Right to information law is the foundation upon ....

...which to build good governance in Ghana (Part 1 of 2).

The practice of routinely holding information away from the public creates ?subjects? rather than ?citizens? of civil society and is a violation of their rights. This was recognized by the United Nations at its very inception in 1946, when the General Assembly resolved that: ?Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated? [1].

A guaranteed right to access information is an essential and practical antidote to corruption. Thanks to the delays in the passage of Freedom of information legislation (FOIA), today there are many political criminals walking boldly and with impunity in the streets in Ghana. Except for a few government officials such as the former minister of Youth and Sports, all the others who defrauded the country have been enjoying their loot while the government looks the other way. As argued by Commonwealth Human Rights Initiative, (CHRI) corruption is destroying the rule of law and has created a mutually self supporting class of overlords who need secrecy to hide their dark deeds in dark places by withholding relevant information. In the worst instances the withholding of information has led to the ?criminalization of politics? and ?the politicization of criminals?.

The reluctance of Ghana?s Parliament to pass the right to access information bill is mind boggling; considering Ghana?s avowed commitment to offer the keys to deepening and quickening democratic development as President Kufour often and so readily preaches. It is surprising that our government appears so reluctant to pass the FOIA. The absence of FOIA makes our democracy a window dressing since freedom of expression and thought inherently rely on the availability of adequate information to inform opinions. The lack thereof is therefore inconsistent with the freedom of speech guaranteed in the 1992 Constitution.

Chapter 12 article 162 of the 1992 Constitution of Ghana grants freedom of speech, and it states:

(1) Freedom and independence of the media are hereby guaranteed.

(2) Subject to this Constitution and any other law not inconsistent with this Constitution, there shall be no censorship in Ghana.

(3) There shall be no impediments to the establishment of private press or media; and in particular, there shall be no law requiring any person to obtain a license as a prerequisite to the establishment or operation of a newspaper, journal or other media for mass communication or information.

(4) Editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, not shall they be penalized or harassed for their editorial opinions and views, or the content of their publications.

(5) All agencies of the mass media shall, at all times, be free to uphold the principles, provisions and objectives of this Constitution, and shall uphold the responsibility and accountability of the Government to the people of Ghana..

(6) Any medium for the dissemination of information to the public which publishes a statement about or against any person shall be obliged to publish a rejoinder, if any, from the person in respect of whom the publication was made (Source: Judicial Service of Ghana Official Web Site).

What do we mean by freedom of information?

Freedom of information legislation (FOIA) defines a legal process by which classified information is released to the public and purports to set rules on governmental secrecy.

Unfortunately, based on the foregoing definition, we cannot say that Ghana has an open government even though articles 162 and 163 provide for the freedom of speech and the media. Article 164 allows the government to with-hold specific public information from the people. It states:

?The provisions of articles 162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.?

To understand this fully, let us examine the practice elsewhere. In Canada, a court has ruled that the right to security creates a consequence right to information about threats to personal safety which would be violated if the police force knew of a threat and failed to provide that information to the threatened individual [3]. The right to food is also often reliant on the right to information. In India for example, people have used access laws to find out about their ration entitlements and to expose the fraudulent distribution of food grains [4]. Quite simply, the right to information is at the core of the human rights system because it enables citizens to more meaningfully exercise their rights, assess when their rights are at risk and determine who is responsible for any violations.

Freedom of information is so vital to the fight against corruption that, according to Wikipedia, nearly sixty countries around the world have implemented some form of freedom of information legislation. Over forty more countries are working towards introducing such laws. The rationale is simply to protect against corruption in government.

Tackling Corruption

Article 19 of Universal Declaration of Human Rights, 1948 (UDHR) states that: Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any medium regardless of frontiers.

Article 19 of the UDHR was given legal status by the binding provisions of The International Covenant of Civil and Political Rights, 1966. Article 9 (2) which states that: Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him goes on to shed more light in Article 19 (2) by saying that: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

CASE STUDY: GHANA

In robust democracies, the media acts as a watchdog, scrutinizing the powerful and exposing mismanagement and corruption. It is also the foremost means of disseminating information. In places where illiteracy is widespread as in the case of Ghana, radio and television have become vital communication links though they are often hijacked by the state for its own purposes. Sadly, in Ghana, this power of the media to reach the masses has often been perceived as a threat by our governments, especially the not so open ones, which have carefully regulated the search and provision of public information. A case in point is the Per Diem allowance to the President. The article headlined "The President and his per diem allowance = 'Legalized stealing.' was first posted on Ghana web and later copied in one of the local newspapers, The Chronicle. In the article, the writer, William Antwi, accuses the President of being paid a per diem allowance of $3000 per day on his numerous visits abroad and classified this as a legalized stealing, considering the financial state of our HIPC country. He wrote:

?Why should a desperately poor nation like ours pay the President $3000 (27,000,000 million cedis by conservative estimates) every night he spends outside the country taking care of the nation?s business when he doesn?t pay for his air fare, hotel bills, meals, gifts to hosts etc, etc? And, it is a big ?why?.

The Ministry of Information in spite of the police summoning and questioning the two editors of the Chronicle Newspaper in their investigations into the motives behind this publication on per diem (Accra, Oct. 14, GNA), could not even come out openly to inform the people. This statement from the state department is woefully inadequate to stop the speculation:

"These allowances range from 70 dollars to a maximum of 478.80 dollars. Records available also show that in respect of the presidential delegation session of the General Conference of UNESCO in Paris, France, from September 30 to October 9, 2005, the approval rates, which range from 70 dollars to 478.80 dollars per person per day were used." In addition the police said the arrest was to remind the public that it was an offence to "publish or reproduce any information or statement, rumor which is likely to cause fear and alarm to the public? (Accra, Oct. 14, GNA).

Lack of access to information leaves reporters open to government charges that their stories are inaccurate and based on rumour and half-truths instead of facts. It is not coincidental that countries perceived to have the most corrupt governments also have the lowest levels of development and these also tend to be the countries where there are restrictions on information flow. Conversely, countries with access to information laws also tend to be the least corrupt ones. As depicted in the Per Diem saga, it is clear that Ghanaian journalists are left to depend on leaks, luck, rare press releases and voluntary disclosures provided by the very people they are seeking to investigate for information. This does not make for good journalism nor does it promote democracy.

In 2002, of the ten countries scoring the highest in Transparency International?s annual Corruption Perceptions Index, no fewer than eight had effective legislation enabling the public to freely see government files. Of the ten countries perceived to be the worst in terms of corruption, not even one had a functioning access to information regime [20] . Where do we place Ghana in this scheme of things?