advised and assisted people or organisations wanting to submit requests and has also built up an archive of materials on several topics including the Truth and Reconciliation Commission, gay people in the South African armed forces, attempts to develop nuclear weapons capacity, HIV and AIDS, and migration.
In 2008, SAHA began to assist community organisations in developing the expertise necessary to exploit the opportunities offered by the Promotion of Access to Information Act by training and capacity building. It has successfully built a high profile as a source of genuine expertise and analysis on freedom of information questions in South Africa.114
ODAC is also a high profile activist organisation that has taken the lead in trying to turn Promotion of Access to Information Act practices into reality. ODAC describes its mission as being ‘to promote open and transparent democracy; foster a culture of corporate and government accountability; and assist people in South Africa to be able to realize their human rights’.115 In 2003 it carried out an influential study that assessed compliance with the requirements of the Promotion of Access to Information Act. The organisation monitored 100 information requests submitted by a diverse group of requestors to a range of government institutions. Though the information requested varied in nature, no information that was expected to be protected under [the Act] was requested.116
The results of this study demonstrated very poor levels of compliance, lower than at least two other surveyed countries (Armenia and Macedonia) in which no legislation is in force, an anomaly that raised some questions about the instrumental efficacy of freedom of information legislation. Several commentators have seized on this point, arguing that since bureaucrats ‘by their very nature’ do not want to disclose information, what the Promotion of Access to Information Act actually does is to create a mechanism for non-compliance. [I]n addition to the serious barriers that have been erected in simply locating the archive and related information, those who want to exercise their right of access to such information are faced with a generally ‘hostile’ officialdom that tends to treat provisions for non-disclosure [. . .] ‘as a shopping list for reasons to refuse information’.117
Of the 100 requests made in the ODAC study, only 23 per cent were granted. The rest were refused: 52 per cent met with mute refusal (that is, the request was ignored), 6 per cent with a verbal refusal, and 2 per cent received written refusals. ODAC did not even manage to get as far as submitting 17 of its requests.118 In late 2004, as a result of the study, ODAC complained formally to the Public Protector about mute refusal. [A]n illiterate woman was given the run-around and was harassed by officials with questions such as why she wanted this information [. . .] the motivation for a request is completely immaterial, and its consideration is illegal [. . .]119
It is obvious that despite having adopted model legislation under a constitutional guarantee, the struggle for transparency in South Africa is by no means over, and faces major obstacles. Indeed, it is probable that it is only through continuous struggle that access to information can be maintained as a right. What is encouraging is that struggles over these issues are taking place more or less in the public arena. It is widely agreed, for example, that South Africa’s post-apartheid intelligence agencies have become ‘extremely powerful [. . .] highly politicised and prone to overreaching’.120
It is all the more surprising, then, that in an extraordinary passage in a report on intelligence gathering (surveillance) policy commissioned in late 2008 by the outgoing Minister of Security, Ronnie Kasrils, the document states unambiguously that the Act allows for exemptions from the duty of public bodies to produce a [Promotion of Access to Information Act] manual [. . .] The intelligence services applied for and received such an exemption, which remains in force. The [South African] HRC believes that the exemption is unnecessary and that the services should be subject to greater scrutiny and openness [. . .] We agree with the [South African] HRC and believe that this issue is a good example of the need to replace the intelligence community’s emphasis on secrecy with an emphasis on openness.121
It remains to be seen whether those forces within the state working in favour of the principles of openness and transparency – and they clearly do exist, even in the South African intelligence services – will eventually prevail.
African countries are not ‘basket cases’
Freedom of information in its universalised form – a piece of national or local legislation guaranteeing individual citizens and others access to government information – has not really caught on in Africa. The evidence for this statement is the tiny number of countries with laws adopted, and apparently low levels of demand for access. The reason can be attributed at least partly to the intransigence of bureaucratic and political ruling elites in the face of transparency challenges, and to the absence of the material conditions for implementation, such as adequate and publicised registry and archival systems in government structures, a widely shared administrative language, and a citizenry with the self-awareness, skills and resources necessary to confront the machinery of the state.
In this sense, to use human rights terminology, there is a clear and ongoing failure of the state in its duties to respect, protect and fulfil the right to information (see above, Chapter 5).
But two further points need to be made. The existence in African countries of a demand for the information needed to assert rights – which is, of course, not the only type of information needed – is not and cannot be demonstrated only through the measurement mechanisms of freedom of information legislation and its accompanying executive systems. To paraphrase Paulin J. Hountondji, it is essential to listen for the ‘stifled voices of protest’ to understand that in virtually any situation where resistance to the state occurs, a struggle over access to information is taking place.122 The nature of these struggles is frequently not determined merely by the parameters of an adversarial judicial system in the form of access legislation.
The second point, which follows from the first, is that the freedom of information idea may be under wider critical examination in African countries than the data in the global surveys indicate. An absence of reports does not logically mean that there is no interest or activity. In Botswana, for instance, listed by Vleugels as a country with ‘no sign’ of impending legislation, the government had already indicated by 2003 that freedom of information was ‘not a priority’.123 But a 2006 doctoral thesis by a local scholar, Peter Sebina, argued powerfully for the implementation of the constitutionally-defined access right in the form of appropriate enabling legislation,124 and in July 2008 a local member of parliament, Keletso Rakhudu, announced that he was going to start the ball rolling by tabling a motion asking for local freedom of information legislation.125
Other African governments shared the same dim view of freedom of information. In 2005 Benjamin Mkapa, president of Tanzania from 1992 to 2005, stated categorically that access legislation would never be adopted on his watch.126 Despite this, by October 2006 the new President Jakaya Kikwete was promising that a forthcoming ‘omnibus media law’ would include guarantees for citizens’ access to information held by public institutions.127 In 2007, critics were claiming that drafted legislation would have the effect of ‘classifying all cabinet papers and information as secret documents’, clearly not a desirable outcome.128
Similar low-key activity can be seen elsewhere on the continent, indicating that even if no campaigns are underway, some awareness nevertheless exists. According to a UNESCO source, in Chad there is a Centre d’accès à l’information located in the capital, N’Djamena, although it is unclear what this institution actually is or what it does.129 For Cabo Verde, the journalist Fernando Monteiro, editor of the weekly newspaper Horizonte, presented a paper as early as 1999 at a Colloquium on ‘Os países de língua portuguesa e a liberdade de informação’ (Portuguese-speaking countries and freedom of information) in Lisbon.130
In Cameroon, a workshop on information access rights was held in October 2008.131 In Sierra Leone, the Society for Democratic Initiative (SDI) organised a workshop in June 2008 to raise awareness among members of parliament.132 In Rwanda, where from 1993 onwards the radio station Radio Télévision Libre des Milles Collines actively encouraged the perpetrators of the mass genocide in the name of ‘Hutu power’, experience has led to a more nuanced general awareness of the dangers of untrammelled freedom of mass media.133
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