Last Tuesday, a Peruvian court sentenced former President Ollanta Humala and his wife to 15 years in prison for receiving illicit campaign funds from a Brazilian construction firm, Odebrecht, during Peru’s 2011 election campaign. Humala is likely to carry out his sentence in a facility built specially for the country’s jailed leaders. Former presidents Alejandro Toledo and Pedro Castillo are currently jailed at this facility, while Alberto Fujimori, who died last September, stayed there until his release in 2023.
Here in Guyana, we have argued several times over of the need to have in place election campaign legislation the contents of which are to include: (i) placing contribution limits to individuals and organisations; (ii) disclosing the names of persons and organisations making contributions to political parties; (iii) prohibiting the use of State resources for electioneering purposes; and (iv) conducting an independent audit for compliance with the legislation. Regrettably, no attempt has so far been made to pass the necessary legislation.
Two Fridays ago, another protest was held in front of the Office of the Commissioner of Information because of his office’s continued failure to provide information requested under the Access to Information Act. At that event, several individuals gave testimony about their unsuccessful attempts to obtain information from the Office of the Commissioner of Information. Unfortunately, the President’s reaction completely ignored the message of the protest when he stated that: (i) most of the persons in the picket line are opposition critics; (ii) the protest action is politically motivated; and (iii) the Government does not intervene with the work of the Commissioner. Former President Donald Ramotar weighed in on the issue, claiming that the current Commissioner was appointed on the insistence of the political Opposition.
General principles governing the right of access to information
Under international human rights law, citizens’ access to information on government programmes and activities is a fundamental human right. It is an essential element of every system of democracy and facilitates transparency and accountability, indeed good governance practices. According to the Inter-American Juridical Committee, the right of access to information applies to all public bodies. This includes the executive, legislative and judicial branches of government, constitutional and statutory bodies, bodies which are owned or controlled by government, and organizations which operate with public funds or which perform public functions. In its resolution of 7 August 2008, the Committee stated, among others, that:
Clear, fair, non-discriminatory and simple rules should be put in place regarding the processing of requests for information. These should include clear and reasonable timelines, provision for assistance to be given to those requesting information, free or low-cost access, and does not exceed the cost of copying and sending the information, and a requirement that where access is refused reasons, including specific grounds for the refusal, be provided in a timely fashion.
Measures should be taken to promote, to implement and to enforce the right to access to information, including creating and maintaining public archives in a serious and professional manner, training public officials, implementing public awareness-raising programmes, improving systems of information management, and reporting by public bodies on the measures they have taken to implement the right of access, including in relation to their processing of requests for information.
Access to information in the Caribbean
Several countries in the Caribbean have legislation governing access to information, including Jamaica and Trinidad & Tobago. Jamaica’s Access to Information Act that was passed in 2004 and so does Trinidad and Tobago whose Freedom of Information Act back to 1999. Both legislations have similar provisions with the added safeguard of the right of citizens to recourse to an Appeals Tribunal in the case of Jamaica, or to the Ombudsman with further recourse to the High Court in the case of Trinidad and Tobago, if the information requested is denied. In both jurisdictions, there is no Commissioner of Information, and it is the responsibility of individual public agencies to provide the public available relevant information and to respond to requests for information.
Guyana’s Access to Information Act
In Guyana, the process to provide citizens with the right of access to information was initiated by Member of Parliament, Raphael Trotman. In 2006, he tabled in the National Assembly draft legislation. However, it languished in the Assembly for five years. It was not until 2011 that the Government came up with its own version of the draft legislation which was heavily criticized by key stakeholders. The main concerns were:
Exemption of the President from the requirements of the Act.
The number of documents that are exempt, including Cabinet papers which would not be made available until after 20 years.
The manner in which the Commissioner is to be appointed and his/her reporting relationship.
The concentration of authority in the hands of the Commissioner to whom all requests for information must be channeled.
These concerns were completely ignored and led the Opposition to decline to attend not only the meetings of the Special Select Committee of the Assembly at which a detailed examination of the related draft Bill was carried out but also the session of the Assembly that approved the legislation. With the absence of the Opposition, the Bill gained easy passage in the Assembly in September 2011. However, as of March 2013, the Act had not yet been brought into force via an Order from the President. The Presidential Advisor on Governance, now Minister of Governance and Parliamentary Affairs, contended that the delay was due to the difficulties in finding a commissioner, budgetary constraints, and the lack of information on the Government’s websites. This prompted the United States Government to issue a statement in which it stated, among others, that openness strengthens democracy and promotes efficiency and effectiveness in government. Accordingly, it encouraged the Guyana Government to operationalize the legislation and to appoint a Commissioner of Information.
The Organisation of American States (OAS) joined the call for the Access to Information Act to be brought into force. The OAS noted that since 2006 it had urged the Government to pass freedom of information legislation. The International Press Association and Transparency Institute Guyana Inc. also issued similar calls. Faced with the above pressures, the President issued the relevant Order on 10 July 2013 to bring the Act into operation. Five days later, on 15 July 2013, he appointed the current Commissioner of Information. Contrary to the statement made by the former President who made the appointment, there is no publicly available evidence to suggest that this was done on the insistence of the Opposition.
The President’s reaction to the protest
Contrary to the President’s assertion that most of the individuals involved are opposition critics, the reality is that majority of them, including this columnist who participated in the exercise, are members of civil society. They have no affiliation with any political party. They are neither anti-PPP/C nor anti-APNU+AFC. It there is anything “anti” about them, it is that they are anti-bad governance, anti-lack of transparency, and anti-lack of proper and timely accountability.
These individuals do not have any political aspirations. Instead, they have the public good and interest at heart. They stand on independent ground and above the political fray, regardless of which political party is in power. If, in their view, there is evidence of bad governance, lack of transparency, or lack of proper accountability for public resources, these individuals let their voices be heard in the hope that those in charge will reflect on what is said and take appropriate actions to bring about improvements.
Unfortunately, the typical response is to “circle the wagons”, engage in character assassinations and vilification of the persons involved, and label them anti-government and aligned to the political Opposition. There is no recognition that individuals can stand on independent ground: “you are with me, or you are against me”; and that civil society activists can play an important role in bringing about improvements in the operations of government, especially in the management of State resources.
Key provisions of the Access to Information Act
Appointment of the Commissioner: Section 5 of the Act provides for the Commissioner of Information to be appointed by the President from among persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. His/her salary, allowances and other conditions of service are determined by the Minister assigned responsibility for information.
The Act is, however, silent on the Commissioner’s tenure of office and at what point in time he/she is required to demit office. In the case of the holders of constitutional offices, such as the Auditor General and High Court judges, the incumbent is required to demit office on the attainment of age 68.
It must be emphasized that the Commissioner is not the holder of a constitutional position. Of the three branches of government, he sits squarely under the Executive branch, with reporting relations to the subject Minister. The failure to recognize this, and to state that the Government does not interfere with the work of the Commissioner, is an abdication of responsibility for ensuring that citizens are provided, upon request, with reasonable access to information on government programmes and activities, subject to certain safeguards relating to national security, foreign policy and personal privacy.
Powers of the Commissioner: Section 7 vests with the Commissioner the power to require a public authority to take steps to ensure compliance with the Act, including, among others: by (i) providing access to information, if so requested; (ii) publishing information that is urgently needed and are not published under any other provision of the Act; (iii) enhancing the provision of training on the right to information for its officials; and (iv) providing the Minister with an annual report.
Appeal against decision of the Commissioner: By Section 43, any person aggrieved by a decision of the Commissioner may apply to the High Court for a review of that decision. As indicated above, this is quite unlike Trinidad and Tobago where recourse is to the Ombudsman in the first place, then to the High Court, while in Jamaica, an Appeals Tribunal hears cases of denial of access to information and there is no provision for recourse to the Courts. It would be fair to state that in most cases aggrieved persons would be reluctant to approach the Courts because of not only the high legal costs involved but also the length of time it may take for a ruling to be made.
Annual report on the operations of the Act: Section 44 (1) provides for the Minister to lay a report in the Assembly on the operations of the Act not later than nine months after the close of each year. The report is to include, among others:
(a) The number of requests made to the Commissioner.
(b) The number of decisions that an applicant is not entitled to access to information requested.
(c) The number of applications for judicial review of decisions made and the outcomes of such applications.
(d) The number of complaints made to the Commissioner about the operations of the Act and the nature of such complaints.
(e) The number of notices served on the Commissioner and the number of decisions made that were adverse to the person’s claim.
(f) The amount of fees collected by the Commissioner.
However, there is no evidence that such a report was laid in the Assembly. As a result, the effectiveness of the Act could not be determined.
Removal from office: By Section 6, the President may remove the Commissioner of Information from office if the Commissioner: (i) is adjudged an insolvent; (ii) has been convicted of an offence which involves moral turpitude; (iii) is unfit to continue in office by reason of infirmity of mind and body; or (iv) had or has acquired such financial or other interest as is likely to affect prejudicially his functions as Commissioner.
Conclusion
In the light of the difficulties being experienced in accessing information on government programmes and activities as well as the fact that for over 12 years since the Access to Information Act was brought into force there has been no annual report on its functioning, it is time for the provisions of the Act to be revisited to ensure that it is operating as intended.
A key consideration is whether the present system for access to information should not make way for a decentralised one whereby individual state agencies are required to provide such information; and whether any useful purpose is served by having a Commissioner of Information to act as a clearing house. In this regard, the Jamaican and Trinidadian models are worthy of serious consideration, including the appeals procedure relating to the denial of access to information
