Sierra Leone’s Freedom of Information Act needs activating

The Sierra Leone Telegraph: 10 February 2014

APC launches 2012 election manifesto“What is the point of having a Freedom of Information Law (FOIL) that cannot be implemented and enforced, if government has deliberately failed to establish the modalities and systems that will make this happen?”

That was the question put to the Sierra Leone Telegraph yesterday by a local civil society activist, who regards the lack of concerted action by the government – in implementing the FOIL, as evidence of the president’s anti-civil liberty credential.

In October 2013 and after six long years of procrastinating, president Koroma gave his assent to the Freedom of Information Bill, which civil society groups, the media and the international community had long demanded – to promote transparency, openness and probity, especially in and by government.

And when the president finally announced his assent, he said that “the Bill will enhance transparency and improve records management across ministries”, and that the Bill had nothing to do with journalists picking on public officials.

He reminded the nation that as an opposition leader in 2007, he promised that if elected he will ensure that the FOI Bill becomes law.

But despite the euphoria which emerged after the passing of the Bill by the country’s parliament last year, there is now a growing feeling of anti-climax, disappointment and despair. The 2013 FOIL is yet to be given teeth.

Critics say that the government failed to formulate a FOIL delivery plan immediately after passing the Bill last year, causing unnecessary delays for those citizens wishing to exercise their right to access government records.

President Koroma 2014A delivery plan formulated by the government in partnership with stakeholders, setting out clear and achievable milestones – including a date when the Commission responsible for enforcing the FOIL would be established, could have offered some confidence that the government is indeed genuinely serious about FOIL.

Both the government and the country’s leading civil society group that has been most vocal in demanding the enactment of the FOIL – the Society for Democratic Initiatives (SDI), are this week discussing a framework for moving the implementation process forward.

But there are suspicions that the debate is already being strongly polarised by political propaganda, amid genuine fears that the government does not want to see the implementation of the FOIL.

Theo NicolSpeaking at the opening of the joint meeting between the ministry of information and the SDI,  the deputy minister of information – Theo Nicol (Photo), said that “it took Liberia three years to implement its FOIL, Nigeria eighteen months, and Sierra Leone just three months” . This comparison, according to minister Nicol, demonstrates the government’s commitment to transparency, the rule of law and democracy.

But minister Nicol is simply being economical with the truth, knowing all too well that after four months of parliament receiving presidential assent to the FOI Bill, citizens of Sierra Leone are yet to be empowered to be able to make formal request to access government records, in accordance with the provisions of the FOI 2013 Act.

The fact is that government has failed to formulate an implementation plan in partnership with stakeholders. But it is hoped that the outcome of this week’s deliberations between the SDI and government, will produce a credible and workable implementation plan.

The Sierra Leone Telegraph proposes the formation of a ‘Task and Finish Group’ – comprising of government officials and civil society groups, who will sit down together to formulate and supervise the FOIL implementation plan, and whose task will include the establishment of the FOIL Commission, securing sustainable funding commitment, and oversee the recruitment of the FOIL Commissioner and staff.

Formulating a country wide communication strategy that will spell out how citizens will be educated about the FOIL, must also be one of the key objectives of this week’s joint meeting.

Emmanuel saffa abdulaiBut as always, confidence is not in abundant supply. The Director of SDI – Emmanuel Saffa Abdulai (Photo), says that it took ten years of campaigning by civil society groups, before they could get the FOIL into the statute books.

He said that during their campaign, they made it clear to the government that ‘all structures and systems must be put in place to ensure a smooth implementation of the FOIL immediately after passing into the statute books.

And now Abdulai is calling for the government to quickly comply with the legislation.

The implementation of the FOIL is not going to be easy. But with the commitment, honesty and determination of the government and stakeholders, the process need not be politically acrimonious and dysfunctional.

What is also at the centre of this debate, is whether it is sustainable for the government to have in place two separate agencies – the Open Government Initiative (OGI) and the Freedom of Information Commission – both promoting similar objectives.

Analysts say that both organisations are not mutually exclusive, and it would therefore be a serious waste of resources if allowed to function in parallel.

The OGI is estimated to be costing the tax payer over $250,000 a year to run, which is expected to be similar to the projected cost of running the FOIL Commission.

When president Koroma called for the establishment of the Open Government Initiative in January 2008, many would agree it was with good intentions. He believed that “good governance and dialogue may be impeded by the blight of corruption, which disrupts free flow of information, undermines accountability and transparency of decisions and discourages greater participation in the decision making process.”

OGI Boss - Kadija SesayHence, according to the Director of the Open Government Initiative (OGI) – Kadija Sesay (Photo), “the Open Government Initiative is designed to play a crucial role in the good governance of a democratic society by ensuring transparency and accountability, promoting participation and the rule of law through dialogue between the government and the citizens of this country.”

But it seems the objective of the OGI as outlined above by the Director and that of the proposed FOIL Commission appear to be fairly similar, though the FOIL Commission will have powers of enforcement – akin to a court of law.

Government therefore cannot afford to keep both agencies running in parallel.

So how would the FOIL Commission look – when established? What would it set out to achieve? And how would it go about its business of ensuring that citizens have unfettered access to government records?

Let us now take a look at two of the key Provisions of the 2013 Act :

Administrative Provisions 

Section 30. (1) There is hereby established a body to be known as the Commission.

(2) The Commission shall be a body corporate having perpetual succession, capable of acquiring, holding and disposing of property, being sued in its corporate name and subject to this Act of performing all functions as bodies corporate may by law perform.

(3) The Commission shall have a common seal the use of which shall be authenticated by the signatures of the Chairperson and any other member of the Commission generally or specifically authorised by the Commission for that purpose.

4) Every document purporting to be an instrument executed or issued by or on behalf of the Commission and to be sealed with the common seal of the Commission in the manner stated in subsection (1) shall be deemed to be so executed or issued without further proof unless the contrary is proved.

(5) In appropriate cases the seal may be affixed to documents outside Sierra Leone.

Section 31. (1) The Commission shall consist of the Information Commissioner who shall be the Chairperson of the Commission and four other Commissioners representing each of the Provinces and the Western Area.

(2) Members of the Commission shall be appointed by the President on the recommendation of the Minister and approved by Parliament.

(3) No person shall be appointed as a member of the Commission if that person:

(a) is an employee of a political party or holds an elected or appointed position in central or local government; or (b) has been convicted of an offence involving fraud or dishonesty.

(4) The information Commissioner and the other members of the Commission shall hold office for a term of five years and shall be eligible for re-appointment to a further term of five years only.

Section 32. (1) The Commission shall have all powers direct or incidental, as are necessary to undertake its functions under this Act, including the power to acquire, hold and dispose of property.

(2) Notwithstanding the generality of subsection (1), the Commission shall have power to: (a) monitor and report on the compliance by public authorities with their obligations under this Act; (b) make recommendations for reform both of a general nature and specific public authorities; (c) co-operate with or undertake training activities for public authorities on the right to access information and the effective implementation of this Act; (d) refer to the appropriate public authority, cases which reasonably disclose evidence of criminal offences under this Act; and (e) publicise the requirements of this Act and the rights of individuals under it.

(3) In the performance of its functions under this Act, the Commission shall have the powers of a High Court to: (a) issue summons or other orders requiring the attendance of any person before the Commission to give oral or written evidence and the production of any document or record relevant to any investigation by the Commission; (b) administer oaths; (c) examine any person in respect of any subject matter under investigation before the Commission; (d) require any person to disclose any information within the person’s knowledge relevant to any investigation by the Commission; and (e) enter any premises occupied by a public authority to carry out any investigation.

(4) The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order: (a) the release of any unlawfully withheld information; (b) the payment of compensation; or (c) any other lawful remedy or redress.

(5) A person or authority dissatisfied with an order made by the Commission under subsection (4) may appeal to the High Court within twenty-one days of the order.

(6) An order of the Commission under subsection (4) may be filed in the High Court by any party thereto in such manner as the Commission may, after consultation with the Chief Justice, prescribe and the party shall give written notice of the filing of the order to all other parties within thirty days of the date of the filing of the order.

(7) If no appeal is filed under subsection (5), the party in favour of whom the order is made by the Commission may apply ex parte by summons for leave to enforce such order as a decree and the order may be executed in the same manner as an order of the High Court to the like effect.

(8) A person who (a) fails to attend before the Commission in accordance with any summons or order issued under subsection (3) or (4); (b) having attended before the Commission, refuses to be sworn or to make an affirmation, or having been sworn or affirmed, refuses without lawful excuse, to answer any question or to produce any information; (c) knowingly gives any false or misleading information to the Commission; or (d) causes an obstruction or disturbance in the course of any proceedings before the Commission, individual to a fine not exceeding ten million Leones or in the case of a corporate body to a fine not exceeding one hundred million Leones or a term of imprisonment not exceeding one year or to both the fine and imprisonment.

Section 33. (1) The Commission may, for the purpose of conducting any investigation pertaining to an inquiry, utilise the services of any official or investigation agency of the Government and where an official is so utilised under this subsection, the Commission shall pay the official or agency for the service rendered.

(2) For the purpose of investigating any matter pertaining to an inquiry, an official or agency whose services are utilised under subsection (1) may, subject to the direction and control of the Commission: (a) summon and enforce the attendance of any person for examination; (b) require the discovery and production of any information; and (c) subject to this Act, requisition any public record or copy of the public record from any official.

(3) Paragraph (c) of subsection (8) of section 32 shall apply in relation to any information given by a person before any official or agency whose services are utilised under subsection (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission.

(4) The official or agency whose services are utilised under subsection (1) shall investigate any matter pertaining to the inquiry and submit a report on it to the Commission.

(5) The Commission shall satisfy itself on the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under subsection (4) and for that purpose, the Commission may make such inquiry, including the examination of any person or persons who conducts or assists in the investigation as it thinks fit.

Section 34. (1) The Commission shall be assisted by a secretariat consisting of the Executive Secretary, Finance Officer, Administrative Officer and such other additional technical and administrative staff, as may be required for the efficient performance of its functions under this Act.

(2) The Executive Secretary, Finance Officer, Administrative Officer and such other technical and administrative staff, shall be appointed by the Commission, on such terms and conditions as the Commission shall determine.

(3) The Executive Secretary shall, unless in any particular case the Information Commissioner otherwise directs in writing, attend all meetings of the Commission.

Section 35. Subject to the general control of the Commission, the Executive Secretary shall: (a) be responsible for the carrying out of the policy decisions of the Commission, the day- to- day administration and management of the affairs of the Commission and the control of the other staff of the Commission; and (b) perform such other duties as may be assigned by the Commission.

Section 36. No criminal or civil proceedings shall lie against the Commission or other staff in respect of any matter or thing done in good faith in the performance of its or their functions under this Act.

Section 37. 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.

Financial Provisions 

Section 38. The activities of the Commission shall be financed from funds consisting of: (a) moneys appropriated by Parliament for the purposes of the Commission; (b) grants, gifts or donations for the purposes of the Commission.

Section 39. (1) The Commission shall keep proper books of account and proper records in relation to the accounts and shall prepare within the period of three months after the end of each financial year, a statement of its accounts in a form approved by the Auditor-General.

(2) The books and accounts of the Commission shall each year be audited by the Auditor-General or by an auditor appointed by the Auditor-General and a report of the audit which shall include a copy of the audited accounts shall be submitted to the Commission.

(3) For the purposes of subsection (2), the Auditor- General or the auditor appointed by Auditor-General shall be entitled to have access to all books of accounts, vouchers and other financial records of the Commission and to require such information and explanation on them as the Auditor–General may think fit.

(4) The Auditor-General shall submit to the Commission a report on the audited accounts and shall, in the report draw attention to: (a) any irregularities in the accounts; (b) any matters that are likely to adversely affect the operations of the Commission; and (c) any other matter which, in the Auditor–General’s opinion, ought to be brought to the notice of the Commission.

Section 40. The financial year of the Commission shall be the same as the financial year of the Government.

Section 41. (1) The Commission shall, within three months after the end of the financial year, submit to the Minister a report on the performance of its functions during that year and on its policies and programmes.

(2) The annual report shall include the accounts and annual financial statement prepared under section 39 and the report of the audit on the accounts.

(3) The annual report shall also include an overview of the performance of all public authorities in implementing this Act.

(4) To enable the Commission to comply with subsection

(3), every public authority shall report annually to the Commission on the steps it has taken to implement this Act, including a report on the requests for information it has received and how these have been dealt with.

5) The Minister shall lay copies of the annual report before Parliament within two months after receiving the report.

(6) The Commission shall make copies of the report available to all stakeholders once it has been laid before Parliament.

Going forward

It is clear from the above provisions of the FOI Act 2013, that a lot of work is needed to ensure that appropriate structures such as the FOIL Commission are established, systems put in place, the Commissioner appointed, staff recruited and citizens educated as to how to make effective use of the legislation.

Also, president Koroma must take the decision to close down the Open Government Initiative, so as to make way for the new Commission for FOIL.

Sierra Leone cannot afford to operate both a FOIL Commission and an OGI, both costing an annual sum of over $500,000.

By legislating the FOIL into the statute books, the government has made a good start in keeping its own promise made in 2007, but the FOIL now quickly needs to be activated and given strong teeth.

In Part 2 of this article, we will discuss the application and enforcement of the FOIL.