The Access to Information (ATI) Act was passed into law by the Tanzanian parliament on September 7, 2016. This was amended slightly from the bill that had been presented to the Tanzanian parliament for first reading on June 23, 2016, and revised more substantially from a bill the government planned to bring before parliament in 2015 under a certificate of urgency but which was withdrawn following media and public pressure.
Legislation enabling public access to information was a flagship commitment of Tanzania’s Open Government Partnership (OGP) Action Plan for 2014-2016. Such a law could, in principle, go a long way towards bringing the government closer to the people – allowing the public, civil society, the media and others to better understand what the government is doing, and encouraging more and better public participation in decision making processes.
The Access to Information Act is an opportunity to give greater meaning to clauses in the Tanzanian Constitution, specifically Articles 18(1) and 18(2) that provide for the right to information, stating:
“Without prejudice to expression the laws of the land, every person has the right to freedom of opinion and expression, and to seek, receive and impart or disseminate information and ideas through any media regardless of national frontiers, and also has the right of freedom from interference with his communications.”
“Every citizen has the right to be informed at all times of various events in the country and in the world at large which are of importance to the lives and activities of the people and also of issues of importance to society.”
Twaweza provides a full analysis and inputs on the Act as we previously did on the Media Service Bill analysis last year. Our key concerns on the Act include the following:
- The Act allows a broad exemption in cases where another law governs the handling or release of information. In international best practice, access to information laws are given priority over other legislation in situations where the laws conflict. In the Tanzanian case, the other laws take precedence. Since there are many laws on the Tanzanian statute books that tightly control access to information, this significantly weakens the Act.
- The procedure for appeals against decisions of information holders includes a clear conflict of interest. In the vast majority of possible cases, the final decision on such appeals rests with the Minister responsible for legal affairs – making it very straightforward for the government to withhold any information if it wishes to do so. A better system would have been for appeals to be handled by the courts, or by an independent Information Commission.
- There is a major concern with the penalties for information holders who act in contravention of the Act. The penalty for wrongly releasing information is severe – three to five years’ imprisonment – while there are no penalties mentioned for wrongly withholding information. The incentive for information holders is therefore very clear: by releasing information you take a big risk, it is far safer to refuse to do so.
- The lack of an independent Information Commission also means there are no provisions for promotion or monitoring of the Act. Without such provisions, particularly for monitoring, it will be very hard for anyone to assess how well the law is being implemented, to identifying good and bad practice or to identify and resolve problems.
There is no single killer clause. However, in combination, they represent a series of obstacles that make things difficult for those requesting information, and indeed for those in government who are minded to release information. Conversely, they make things a lot easier for those who wish to withhold information.
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