Commitment versus action in Africa: Implementation is as important as adoption of Access to Information laws
Fifteen countries from Africa responded to the UNESCO survey. Among these, 11 countries have ATI laws, three are in progress of being elaborated and one country does not have a separate legislation on ATI. Nine countries also reported to have a dedicated oversight institution, of which six are Information Commissions. Nine countries reported that their legal guarantee on Access to Information specifies the need for public bodies to also appoint public information officers or a specific unit to handle Access to Information requests from the public. Nine countries reported provisions for the dedicated Access to Information oversight institutions to provide implementation guidance and offer training to officials from public bodies.
With this in mind, the Africa Freedom of Information Centre (AFIC) conducted in 2021 a research project in some African countries assessing the state of implementation of national ATI legislation. The research found examples of restrictions to access to information and the use of emergency measures to impose broad restrictions on the speech of journalists, activists and whistle-blowers for attempting to release information on governments’ capacity and handling of the pandemic. According to the researchers, the COVID-19 pandemic in these cases had challenged governments’ de facto commitment to and implementation of the right to information.
The AFIC project aimed at sampling the level of ATI implementation in three sectors: health in the context of COVID-19; environment/climate; and financial proactive disclosure of budgets. The assessments of the level of implementation of ATI legislation in each country were based on methodology developed by the Freedom of Information Advocates Network (FOIAnet), of which AFIC is a member.
The methodology assesses the extent to which countries with ATI laws are implementing them properly in accordance with three parameters: (1) the extent to which a State is proactively disclosing information; (2) the extent to which institutional measures have been put in place to assist with implementation; and (3) the extent to which requests for information are being responded to timeously and dutifully (assessed via a simple request testing approach).
The study found significant variations between countries in terms of governance arrangements and ability to adopt practices that promote transparency and accountability in regard to access to information.
A special attention of this study was put on the health sector due to its key role in providing reliable and timely access to health and COVID-19 related information. On this, the study noted that the relative lack of disclosure in the health sector suggests vital flaws in the institutional setup, creating a compromised service delivery and insufficient dissemination of key information on COVID-related issues.
Taking into consideration the findings of the AFIC study and the analysis based on the responses from the 15 African countries that responded to the UNESCO survey, it can be concluded that it is of key importance to have constitutional guarantees for ATI as well as a separate legislation on ATI. In addition to legal guarantees for ATI, an effective institutional setup is needed, including an independent ATI oversight body. Clearly defined and appointed roles and responsibilities and continuous training of duty bearers should also be introduced. In addition, there should be common standards for promoting ATI, broader collaboration between Ministries/Departments/Agencies (MDAs), periodic reviews of ATI implementation, and stronger enforcement of punitive action against non-compliance with the law. The adoption and adaption of ICT is also key for maximizing reporting capacity, cost efficiency, efficiency in record management, timeliness, and easy access to information, as well as annual work plans.
Equally important, is to maintain a strong focus on the demand side of ATI. This includes providing continuous training and sensitization to civil society. Through such training, non-state actors, both in business and civil society, should and will be able to more effectively advocate for the full implementation of systems and processes across the state sector, that would in turn enable greater access to information.
While the right to information (legislation and constitutional guarantees securing the legality of this right) is intrinsically important to transparent and accountable democratic governance, the right to information does not necessarily translate into access to information. ATI commitment and implementation by national governments, as the primary duty bearers for progress towards the Sustainable Development Goals, must therefore be consistently reassessed to ensure implementation of legal provisions; and legal provisions must be adjusted continuously to meet the needs of those they seek to serve; the people.
 The Africa Freedom of Information Centre (AFIC) is the largest membership pan-African civil society organization and resource center that promotes citizens’ right of access to information, transparency and accountability across Africa. AFIC has extensive experience in successfully conducting relevant research and proposing reforms to African governments in the areas of open contracting and access to information. It also has strong experience in strengthening capacities of both governments and civil society partners and is recognized as a strong partner by procurement authorities across Africa.
 This study is based on data collection that was self-reported by national consultants. It is important to keep in mind that the study does not measure the entirety of any of the study countries’ implementation of their respective ATI legislation. Rather, the study has provided a random sampling of MDAs in three sectors (health in the context of COVID-19; environment/climate; and financial proactive disclosure of budgets) to give a snapshot of the state of ATI implementation of those institutions/sectors.