Right to know the Commonwealth? Perhaps not

by Michelle Gurung Tue, Oct 18. 2011

This October, fifty-four Heads of Governments of the Commonwealth will meet in Perth, Australia to discuss and shape their collective future. A big moment for Big people.

This brings to mind the last CHOGM in Trinidad and Tobago and the objectives set forth therein.{{more}} During the 2009 CHOGM, the Heads of Government reaffirmed their commitment to the Universal Declaration of Human Rights (UDHR), human rights covenants and instruments and to the Commonwealth’s fundamental values and principles of democracy, human rights, rule of law, freedom of expression and good governance – the Trinidad and Tobago Affirmation on Commonwealth Values and Principles. The Commonwealth Secretariat’s strategic plan for 2008/9-2011/12 is based on these very values and principles.

The Trinidad and Tobago Affirmation, emphasises the “free flow of information” to enhance democratic traditions and strengthen the democratic process. During the same CHOGM, the Heads of Government also called for “strengthening of efforts to improve the Secretariat’s governance, its responsiveness to changing priorities and needs and also its public profile”. In the two years since these exhortations, the Commonwealth Secretariat is yet to demonstrate any moves to promote transparency in the countries of the Commonwealth and to become more open.

As long ago as 1980, during the Commonwealth Law Ministers’ Meeting in Barbados, the Law Ministers recognised the importance of “access to official information” for the promotion of public participation in a democratic governmental process. Nineteen years later, an expert group was finally set up to lay down principles and guidelines that should ground freedom of information laws within the Commonwealth. The principles laid down freedom of information as a “legal and enforceable right” that should “permit every individual to obtain records and information held by the executive, the legislative and the judicial arms of the state, as well as any government owned corporation and any other body carrying out public functions”. The principles also included “a presumption in favour of maximum disclosure”, “narrowly drawn exemptions” subject to “public interest override” and “provisions for independent review to ensure compliance”. The guidelines require governments to enact freedom of information legislations based on the above mentioned principles to promote a culture of openness.

In 2002, the Secretariat went a step further and developed a model law to assist member states in their effort towards adopting such a law. This was soon followed by a Heads of Government commitment to promote the “right to know” in the Aso Rock Declaration on Development and Democracy during CHOGM, 2003. The Commonwealth’s promising measures, however, are yet to have any significant impact on the much needed shift towards the adoption of information access legislations within the Commonwealth. At that time, there were eight Commonwealth countries with access to information laws in place – Belize, Pakistan, South Africa, Australia, Jamaica, UK, Canada and New Zealand. Since then, eight other countries enacted access to information laws – Antigua & Barbuda, Bangladesh, India, St. Vincent & the Grenadines, Trinidad & Tobago, Malta, Nigeria and Uganda, while thirty-eight countries either don’t have any such law or are struggling to get one.

Member States: Of the fifty-four countries in the Commonwealth only sixteen have freedom of information laws, six have Bills tabled in parliament and are currently at the committee stage, thirteen have FOI bills that are yet to be introduced in parliament, while nineteen have no access to information legislation. Campaigns around information access legislations in some of these countries have been arduous and long-drawn, extending to several years. The campaign for a Right to Information law in Ghana has been on for more than a decade now, while Nigeria passed its Freedom of Information law in May 2011, after twelve years of lobbying by civil society groups.

The Commonwealth has declared its commitment to assist member states in promoting democratic culture and practices and stopped at that. Its programme of work at the Secretariat and within the Foundation has to demonstrate its ability to actively promote the passing of liberal access to information laws in tandem with each other. With the Secretariat perhaps looking to capacitate governments, while the Foundation encourages civil society to promote the right to participation, transparency and accountability – all glorious attributes member states always possess but are not seen often enough to hold belief in their existence.

Commonwealth Secretariat: In its own functioning the Secretariat has been shy of moving forward with alacrity to put systems of transparency and information giving in place. As a latecomer to the concept, it has excellent practices of multilateral organisations to model itself on. Intergovernmental bodies such as the European Union (EU) and United Nations Development Programme (UNDP) have adopted regulations and information disclosure policies based on international best practice principles and on the principles of “transparency”, “accountability” and “participation”. The EU Regulation for public access to the European Parliament, Council and Commission states that:

Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.

The UNDP adopted its Public Information Disclosure Policy in 1997 with the principal objective of enabling public participation through public access to information in the human development process. Its disclosure policy also rightly highlights the need for transparency and accountability in such publicly funded bodies:

As a custodian of public funds, UNDP is directly accountable to its member Governments and indirectly accountable to their parliaments, their taxpayers, and the public in donor and programme countries.

The disclosure policies of these bodies impose an obligation to disclose information proactively and allow citizens to access information through requests, while providing adequate safeguards for sensitive information related to security and defence matters, refusal of which are required to be accompanied by reasons. The General Assembly of the Organisation of American States (OAS) is also preparing to adopt a disclosure policy by 2012 in line with other multilateral organisations. In contrast, the Commonwealth Secretariat’s current practice is to disclose selective information through its website above or beyond which there is no right of access. The Commonwealth is a publicly funded organisation of its people and needs to realise that it is accountable to its member governments and to the people that form it.

The Commonwealth Secretariat’s Strategic Plan for 2008/09-2011/12 seeks to strengthen democracy and development by promoting and ensuring participation in democratic process, good governance through transparency and accountability, strengthening public institutions for proper service delivery and strengthening anti-corruption and integrity measures. It is now widely known and accepted that freedom of expression – including the freedom to seek, receive and impart information, as enshrined in Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), is the key to the realisation of all these.

Keeping this in mind, the Commonwealth has to move forward with its commitment and assist member countries be a part of the global trend towards legally recognising people’s right of access to information. But, before that, the Commonwealth must take quick measures to ensure transparency within its own organisation, failing which it would lose any moral or authoritative ground to uphold the democratic values it seeks to.

Michelle Gurung is the Project Officer, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

Editor’s note: While the Freedom of Information Act was enacted in St. Vincent and the Grenadines in 2003, it is still not operational, as under a clause in Section 2 of the Act, the Minister must gazette the date for the implementation of the Act. This has not yet been done.