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The Right to Access Information Commission: A Crippling Institution

October 19, 2017 By Alusine Sesay

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The achievement of transparency and accountability as prerequisites for democratic good governance still remains a pipe dream in Sierra Leone. The right of citizens to know and to hold public officials accountable could only be enhanced through access to vital information. Therefore, the enactment of the Right to Access Information (RAI) Act in 2013 and the subsequent establishment of the Right to Access Information Commission (RAIC) in 2014 brought with it numerous hopes. The development brought hope of public accountability through access to information of vital importance by not only journalists, but also civil society and the general citizenry. It also brought with it the hope of an assurance of the right to know by citizens as enshrined in the country’s 1991 Construction. For journalists, the development brought hope of accessing information that would enhance their professional work.

 Expectations

Expectations were high among journalists, civil society organisations and citizens that, the twin development would enhance democratic good governance through access to vital information of national importance.

Kelvin Lewis is the President of the Sierra Leone Association of Journalists (SLAJ), an association which has been in the forefront of fighting for press freedom and access to information. Mr. Lewis stated that: “When the Right to Access to Information Commission was established, my expectation was that we would now have an organ of government that would facilitate the access to vital information that we need. My expectation also was that the access to information law would now override the civil service laws which barred civil servants from disclosing information to journalists. So, I was hopeful that a mechanism was now being put in place to allow us access to document that would enhance our performance as journalists.”

Society for Democratic Initiative (SDI) is also a civil society organisation that has been in the forefront fighting for press freedom and access to information. Through a sustained advocacy and campaign, the organisation was able to pressure the government in enacting the Access to Information law in 2013. According to the organisation’s Executive Director, Emmanuel Saffa Abdulai, his expectation was that: “The commission is expected normally to carry out its functions, basically provides regulation for the implementation of the Access to Information Act. That regulation has not been passed ever since the commission was set up.”

Despair

Since the commission was established in 2014, several expectations have not been met. Like many other laws in Sierra Leone, citizens are not adequately aware about the existence of the Right to Access Information Act of 2013.

Chairman of the RAIC, Unisa Sesay, expressed frustration that:  “We have not been able to undertake a sustained public awareness programme. We have limited financial resources and we cannot adequately complete our yearly programs.”

He said since the establishment of the commission in the past three years, they have received only 42 requests because the public is not adequately aware about the existence of the law.

The chairman stated that the commission had written proposals to the UK Department for International Development (DFID), the United Nations Development Programme (UNDP) and others for assistance to enable them undertake sustained public awareness, but to no avail.

“When we started operations in 2014, we wrote proposals to all international partners but their excuse was that their focus was on the fight against Ebola,” Sesay explained.

He said since the commission was established, their only source of funding has been Government of Sierra Leone subvention, which he said was not regular.

“Only the Government of Sierra Leone is funding the commission. But as I told you, up to now, we have not received a dime for the 2017 budgetary allocation which is 1.7 billion Leones. In fact they have again reduced it to 1.3 billion Leones for 2018,” he stressed.

He, however, noted that they have been using meagre resources they have to establish offices in the provinces and employ few staff, although he admitted that government has been very much consistent in the payment of staff salaries.

The above narrative of the chairman enforces the claim of SLAJ President Kelvin Lewis, who noted that “Looking at the whole programme, it is clear that the government enacted the law because it was a requirement for them to access the forty-four million United States Dollars grant from the Millennium Challenge Corporation (MCC). And it showed clearly that even up to today, the commission is being starved of funds and that deliberately hampers any work that they want to do.”

The passing into law of the Access to Information Act 2013 was one of the MCC’s criteria for the Government of Sierra Leone to access the forty-four Million Dollars Fund. And Kelvin Lewis believes that government might have been forced into undertaking the venture because they didn’t want to miss such a colossal amount of money.

According to Kelvin Lewis, “the establishment of the commission, the idea behind it, and the thinking behind it, are very good. It is right for me one hundred percent. But the implementation for me is very wrong, because when government stifles the authority from getting any funds, then they are paralysed and cannot do their work effectively. Since the commission was set up in 2014, it is only now in 2017 that they are moving to establish offices in the provinces.”

Meanwhile, Emmanuel Saffa Abdulai from SDI also strongly expressed doubt about the willingness of government to implement the Access to Information law.

“I don’t think there is a political will to open up the system because Government of Sierra Leone does not want to be transparent. The resource is the main problem but you could see that because the central government doesn’t want to implement the law, they starve the commission of money,” he said.

He emphasises that until the regulation is passed, the right to access information law cannot be effective because it is the regulation that would clearly spell out as to how the commission would perform its function properly.

Mr. Saffa Abdulai said they have drafted the regulation since last year and that the Ministry of Information, which is the supervisory ministry for the commission, has refused to table it in parliament.

“I don’t think anything would happen to the access to information law until the regulation is in place. People do not even know how the law would operate and the commission has not set up a tribunal, as they are supposed to.”

But the Deputy Minister of Information and Communications, Cornelius Deveaux, defended government, stating that the enactment of the Right to Access Information Act in 2013 and the subsequent establishment of the RAIC was clear manifestation of government’s willingness to ensure democratic good governance through access to information.

Independence of the Commission

Part V, Section 37 of the Right to Access Information Act of 2013, states that “The Commission and its authorised agents shall not in the performance of their functions under this Act be subject to the directions or control of any person or authority.”

While the above section provides for the independence of the commission, subsection 2 of Section 31, states that: “Members of the Commission shall be appointed by the President on the recommendation of the Minister and approved by Parliament. “

Some school of thought argues that the appointment of commissioners by the President largely questions the independence of the commission.

“Politically, a lot of them are compromised and that is why most are Diasporans who have been given job by the government,” said Kelvin Lewis.

Journalist Thomas Dixon of Salone Times Newspaper also expressed similar sentiment, stating that the commission would only be independent if the appointment of commissioners is not done by the President.

“The commissioners would definitely be loyal to the President because they are appointed by him along party line.”

But the Deputy Minister of Information and Communication stated that: “Despite the Ministry is recommending the appointments of commissioners by the President, all of them are subject to parliamentary scrutiny and approval.”

Although many would take it as a politically correct argument, he said the ministry plays limited supervisory role in the commission because “They are not answerable to us in whatever shape or form. The commission is absolutely independent from our interference because we want it to function properly.”

Also, Chairman of the Commission, Unisa Sesay said although the ministry tried to muscle them, “We resisted it. If we have somebody who plays politics, he would put it under the ministry but nobody can bully me because I have worked for the government in a very senior position before being appointed to serve as chairman of the commission.”

Unisa Sesay is a veteran journalist and erstwhile Director of Communication at State House prior to his appointment as the Chairman of RAIC.

Despite the president has a reserved right and power, as per law, to appoint  all commissioners and other top government officials, suggestions are that commissioners of the Right to Access Information Commission should not be appointed by  him, but rather, they should apply for the job and face a panel to prove their competence.

Right to Access Information Law VERSUS the ACC’s Public Declaration of Asset

Access to information by citizens is a right guaranteed by law and Part II, Section 2 (1) of the Right to Access Information Act 2013 states that: “Every person has the right to access information held by or is under the control of a public authority.”

However, Section13, Part VIII of the Anti-Corruption Act of 2008 states that: “Subject to this Act, the Commissioner, Deputy Commissioner, Directors and other persons having an official duty under this Act, or being employed in the administration of this Act, shall deal with all documents and information, and all other matters relating to a declaration under this Part, as secret and confidential, except where a particular declaration or record is required to be produced for the purpose of, or in connection with any court proceedings against, or inquiry in respect of a declarant under this Act, the Commissions of Inquiry.” Section 14: “The Commissioner, Deputy Commissioner Directors and other persons referred to in subsection (13) shall make and subscribe such oath of secrecy as the Commission may prescribe.” Section 15: “The declaration shall be in such form as the Commission may prescribe.”

Arguments are that, to enhance the right of citizens to know and ensure public accountability and transparency, the Right to Access Information Act should supersede provision in the Anti-Corruption Commission Act of 2008.

According to Kelvin Lewis, there is need for a review of the Right to Access Information Act because, “Not everything in it addresses our concerns in Sierra Leone and the call of citizens is for public officials to declare their asset publicly to enable them hold the government accountable. Absolutely, the Act must be reviewed in order to brush-off those issues that have slipped through.”

Also, Emmanuel Saffa Abdulai noted that it has been a battle between his organisation and the Anti-Corruption Commission for the Right to Access to Information to supersede the provision on asset declaration in the ACC Act. Speaking from a legal perspective, Abdulai said his organisation is planning to take the issue to the Supreme Court for interpretation, arguing that it is the right of citizens to know and hold public officials accountable.

He argued that information regarding declaration of asset by public officials should not be kept in secret at the ACC, but rather it should be made public so that citizens would be informed and be able to ask the right question at the right time.

“It is all but a legal battle which we started taking with former ACC Commissioner, Joseph Kamara. The Access to Information law could now supersede the ACC Act, but we would have to go court to determine that,” he said.

He observed that it would not amount to transparency and accountability if information regarding asset declaration of public officials remains with the ACC.

Chairman of the RAIC, Unisa Sesay, also believes that the Access to Information law should supersede the ACC’s provision on asset declaration but noted that: We cannot champion that fight for now, but we would provide all necessary support to any individual, organisation or group of organisations that would take the issue with the ACC.”

Light at the end of the tunnel

Despite all the challenges that currently hamper the effectiveness of the RAIC in implementing the RAI Act of 2013, there is still a glimmer hope. The hopes brought by the enactment of the RAI Act and the subsequent establishment of the RAIC are still not dead and beliefs are that the commission could perform better in the future if provided with  the right space to perform properly.

“If the commission becomes fully active with the commissioners fully knowing their duties, it is a huge opening for not only journalists and civil society organisations, but also for the general citizenry of the country. If the commission is given the needed resources to operate, it would be a massive boost not only to press freedom but freedom of expression in Sierra Leone,” said Kelvin Lewis.

President of the Sierra Leone Reporters Union, Amadu Lamrana Bah, noted that the enactment of the RAI Act and the establishment of the RAIC is a huge opportunity that would enable journalists to do their work professionally.

For Emmanuel Saffa Abdulai, the Right to Access Information law is in place and it is a good law that citizens should make good use of.

Meanwhile, Chairman of the Commission, Unisa Sesay, disclosed that due to the limited activities of the institute, they have attracted the attention of international partners, including the World Bank and the Carter Foundation from  the United States.

“The Carter Foundation has come here to partner with us because they have an agenda in line with ours. We have now attracted the support of World Bank and they have provided us with two hundred thousand United States Dollars to undertake a national campaign and popularise the Right to Access Information Act,” he disclosed.

“This is the only funding we have received since we started operation in 2014.”

He said they would use the World Bank funding to popularise the Act, engage the media and civil society, build the capacity of all commissioners and staff of the commission, and provide better records management system.

According to him, the commission’s website is still under construction and that they would also use the World Bank funding to make it fully operational.

By all indication, there is going to be light at the end of the tunnel if the commission is provided with the required resources to perform effectively.

“This story was written as part of a journalism fellowship with the U.S. Embassy in Freetown. All opinions expressed in this article are those of the journalist and do not reflect the views of the U.S. Embassy.”