The Model Law on Access to Information for Africa and other regional instruments: Soft law and human rights in Africa Edited by Ololade Shyllon 2018 The Model Law on Access to Information for Africa and other regional instruments: Soft law and human rights in Africa Published by: Pretoria University Law Press (PULP) The Pretoria University Law Press (PULP) is a publisher at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa. This book was peer reviewed prior to publication. For more information on PULP, see www.pulp.up.ac.za Printed and bound by: Minit Print, Hatfield, Pretoria To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: +27 12 420 4948 Fax: +27 86 610 6668 [email protected] www.pulp.up.ac.za Cover: DN Ikpo, Centre for Human Rights, University of Pretoria Painting: Pieter Cronje ISBN: 978-1-920538-87-3 © 2018 TABLE OF CONTENTS Acknowledgments v Preface vi Contributors viii Abbreviations and acronyms xi PART I: THE MODEL LAW AND ITS INFLUENCE ON ACCESS TO INFORMATION IN AFRICA Introduction 3 1 Ololade Shyllon The impact of the Model Law on Access to 2 Information for Africa 14 Fola Adeleke Implementing a Model Law on Access to 3 Information in Africa: Lessons from the Americas 48 Marianna Belalba and Alan Sears The implementation of the constitutional right of 4 access to information in Africa: Opportunities and challenges 71 Ololade Shyllon PART II: COUNTRY STUDIES The Model Law on Access to Information for Africa 5 and the struggle for the review and passage of the Ghanaian Right to Information Bill of 2013 99 Ugonna Ukaigwe The impact of the Model Law on Access to 6 Information for Africa on Kenya’s Access to Information framework 114 Anne Nderi The Sudanese Access to Information Act 2015: 7 A step forward? 127 Ali Abdelrahman Ali Compliance through decoration: Access to 8 information in Zimbabwe 143 Nhlanhla Ngwenya iii PART III: INFLUENCE OF SOFT LAW WITHIN THE AFRICAN HUMAN RIGHTS SYSTEM Soft law and legitimacy in the African Union: 09 The case of the Pretoria Principles on Ending Mass Atrocities Pursuant to Article 4(h) of the AU Constitutive Act 165 Busingye Kabumba The incorporation of the thematic resolutions 10 of the African Commission into the domestic laws of African countries 190 Japhet Biegon General Comment of the African Commission 11 of the African Commission on Human and Peoples’ Rights: A source of norms and standard setting on sexual and reproductive health and rights 216 Ebenezer Durojaye The African Union Model Law on Internally 12 Displaced Persons: A critique 234 Romola Adeola Selected bibliography 250 iv ACKNOWLEDGMENTS This book would not have been possible without the financial support provided by the Royal Norwegian Government, through its Embassy in Pretoria, to the Centre for Human Rights to host the conference on Soft Law and Human Rights in December 2015. The conference provided a robust platform for presenters and participants to discuss, analyse and contribute to the body of knowledge on the impact of the Model Law on Access to Information for Africa and other soft law human rights instruments in Africa. I am sincerely grateful to the contributors for the rigour with which they approached the development of their chapters, and to the peer reviewers for their insightful comments and recommendations. At the Centre for Human Rights, special thanks go to Professor Frans Viljoen for his persistent encouragement, Isabeau de Meyer whose language editing made this book a better read, Bonolo Makgale for editorial assistance and Lizette Hermann for the layout and typesetting. I must also acknowledge Pieter Cronje whose original painting is the cover page of this book, and David Ikpo for adapting the painting for this purpose. Any opinion expressed in this book is solely that of the authors and is not necessarily that of the institutions they represent. This book aims to inform ongoing scholarly debates about the value and impact of soft law standards. Ololade Shyllon Pretoria, South Africa November 2018 v PREFACE Access to information, like many other rights, is a right in and of itself as well as an enabling right – a right that is necessary for the realisation of other human rights. Article 9 of the African Charter on Human and Peoples’ Rights (African Charter) guarantees the right of every individual ‘to receive information’. This provision, although initially exclusively regarded as providing for the right to freedom of expression, has now been interpreted as the foundation of the right of access to information in the African human rights system. The Declaration of Principles on Freedom of Expression in Africa adopted by the African Commission on Human and Peoples’ Rights (African Commission) in 2002 to further elaborate on the right to freedom of expression includes a principle that sets out core elements of the right of access to information. The Declaration, together with the expansion of the mandate of the Special Rapporteur on Freedom of Expression (Special Rapporteur) to include access to Information in 2007, further cemented the recognition of access to information as a distinct right. Despite these significant efforts by the African Commission to strengthen the normative and monitoring framework, there was no corresponding progress in the promotion and protection of access to information in Africa. In numerous state parties only a handful of access to information laws remained and several Bills were pending at various stages of the legislative process. The majority of these laws and Bills did not conform to regional and international standards. This state of affairs was in sharp contrast to the prevailing atmosphere post the third wave of democratisation in Africa, when state parties had individually and collectively committed to good governance, respect for the rule of law, and adherence to democratic ideals. The renewed emphasis by states on openness, transparency and accountability, all of which lie at the heart of the right of access to information, was in essence not translating into the adoption and implementation of laws and policies in furtherance of this right. The role of legal frameworks on access to information in the realisation of socio-economic rights, whether as a tool for fighting corruption or in preventing the mismanagement of public funds, also seemingly was not a priority for addressing Africa’s dire socio- economic situation. Rather, what prevailed was a culture of secrecy which had been introduced by colonial powers and further strengthened by post-colonial governments as a means of exerting power and control over citizens. Added to this was the preoccupation of states with the issue of national security and the misconception that access to information was inimical to national security. There was also the widespread perception that access to information is a right exclusively for journalists and that enacting laws giving effect to this right would give media practitioners the freedom to disseminate unfavourable and even outright falsehoods about political figures, especially those in power. vi The work of access to information advocates thus was cut out for them. It was essential to show governments that they hold information ‘not for themselves but as custodians of the public good’; that proactive disclosure of information is not a privilege but an obligation owed by elected representatives to the people; and that the creation and proper management of information not only was beneficial for the citizenry, but also imperative for the development and effective implementation of laws and policies. It was with this in mind that the African Commission authorised the Special Rapporteur to develop a Model Law on Access to Information for Africa (Model Law) in November 2010, and adopted it in February 2013. The adoption of the Model Law was a landmark event in the access to information trajectory on the African continent. In many ways it was a first. It was the first time the African Commission had adopted a model law on any subject matter. It was also the first time that the African Commission had engaged in such extensive public consultations with high-level stakeholders prior to the adoption of a soft law instrument. Finally, it was the first time that the African Commission had launched an intensive advocacy campaign to create awareness and build capacity for the implementation of a soft law document that involved high-level meetings with the African Union Commission, regional economic communities and policy makers in state parties. And so, there are many lessons to be learnt and questions to be asked about these ‘firsts’ of the Model Law in relation to other soft law instruments. Are there specific human rights issues that are best addressed through the development of a model law? Is multi-stakeholder participation in the development of a soft law instrument a necessary condition for its legitimacy and, by extension, a prerequisite for state compliance? Should a treaty body actively engage in advocacy efforts in support of a soft law it has adopted to supplement existing hard law? This book answers these questions and many more on soft law and human rights within the African human rights system. Adv Pansy Tlakula Chairperson, Information Regulator (South Africa) Former Special Rapporteur on Freedom of Expression and Access to Information in Africa of the African Commission on Human and Peoples’ Rights (2005-2017) vii CONTRIBUTORS Fola Adeleke is a South African trained lawyer whose work focuses on international economic law and human rights, corporate transparency, open government and accountability within the extractive industry.