ACCESS TO INFORMATION BILL – A PANDORA’S BOX: A Reply to Linda Kasonde

ACCESS TO INFORMATION BILL – A PANDORA’S BOX: A Reply to Linda Kasonde

Let me post it here for future reference:

By O’Brien Kaab

December 30, 2023

Government tabled the Access to Information Bill in November 2023. The Bill has since received presidential assent and is now law. The enactment of the Access to Information law brings closure to a protracted history of lobbying the government to enact the law on access to information. Giving citizens access to state-held information as well as information held in private hands which is relevant to the protection of fundamental rights is the bedrock of an accountable and democratic government. As Cora Hoexter has argued, “accountability is unattainable if the government has a monopoly on the information that informs its actions and decisions.” Access to information, apart from facilitating informed participation in governance by citizens, enhances public confidence in government and may increase the legitimacy of public institutions in the estimation of citizens. It may also discourage corruption and arbitrariness.

Although the Bill (now Act) was warmly received by many stakeholders, a few treated it either dismissively or criticized it heavily for failure to meet their expectations. Linda Kasonde, for example, published an article entitled “Access to Information Bill-A Pandora’s Box” in News Diggers online on 19 December 2023. In this article, I respond to three of the issuesLinda raises, indicating why I believe her views are misinformed and show an incorrect reading of the new law. Although the Bill has now received presidential assent and is an Act of parliament, this article will use the word Bill as at the time Linda wrote her article, it was still a Bill before the legislature.

(1) The Bill Violates Privacy

Linda argues that the Bill lumps together “obligations of public and private bodies whose obligations are not distinguished appropriately under the Bill.” This assertion is based on her reading of the definition of “information holder” under clause 2 of the Bill. She argues that the “failure to distinguish between public and private bodies provides onerous and even intrusive access to privately held information….”

First of all, Linda’s supposed lumping together of public and private entities is deliberately misleading as the Bill makes a clear distinction between private and public entities in terms of their obligations. Clause 6(1) of the Bill entitles a citizen and a residence permit holder to access information in the hands of an “information holder.” Information holder is defined under clause 2 as a “public body or a private body.” What constitutes a private body is defined under clause 2 as “a private entity, or non-state actor, that utilises public funds or is in possession of information that is of significant public interest.” This definition entails that not every private entity can be requested to provide information. Only private entities that either receive public funds or those in possession of information of significant public interest. Individuals are excluded from the disclosure obligation. Clauses 3(a) and 3 (b) then both require public and private information holders to disclose requisite information.

Contrary to what Linda asserts, although both public and private bodies have a duty to disclose information, a distinction should be drawn in terms of their obligations. Accessing information from a public body is unqualified while accessing information from a private body has a condition precedent of needing the information. This is in order to “assist in the exercise or protection of any right.” (Clause 3(b)). In other words, members of the public are entitled to access public information in the hands of public bodies, unless there are legitimate reasons for limiting access. However, when it comes to information in private hands, the information should only be available on a “need to know” basis. The requester needs to provide reasons to justify access and the reasons must relate to the exercise or protection of a human right. Therefore, the private sector is entitled to keep its information to itself, unless that information is needed to protect rights.

This approach is consistent with international best practices and standards and is recommended by the AU Model Law on Access to Information for Africa. Article 2 of this Model Law provides: “(a) Every person has the right to access information of public bodies and relevant private bodies expeditiously and inexpensively; (b) Every person has the right to access information of private bodies that may assist in the exercise or protection of any right expeditiously and inexpensively.” This is also the approach taken by many countries, including Kenya and South Africa.

The views advanced by Linda display a misunderstanding of the relationship between the state and private actors in the area of public law. First of all, human rights in the modern world are no longer seen as the mere concern of the state and affected individual citizens (vertical approach). Private entities are seen as capable of violating human rights, and as a result, public law remedies have expanded into the private terrain in order to protect rights (horizontal approach). This is owing to the fact that the services provided by private entities have expanded exponentially. One has to think of private medical facilities, schools, media houses, digital and telecommunication companies and water and sanitation services amongst many others.

As a result, constitutional and administrative law experts have coined the term “the contracting state” to describe the situation where many services of public interest are provided by the private sector rather than government. In providing these services, the private sector cannot do as it wishes and disregard human rights.

As Professors Pierre De Vos and Warrren Freedman have noted about the expansion of access to information to the private sector under South African law: “This extension recognizes the fact that the private institutions, such as large corporations, may exercise enormous power in a society. The information these private institutions hold could easily be used to the detriment of individuals or could be required by individuals to exercise their other rights, including their rights as consumers not to be exploited for profit.”

Similarly, the Irish Supreme Court, in holding that constitutional rights applied horizontally, stated in Educational Company of Ireland Ltd v Fitzpatrick (No 2) [1961] IR 345: “If one citizen has a right under the Constitution there exists a correlative duty on the part of other citizens to respect that right and not to interfere with it. To say otherwise would be tantamount to saying that a citizen can set the Constitution at naught and that a right solemnly given by our fundamental law is valueless.” This entails that when a citizen needs information in order to assert or protect their right, there should be a duty on private entities holding that information to provide it.

Instead of scare mongering about violation of privacy, there are several comparative case examples demonstrating the appropriate use of this device to support enjoyment of rights and foster accountability. The following two cases will be used to illustrate this point.

The first is the Kenyan case of Republic v Nairobi Women’s Hospital Petition No. 172 of 2020. The case dealt with a woman who was attended to at a private hospital as a patient for pre- natal and post-natal care. She underwent a caesarean operation but unfortunately the child died. She then requested the hospital to provide her a medical report of her pregnancy but the private hospital did not do so. In court the hospital argued that it was a private entity, and, therefore, not under a duty to provide the woman with the information. The High Court disagreed and instead held: “I therefore find that the respondent’s argument that they cannot be compelled to issue the information sought does not hold water as the right to access information is a sacrosanct right which applies to actions by both public and private bodies.”

The second, is the South African case of ABBM Printing and Publishing (Pty) Ltd v Transnet Ltd 1997 (3) SA 839 (T) where an unsuccessful tenderer sought access to the tender documents of other private companies that participated in the tender process in order to assess whether the tender process was fair and did not infringe the procedures set by law. The Court authorized access, noting that: “The applicant clearly requires the documents … in order to determine whether the tender process complied with the requirements of section 33 of the Constitution. Until it has had sight thereof, it cannot decide whether it has any claim for relief against the respondent. Sight of the documents could well result in forestalling any further litigation which is in itself a good reason for ordering their production at this stage … To hold that a tenderer such as the applicant is required to lay a jurisdictional basis before being able to assert his constitutional right to information would serve to undermine the basis on which I am required to interpret the Bill of Rights.”

Considering the amount of corruption in Zambia around procurement and the tendering processes, wouldn’t a device that allows interested parties to see documents of competitors to assess the fairness of the process be an excellent tool of accountability?

Finally, on this note, it should be noted that privacy is not an absolute right. Like an onion, privacy has layers that can be interfered with to varying degrees in order to protect the rights of others or to serve some other public good. Public law, for example, in many countries already requires public officials to make public declaration of their assets. Should this be stopped on account of violation of privacy? A narrow and superficial view of privacy, as propounded by Linda has been rejected already by many progressive judiciaries. For example, Ackermann J in the Constitutional Court of South Africa in Bernstein and Others v Bester No and Others [1999] ZACC2 stated: “The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always limited by every right accruing to another citizen. In the context of privacy, this would mean that it is only the inner sanctum of a person, such as his or her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community…. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”

(2) The Bill Facilitates Surveillance

Linda argues that by requiring disclosure of privately held information, the Bill potentially exposes citizens, journalists, civil society actors and opposition party members to state surveillance. First of all, there is no provision in the Bill that gives this impression. The state is not a qualified requester of information under the Bill. Clause 2 of the Bill only includes a citizen and a resident permit holder as persons competent to request for disclosure of information under the Bill. Moreover, as shown above, the limited requirement for disclosure of privately held information is consistent with international human rights standards. Privately held information can only be disclosed where it is needed to support the exercise of a right by the requester. The state is not the subject of human rights but a duty bearer.
Instead of reading into the Bill what does not exist, it must be acknowledged that there are already existing laws that empower security entities to intercept communication. Some other laws, such as the Cyber Security and Cyber Crimes Act even enjoin digital communication service providers to only use equipment the state can easily access. This, coupled with a poor judicial culture of enforcing human rights, as exemplified in the precedents of Liswaniso v The People (1976) ZR 272 and Liswaniso Sitali and Others v Mopani Copper Mines PLC (2004) ZR 176 dealing with admission of evidence obtained in violation of the right to privacy, entail that the culture of the state illegally intruding into the private sphere is already long entrenched and will not in any way start with the newly enacted Access to Information legislation. The State already has an arsenal of legislation and case law expressly or indirectly allowing citizen surveillance and the Access to Information law is not one of those.

(3) Designation of the Human Rights Commission as the Oversight Body
Here Linda takes issue with the designation of the Human Rights Commission (HRC) as the oversight body for enforcing the Access to Information law. She advances three arguments:

a) the HRC is led by presidential appointees, hence not sufficiently independent; b) the HRC is under staffed and under resourced; and c) the HRC itself receives public funds from which the public may seek information, so who will police the HRC?

While the first two arguments have merit, they are directed at the wrong piece of legislation. The access to information law does not establish the HRC but simply designates it as an oversight body. The source documents for the establishment and operational structure of the HRC are the Constitution and the Human Rights Commission Act. Proposals for reforming the HRC in order to strengthen it are important, but should be targeted at those laws.

On the contrary, dismissing the HRC on the ground that it receives public funds is a frail argument for at least two reasons. First, oversight bodies in Zambia, including the Auditor

General, the Financial Intelligence Centre and the Anti-Corruption Commission, are all publicly funded. Equally, the judiciary, which is the buffer of democracy and the enforcer of democratic norms, is publicly funded. It would be awkward, for example, to argue that the judiciary should not settle any disputes involving government entities (or even itself) because it receives public funds. Secondly, the views of the HRC are not final. Clause 33(2) of the Bill grants an information requester aggrieved by a decision of the HRC, the right to appeal to the High Court. The judiciary, therefore, is empowered to police the activities of the HRC as an oversight body over the Access to Information law.
In conclusion, it must be noted that while I consider that the concerns raised by Linda lack merit, there are laws still in existence that do not support the culture of information disclosure. The State Security Act, for example, criminalises many categories of information which should be in public domain in a democratic state. Equally, an average Zambian piece of legislation contains a standard non-disclosure clause, which criminalizes unauthorized disclosure of information. What is needed is a detailed stock and analysis of such laws in order to have them reformed and aligned to a new culture of information disclosure.

ABOUT THE AUTHOR

Dr. O’Brien Kaaba teaches law at The University of Zambia. He writes in his personal capacity.