Testing Freedom of Information in

A Scoping Paper on the laws, policy and practice on the right of the people to know versus the Protection of National Security in Liberia

Presented by Tiawan Saye Gongloe At West and Central Africa Consultation on the Draft Best Practice Principles on National Security and Freedom of Information Jointly Convened by the Open Society Initiative for West Africa (OSIWA) And the Open Society Justice Initiative (OSJI) Novotel, Dakar, Senegal, 01-03 October, 2012

I. Introduction

I want to begin this presentation with a story that I told the Liberian people during the celebration of the second anniversary of the Freedom of Information Law at the City Hall on Friday, September 28, 2012. This story is about the close relationship between the free flow of information and national security.

In March 1980 a group of opposition political leaders of the Progressive People’s Party led by G. Baccus Matthews were arrested and detained for what the government of President William R. Tolbert considered to be a treasonable act1. G. Baccus Matthews had, a year earlier, on April 14, 1979 led a very popular public protest against a proposed increment in the price of rice, Liberia’s staple. In , around the April 8th or so, there was a dangerous rumor in Monrovia that the entire members of the leadership of the Progressive Peoples Party led by G. Baccus Matthews who were at the time in detention would be executed on April 14, 1980, the first anniversary of April 14, 1979, while President William R. Tolbert was attending the summit of the Non-Aligned Movement (NAM) in Harare, Zimbabwe. Amongst the prisoners in detention at the time were Dr. George Seigby Boley, a Krahn man from Grand Gedeh County and the only person from that county at the time with a PhD, Oscar Jaryee Quiah, a Sarpo man from Sinoe county and at the time considered the leader of the Sarpo people, and D. K Wonseleay, a Gio man from Nimba County and at the time the most outstanding young political leader of the

1 They were not formally charged with treason. young people of Nimba County. The detail of the rumor was that the leadership of the Executive, Legislative and Judiciary Branches of the Liberian Government and the True Whig Party had signed a resolution for the execution of the detainees. The rumor was transmitted by whispers from one person to the other and in a short time became information known to everyone, in Monrovia.

On the issue of the increment in the price of rice, the Government of Liberia should have been the first to reveal information about its decision to increase the price of rice to the Liberian people. Perhaps government’s justification for the increment in the price of rice would have convinced the people, thereby making the demonstration unnecessary and unpopular. But the government miserably failed to do so. Therefore, when Baccus Matthews came out to the urban poor and told them that government was about to increase the price of rice and that this would bring hardship to the poor, they believed him. Tens of thousands of people came out in the streets of Monrovia to demonstrate against the increment in the price of rice. The government panicked and ordered the police to shoot at the unarmed demonstrators. Hundreds of demonstrators were killed and buried in mass graves.

It was about a year after April 14, 1979 that G. Baccus Mathews and others were again jailed for what government termed treasonable acts and rumor spread that they would be summarily executed. During that period there was a strong division between the Americo-Liberians and the indigenous people of Liberia. Therefore, the common concern among most people was that the Americo-Liberian leaders wanted to kill the leaders of the natives. This rumor was very popular and spread in every nook and corner of Monrovia like a wild fire. Some of those spreading this dangerous rumor worked with the security service. Yet the Government said nothing to the Liberian people about the fate of the detainees. Monrovia became tense and people were worried and praying quietly in every corner in Monrovia.

People believed the rumor because President Tolbert had two years earlier executed a close family member with the same first and last name, . Also, a year before this rumor, Tolbert had executed seven persons, one of whom was James Anderson, the Superintendent of Maryland County and a son of the Chairman of the ruling True Whig Party. The silence of the government at the time with such a dangerous rumor that was believed to be known to everyone, made people to believe that there was truth to the rumor and that the government was determined to executive those political detainees.

What was on the minds of most people at the time was how to rescue the political detainees, most of whom were “native boys” that the “Congo people” wanted to kill.2 On April 12, 1980,

2 The expression “country people or native people” was used before the 1980 military coup to refer to descendants of the indigenous people of Liberia as opposed to Congo people which refers to the descendants of freed slaves who were repatriated to Liberia and former slaves from the Congo basin that were recaptured and just before President Tolbert’s planned departure to Harare, Zimbabwe, the President was assassinated by soldiers assigned at the Executive Mansion to protect the life of the President, the political detainees were released and the True Whig Party Government was overthrown. It should be noted that Master Sergeant Doe, the leader of the coup was a Krahn from Grand Gedeh, like Dr. George Boley, Staff Sergeant Thomas Wehsyen, the deputy to Doe was a Sarpo from Sinoe, like Oscar Quiah, and Staff Sergeant Thomas Quiwonkpa, who became the Commanding General, then known as strongman was a Gio from Nimba County like D.K. Wonsehleay. From the assassination of President Tolbert and the overthrow of his government until today, nobody has seen a copy of the resolution that was allegedly signed for the execution of Baccus Matthews and others. The military coup was therefore a rescue mission based on a false rumor. Yet Liberia’s democratic, social and economic progress was delayed by ten years of military dictatorship and fourteen years of violent civil conflict as a result of this rumor. Here lies the danger of shrouding the process of governance in secrecy and keeping information away from the people. This one example is enough for everyone to play his or her role in making the Freedom of Information Law, a living instrument in the governance of Liberia.

Liberians, from April 12, 1980 suffered ten years of military dictatorship, followed by fourteen years of a violent civil conflict that took away the lives of hundreds of thousands of people, simply because the government refused to give information to the people about its decision to increase the price of rice and failed to clarify that the rumor that Baccus and others would be executed without trial was untrue.

This story shows that a government that refuses to disclose information to the people threatens its own security and existence. More information about the government and the processes of governance removes suspicion over government actions and therefore, strengthens public trust in government and national security. The converse threatens national security

The burden of implementing the Freedom of Information Law is on the , the Chief Justice, and the Speaker of the House of Representatives and all functionaries of the Government of Liberia who serve under their various authorities. The Freedom of Information Law is not one of those laws the Executive alone is required to enforce. It is a law that every branch of government is required to enforce because the people are entitled to information about their governance from every branch of government. Information is only useful, meaningful and effective if it is given on time. Therefore, except for information exempted by the Freedom of Information Law, such as information on national defense and security,

settled in Liberia following the abolition of slavery. The settlers from the Americas were referred to as Americo- Liberians, but over the years the expression Congo people was largely used to refer to both settlers. information on Liberia’s external relationship that is required to be kept secret and trade secrets, every competent functionary of government should be ready at all times to give information about government and the process of governance within reasonable time. This is necessary because Liberia needs no other lesson to learn than the one presented by the April 12, 1980 military coup. This experience alone is instructive.

The Freedom of Information law intends to remove unnecessary and unreasonable secrecy in the process of governing Liberia. The Liberian story shows that a government that promotes high degree of secrecy in the process of governance, unknowingly and unintentionally casts doubt and suspicion about its policies, plans, programs, decisions and actions. More secrecy in the process of governance undermines public trust in government. If functionaries of government refuse to give true information to the people and on time, others will give some kind of information to the people and most often the unofficial information may be false or untrue. Sometimes the failure of government to give information to the people on time can lead to the downfall of a government. The April 12, 1980 story about Liberia is a clear example that national security is better and stronger when there is unhindered flow of information from the government to the people.

One of the basic tenets of democracy is the right of the people to know about how they are governed. This means the people should have the freedom to know about the functions of the legislative, executive and judiciary branches of government, the policies, procedures and actions taken by the functionaries of the various branches of government. The people have a right to know generally about their government, the laws under which they are governed, the scope of authority of public office-holders, how they conduct themselves and why certain actions are taken by public office-holders. As a practical matter, while this right should be available to every citizen, it is not feasible for every citizen to walk to public offices to obtain information.

Generally, the information about the government and the process of governance is made available through the work of researchers and media practitioners. The more access researchers and media practitioners have to information, the more informed the people become and vice versa.

In a democracy, the people have a right to be informed at all times about the policies, decisions and actions of their government and the conduct of its functionaries. This is what constitutes a democracy. However, very often, the reality in the process of governance can be quite different, even if the law provides for unhindered access to information. Frequently, the refusal of public officials to give information is justified by national security concerns. This paper intends to look at the access to information in Liberia as a matter of existing law and how Liberia has fared over the last two years, since the passage of the freedom of information Act. But first, it is important to look at the historical background against which the Freedom of Information Act was passed.

Liberia started as a small colony of former slaves and freeborn black Americans. The reason for their settlement in what is known today as Liberia was to escape the denial of their basic human rights in the United States. Therefore, historically, the need for freedom in all its form was at the heart of the Liberian dream. While, historically, there has not been a legal prohibition against access to information, such as the existence of a secrecy law, access to information, in practice, has been difficult. One reason for this situation is that there have been laws that have made free speech and press difficult, over the years in Liberia. Since the freedom to provide information to the public is, in fact, what stimulates the need to find information, the existence of anti- speech and press laws have been a discouraging factor in Liberia over the years. Yet many courageous Liberians have ignored these repressive laws and provided information to the Liberian people through their speeches and writings3. Most often those who provide information about government failures and the misconduct of public officials in Liberia are referred to as trouble-makers who want to destabilize the state. Therefore, journalists, writers and advocates were denied access to information over the years, to prevent them from, “destabilizing the Liberian state.”4 In other words the lack of access to information has been, historically justified in Liberia by the need to protect the security and stability of the state.

This paper will look at the history of freedom of information in Liberia, the legal basis of freedom of information and the excuse of national security protection as a basis for the denial of access to information about government and its functionaries and conclude by examining the impact of the Freedom of information Act with regards to access to information. It is important to find out whether journalists, for, example, now have more access to information on the government and its functionaries, than they had prior to the passage of the Freedom of Information Act.

II. The history of freedom of Information in Liberia

The desire and hope to live in a free society where all rights are promoted, cherished, respected and protected was the motivation for the establishment of the Liberian state. This motivation was clearly expressed by the founding fathers of the Liberian state in the declaration of independence of Liberia in 1847.5 Although the sentiments expressed in the declaration were,

3 Journalists, politicians, student leaders, human rights advocates, including this author have been to jail for providing information to the public through writings and speeches. Most often, the information contained in speeches and writings of the affected persons have been about the government and its functionaries. 4 This term was most often used in Liberia by past governments to instill fear in people and to prevent the government of Liberia from being scrutinized. 5 Huberich, Charles Henry, Political and Legislative , Central Book Company, Inc. New York (1947) pp828-832. historically, only true and relevant for a small percentage6 of the population of Liberia, it is important to note that it was the dream upon which the Liberian state was established. On the basis of the words of the Declaration of Independence, Liberia was meant to be a country in which the enjoyment of all human rights would be accorded the highest national consideration. At least, it is safe to say that, this was the expectation of those men and women who were so brave and courageous, during that period in African history to declare Liberia an independent state in 1847. They hoped that they would establish a country in which all of the rights that were denied them in the United States would be available to all in Liberia without distinction. It is against this expectation of the founders of Liberia that laws, executive orders, government actions and the conduct of public officials have been examined over the years by some journalists and critical thinkers.

It should be noted that the rights and privileges that the founders of Liberia hoped would be enjoyed in Liberia cannot be exercised by all citizens, if they are not aware of their availability. Therefore, the right of citizens to have access to information about how they are governed is a fundamental right. It is through the exercise of this fundamental right that an avenue is now provided for Liberians to monitor and evaluate the quality of governance in Liberia. Having access to information will afford Liberians the opportunity to find out whether government is being run consistent with its founding dream which was to be an asylum from human rights abuse and a country where human rights would not be violated in any manner, shape or form by government and its functionaries.

6 Id at 32. The authors of the declaration of independence were people who migrated to the part of West Africa that is today known as Liberia from the United States. This can be seen by their un-African names: Samuel Benedict, Hilary Teage, Elijah Johnson, J.N.Lewis, Beverly R. Wilson, J.B. Gripon, John Day, Amos Herring, A. W. Gardner, Ephraim Titler, R. E. Murray and Jacob W. Prout. Summarizing the reasons for their migration to Africa, they wrote the following in the Declaration of Independence: “…We the people of the Republic of Liberia were originally the inhabitants of the United States of America. In some parts of that country, we were debarred by law from all the rights and privileges of men-in other parts, public sentiment, more powerful than law, frowned us down. We were everywhere shut out from all civil office. We were excluded from all participation in the government,. We were taxed without our consent. We were compelled to contribute to the resources of a country, which gave us no protection. We were made a separate and distinct class, and against us every avenue to improvement was effectually closed. Strangers from all lands of a color different from ours, were preferred before us. We uttered our complaints, but they were unattended to, or only met by alleging the peculiar institutions of the country. All hope of a favorable change in our country was thus wholly extinguished in our bosoms, and we looked with anxiety abroad for some asylum from the deep degradation. The West coast of Africa was the place selected by American benevolence and philanthropy, for our future home. Removed beyond those influences which depressed us in our native land, it was hoped we would be enabled to enjoy those rights and privileges, and exercise and improve those faculties, which the God of nature has given us in common with the rest of mankind..Liberia is not the offspring of grasping ambition, nor the tool of avaricious speculation. No desire for territorial aggrandizement brought us to these shores; nor do we believe so sordid a motive entered in the high considerations of those who aided us in providing us asylum. Liberia is an asylum from the most grinding oppression...” This was the dream upon which Liberia was established. It was the hope that all of the rights that were denied in the United States to the founding fathers would be available to all in Liberia without distinction. It is obvious to any reasonable mind that it is not possible for every citizen to visit public offices in Liberia to obtain information on the Government of Liberia and its functionaries. It is also not possible for the Government of Liberia to visit every citizen for the purpose of providing information to each citizen on its new policies, plans, programs, laws, decisions, actions, processes and procedures of delivering services to the people. Access to information or the flow of information between the people and those who run the affairs of their country is, most often, through the mass media. If the mass media in a country functions without being hindered by laws and government actions, then the people are placed in a better position to be fully informed about their government and its functionaries. How has mass media in Liberia performed in its role as a conduit of information for the people about their government and its functionaries?

III. The Mass Media and access to information

Liberia, being the oldest independent Republic in Africa, is perhaps one of the first places in Africa, where media operation started on the continent. The first medium of providing information in Liberia was through the print media. Around 1826, the first newspaper in Liberia was produced7. Its name is unknown in the available literature. However, what is known is that it was produced by one Charles Force. Unfortunately, after the first newspaper was produced Force died and production stopped. A few years later, in 1830 John B. Russell produced a newspaper called the Liberia Hearld.8 Although history points to the production of newspapers in Freetown before 1820, the Herald was considered the third newspaper produced on the West Coast of Africa9. The Liberia Herald was a news organ of the colony10. Its first editor, John Russwurm was secretary of the colony11. Its second editor also succeeded its first editor as colonial secretary. Being an administration paper, it certainly had unhindered access to information. In fact in many of its editorials it was very critical of persons who maintained dissenting views to those of the colonial administration12. This is an indication of how closely it

7Id at 344. The production of the newspaper was made possible by funds collected by citizens of Boston, Massachusetts for the purchase of a printing press. In total, the citizens collected $ 591.96. It was the printing press bought by the citizens that Force used to produce the first newspaper. 8 Ibid. 9 Id at footnote12. 1010 Liberia started as a colony of freed American slaves and free-born Americans in the 1820s before declaring its independence in 1847. The colony was controlled by the American Colonization Society (ACS) through its Agents. 11 Supra note 5 at 840. 12 For example, in its editorial of September 3, 1847 the paper said, “…While we rejoice at the patriotism of our fellow-citizens in this country; we have reason to regret that in the country of Grand Bassa, to some extent, a different feeling prevails. We are informed there are a few disaffected individuals in that County, who , intent only upon schemes, and their own mistaken interest and aggrandizement, are deceiving the people by the most false assertions and insinuations of oppression on the part of the people of this County- and even daring to question the sincerity of the Colonization Society…Now those promoters of sedition and rebellion, in Bassa, have changed position and partially thrown off their masks. They are now endeavoring to mislead the people by impugning the was linked to the administration of the colony. It was the equivalent of the New Liberia Newspaper, a newspaper owned by the Government of Liberia and run by the Ministry of Information. The New Liberia, like the Liberia Herald has free access to all government information, including national security information. As a government news organ, The New Liberia does not provide to the public every information that it possesses. Its key role is to promote government, to make it look good to the people. Once, an editor of the New Liberia was dismissed for carrying a front page story about a magnificent compound that was constructed by a Liberian head of state in his home town. The picture of the compound was also displayed by the paper.

This story is about Samuel K. Doe, the Chairman of the Peoples’ Redemption Council (PRC)13 who had gone to his home town, Tuzon, for a weekend with an array of government officials, largely, members of the ruling military junta, and a team of journalists14. Among the team of

motives of the society, telling the people that the Constitution should not be adopted until the Society has actually transferred all its property in the Colony to the Commonwealth..” id at page 842-843. 13 When seventeen soldiers led by non-commissioned officers of the Armed Forces of Liberia, led by Master Sergeant Samuel Kanyon Doe seized power from the True Whig Party, they named their junta the People’s Redemption Council (PRC). During that time everything about change in Liberia was linked to the people. Both the Movement for Justice in Africa (MOJA) led by Dr. Togba Nah Tipoteh and the Progressive Alliance of Liberia (PAL) led by Gabriel Baccus Matthews ended their speeches , letters and other writings with “In the cause of the People the struggle continues.” The name of the junta was then meant to give the people hope that the soldiers had come as liberators to redeem the people from the repressive rule of the True Whig Party. The True Whig Party itself was formed in 1868 with the purpose of giving power to a majority of the settlers in Liberia then, the darker skinned settlers from the Americas and the recaptured slaves from the Congo Basin. Once they got power, they too, largely excluded the indigenous Liberians from participation in the governance of the country. This has been the Liberian story- the story of what Bill Berkeley of the Lawyers Committee for Human Rights (now Human Rights First) refers to a promise betrayed. The promise of a Liberia that was meant to be a free land for all without distinction has been betrayed from one generation of Liberian leaders to another, since Liberia’s independence in 1847.Since the PRC instead of keeping its promise to redeem the people, introduced a reign of terror, sending scores of politicians and intellectuals into exile, others have betrayed their promises. Taylor promised to remove Doe from power and install democratic government. When he was elected he installed bill boards all over Liberia carrying the slogan, “Above all else, the people” promise Liberians that their interest will be above his and any parochial interest. The record is clear that his interest and those of his family and cronies were far above the interest of the people. came as an interim leader of Liberia (Chairman of the Liberia National Transitional Government) an promised the Liberian people that his leadership would not run Liberia the way past leaders had led it. His slogan was “ no more business as usual”. The record shows that there was more “business as usual under his leadership then in the past. Then President came and said she was making a clean break with the past and that she was aware that Liberians voted for her to change Liberia for the better. She promised not to engage in the practices of bad governance as was in the past. Nepotism was one of the bad practices of the past. Today one of her sons is her senior advisor and at the same time head of the oil program of Liberia; another one is deputy governor of the Central Bank of Liberia and another one head of the National Security Agency. Nepotism prohibited by Liberian law. Failure to respect and uphold Liberian law is a behavior of the past. President Sirleaf has violated in many ways, tenants of good governance. This another promise betrayed.

14 The author was in Monrovia and remembers this story very well. The story was the main topic of discussion in all most every conversation on the day it was published. journalists was the late Tom Kamara15, then editor-in-chief of the New Liberia Newspaper. On return to Monrovia, the New Liberia carried a front-page headline, “Doe’s Weeked Visit to Tuzon” displaying the picture of what was at that time considered a huge and very magnificent mansion16. The members of the junta were furious on seeing the headline17. General J. Nicolas Podier, then Speaker of the PRC, the military junta, said the paper wanted to embarrass Chairman Doe. The editor-in-chief was immediately dismissed.

But what happened to Tom Kamara under the Doe regime was just the beginning of what was to come for other journalists and media institutions. For example, Kenneth Y. Best, in his book, Albert Porte: A lifetime Trying to Save Liberia has catalogued what happened to the Daily Observer and its staff in the 1980s18. Many times daily, staff members of the Observers, including Mr. Best himself, the venerable Liberian photo-journalist Sando Moore, amongst others, were arbitrarily arrested and detained19. Additionally, the offices of the Daily Observer were ransacked, looted and burned on a number of occasions. The footprint Newspaper and its Managing Editor Momolu V. Sirleaf and other journalists of that newspaper, also suffered under ’s Government. Other journalists, including Isaac Bantu, a BBC reporter, Klon Hinneh, Kwame Clement, amongst others were arbitrarily arrested, detained and maltreated under Doe20. Journalist Charles Gbeyon was the worst of Doe’s victims21. He was arrested, tortured and killed by Doe.

15 Tom Kamara died early this year. He was the founder and Managing Editor of the New Democrat Newspaper. He was known for being a fearless and brilliant journalist. For him there was no room for trade-offs when it came to the truth. When it came to the truth and the right of the people to know he maintained an uncompromising loyalty to the truth and the right of the people to know and it did not matter whether you were his friend, relative, or boss or professional colleague. It just did not matter who was connected to the story, Tom’s pen bled the truth without compromise. 16 Tuzon, the location of the head of state’s new building is in one of the remotest part of Liberia. At time the head of state’s new home was constructed all houses in Tuzon were thatch roofed. This modern structure was the first of its kind in that region. 17 The question that people were asking at that time was why the junta was not happy with such a development. The only reason one can think of is that the junta had come to power ostensibly because of the abuse of public office and corruption and had executed officials of government it felt was guilty of committed such offenses ; hence, it was contradictory that in a short time the head of the junta would build such a huge building in the midst of mass poverty and lack of basic services in the area such as school, clinic etc. This is just speculation. But the important thing is that the junta did not deny the truthfulness of the story carried by the New Liberia. 18 Best, Kenneth Y. Albert Porte: A lifetime Trying to Save Liberia , Observer Publishing Company, (2011) pp440- 448. 19 ibid 20 Some of these journalists, such as Clement and Bantu were friends of the author of this paper. They were all at the in the late seventies and the early eighties. 21 Gbeyon was a law school classmate of the author of this paper .Both had met just behind the Monrovia City Hall just a few days before Gbeyon’s demise. Under President Charles Taylor, the persecution that the press had suffered under Tubman, Tolbert and Doe continued. Journalist Hassan Bility22 was the worst case under Taylor. He was arrested, detained and charged with the crime of being an unlawful combatant-an offense not listed under the Penal Law of Liberia, but borrowed from President George W. Bush, who referred to the detainees at Guantanamo Bay as “unlawful combatants”. Several media institutions suffered under Taylor, just for trying to inform the people of Liberia. They included the Analyst Newspaper, the Star Radio and Radio VERITAS, amongst other23.

There have always been pro-government media institutions throughout Liberia’s history. It is such papers that have always had access to public information over others. The Daily Listener established in 1951 and the Liberian Star (1964) were both pro-government news organs24. The Daily Listener was owned by C. , a senior member of the True Whig Party25, The Star was owned by the Government of Liberia26 and the Liberian Age was the official organ of the True Whig Party.27 These papers had complete access to information on the government and its functionaries. In addition to these newspapers, there were magazines that were also pro- government. One of them was called The Palm and another The Outlook28. The Palm magazine was owned and edited by Mr. James Dennis, the son of C. Cecil Dennis, Sr. He was also the editor of the Daily Listener and a brother of C. Cecil Dennis Jr., the Minister of Foreign Affairs at the time. The Outlook magazine was owned and edited by Willie Givens, then working as press secretary to the President of William R. Tolbert29. Although, these pro-government newspapers and magazines had full access to genuine information on everything that was happening in government, they were very economical with the truth. Their role was, largely to promote the good image of the government and its functionaries and keep information on the weaknesses of government away from the people. These outlets of information did not carry dissenting

22 Hassan Bility was the editor-chief of the Analyst Newspaper. One of the reasons he was arrested and his paper shutdown was that he published a speech delivered by this author at a Mano River Civil Society Conference on peace held in Conakry in Guinea in March 2002. 23 The author was a lawyer for these institutions until he was himself arrested , detained, severely tortured on the direct orders of President Taylor for the speech that he delivered at a Mano River Union Civil Society Conference on peace, held in March 2002 in Conakry, Republic of Guinea. 24 Id at 297. 25 Ibid. C. Cecil Dennis held many positions in the True Whig Party Government, among them, provincial commissioner and Senator. The Lister was subsidized by the True Whig Party. The True Whig Party and the government were indistinguishable in terms of resources and decisions. The True Party came to power in 1869 and had controlled power for more than one hundred years of Liberia’s existence. 26 Ibid. 27 Id at 298. 28 The author of this paper was a student activist at the University of Liberia and read these magazines regularly to follow political developments at the time. 29 After the overthrow of President William R. Tolbert, Willie Givens worked for some years in the Executive Mansion with Samuel Kanyon Doe and was later, in the 1980s, appointed Ambassador of Liberia to the United Kingdom. views about government or critical analysis of government policies, programs, projects and actions.

The presentation of a rosy picture of government was accentuated by pro-government dailies and periodicals under President William V. S Tubman. For him disagreement meant opposition or enmity. Therefore, sources of information such as the ones named above did not even attempt to present a balanced view of developments in the country. Even many of those persons involved in telling half truths or hiding the truth from the people were unhappy themselves. A clear evidence of this impression is an editorial of the Liberian Age on August 31, 1971, a little over a month following the death of President William V. S. Tubman. The title of the editorial was “Never Again”. In this editorial by the official organ of the ruling True Whig Party, the paper said, “ Never again should we permit ourselves to lose sight of our ideals and live only for self; never again should men permit honest disagreement to be indistinguishable from questionable loyalty; never again should open discussions be muzzled for fear that genuine criticism may be mistaken for subversion; never again should lawyers be afraid to advocate the cause of clients notwithstanding the charge; University students must be made to engage in open debates; men must gather together and reason with one another. “ Reason is not the subversion but the salvation of freedom.”30 This editorial was re-printed by the Liberian Age31. The Liberian Age could not have had such an editorial while President Tubman was alive. In the preface to his book, The Love of Liberty32, Tuan Wreh33, a Liberian journalist who was persecuted34 by Tubman for his critical writings, as a journalist, made this point. Referring to his

30 Supra note 17 at 299

31 Ibid. 3232 Wreh, Tuan, The Love of Liberty: The Rule of President William V. S. Tubman in Liberia 1944-1971, G. Hurst & Company. London (1976) xi. 33 Tuan Wreh was a fearless journalist in the 1950s, during the rule of President William V. S. Tubman. He later became a lawyer and thought at the law school while this author was a law student.

34 As a corresponding editor of the Independent, a news organ of the opposition Independent True Whig Party (ITWP) he wrote an article with the following caption: “ Inside Politics: Why you should not vote for Tubman” He was held in contempt of the Legislature by the House of Representatives and sentenced to six months of imprisonment. At that time he was reporting on the Legislature. According to him Tubman used the legislature to punish him for his article against Tubman. ( see Love Liberty pp91-93 for the detail account). Wreh narrates the gruesome treatment he received in jail, “…I was escorted to the houses and individual rooms of army officers to collect their toilet pails…These I emptied in the lavatory of the Executive Mansion staff near the General Post Office. Before a curious crowd that morning , I was forced to put both my hands (with emphasis on the right hand) in the toilet pails to mash the excreta and stir the urine until a mixture was formed. I was then told to inhale the nasty scent and splatter the feces on my cheeks and forehead. I became the center of attraction on Ashmun Street, Randall Street, Gurley Street and Broad Street as they had me running to and fro on the streets with toilet pails in the midst of motor traffic…Inside the toilet room, I was spat upon, whipped with a horsetail leather, urinated upon and drowned from head to toe with a mixture of urine and excreta…” (ibid). Wreh was the third journalist to suffer under Tubman. The first was Albert Porte for criticizing the Bomi Hill iron ore concession agreement between an American and the Liberian Government as not containing much benefit for Liberia. He was book, which is very critical of Tubman’s rule, he said, “Neither this book nor any other could have been written about the shortcomings and abuses of power of the Late President Tubman, by a Liberian with residence in Liberia, during the despotic era of Tubmanism. Political and economic sanctions would swiftly have been imposed on such a deviant. It was only possible to wait and suppress the unpalatable truth until more propitious times. However, Tubman has finally taken his departure from the Liberian scene and the facts which were glossed over or swept under the carpet for nearly twenty-eight years can now be told in a seemingly new era of freedom.”Best says this kind of writing was made possible by President William R. Tolbert in one of his earlier statements after succeeding Tubman. According to him, “President Tolbert had himself made possible the revival of public debate.

In August 1971, barely three weeks following his succession to the presidency, he made a brief but historic statement during an address to teachers at the Zorzor Teachers Training Institute (ZTTI) in Lofa County. He said, ‘I would not like to lead a country where I do not know what the people like or dislike…It is through freedom of speech that a leader can effectively adjust his policies to suit his people, if he is sincere.” 35 The students of the University of Liberia clearly tested the new President‘s commitment to freedom of speech. The University Spokesman, the Official News organ of the University of Liberia Students Union (ULSU), became openly critical of the government of President Tolbert. One indication of the bravery of the students in criticizing the government was the motto of the University Spokesman. It was,” Even if bullets to our Breast, We Shall Speak the Truth.”36 Because in the late seventies the University Spokesman was the only magazine that was publishing the truth about government, it had a huge reading audience throughout Liberia and people use to fight to obtain copies. People in government who did not like some of the things that were happening in government gave information to the editors of the Spokesman for publication. Therefore, the information that the Spokesman printed were all true information. The information contained in the Spokesman was never challenged by government because they were true. The Spokesman even carried two anonymous columns that raised issues about the government, its functionaries in the three branches of government, multinational corporations and persons and institutions whose actions had impact on the effective governance of Liberia. One was Curious Zubah and the other was People Want To Know37. In one edition of the University Spokesman, Curious Zubah

held in contempt by the Legislature and sentenced for one month. The second journalist to suffer under Tubman was C. Frederick Taylor, a former British subject. He was a naturalized citizen and had supported Tubman to come to power. For his criticism of the Bomi Hill Iron Ore Concession Agreement as a sell out in his newspaper, the African Nationalist, Tubman asked the legislature to denaturalize him. He was denaturalized but no country could accept him. Tubman kept him jail for seventeen years and released in 1967.( id 88-89) 35 Best, p298 36 The author of this paper was a member of the editorial team from 1977 to 1979. 37 The author was the art editor of the paper and use to sketch the people in the People want to know column and Curious Zubah column. Therefore , he was one of the respondents that day. once questioned whether Judge Emma Shannon Walser had been grabbed by the True Whig Party Political Barb Wire. The magazine raised this issue because the judge was perceived as delaying the trial of a murder case involving two Lebanese, in 1978, who had been accused of choking to death, Edward Gberie, a student who was an employee of their store, for allegedly eating a candy from the store. As a result of this caption, the entire editorial staff of the Spokesman was cited by the Judge for contempt. She purged the editors of contempt after hearing their explanation in open court38.

The Revelation was another magazine that was published by students of the University of Liberia in the 1970s. All five of the editors of The Revelation were held in contempt when The Supreme Court considered it to be critical of its handling of a case involving the Steve Tolbert and Albert Porte39. They were fined $17, 500 and imprisoned for their failure to pay the fine. This fine was, perhaps the highest that has been imposed on anyone in the judicial history of Liberia. Interestingly, this was happening under Tolbert who opened the lid on free speech. Tolbert was now beginning to use the judiciary branch in the same manner as Tubman had used the Legislature. Interestingly, also, it was under Tolbert that the criminal law called criminal malevolence was passed by the Legislature and approved on April 18, 197840. Albert Porte unsuccessfully fought against the passage of this act by the National Legislature. This law makes it a criminal offense for anyone to write or say anything about any official of government in the three branches of government that is not true. In reaction to the passage of this law, Porte published a pamphlet entitled: CRIMINAL MALEVOLENCE: A NIGHTMARE.41 This law is still on the books today. But a law of this nature is inconsistent with the building of a democratic society. It is a gag law and needs to be repealed.

IV. Freedom of Information and the Liberian Law

38 In 2006, when this author was Solicitor General of Liberia he met Judge Emma Walser revealed himself to her as one the respondents to her citation for contempt in 1979. She had come from Switzerland to serve as the national orator for Liberia’s Independence Day. On that day he confessed to her that now that he was a lawyer he now understood what he and the others, then misunderstood as the court’s delay in the Edward Gberie case. He said to her they did not know that first there has to be an indictment in a murder case and then the case has to be docketed and that the defendant had right to file all kinds of pre-trial motions. Judge Emma Walser to the author, “well you are on the stage now. You see, now you understand the court process!” 39 Steve Tolbert was a brother of President Tolbert and his Minister of Finance. He was also the biggest Liberian businessman at the time. Albert Porte was pamphleteer who was critical of bad governance and human rights violations . 40 This was the latest of the effort by government to intimidate journalists and advocates from informing the public on the negative actions of government and its functionaries. The first was the sedition law of 1914 passed during the rule of President Daniel E. Howard. The Sedition was also strengthened by President Edwin J. Barclay in 1932, following the Fernardo Po crisis. He rose to power from the position of secretary of state when both President Charles D. B. King and his Vice President Allen Yancy resigned under pressure. 41 Albert Porte: A Lifetime of Trying to Save Liberia, p291. It is important to take a look at the Freedom of Information Act and other Liberian Laws in order to appreciate the full legal basis for the promotion of freedom of information in Liberia.

1 .The Freedom of Information Act

Against the history of government’s inhibition of the free flow of information and the freedom of expression in Liberia, over the years, the Liberian Legislature for the first time passed a law allowing for the freedom of information in Liberia. It is called the Freedom of Information Act. It was passed by the Legislature on September 16, 2010 and published on October 6, 2010. The Act provides for right of access to information held by public bodies and private entities that receive public benefits, perform public functions, and/ or provide public services, particularly, in respect of information relating to public resources, benefits, functions or services, except where limitations are placed on the needed information because of a compelling public interest.42 The law states that” public bodies hold information as agents of the public and custodians of the public good43.” The law further provides for “the right to request and receive information and the obligation of public bodies and officials to disseminate essential information that the public would generally want to know…”44Furthermore, the law prohibits holders of public information from denying its disclosure due to the lack of personal interest in information the information by the person seeking it. The law provides, “The right to information is independent of a personal interest in the information, and there is no need whatsoever for a person requesting information to provide a reason or justification for his or her request.” The law, however, provides exemptions from the disclosure of certain species of information. The exempted information include, information on national defense, security, international relations, ongoing criminal investigation, the identity of confidential source assisting with criminal investigation, trade secrets, personal information, and privileged communications, such as those protected in court proceedings45.The law further provides for exemption where the harm to be done to public interest by the disclosure of an information is greater than the benefit to be derived by the public from its disclosure46.

2. The Constitution of Liberia

42 See Freedom of Information Act section 1.4 (a and c). 43 ibid 44 Ibid

45 Id at chp. 4( 4.2, 4.3, 4.4, 4.5, and 4.6) 46 Id at 4.8.

The Constitution of Liberia is the foundation upon which the Freedom of information Act was passed by the National Legislature. The Constitution under its provision on the right to freedom of expression makes it a right to acquire knowledge and information and to make them available to the public or anyone who wants them. Article 15 of the Constitution of Liberia is the source of the Freedom of Information Act. It provides,

“ a) every person shall have the right to freedom of expression, being fully responsible for the abuse thereof. This right shall not be curtailed, restricted or enjoined by government, save during an emergency declared in accordance with the Constitution.

b) The right encompasses the right to hold opinions without interference and the right to knowledge. It includes freedom of speech and of the press, academic freedom to receive and impart knowledge and information and the right of Libraries to make such knowledge available.

a) It includes non-interference with the use of the mail, telephone and telegraph. It likewise includes the right to remain silent. b) In the pursuance of this right, there shall be no limitation on the public right to be informed about the government and its functionaries. c) Access to state owned media should not be denied because of any disagreement with or dislike of the ideas expressed. Denial of such access may be challenged in any court of competent jurisdiction. d) This freedom may be limited only be judicial action in proceedings grounded in defamation or invasion of the rights of privacy and the publicity or in the commercial aspect of expression in deception, false advertising and copyright infringement.”47

The Constitution of Liberia at Article 15(d) clearly provides that in the exercise of the right to freedom of expression, “…there shall be no limitation on the public right to be informed about the government and its functionaries.” The only exemption provided under the Constitution of Liberia for the right to acquire information and to inform others through speeches and writings is during the period of a national emergency declared in accordance with the Constitution48. Therefore, the Constitution provides very little room for refusal by institutions of government and their functionaries to give information to any person who wants information from a public source. There is no mention of national security under Article 15 of the Constitution of Liberia. However, the enabling statute, the Freedom of Information Act exempts public officials from the disclosure of certain kinds of information, including information on national defense, security, international relations, amongst others. The Act does not say what type of

47 Const. Lib. art.(15) 48 Id at. Art. 15(a) information on national defense, security and international relations are exempted from disclosure. This presents a potential problem for journalists and others interested in investigating issues of integrity involving those administering the affairs of public institutions dealing with national defense, security and international relations. Many years ago, four journalists of the News Newspaper were arrested and charged with the commission of espionage because the paper carried an article on how much money was being spent to repair a military helicopter belonging to the Armed Forces of Liberia49. Although the acts complained of by the government did not constitute any of the elements of the definition of espionage under Liberian Law50, these journalists were indicted and imprisoned. Therefore, without a clarity on the nature of defense, security and international relation information that should not

49 The author of this paper was leading the defense in that case. It was in 2001. At that time President Charles Taylor was being accused of fighting alongside the Sierra Leonean rebel group, the Revolutionary United Front (RUF) in Sierra Leone and with a Guinean rebel group along Guinea’s border with Liberia in Guegedou, a Guinean Town. Officially Liberia was not at war with any country. Hence, there was no enemy for anyone to supply national defense information to. Under local and international pressure, coupled with the fact that the defense lawyers were proceeding in a manner that would have caused Taylor’s Government to implicate itself in the conflict in Guinea or Sierra Leone, some confidents of Taylor influenced the defendants to issue and apology to government and be released. The journalists did that without consulting their lawyers and were released. The three lawyers representing the journalists, including this author addressed a press conference informing the public that the detained journalists acted without consulting with them and publicly withdrew further representation of the journalists.

50 Espionage under Liberia Law is as follows: § 11.8. Espionage.

1. Offense. A person has committed espionage, a first degree felony if, he purposely reveals national defense information to a foreign power with the purpose of injuring Liberia or of benefiting a foreign power in the event of military or diplomatic confrontation with Liberia.

2. Attempted espionage. Without limiting the applicability of the law of criminal attempt, any of the following acts is sufficient to constitute a substantial step toward commission of espionage there-under: obtaining, collecting, or publishing information directly related to the military establishment or entering a restricted area to obtain such information.

3. Definitions. In this section:

(a) “National defense information” means information regarding  (i) The military capability of Liberia or of a nation at war with a nation with which Liberia is at war;  (ii) Military or defense planning or operations;  (iii) Military communication, intelligence, research or development;  (iv) Military or diplomatic codes;  (v) Any other information which is likely to be diplomatically or militarily useful to the enemy;

(b) “Foreign power” includes any foreign faction, party, military or naval force, whether or not the government thereof is recognized by Liberia and any international organization. be disclosed, the publication of information coming from these public sources, but not officially disclosed could create a problem for the person making such disclosure. There could be a question asked about the source of the information if it is considered to be a type of information that should not be revealed to the public.

3. The Defense Law

Interestingly the new Defense Law provides for respect of human rights by members of the military.51 The right to receive and give information are rights protected by the Constitution of Liberia, as has already been stated. The question then is what information can a member of the Armed Forces of Liberia give without getting into trouble or what information can a journalist, for example give to the public without getting into trouble, like the four Liberian journalists of the News Newspaper experienced in 2001 in Monrovia, under the regime of President Charles Taylor. While the National Defense law has no provision for secrecy of information or what constitutes national defense information, the Penal law of Liberia defines national defense information as information on the military capability of Liberia, defense planning or operations, military communications, intelligence, research or development, military or diplomatic codes and any other information that may be militarily of diplomatically be useful to the enemy of Liberia.52 Under the definition of defense information it is not clear what is considered military capability, for the purpose of being exempted from disclosure to the public. For example, should the numerical strength of the Armed Forces of Liberia be considered protected or exempted national defense information? Should the type of military equipment that the military has be considered a national defense information that the public should not be informed about? A clarity is required here to avoid unnecessary non-disclosure or to guide seekers of information, such as researchers and journalists on what defense information they can request from the military or publish. Without such clarity, journalists, particularly could find themselves in trouble with government as was the case with the journalists of the News Newspaper in the espionage case mentioned hereinabove. Such abuse can be avoided by a clearer definition of what is considered military capability.

4. The Penal Law of Liberia

51 Section 8.5: Respect for Human Rights All members of the AFL shall respect the human rights of all persons at all times. No member of the AFL shall engage in any form of torture, mistreatment, abuse or degrading behavior to other persons at all times.

52 Penal Law of Liberia, sec. 11. 8 (3) There are certain provisions of the Penal Law that prevent public servants from non-disclosure of information to the public or any person.

i. Under the Penal Law of Liberia it is unlawful for a public servant to disclose confidential information53.It provides,

“ A person has committed a first degree misdemeanor if, in knowing violation of a duty imposed on him as a public servant, he discloses or makes known in any manner any confidential information which he has acquired as a public servant. “Confidential information” means information made available to the government under governmental assurance or confidence54

.There is no reported case on the violation of this provision of the Penal Law of Liberia. However, the person to be affected by a disclosure of information under this law is not the person who obtains such information and reveals it to the public, but the public servant who discloses information of the kind referred to by the law. Under this law, a declaration by a public servant to a seeker of information that the information sought is confidential or secret should be enough to excuse such public servant from the duty to disclose the information sought. However, under the Freedom of Information Act, “ A public authority or private entity may not refuse access to or disclosure of information simply by claiming it to be ‘confidential or secret’.”55In order for any information to be exempted from disclosure, it must fall under one of the exemptions stated in the act, or that disclosure will cause or is likely to cause substantial harm or injury to the interest protected by any of the exemptions under the Freedom of Information Act or the harm or injury to be caused by the disclosure outweighs the public interest to be satisfied by the disclosure of the information sought.56

ii. The second provision of the Penal Law that prevents a public servant from disclosure of information is for the protection of the country during the period of war with another nation. The law provides,

“A person has committed a third degree felony if, in reckless disregard of potential injury to the national security of Liberia, he

(a) Knowingly reveals national defense information to anyone not authorized to receive it; (b) Violates a known duty, to which he is subject as a public servant, as to custody, care or

53 See Penal Law of Liberia § 12.71. Unlawful disclosure of confidential information.

54 Ibid. 55 Freedom of Information Act sec. 4.8 (2010) 56 Id at a, b, and c. (It should be noted that the maximum period for non-disclosure of information is 15 years. See sec. 4.9) disposition of national defense information or as to reporting an unlawful removal, delivery, loss, destruction, or compromise of the security of such information; or (c) Knowingly having possession of a document or thing containing national defense information, fails to deliver it on demand to a public servant to Liberia entitled to receive it.

“National defense information” has the meaning prescribed in Section 11.8.57”

5. The National Security and Intelligence Act, 2011

The National Security and Intelligence Act of Liberia provides for the protection of the secrecy of certain kinds of information. The law provides,

“a) Officers and employees of the agencies provided for in this Act must protect classified information, and will sign a secrecy agreement as a condition of employment. The obligation to protect these secrets does not cease when the officer or employee is no longer employed with the agencies. The Directors will issue regulations regarding the measures for protecting these secrets, as well as the responsibilities of officers and employees for their protection.

b) It shall be a violation of the law, subjecting the offender to a fine of not less than ten thousand United States Dollars, or the Liberian Dollar equivalent or up to seven years imprisonment or both, to disclose classified information to any individual or not authorized to receive it ; and c) In furtherance of the authority and responsibility of the Director of the NSA to protect intelligence sources and methods and other classified information, the NSA shall be exempt from the provision of any laws which requires the public disclosure of the organization, operational activities, names, official titles, salaries, budget or numbers of personnel employed by the NSA. In addition, this provision does not exempt them from legally mandated accountings with the Government of Liberia. “58

57 The section defines national defense information as follows: “National defense information means information regarding  (i) The military capability of Liberia or of a nation at war with a nation with which Liberia is at war;  (ii) Military or defense planning or operations;  (iii) Military communication, intelligence, research or development;  (iv) Military or diplomatic codes;  (v) Any other information which is likely to be diplomatically or militarily useful to the enemy”.

58 National Security and Intelligence of Act, 2011 sec. 7: Secrecy. This law was enacted by the Legislature a year after the enactment of the Freedom of Information Act. However, it makes no reference to the Freedom of Information Act. The question then is whether section 4.9 of the Freedom of Information Act which limits the period of non-disclosure of exempted information to 15 years is applicable to the National Security Agency and its officers. It is the view of the author of this paper that this provision is applicable, since it is not expressly excluded by any section of the National Security and Intelligence Act. Given the past record of the security and intelligence establishment in Liberia in the mal- treatment of opponents of the Government of Liberia, it is important that there be an obligation for disclosure at some point on the part of these organizations.59

V. Freedom of Information and International Law The Freedom of Information Act is consistent with the provisions of international law that are applicable in Liberia. Under International law, every person has a right to freedom of expression, which includes the right to receive and give information. The Universal Declaration of Human Rights (UDHR) which is the foundation of modern human rights law, provides, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”60 Liberia is one of the original signatories to the UDHR. The Constitution of Liberia at the time of its independence in 1847 provided similar right for the people of Liberia. The only minor difference between the 1847 Constitution of Liberia and the UDHR is the right “to seek and receive information”. 61Although the 1847 Constitution of Liberia guaranteed the right of every citizen to free expression, it did not expressly provide for the right to seek and receive information. The 1986 Constitution expanded the right to freedom of expression to include “academic freedom to receive and impart knowledge and information and the right of libraries to make such knowledge available.”62 In addition to the UDHR, the International Covenant on Civil and Political Rights (ICCPR), to which Liberia is a state party provides,

59 Many political actors were arrested in the past and taken to the National Security Agency (NSA) without disclosing to them whether they had committed any act against the security of the state. This author was arrested in May 2002 at the Roberts International Airfield while he was traveling to Sierra Leone as an election observer for the Carter Center and taken to the NSA without informing him on what crime or security he had committed . The Late Tom Kamara, the celebrated Liberian journalist was taken to the NSA in the 1980s without telling him what wrong he committed. He survived by escaping from detention. There are many former student leaders, pro- democracy activists who went through similar ordeals rules of President Samuel Doe and Charles Taylor. 60 Universal Declaration of Human Rights, sec19 (Dec. 10, 1948). 61 See Const. Lib. sec 15 (1847) 62 Const. Lib. art. 15b ( 1986) “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.”63

VI .Freedom of Information and National Security

Freedom of information and national security are two very important rights and responsibilities that must be recognized and upheld by the individuals, groups and the government in any nation. The right of the people to be informed and the duty of the government and its functionaries to inform the people about the process of governance are as important as the right of the people to be protected, and kept safe and secured at all times. But there has to be a balance between the right to know and national security to be determined by the government and the people. How this is done is a matter always left to the determination of the people through their lawmakers. As stated earlier, the Freedom of Information Act recognizes that while the freedom to have access to information is a fundamental right and the duty of disclosure of information an important duty of a public servant, it provides for certain kinds of information to be exempted, in the interest of the state and its people. Therefore, information on national defense, national security and information on Liberia’s international relations are exempted from disclosure for a period of 15 years. But, what has been the situation in Liberia? Since the passage of the Freedom of information Act two years, ago, there have been some failures to disclose information by some public servants to journalists64. However, none has given the protection of national security as a reason for non-disclosure of information65. The publishers and editors of major Liberian newspapers such as Kenneth Best Publisher of Daily Observer, Stanley Seakor, Publisher of the Analyst Newspaper, Philipbert Brown, Publisher of the National Chronicle, Philip Wesseh Managing Editor of the Inquirer Newspaper and Jerome Dallieh66, Managing Editor of the News Newspaper, Carlton Boah, Publisher of the In Profile Daily , Othello Garblah, Managing Editor of the New Dawn, Mohamed Komara, Managing Editor of the Public Agenda, Mohammed M. Kenneh, Sr. Publisher/Managing Editor of the Heritage have all said that their papers have not experienced any difficulty in obtaining information from government sources , since the passage of the

63 ICCPR art. 19(2). ( March 23, 1976) 64 In an interview conducted by this author with Mr. Peter Quaquay, President of the Press Union of Liberia (PUL) he said several newspapers and civil society organizations have been denied information requested from public institutions. 65This author interviewed some editors and publishers of newspapers in Monrovia from September 10, 2012 to September 21, 2012. 66 In September 2012 a reporter of the News Newspaper made requests to the Liberia Electricity Corporation (LEC) and but the thirty day period allowed for response had not expired before this paper was written. Therefore, it cannot qualify as a case of non-disclosure. Freedom of Information Act67. Others such as the Concord Times68 said that although they have not been expressly denied information, their experience has been one of being told to go and come back on a number of occasions, and still not being able to obtain the information sought. This type of behavior is an abuse of power and tantamount to a refusal to disclose information.

Two leading papers have said that they have been refused information that they asked for. Abdulla Dulleh, Editor-in-chief of the New Democrat and Alphonso Toweh, Managing Editor of the New Republic have said that they have not received information that they formally requested for from Government sources. The New Democrat said it asked for information from the Monrovia City Corporation, the Liberia Telecommunication Authority, and the Liberia Maritime Authority but did not get any answer from any of these public entities. The New Republic wrote a letter to the Ministry of Finance formally requesting for a complete listing of Liberian Embassies, a financial breakdown of all payments made to these embassies from 2006 to 2011, bank account numbers that such payments were transferred to and a list of embassy staff members. In its letter, the paper specifically stated that the request for information was based on the Freedom of Information Act69. To this letter the Ministry of Finance responded by asking the paper to refer its request to the Ministry of Foreign Affairs for “the most accurate and updated information”.70On March 26, 2012, the New Republic wrote another letter to the Minister of Foreign Affairs seeking the same information that it requested from the Ministry of Finance and clearly stating that the information was being sought in keeping with the Freedom of Information Act71. The paper said that the letter had not previously been responded to by the Ministry of Foreign Affairs.

Some civil society organizations and individuals involved in monitoring respect for human rights, rule of law and other tenets of good governance in Liberia, have not been successful in their request for vital information from various public entities. Lamii Kpanguoi72 an attorney and a campaigner for human rights, particularly press freedom and good governance showed the author two letters that he wrote to the Monrovia City Corporation requesting for information on the operations of the city corporation and the Charter of the Monrovia City Corporation. According to him, his request was rejected on ground that the documents

67 This author asked each of these media leaders the question, “ Have your paper experienced any difficulty in obtaining information from government offices since the passage of the Freedom of information Act?”Since their answers were that they had not experienced any difficulty in obtaining information, this author could not have asked the next question which was whether any reason was given for the failure to disclose the information needed. 68 The author interviewed J. Lyndon Ponnie, Editor of the Concord Times. 69 The letter from the New Republic was signed by Alphonso Toweh, the Managing Editor of the Paper. 70 The reply to the New Republic’s letter was signed by the Administrative e Assistant to the Deputy Minister of Finance for Expenditure. 71 The letter was addressed to Hon. , Minister of Foreign Affairs. 72 The author interviewed Mr. Kparnguoi on Friday September 21, 2012. requested were not for public consumption. Mr. Emmanuel Gounquoi, informed the author that, on behalf of his organization, National Center for Excellence and Creativity, he requested from the Forestry Development Authority (FDA)

\ information on the number of logging companies in the country, their locations and whether they are adhering to or observing the community forestry law of Liberia73. This author also saw a letter written to the Chairperson of the Ant-Corruption committee, requesting for information on the progress made by the various officials of government in the implementation of the one hundred and fifty day delivery and information on the number of government officials that had complied with the Executive order. These responses are clear indications that public officials are not cooperating with various media institutions and the press, in providing information for public consumption. So, how will the people be informed about their government and its functionaries?

One interesting case of a failure to disclose information is one that was experienced by the Press Union of Liberia. During the General and Presidential Elections of 2011, some media institutions were considered by government to be broadcasting hate messages to the public. The media institutions were shutdown through a court order based on an injunction filed by state prosecutors in Criminal Court A, . The court found the institutions guilty of broadcasting hate messages but ordered the media institutions reopened. According to the President of the Press Union, the court refused to give them a copy of the records of the proceedings, even after making a written request to court and citing the Freedom of Information Act as a reliance74.

The use of national security as a justification for the non-disclosure of information has not arisen as an issue in Liberia since the passage of the Freedom of Information Act. No institution of the Government of Liberia is free to just deny access to information on a mere declaration that it is protecting national security. The law provides for clear boundaries for that justification to be acceptable. It is not sufficient to merely make that declaration. The use of national security as justification for the non-disclosure of information has not arisen as an issue in Liberia since the passage of the Freedom of Information Act. In other words, no institution of the Government of Liberia has used the protection of national security as a justification for failure to disclose information. It is important to note that even where such a justification is used, it is not sufficient to make a mere declaration of national security as reason for non-disclosure. The law provides clear boundaries within which such justification is acceptable. Therefore, it is not sufficient to merely make such declaration. Chapter four of the Freedom of Information Act75

73 The author interviewed Mr. Emmanuel Gonquoi on September 24, 2012. 74 This information was given to the author by Peter Quaqua, President of the Press Union of Liberia. Interestingly, this author verbally asked the clerk of court for the record of this case and got it. Court records are public records. 75 Id at chap. 4. contains all of the exemptions and the reasonable boundaries within which a claim of exemption can successfully be made.

VII. Oversight and Judicial Review

The Freedom of Information Law provides for oversight by an independent information commissioner appointed by the President of Liberia. The functions of the Independent Information Commissioner are to oversee the implementation of the Freedom of Information Law throughout Liberia and to resolve disputes between seekers of information and custodians of information. The detail functions of the Independent Information Commissioner are as follows: a) To receive, hear and decide all complaints as well as mediate disputes arising under this Act. b) To compel witnesses and evidence for the purpose of deciding appeal or otherwise determining compliance with this Act. c) To review information held by public bodies and covered private entities and, in connection therewith, including procedures for the internal reviews provided in Section Chapter (6) of this Act as well as the fees charged by public bodies and entities for reproduction of requested information. d) To issue cease and desist orders and other recommendations to any or all of such public bodies and relevant private entities relative to implementation and compliance with this law. e) To investigate, monitor, and promote compliance with this Act, including collecting statistics associated therewith. f) To order any public body or private body concerned to release requested information should it find that the information or record is not one that is exempted by this Act. g) To train and build the capacity of personnel of public bodies and private entities concerned to ensure (1) proper interpretation and application of this Act and (2) that the handling of information requests is consistent across all government bodies. h) To consult with and provide support to Information Officers and other relevant officials of public bodies and private entities covered under this Act.

I) To develop access guidelines and procedures.

J) To develop public awareness strategies and information dissemination campaigns to educate the public about their rights under the Act, and promoting necessary compliance with this Act. k) To evaluate existing laws and regulations relating to access to information, and to make recommendations for reform and harmonization of the laws76

The law also provides for a judicial review of decisions of the Independent Information Commissioner by a circuit court and contains procedures and remedies for dealing with violations of the law. It provides first for an internal review77 by the agency of government or entity in possession the information requested; second, a review of a negative decision by the Independent Information Commissioner;78 and third a review of the decision of the Independent Information Commissioner by a circuit court79.

76 See Freedom of Information Law at chap. 5.

77 Section 6.1 Right of Appeal: In all events where a request for information is denied and or not responded to, or an action of a public body or private entity in respect of the transfer or any handling of such request if is alleged not to be in keeping with this law, the applicant shall have a right to appeal the decision or action of the public authority or private entity concerned.

Section 6.2 Internal Review: An applicant who receives a negative decision or action regarding a request for information or who believes that the transfer of his or her request or the fees charged by the public body or private entity are inconsistent with this law shall in all cases be entitled to an internal review of the action or decision. Such internal review shall be conducted by a senior official or an internal information request review body to be established by each authority or agency. An internal review shall be concluded within thirty (30) working days as of its filing by the applicant. The outcome of each internal review shall be in writing and copies shared with the applicant.

78 Section 6.3 Complaints to the Independent Information Commissioner: Where (i) an applicant receives a negative decision or action and (ii) is not satisfied with the outcome of an internal review conducted pursuant to Section 6.2, such applicant shall have a right to appeal the decision of the authority or entity directly to the Independent Information Commissioner. The Independent Information Commissioner shall be the final administrative arbiter of all complaints concerning denial of information requests and any other alleged infringement of the right of access established under this Act. A final decision of the Independent information officer may include any of the civil sanctions provided for in Chapter 7 of this Act.

79 Section 6.5 Right of Judicial Review: Any person who is not successful in an internal review and in respect of an appeal taken from the internal review to the Independent Information Commissioner shall have a right to a judicial review. An appeal from the decision of the VIII. The Way Forward

The Freedom of Information Act is the first enabling law created by the Legislature for the enjoyment of the right to free expression which the Constitution provides under article fifteen thereof. The law makes it mandatory for information on government and those who do business with government to be made available voluntarily or when requested. In this respect the object of the law is to create an informed citizenry for effective interaction with the government for the attainment of the common good. However, those who require access to information must be aware that there will always be some degree of resistance by some holders of information. Accordingly, those who seek information must be tactful and respectful in their interaction with holders of information. In no case should information seekers, by any degree, give the impression that the decision by a public officeholder to provide information is discretionary.

The law in fact makes it a mandatory duty of a public office-holder to give information, the disclosure of which is not exempted by law. Therefore, if an officeholder in the Liberian Government deliberately refuses to provide information requested, the aid of the Court should be sought. Under Liberian law, a person who refuses to perform a statutory duty can be compelled to do so by a writ of mandamus80. So even if the Freedom of Information Law had not provided for judicial review, or for the appointment of an Independent Information Commissioner, a writ of mandamus would have still been available for compelling recalcitrant public officials to obey the law. Therefore, the first way forward is to create massive awareness within government circle about the duty to provide information to the public is not discretionary. .Public officials at the highest level of government should be made aware that the people have a right to know about their government and its functionaries. It should be made clear to information holders that they have a compelling duty to disclose any information that is not exempted by the Freedom of Information Law. Holders of information should be made aware that holders of information can be legally, compelled to disclose any information over which they have control, unless such information is exempted by law.

The second way forward is to repeal those penal laws that inhibit freedom of expression. They are Sedition, Criminal Libel against the President and Criminal Malevolence. The collective efforts of government, civil society and the international partners of Liberia will not be successful if Liberia does not repeal these gag laws. The existence of gag laws is contradictory to the building of a free society.

Information Commissioner shall lie before the Civil Law Court in Montserrado County and in the Circuit Court of the county where the public body or private entity is located.

80 ILCLR tit. I subsec 16.21 The third way forward is to use the avenues provided by the Freedom of Information Law, beginning with use of the office of the Information Commissioner and ending with the court, as stated in detail hereinabove, in section VII of this paper. Now that an Information Commissioner has been appointed in Liberia, those who seek information should make maximum use of his office for freedom of access to information.

Conclusion

There is a directly positive relationship between freedom of information and national security. The story told at the beginning of this paper is a clear indication that when government does not provide information to its citizens regularly and in a timely manner, others will fill such gap with information that may not be true, but that could undermine national security. Frequent and timely information to the people have the tendency to promote public trust and confidence in government. On the other hand, if most information about government policies, plans, programs and activities are kept secret, the people will tend to be less trustful of government and become suspicious of its actions. Perhaps, if the Liberian Government had been characterized by the provision of information to the people in a timely manner, there would not have been a military coup, followed by fourteen years of violent civil conflict. The lesson that Liberian public officials must learn here is that the more information that government discloses to its people, the more secured a the nation becomes and conversely, the more government makes information secret, the more insecure a nation becomes. Freedom of information, therefore, strengthens national security.