In 2006, when the government announced that commercial quantities of oil had been discovered in the Albertine Graben, Ugandans struggled to hide their excitement.
Some sceptics were, however, quick to warn that the oil details would be wrapped in secrecy. A year earlier, in 2005, Parliament had passed the Access to Information (ATI) Act in which the State is obliged to sensitise its citizens on the right to access to information concerning government’s programs and projects.
Two private citizens, Mr Charles Mwanguhya and Mr Angelo Izama, wrote to the Ministry of Energy requesting for copies of the Production Sharing Agreements (PSAs) between the government and oil exploration companies.
“[The] government was saying it had made good negotiations. However, oil is a controversial resource and we had seen what was happening in Nigeria and Angola. We thought it was a good opportunity to increase the government’s openness on its oil programme and to subject the ATI Act to a test,” Mr Mwanguhya says. The duo received two separate replies – from the Solicitor General and the Ministry of Energy.
“In both letters, the government was saying the PSAs contained non-disclosure clauses with the oil companies, which operate in the private sector, and also contained information of a security nature. In 2007, we took the government to court,” Mr Mwangushya says.
The ATI Act 2005 limits access to information to that in possession of public bodies, thereby excluding private companies and civil society.
In 2009, the Nakawa Chief Magistrate’s Court threw out the case, prompting the journalists to file an appeal in 2011. To date, no hearing date has been fixed for the appeal.
Uganda was among the first African countries to pass a law governing access to information. However, ignorance by citizens and public officials about the existence of the law and its importance, has greatly affected its implementation.
Sixteen years since the law was enacted, citizens’ confidence that they will be furnished with information if they asked is declining. Data from the Twaweza’s Sauti za Wananchi 2020 nation-wide survey shows that 25 per cent of those interviewed believed they would get information from their local authorities about access to district development plans or budgets.
Mr Moses Watasa, the commissioner for communication and information dissemination in the Ministry of ICT and National Guidance, insists the ATI Act is part of the bid for greater openness and accountability to the public by the government.
Access to information a human right
The principle of the right to access information is inseparable from freedom of expression.
Ms John Asimwe Ishabairu, the engagement officer at collaboration on International ICT Policy for East and Southern Africa (CIPESA), says “to know about any other rights, you need to have the right to access information first.”
The government dispenses public resources and makes decisions that affect citizens on a daily basis. For instance, the billions of shillings that have been used in the pandemic response, many observers say transparency and accountability around such expenditures remains patchy.
Mr Gilbert Sendugwa, the executive director of Africa Freedom of Information Centre (AFIC), says because government officials have private lives that might make demands on their public life, people have a right to information that will lead to accountability.
Data from the Twaweza’s Sauti za Wananchi survey shows that most citizens (72 per cent) use radio to access information. While there is a slight drop from 2017 (79 per cent), six out of 10 respondents (61 per cent) said they completely trust the information heard on radio.
Unsurprisingly, the government gobbles up a lot of radio airtime. It has on a weekly basis an hour of Public Education airtime on 319 radio stations across the country.
“On those programmes, we initiate the process of giving out information. The ICT Ministry has sensitised other ministries about the need to give out information,” Watasa says, adding: “So people who feel that we are not responding quickly enough to their information requests, can consider activating the law. If an MDI loses such a case in court, it has to bear the costs and consequences.”
Challenges to implementation
Bureaucracy, tedious procedures of requesting for information, and clashes with other legal instruments, impact the level of citizens’ information requests.
Last year, in the run-up to the General Election, Mr Raymond Mujuni, a journalist, filed a request to access the voters’ register.
“We wrote to the Electoral Commission (EC), but to date, they have never responded to our request. We also filed a similar request with the government website (The AskYourGov Uganda), but no one bothered to reply to us,” he says.
The AskYourGov Uganda (www.askyourgov.ug) portal was established in 2014 under the auspices of the Government of Uganda, AFIC and CIPESA.
To date, the portal has received 7,190 requests from 109 agencies. In comparison, government agencies in India, which also adopted the Right to Information Act, in 2005, have so far received more than five million information requests.
Data from the Twaweza’s Sauti za Wananchi survey shows that half (54 per cent) of all requests for information about resources were granted the information being sought.
This is a significant dip from 2019 (75 per cent). It has not helped matters that the proportion of such requests being declined has risen sharply from five percent in 2019 to 36 per cent in 2020.
“Its sad that we have an Act that is, for all intents and purposes, largely dysfunctional. [The] government still releases the information that it wants to release and journalists still access information the way we have always accessed it –through random sources.
There is very little proactive release of public information, especially that which is considered sensitive. Yet, there is no clear definition of what should constitute sensitive information,” Mr Mwangushya says.
According to the Uganda Public Service Standing Orders 2010, public officials are required to take oaths of allegiance and secrecy. One section in fact compels “officers not [to] disclose information which comes into their possession in the course of their duties other than to an authorised person.”
Similarly, in accordance with the Official Secrets Act 1964, Cap 311, it is a criminal offence, punishable by imprisonment, for any public officer to divulge information to any unauthorised person which would be prejudicial to the security of the State.
Ms Ishabairu argues that in this case, the law takes precedence over the Standing Orders and the Official Secrets Act.
“The law is clear on who should be the recipient of a request for access to information, and that is the accounting officer. The law also provides for circumstances where an information request is routed from a mother ministry to an agency or department,” she says.
Mr Watasa contends that the Standing Orders are meant to ensure that information is given out in an orderly manner.
The cost of access to information can also be prohibitive. The ATI Act does not provide for payment for access information. However, if the documents require photocopying, one can pay a modest sum for this service. But public entities have been known to charge exorbitant fees if they are to give out information.
The ATI Act 2005 provides for a maximum of 21 days within which a citizen’s information request should be addressed. After that Section 16 and 38 provide for internal appeals in case of rejection of an information request or seeking redress in court.
The pandemic, has however, forced courts not to handle many cases. By the time a magistrate hears the case, it might be six months after the first application for information was filed. By this time, the information would have been overtaken by events.
Section 43 of the Act requires every minister to submit an annual report to Parliament on requests for access to information made to public bodies under his or her ministry annually.
The minister should also indicate granted or rejected requests and reasons for rejection. However, no such reports have been made in the last 16 years. Ms Ishabairu says the problem is that previously the rules of Parliament did not make provisions for such a report.
“We (CIPESA) engaged the Parliamentary Committee on Rules and Privileges when they were reviewing the Rules and Procedures for the 11th Parliament. Our advocacy saw to it that Rule 146 that spells out what should be included in a ministerial policy statement, includes that report,” she says.
Unfortunately, while the Rules of Procedure were amended, the Public Finance Management Act, 2015 under which such a report would fall, has not been amended. And so the beat goes on.
Why information access remains a dream
The world commemorated the International Day for Universal Access to Information yesterday. The day highlighted the fact that the public’s need for accurate and reliable information is stronger now. Gillian Nantume spoke to civil society actors on the challenges to access to information.
Speaker calls for engagement on information access
The Speaker of Parliament, Mr Jacob Oulanyah, yesterday tasked global agencies and native entities to ensure that all legislation enacted to enable citizens gain access to information improves their wellbeing.
Addressing policymakers and key stakeholders in the information sector at celebrations to mark the International Day for Universal Access to Information (IDUAI) in Kampala, Mr Oulanyah challenged advocates of the Access to Information laws to move from discussions in boardrooms to engaging people. The Speaker also urged civil society organisations to take stock of the impact of Uganda’s Access to Information Act, 2005.
“Since the enactment of that legislation…what benefit has it been to the ordinary person? So, if we do a post-legislation scrutiny of this particular law, what would the ordinary person say about this law?” he asked.
The regional director and representative of Unesco in East Africa, Prof Hubert Gijzen described “independent information as the foundation on which democratic societies are built.”
What they say
“The law was passed then locked away behind layers of bureaucracy and a stubborn unwillingness by officialdom to be open and accountable to the public. Office holders with access to public information need to be taught how to implement the law. They must also understand why it is important, in an aspiring democracy, for government to be open to scrutiny and transparent about the decisions it makes on behalf of citizens,” Daniel Kalinaki, NMnmG-U General Manager and chairperson, Editors Guild
“It has been difficult to access government information because those people are programmed not to speak to the press. They are always hiding information, or hiding behind the Official Secrets Act. They always say the information you are requesting is a danger to national security, even when you are requesting information on government programmes. I do not think they have been sensitised on the law. We have to rely on unofficial sources or sources who are not well informed. And this means as a journalist, you can be easily misled,” Robert Spin Mukasa, Editor, The Observer
“Recently, people were paying millions of shillings to access advanced Covid-19 medical care (in private health facilities). Where were the billions allocated to Uganda’s readiness to fight Covid-19? It is important for ordinary people to have the information to hold public officials accountable for the decisions they make,” Gilbert Sendugwa, executive director of Africa Freedom of Information Centre
“There are categories of officers, such as communication officers, who do not need clearance from the accounting officer to give information. I am aware that some of us hide behind the clauses of the Standing Orders to deny the public information. That is why the government is considering opening up more categories of information officers,” Moses Watasa, commissioner for communication and information dissemination
“The law is clear on who should be the recipient of a request for access to information, and that is the accounting officer. The law also provides for circumstances where an information request is routed from a mother ministry to an agency or department,” John Asimwe Ishabairu, engagement officer at Collaboration on International ICT Policy for East and Southern Africa
Additional reporting by Arthur Arnold Wadero