Communicatio South African Journal for Communication Theory and Research

ISSN: 0250-0167 (Print) 1753-5379 (Online) Journal homepage: http://www.tandfonline.com/loi/rcsa20

Access to information law and the stalled ‘winds of change’ in zambia

Sam Phiri

To cite this article: Sam Phiri (2016) Access to information law and the stalled ‘winds of change’ in zambia, Communicatio, 42:1, 35-55

To link to this article: http://dx.doi.org/10.1080/02500167.2016.1152991

Published online: 17 Mar 2016.

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Download by: [Sam Phiri] Date: 17 March 2016, At: 14:38 ACCESS TO INFORMATION LAW AND THE STALLED ‘WINDS OF CHANGE’ IN ZAMBIA

Sam Phiri Department of Mass Communication University of Zambia, Lusaka, Zambia [email protected]

Abstract Zambia, like a few other African countries, has been grappling with the adoption of the Access to Information (ATI) law over the past 25 years. This article argues that the Zambian approach towards easing access to public information has been faulty, because it is narrowly focused and this has resulted in the process stalling. The argument is made here, that the ATI law is part of a global social movement towards greater transparency. Furthermore, the article focuses on Zambia’s approach to the law (whose push is dominated by executive control)

Downloaded by [Sam Phiri] at 14:38 17 March 2016 and how that approach has impacted on good governance. The article also discusses how some countries have dealt with similar laws, before concluding that unless Zambia’s move towards this law is broadened, whatever may be enacted in the future could be faulty.

Keywords: access; Africa; civil society; communication; democracy; globalisation; information; media; movement; Zambia

university of south africa

Communicatio DOI: 10.1080/02500167.2016.1152991 Volume 42 | Number 1 | 2016 Print ISSN 0250-0167 | Online 1753-5379 pp. 35–55 © Unisa Press

35 Sam Phiri Access to Information law and the stalled ‘winds of change’ in Zambia

INTRODUCTION In the late 1980s, when the wheels of worldwide history had turned and politically peaked, the Zambian government, like many others at that time, did not fully comprehend the forces at play. Its response was tempered with the hope that governance institutions could preserve the then one-party political dominance by consciously redirecting the global socio-political forces at play. Consequently, in responding to the rapid changes evidenced by the events taking place in Eastern Europe and the Soviet Union, Zambia designed a narrowed and tapered response strategy that was mainly managed by the research wing of the then ruling United National Independence Party (UNIP). The overall aim then as (perhaps) now, was the preservation of, or limited modifications to, the status quo. This article argues that the mistakes of 25 years ago can, realistically, be visited upon Zambia in its current search for greater access to the information held by government and other public utilities. This kind of information is required by the people in order to properly exercise and defend their rights, while holding those with political and economic power to account. The danger is that the mistakes of a generation ago will be repeated if current approaches to the Access to Information law (ATI) persist – the law’s narrow focus may be the reason why any related progress has stalled.

BACKGROUND TO THE ZAMBIAN APPROACH In Zambia, ATI is viewed as the remit and ultimate concern of the Ministry of Information and Broadcasting Services (MIBS). For instance, over the past 16 or so years, this has been the primary government agency tasked with leading the country’s movement towards the ATI law. Conversely, though, at the policy level Zambia has seemingly built expansive consensus about the need for this law. Roughly all shades of politicians ostensibly agree that the law is a prerequisite to a democratic Downloaded by [Sam Phiri] at 14:38 17 March 2016 dispensation. Questions arise, however, when discussing its structures, function, degree, scope, ease, convenience, efficacy and utility. These difficulties may be caused by, or be the result of, intense debates which over the years have gently (and sometimes stridently) encircled this law, both locally and internationally. Ultimately, in Zambia the impellent force within government for the ATI law has rightly (or wrongly) been located in the MIBS. Thus Zambians have come to view the ATI as mainly the concern of the information and communication industries and branches of society. That is why even within parliament, debates on ATI occur within the Parliamentary Committee on Information and Broadcasting Services. Furthermore, this ‘location’ is dramatised by the fact that the fight for greater access to public information in Zambia has been led by media advocacy groups such as the Media Institute of Southern Africa (MISA) and its associates, the Zambia

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Union of Journalists (ZUJ) and the Press Association of Zambia (PAZA). So far, no conceivable broad-based civil society movement has evolved to fight for this law. That lack is, perhaps, indicative of the dominant paradigm sites upon which Zambia’s moves towards the ATI are built. Our exploration will illustrate that this should not be the case.

CONTEXTUAL FOUNDATIONS The intended ATI law should not be taken out of context and isolated as a Zambian event – it is part of a global historical movement that is situated within the political dimension of the universalisation of democratic systems. As is well known, this universalisation does not respect territorial borders, political parties, individuals or political systems. In that context, and for our purposes, this universalisation of the democratic ideal, and all that goes with it, is a form of globalisation which is not limited to highly aggressive economic forces alone, but should be viewed as a process leading to the internationalisation/Westernisation – or, indeed, the universalisation – of the basic principles underpinning the ideology of liberalism. All these are patently ‘undemocratic’ global initiatives, although within them they facetiously include the people’s right to access public information, as well as some private information which is in the interest of citizens. The universalisation of such principles as those embedded in the ATI laws, is what Robertson (1992, 8) refers to as intensified forms of ‘global consciousness’, the kind of awareness which, according to Walters (2001, 5) twirls into recession the earlier geographical, economic, social and cultural formations. As a result, more and more people are aware that such structural configurations and restraints are receding on a daily basis, and thus the people have begun to respond accordingly. As Giddens (1990, 64) argues, the process leads to the ‘intensification of worldwide social relations’ or global connections. Maun (2013, 11) declares that such ties are not only economic or military, but also political and ideological. This is a world that, Downloaded by [Sam Phiri] at 14:38 17 March 2016 according to Mulgan (1998, 3), is tightly knit through ‘multiple connections’, the like of which have never been seen in world history. As Johari (2012, 731–750) reminds us, these powerful and highly complex mixes of overlapping and concurrent tendencies also exhibit socio-cultural and political dimensions with ‘omnibus’ characteristics. It may be because of the varied character of globalisation that researchers such as the South American, Vilas (2002, 70), approach the process from a historical perspective and view it as economic imperialism, while Nigerian scholar Ezema (2010, 11) perceives it as a form of cultural imperialism. Vilas (2002, 75–76) argues that even postgraduate work in some United States (US) universities plays the role of driving the strategies, values and policies that facilitate the diffusion of American transnational capital and culture. The cultural

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aspect is further visible in media images – particularly on television and the Internet – where the push by American intellectuals is firmly ‘accompanied and consolidated by the promotion of the values of US society to broad sectors of the population in societies lacking the structural prerequisites to achieve those standards’ (ibid.). Irrespective of the brands attached to this movement, however, the reality is that globalisation has developed and comes with what Kant (1991, 108) refers to as ‘cosmopolitan’ rights, and international political and legal codes which are slowly but surely being universalised for all societies and all humanity. The ATI law therefore lies on the same flat surface as gender equity, social justice, anti-terrorism, anti-racism and environmental protection. It is part of the global swing towards internationally standardised systems of human rights. Giddens (1990, 64) in particular argues that modernity implicitly intensifies the global exertion towards connecting disparate and distant communities and localities, so that events which happen thousands of kilometres away shape local actions, proceedings, behaviours and deeds. This is what Robertson (1995) refers to as ‘glocalisation’, whereby local and global situations are commingling in the fabrication of new mores, modes, means, and behavioural values and principles. Thus Zambia is being forced to respond to opinions, attitudes and proceedings being expressed or occurring on the other side of the globe. Zambia is no longer an island in a transcendent sea of tranquillity and self- possession. Within Marshall McLuhan’s (1997, 5) conception of a world that is ‘no more than a village’, it is a fraction of the interconnected whole. As a result, Zambia is impacted by global movements and trans-territorial advocacy networks and multilateral institutions such as the African Union, the European Union, the United Nations and other worldwide civil society networks that are not only advancing globalisation per se, but more specifically advocacy for the adoption of ATI laws. These advocacy activities have assumed what Keane (2003, 175) refers to as a complex kaleidoscope of overlapping, colliding, conflicting groups, movements and institutions, with often ‘changing colours’ which have rendered national boundaries Downloaded by [Sam Phiri] at 14:38 17 March 2016 almost meaningless. As a consequence, the world is in the state of ‘globality’ where populations are, according to Johari (2012, 733), ‘increasingly living in a world society in the sense that the notion of closed spaces has become illusory’. Zambia, like other nations, is subject to a ‘new global regulatory regime’ that enforces the creation of more open societies. Furthermore, in the case for ATI law as an arm of globalisation, Zambian civil society should be encouraged to recognise what Johari (ibid, 735) refers to as ‘political conjectures’ and/or globalisation’s ‘intellectual rationale that is almost prescriptive’. This means that because Zambia is a part of an economically, politically, socially, technologically, culturally and communicatively interconnected world, the global movement for access to information is embedded in some form of self-propelled determinism that Zambia alone cannot resist, repudiate or reject.

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As Fukuyama (1989; 1992, xi) notes, liberalism or the ‘Western Idea’ has triumphed over all other systematic alternative ideologies, and thus the history of human ideas came to an end with the collapse of Soviet Communism and similar such systems, which Soros (1991), Popper (1966–1986) and others refer to as closed societies. More specifically, Fukuyama (1992, xii–xiii) states that from now on ‘there [will] be no further progress in the development of the underlying principles and institutions, because all of the really big questions have been settled’ as ‘liberal democracy remains the only coherent political aspiration’ for different regions and cultures of the world. Nonetheless, Popper (1999, 124, 135) dismisses Fukuyama’s polemics as ‘just silly phrases’ with no basis in fact, because in his view Fukuyama has no chance of predicting the future course of the ideological evolution of human thought. Even so, Liberalism which emerged from the Enlightenment movement is an ideology which has over time and in many ways challenged the congealed existence of the nation-state through communication – especially the widespread use and exchange of books and other media, including printed matter (Kennedy 1988, 90). Today, the same nation-state is being challenged by even newer global manoeuvres. What is important, though, is the realisation that the repositories of political power tend to shift over time. Today, political power is continuously being shifted towards, and reposted into, the public domain, and this has been the trend since the French and American revolutions (1789–1799 and 1765–1783 respectively); and the English revolutions which encompass the so-called Glorious Upheaval of 1688, and the earlier conflicts of 1640–1660 that led to a ten-year-long Republican government before the monarchy was reinstituted, but only with ceremonial and limited powers. The predominant argument, therefore, is that the current national and global advocacy activities shall eventually and inevitably lead to the enactment of the ATI law in Zambia. The question nonetheless is: How ‘good’ will this law be? Downloaded by [Sam Phiri] at 14:38 17 March 2016 MEANINGS AND PRACTICES On his first day in office on January 21, 2009, President Obama issued instructions to all government officials to reinforce America’s Freedom of Information Act (FOI), insisting that ‘in the face of doubt, openness prevails’ (USA Department of Justice 2015). Obama also immediately revoked the George Bush administration’s orders to the Department of Justice to defend civil servants’ decisions to withhold government records if there were sufficient legal grounds for such refusals. By those two acts, Obama may have initially demonstrated his commitment to open government in the US. The reality, however, in the course of the Obama presidency, has been that much of the opposite of what Obama may originally have intended, has happened.

39 Sam Phiri Access to Information law and the stalled ‘winds of change’ in Zambia

The current US government has been just as opaque, if not more so, than previous administrations. If Obama’s initial bluster were carried through, perhaps it would have confirmed a much more learned stance and perception of the utility and value of whistle-blowers such as former US intelligence community officer, Edward Snowden. The latter was hounded into exile in Russia in 2013 after he revealed to the media that the US government directly tapped – with or without their support – into the servers of Internet firms like Google, Facebook, Microsoft, Yahoo, and hundreds of other companies across the world. According to the British Broadcasting Corporation (BBC 2014, 2015), the Snowden documents show that the Obama regime has the capacity to monitor more than 600 million communications, including 200 million text messages sent through 200 fibre-optic cables on a daily basis. Also, the US has in place more than 60 000 Internet-hacking operations around the globe, performing exercises which include phone-tapping more than 35 world leaders’ calls. Then there is the case of US army private officer Chelsea Manning who, in August 2013 was imprisoned for 35 years under the Espionage Act of 1917, for leaking about 750 000 secret government documents to Wikileaks on how the US conducts its war on terror. It is clear that globally, as Calland (2009, 1) argues, all institutions and bureaucracies have a tendency of retreating under cover ‘like tortoises’’ heads, away from public scrutiny. For the state in particular, secrecy is an essential ingredient of its operations. Obviously, such draconian and rather authoritarian attitudes and actions go against the principles of open government and the rationale behind the ATI laws (or FOI [freedom of information], as older such laws were previously named). What the campaigns for ATI encourage are situations of openness in government, public, private or statutory bodies, and other institutions which directly impact people’s lives. Furthermore, the bulwark of these campaigns is Article 4 of the 1948 Universal Declaration of Human Rights (UDHR) to which both the US and Zambia subscribe. This Article states that ‘public bodies hold information not for themselves but as Downloaded by [Sam Phiri] at 14:38 17 March 2016 custodians of the public good and everyone has a right to access this information’ (United Nations 2015). In the context of how Zambian governments have behaved over the possibility of the ATI law (see below), it should be noted that Article 19 of the UDHR states that 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 regardless of frontiers’. This right is also recognised in the International Covenant on Civil and Political Rights (ICCPR) as a right to hold opinions without interference. According to Burns (2001, 77), the purposes of such international conventions and local laws are to ‘promote transparency, accountability and effective government of all public and private bodies by empowering everyone to understand their rights

40 Sam Phiri Access to Information law and the stalled ‘winds of change’ in Zambia

and most importantly, to effectively scrutinise and participate in decision making by public bodies.’ Furthermore, the principles of the ATI law subsist in the non- exclusionary nature of the kind of information that should be accessible to the public (ibid.). In that respect, also covered is information held ‘by any other person (and that include private entities)’, which information may be ‘required for the exercise or protection of any rights’. That is the practical essence of the ATI law. In the pursuit of these principles, it is also the expectation that society moves away from the old practices of ‘representative government’ to more ‘participatory’ forms of government. Major distinctions between these two forms of government are that in participatory democracies people are more deeply involved in matters of state through their informed and active participation in government decision making. Additionally, each citizen is fully aware of the advantages and disadvantages ‘involved in voting for any particular party or person’ (ibid, 45). Third, the ATI law could be a political weapon for the people. In an open and participatory democracy, as De Waal, Currie and Erasmus (2003, 526–527) argue, a government should

be accountable for its actions and decisions, which should be informed by rational considerations that are explicable to those affected by them: democracy is government by explanation. Accountable government is impossible if the government has monopoly over information that informs its actions and decisions. Fourth, as De Waal et al. state, the ATI law ensures that citizens know what their government is up to – and, for that matter, entities that provide public services. That means the people must have access to government records, meetings or every other occasion where policies are formulated and decisions are taken about how, for instance, public funds are utilised. On the other hand, in closed and/or representative forms of government, state functionaries wield so much power that the citizens become mere spectators after voting. Soon after the announcement of the poll results, people tend to surrender ‘their’ power to government functionaries and, to some degree, to their representatives Downloaded by [Sam Phiri] at 14:38 17 March 2016 in parliament. Thereafter ‘those in power demand from the people only unilateral, in place of mutual, respect: the respect of inferiors to superiors, rather than the respect between equals ... their ideal is to govern with the minimum of perspiration and the maximum of domination’ (Babu 1985, 171). This is precisely what a good ATI law is designed to avert. In the case of Zambia, what is unknown are the specific contents and provisions in the draft ATI law which has been kept under wraps, although various government officials have attested to its existence. Furthermore, in Zambia, as in South Africa post-1994, the movement towards the ATI law has been hijacked by the governing executive. As Calland (2009, 4) states, they have ‘removed it from public view ... into the nether regions of the executive’. In Zambia, this has been the case since 2002. Yet normatively and ideally, the public has the collective right to be informed about RTI campaigns, and this should fall within the activities of public

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institutions. The public’s rights include public access to the new draft law, which is still a secret. Undoubtedly, in many respects this right of access gives effect to the democratic ideals and principles of participatory democracy, because only an informed person can compose a learned decision about public policy and all other issues which have an impact on the country as whole – and that includes the ATI draft law. This right is therefore directly related to the freedoms of expression, conscience and assembly. Additionally, the implementation of a good ATI law ensures that the people are aware of ‘information that the State uses to make decisions’ affecting the nation (De Waal et al. 2003, 526). This position flies in the face of the wishes of government and other bureaucracies, because the civil service especially is trained and sworn to uphold secrecy. Often the information held by government departments and tenderpreneurs working with government departments is turned into valuable commodities – a situation which leads to corruption, patronage and other social vices. At the economic level, though, an ATI law facilitates investment decision making for investors. Where secrecy prevails in this instance it may lead to corruption, insider trading, collusion, price fixing and corporate scandals. All these ills are easily avoidable if such ‘sensitive’ information is readily available in the public domain. This is one side of the coin. The other side is that because of the emergence of globalisation, many private companies are now performing public functions. It is therefore necessary that ATI laws not exclude private entities from disclosing the information they hold from the public they serve. So far, no fewer than 19 countries (including South Africa, Britain and Angola) have promulgated ATI laws which compel private companies to disclose certain information, especially if such companies perform public functions (Siraj 2010, 223). The major arguments proffered against ATI laws, however, are that governments and other public utilities should maintain some level of secrecy so as to protect national security or ensure administrative efficiency. But in many instances, as Wolfe (2009, 211) argues, this form of secrecy ‘may protect a society against its enemies Downloaded by [Sam Phiri] at 14:38 17 March 2016 but it also protects itself all too often from the truth’.

ATI PRACTICES ACROSS THE WORLD The US is arguably the closest representation of an open society, ‘with a profound commitment to the ideal of an open society’ (Soros 1991, 89). Therefore, perhaps for lack of better options, and despite the Snowden and Manning cases highlighted above, it is to the US that we first turn to review some ATI law practices. In the words of Soros (2000, 117), in the absence of a perfect open society, we must ‘content ourselves with the second best: an imperfect society that holds itself open to, and strives for, improvement’. That aside, it is notable that the FOI law was enacted in the US in 1966. Since then, more than one million requests for information have

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been lodged with various government departments. The law is used by individuals (citizens and non-citizens); journalists; corporations (local and foreign) and foreign governments. Things slightly changed after the September 11 attacks by suspect Islamic fundamentalists in Washington and New York. Following this, considered the deadliest terrorist attack in its history, the US invaded Iraq and Afghanistan with the help of at least 40 nations across the world. The military action was aimed at eliminating Al Qaeda (Arabic for ‘the base’). In 2001, the US government passed the 342-page Patriot Act, which has about 150 sections and amends more than 15 other federal laws. According to this law, the US gave itself the authority to punish or attack terrorists anywhere in the world. Also, the American Secret Service is allowed to run numerous networks to investigate crime, including cyber-crime. Furthermore, Internet service providers are compelled to give to the government information about people’s emails and other Internet activity. Businesses are also compelled to give personal details about suspect individuals who are under surveillance. In 2002, the year after the Patriot Act passed into law, the US enacted the Homeland Security Act which has been criticised for allegedly invading the privacy of individuals, and increasing levels of government secrecy. These two laws have had an adverse effect on the operationalisation of the FOI law in the US. Nonetheless, America is, compared to most sub-Saharan African countries, a much more open society. For instance, in 2014 the secretive Central Intelligence Agency (CIA) received 3 737 requests for information (USA Department of Justice 2015). This was in addition to the 1 034 requests pending in that year. The CIA processed 3 795 requests for information. In total, in 2014 the American government received 431 558 requests for information, of which 180 977 (about 42%) received the requested information in full; a further 211 907 (49%) received partial information, while 38 678 (8%) were summarily rejected (ibid.). However, according to the independent monitoring group, the NSA (National Downloaded by [Sam Phiri] at 14:38 17 March 2016 Security Archive 2016), between 1966 and 1999, the US government received a total of 1 965 919 requests for information, of which only 26 251 remained unprocessed, for reasons unknown. Nonetheless, it cost the US administration a total of $286 546 488 over the 33-year period that the FOI act has been in effect. Requests have subsequently increased dramatically, with NSA records showing that in 2001 alone, the ‘most recent year for which complete statistics are available’, the administration received 2 246 212 requests costing the federal government a hefty $287 792 041.08 to process. These figures are perhaps indicative that in a highly literate society, the cost of managing and implementing the ATI law provisions are not meagre. Obviously, some requests were denied or partially complied with because the American FOI law provides for nine categories of government information that

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are exempt from disclosure, mainly because such revelations would be harmful to national or private interests. Across the Atlantic, in the United Kingdom, a similar law exists. Without going into statistics about requests and rejections, it should be noted that in Britain, government may reject requests for information if ●● it costs too much to provide the required information; ●● it would take too much staff time to deal with the request; ●● the request was vexatious (i.e., causing anger, annoyance, confusion, worry, or was groundless); ●● the request repeats a previous one (from the same source). (UK Information Commissioner’s Office 2015). All requests are, however, subjected to a specified ‘public interest’ test. The central question that a government functionary has to ask is whether it is in the public interest to disclose the requested information (UK Information Commissioner’s Office 2015). As expected, the difficulty lies in deciding what constitutes public interest – Raboy and Abramson (1998, 329) argue that there is no consensus on what the term entails, despite policy makers’ claims to the contrary. Sono (1992, 24) denies there is something like public interest or ‘general will’. Instead, what exists, according to Sono (ibid.), is ‘the will of the rulers who, in their search for legitimacy, extol the abstract virtues of the citizenry while seeking its concurrence after the fact’. With such debates in mind, it is difficult to know how the British system of FOI settles on what is in the public interest before disclosure. Nonetheless, the above experiences do demonstrate, among other things, that it is not just the presence of the ATI law on the statute books that matters. What is important is a combination of factors, which includes political will and the pressure exerted on information- holding institutions by the public and civil society organisations. Irrespective of the ATI law formulations, though, the reality on the ground is that this law is not an Downloaded by [Sam Phiri] at 14:38 17 March 2016 ‘independent vessel’ (Calland 2009, 6), but something that shares borders with other institutional frameworks, including political concerns, belief systems, governance traditions and civil society consciousness. In South Africa the implementation of the ATI law has been riddled with complexity. For example, institutions which could have been champions of more open government, like the Department of Justice and National Archives, have been adduced to being among ‘the most obstructionist of government bodies’ (ibid, 9). Thus although Britain and the US, and more than 60 other countries have one form or the other of ATI laws on their statute books, the laws have not necessarily opened up the activities of private institutions with the remit of delivering public services. However, according to the Centre for Law and Democracy (CLD; an international ATI advocacy group based in Canada), the best ATI law in the world is that of Serbia.

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This is followed by Slovenia, India, Croatia, Liberia, El Salvador, Sierra Leone, South Sudan, Mexico and the Maldives, in that order.1 The worst ATI law is that of Austria, because among other things, in Austria public officials are sworn to secrecy and civil servants can only provide information which is ‘not in conflict with their obligation to secrecy’ (Centre for Law and Democracy 2015). Furthermore, the public has no right to see civic documents or primary sources, whether these are the internal documents of government departments or of other public bodies. Other than Austria, countries in the bottom ten with the worst ATI laws include Liechtenstein, Tajikistan, Germany, Jordan, Italy, Taiwan, Dominican Republic, Belgium and Uzbekistan, in that order from the bottom up. The CLD, together with its European- based sister organisation, Access Info Europe (AIE), has developed a Right to Know (RTI)2 rating methodology – a tool used to assess the overall legal framework for the right to information for countries with ATI laws. The assessment tool has 61 main indicators which are grouped in seven different thematic sections: right of access; scope; requesting procedures; exceptions and refusals; appeals procedures; sanctions and protections; and promotional measures. Without belabouring the specifics, it is pertinent to point out that these indicators are drawn from a range of set international standards on the RTI. Among the frameworks the CLD and AIE refer to are the Model Law on ATI (drafted by the Organisation for American States; OAS); the African Union’s (AU) African Charter on Human and Peoples Rights Model Law on ATI for Africa; the European Union’s (EU) Regulation 1049; and the Council of Europe’s Convention on Access to Official Documents. According to the CLD and AIE, the best trans-national draft ATI law was drawn up by the OAS, while Africa’s model law rates second in terms of proposed articles that seemingly promote greater access and openness within societies.3

RAMIFICATIONS AND BENEFITS From the above discussion it is clear that the enactment of a good ATI law will Downloaded by [Sam Phiri] at 14:38 17 March 2016 positively impact the accountability angle of government functions, public service providers as well as a country’s international profile.4 But, more importantly, a practical level government and some private enterprises which are in the public service would lose some of the allure that goes with power and control. Government operations would no longer be as secretive as before. Also, both politicians and civil servants would be under greater scrutiny than might be the case in the absence of an ATI law. In essence, though, it should be recognised that the implementation of the ATI law hinges on issues of social power relations. The law is impacted by what Andrew Puddephatt (cited in Calland 2009, 9) refers to as the ‘politics of policy’. This politics is reflective of any nation’s level of economic and social development; the operational political system; the strengths of governance and civil society

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institutions; the self-interest of politicians; and the country’s history and culture. To emphasise, it is pertinent to point out that the ATI law ●● compels government and other private entities in the public service to disclose information held by its various agencies, with only a few exceptions; ●● stops government and other information holders from using their discretionary powers to hide certain information about the inner workings of government, but this depends on how the ATI clauses are framed; ●● impels government departments and other information holders to issue regulations to employees on how the public can access information. This includes where the information is kept; how to access it; who to get it from; how a request for information can be made; what appeal channels the public have when such information is denied; ●● requires government and public utility firms to have well-trained information officers in all departments; ●● establishes an independent and special commission that monitors and ensures that the law is followed by all ministries and departments; ●● compels the independent information body to report to parliament on its operations annually. (Calland 2009, 13; Matibini 2006, 153–156) A major issue has been the tradition of secrecy and the powerful presidentialism that Zambia has nurtured since independence. This is innocuously aided by the existence of a weak civil society movement. Today, as at almost any time in Zambia’s 51- year history, of the three branches of government, the executive – or more precisely the presidency – has been the most powerful, leaving both the judiciary and the legislative in its wake. The unfocused civil society movement has also not helped much in pushing for the enactment of the ATI law. The implication of this unbalanced arrangement is that when the ATI bill

Downloaded by [Sam Phiri] at 14:38 17 March 2016 becomes law, the presidency accedes some of its constitutional powers and authority, distributively, to the other branches of government, i.e., parliament and the judiciary. But, more importantly, certain presidential powers, as well as (eventually) those of the judiciary and parliament, will have to be diffused back into the domain of the ‘common’ people. The inference here is that with the adoption of the ATI law, the following will also have to be done: ●● Include a special clause in the national constitution to protect the provisions of the ATI law; ●● Review all laws (i.e., Official Secrets Act; Zambia Security and Intelligence Services [ZSIS] Act; the Penal Code; parliamentary privileges; oaths of office at all levels, etc.) that may be in conflict with the provisions of theATI law.

46 Sam Phiri Access to Information law and the stalled ‘winds of change’ in Zambia

WHAT THE ATI LAW BRINGS ALONG Although the Zambian approach to enacting the ATI law is couched within the paradigm of institutionalised media, it is difficult to deal fully with the issue, without acknowledging that the media ‘strictures’ have metamorphosed beyond them being ‘media houses’ to assume a diverse range of other communicative expressions. Today the media are no longer ‘settled’ institutions like the Zambia National Broadcasting Corporation (ZNBC) or indeed the daily newspapers such as the Times of Zambia or the Post. In general, these traditional media establishments have an interest in the ATI framework, but there are ‘other’ more aggressive and more interested parties in play, such as the so-called new media which use cell phones and other Internet-based platforms (YouTube, websites, Facebook, Whatsapp, Twitter, Google+, Wordpress, Pinterest, LinkedIn, Ustream, ListstreamTV, Instagram, etc.). Thanks to these new platforms it is relatively easy to access, publish and exchange news and information. It is also an individualised activity, as opposed to being mostly institutionalised. These channels offer numerous opportunities for access, and have overcome the strictures of time and space. But, more importantly, they have some of the greatest potential for renewing democratic practices and expanding the public sphere for debating national issues (Davis 2014, 92). This means that any considerations about the impact of ATI law on the media should take into account the needs of these ‘new media’. Their situation is not necessarily dependent on institutionalised formations, because they have opened up spaces for public discourse to each and every citizen. This is not to deny that the majority of Zambians (and others African nations) are poor and thus have no (or limited) access to new media platforms. A good number of people cannot afford data bundle charges, do not have access to the Internet, or cannot access outlets with specialised technologies which are beyond the abilities of the majority of citizens. For example, the latest available (November 2015) figures show that from a population of 14 million Zambians, only about 1.3 million have Facebook accounts and about 2.7 million have access to the Internet. Although this Downloaded by [Sam Phiri] at 14:38 17 March 2016 is a significant improvement from the 20 000 Zambians with Internet access in 2000 – a mere 16 years ago – the number is still small (IWS 2016). Irrespective of these realities, the implication is that the boundaries between institutionalised media and the ‘general public’ have either been narrowed, or completely eliminated in some instances. Since the UDHRs’ Article 19 was adopted in 1948, there has been no blatant distinction between the rights of individuals and those of media institutions. Both media institutions and individuals claim that their rights are dependent upon the premises of freedom of expression contained in that section of the UDHR. The bottom line is that when the ATI becomes law, it will be openly used by individual citizens, media and other corporate entities. This will obviate the prevalent view among interested parties that getting information from the government or other public utilities is quite difficult.

47 Sam Phiri Access to Information law and the stalled ‘winds of change’ in Zambia

CHALLENGES OF ACCESS LAWS

Historical background When Zambia reverted back to multipartism in 1990 and the MMD came into office a year later, there was a great deal of optimism within the media sector. The Zambia Union of Journalists (ZUJ), for instance, was illegally formed under the interim leadership of four journalists from the Zambia Daily Mail and the Times of Zambia. The government hesitatingly registered ZUJ two years later. Then the UNIP-dominated Press Association of Zambia (PAZA) leadership was ousted in a hurriedly arranged general meeting. The ‘Young Turks’ replaced Komani Kachinga, then editor-in-chief of the Zambia Daily Mail, with Richard Sakala as PAZA president. In 1992, President Chiluba replaced fellow Christian fundamentalist, Rev. Stan Christopher, with the more youthful Dipak Patel as Minister of Information and Broadcasting Services. In the same year Patel, with financial support from the Nordic countries, formed the widely representative Media Reform Committee (MRC). Among its recommendations was that Zambia enact the FOI Act. This was followed shortly thereafter with the formation of a more specialised Media Law Reform Committee (MLRC), which in 1999 recommended that Zambia enact the FOI Act. On November 22, 2002, after 13 years of the struggle for an FOI, Minister of Information, Newstead Zimba, presented FOI Bill 22 of 2002 to parliament for its first reading. According to Matibini (2006, 101), Minister Zimba reportedly said that government ‘viewed information as a national resource which could be made public to benefit public debate and understanding’. The bill provided for the formation of the Public Information Commission (PIC) with representation from the MIBS, journalists, the legal fraternity and four distinguished professionals. The PIC was to be appointed by the president on recommendation from an independent appointment committee. Downloaded by [Sam Phiri] at 14:38 17 March 2016 The 2002 draft law mainly focused on the principle of making information held by public authorities more accessible to Zambian citizens. The essence was that disclosure of information would take precedence over any other law of secrecy that parliament had previously passed. According to Matibini (2006, 110), the provisions of the bill exempted the army, police, national service, air force and intelligence community from being subjected to this law (an exemption that Matibini argues went ‘overboard’) and that the concept of national security be narrowly defined. Nonetheless, barely a month later, on December 18, 2002, the FOI bill was withdrawn from parliament without much explanation. The media fraternity condemned the withdrawal in a joint statement undersigned by five Zambian-based media advocacy organisations. On December 30, 2002, Minister of Information, Mutale Nalumango, said the FOI would be brought back to parliament the following month, and promised that by 2004 it would become law. A month later, on January

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14, 2003, PAZA President, Andrew Sakala, reminded government of its promise. On February 9, 2004, upon realising that the FOI bill was not being brought back to parliament, MISA launched its now 12-year-long FOI campaign which continues to this day. At the launch ceremony, PAZA Deputy President, Amos Chanda, accused government of ‘bad faith’ for delaying the law (Matibini 2006, 122). Today, Chanda is press advisor to the current Zambian President, Edgar Lungu, but the ATI law remains in limbo despite the fact that both Chanda and Lungu are attorneys.

Tests for successive governments In 2011, the new government of the Patriotic Front (PF) led by a former brusque police constable Michael Sata, assumed office on the promise of enacting the ATI law within 90 days. This was not done. The bottom line is that throughout the presidencies of Frederick Chiluba, Levy Mwanawasa, Rupiah Banda, Michael Sata, Guy Scott and Edgar Lungu, spanning 25 years, the ATI bill has never re-entered parliament. Instead, Zambia has witnessed ‘a variety of contradictory, oblique and even comical explanations’ (Matibini 2006, 123) over the ATI law process. The following5 instances partially illustrate this above point (see Table 1).

Table 1: The Zambian government’s changing positions on the ATI law

Speaker Govt. policy announcement Vice President Enoch Kavindele, Government needs sufficient research and thereafter January 2003 the ATI bill would be brought back to parliament Information Minister Mutale ATI law should not be rushed although there had Nalumango, February 2005 been no shift in the government’s principles of transparency, accountability and good governance Vice-President Lupando Mwape, ATI law could breed chaos because excess freedom January 2006 is dangerous, but the bill would be reintroduced into

Downloaded by [Sam Phiri] at 14:38 17 March 2016 parliament after taking into account certain concerns Information Minister Vernon Government was consulting locally and Mwaanga, former head of internationally and has no immediate intention of Zambian Intelligence, February tabling the bill before parliament. This is partially 2006 because the ATI law would be difficult to implement and cope with Deputy Information Minister Benny Bill will be tabled in 2007 after exhaustive Tetemashimba, May 2006 consultations with all stakeholders Information Minister Vernon Government still consulting Mwaanga, June 2006 President Levy Mwanawasa, Govt will present bill before end of the year (2008) January 2008

49 Sam Phiri Access to Information law and the stalled ‘winds of change’ in Zambia

Speaker Govt. policy announcement President Rupiah Banda, January Consultations on the ATI bill had reached an 2009 advanced stage Information Minister Lt. Gen. Zambia is not ready for the ATI law. There is need for Ronnie Shikapwasha, Former more consultations Zambia Airforce Commander, August 2010 Vice President Guy Scott, later Government is keen to table the bill in parliament Acting President, October 2011 within 90 days but feared that it would be blocked by the opposition parties Information and Tourism Minister There is need for putting logistics in place to make Given Lubinda, December 2011 sure that before the bill is enacted, all important issues are considered Information and Labour Minister The planned law is not for the government but for Fackson Shamenda, February practitioners, but government wants to listen more ... 2012 exhaust consultations so that the bill could be close to perfection before presenting it to parliament Information Permanent Secretary A task force on the ATI law has completed its work Amos Malupenga, June 2012 on the draft bill. The bill would be ‘launched in a few days’ time for public scrutiny and input before submission to cabinet and parliament’ Information Minister Kennedy The ATI draft Bill will be forwarded to a parliamentary Sakeni, July 2013 subcommittee on Information and Broadcasting before being considered by the cabinet and then submitted to parliament. However, before that, the government has to ensure that the Bill has all the required ingredients before tabling it in parliament Information Minister Sakeni, ATI Bill will be presented to Parliament within the first December 2013 quarter of the coming year, 2014

Downloaded by [Sam Phiri] at 14:38 17 March 2016 Information Minister Chishimba ATI Bill will be tabled in parliament before end of Kambwili, February 2015 sitting which ends on March 2015 Information Minister Chishimba ATI bill was sent to Attorney General’s Office for Kambwili, March 2015 clearance pending presentation to Parliament President Edgar Lungu, May Government would not support the enactment of the 2015, after just four months in ATI law in the wake of media disclosures that his office administration kept a $192 million loan from China for Chinese security weapons a secret

The above sample dazzlingly depicts the swings in government policy positions on the ATI law over the past 15–20 years. Parliament and the Zambian civil society movement are acutely aware of the history, problems, challenges and issues facing the ATI. Nonetheless, in January 2016, the parliamentary committee on information

50 Sam Phiri Access to Information law and the stalled ‘winds of change’ in Zambia

and broadcasting continued its consultations with stakeholders (including media institutions, advocacy groups, the Law Association of Zambia, the University of Zambia) on the ‘need’ for the law. Despite the above rigmarole, there is little to add to what is known and highlighted above, except perhaps to reiterate Matibini’s (2006, 170) point that ‘it is self-evident ... that since the re-introduction of multi-party politics in 1991, a clear and definite consensus has been reached on the parameters or scope of media law reforms in Zambia. What, however, is dismally lacking is a charismatic and committed political leadership to push the media law reforms to their logical conclusion.’ The second problem is that principally the ATI has been misallocated and approached from the wrong direction. In Zambia, as is evidenced by Matibini’s statement above, it is perhaps assumed that the ATI is a media reform exercise, when in fact it should be the collective right of all citizens, non-citizens and every other institution (including local and international business houses) to enjoy.

From activism to government administration Matibini, as MISA lawyer who analysed the weaknesses of the initial 2002 FOI bill, is today the Speaker of the National Assembly. He is not the only one who is serving, or has served, the government in senior positions. Others who over the years in Zambia campaigned for the ATI and ended up in various government locations include: ●● Richard Sakala (PAZA Chair), Press Assistant to President Chiluba; ●● Dickson Jere (MISA Chair), Press Assistant to President Banda; ●● Amos Chanda (dep. PAZA Chair), Press Assistant to President Lungu; ●● Amos Malupenga (Managing Editor, the Post), Permanent Secretary, MIBS; ●● Emmanuel Mwamba (MISA member), Permanent Secretary, MIBS. Downloaded by [Sam Phiri] at 14:38 17 March 2016 So, what is the problem? It is not a lack of activism, or a question of the law not being wanted, nor a lack of consensus about the law, a lack of international and local pressure, a lack of knowledge about what should be contained in the law, or a lack of potential credible models to adopt and adapt. Although the implementation of the law could be problematic, as proven in some of the best and oldest cases, the major problem in Zambia is not in the principles of the law itself, nor does it lie with the Zambian public. The problem is with the ‘poverty’ of political will that has accompanied and enveloped all previous attempts at enacting the ATI law. Second, the problem arises from the limited realisation by activists of the dangers of submitting to, or identifying with, those who wield power. As Fromm

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(1966, 130) argues, such participation in other people’s worlds builds ‘illusions of acting’, when in fact it is a mere subjugation and utter submission to those who control the instruments of social power. These deficiencies are direct offshoots of the presidential traditions and systems that have evolved and have been sustained over the past 51 years. Such traditions were birthed, nurtured and matured by the outdated, outmoded national constitutional arrangements that inordinately surrendered too much power and authority to the presidency, which ostensibly determines the national political will. Such a predominance of presidentialism has left the other branches of government (judiciary and parliament) and the civil society movement as malformed and ostentatious caricatures of the democratic ideal. The Zambian government administration is premised on a powerful executive presidentialism which exercises political power through various forms of patronage. It is through this entrenched system that, according to Tangri (1999, 13), the ruling elites in Zambia channel the ‘primary means for maintaining power ... dispense public benefits [like] jobs, credit, contracts, subsidies ... to select clients and ethnic constituencies to build political support and consolidate themselves in state power’. Accordingly, Tangri (ibid, 140) argues that any chance of transparent and accountable government in countries like Zambia, with its dominant executive wing and weak legislature, is largely hopeless, given such arrangements. This is so because the president possesses and wants to ‘preserve virtually uncontrollable power [and is] ... unwilling to accept limits’ to presidential discretion and decision- making, which in this instance the ATI law would enforce. Until and only when this major constitutional flaw is fully, faithfully, deliberately, fairly, firmly and honestly dealt with, will the ATI remain a Zambian pipe dream and continue to reside on tropical ice. Without addressing this critical problem, the possibility is that the next bill to be brought to the Zambian parliament could be a cartoon of a good ATI law. As the current situation obtains, and in the absence of effective and strong oversight state institutions like the legislature, judiciary and the civil service, it is patently impossible for a society to uphold and encourage Downloaded by [Sam Phiri] at 14:38 17 March 2016 accountability and transparency for the political executive, or to undermine ‘neopatriomonial practices’ through which the governing elites thrive (Bratton and Van de Walle 1997, 246–250). Furthermore, as Freire (1993, 66) argues, ‘any situation in which some individuals prevent others from engaging in the process of inquiry is one of violence. The means used are not important; to alienate human beings from their own decision-making is to change them into objects.’ That is what a government or nation that prevaricates about opening up the flow of information systems does to its people, because it denies citizens their right of inquiry and decision making, and thus dehumanises them.

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CONCLUSION This article has contextualised the evolution of the ATI law in Zambia, highlighted some practices across the world, pin-pointed where Zambia’s problem with the ATI law lies, and suggests that the country needs to deal with the critical issue of a weak national constitution and disorganised civil society, and must off-load its burden of presidentialism before it can enact and implement a good ATI law.

NOTES 1. In Africa, as already intimated, the best RTI law is in Liberia. This is followed by South Sudan, South Africa, Ethiopia, Uganda, Tunisia, Nigeria, Rwanda, Angola and Ivory Coast, in that order. The latest entrant to the club of countries which have drafted ATI bills is Tanzania, which published its draft in February 2015. The draft has been rated lower than the above top ten. 2. This is a current term that has evolved from the initial Freedom of Information (FOI) and Access to Information (ATI), concepts which are now promoted as the Right to Know (RTI). In this article the three terms are used interchangeably, because they ontologically mean the same within their different shades of ‘meaning’. 3. The point is that Zambia does not have to go far to find a model ATI law. A praise-worthy draft is available from the African Union, as are the laws which Liberia, South Sudan and South Africa have in place, as well as Tanzania’s planned legislation. 4. It is patently clear that, in time, the ATI will become a donor conditionality in north– south relations. 5. From various sources, see Matibini (2006, 123–124), the MISA-Zambia website (www. misa.org), the African Platform on Access to Information (http://www.africanplatform. org/) and several newspaper reports. Downloaded by [Sam Phiri] at 14:38 17 March 2016 REFERENCES Babu, A.M .1985. African socialism or socialist Africa? Harare: Zimbabwe Publishing House. Bratton, M. and N. van de Walle. 1997. Democratic experiments in Africa. Cambridge: Cambridge University Press. British Broadcasting Corporation (BBC). 2014. Edward Snowden: Leaks that exposed US spy programme. http://.www.bbc.com/ (accessed January 20, 2016). British Broadcasting Corporation. 2015. US spy leaks: How intelligence is gathered. http://.www. bbc.com/ (accessed January 20, 2016). Burns, Y. 2001. Communications law. Durban: Butterworth. Calland, R. 2009. Illuminating the politics and the practice of access to information in South Africa. In Access to information in South Africa, ed. K. Allan, 1–16. Johannesburg: Wits

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