As the Freedom of Information Bill goes back to the floor of parliament, the Media Institute of Southern Africa – MISA Botswana Chapter wishes to once again appeal to MPs to listen to the wishes of the people and pass the bill into law. It is an understatement to say the road was long and winding but it is encouraging to see MPs asserting their authority and insisting on seeing the bill to the end despite efforts by the minister to delay the bill further without offering concrete reasons why.
When the debates on the bill were suspended for further consultation, the Chapter complained that the position of government on the bill was not clear but sadly even after meeting with Minister Masisi and his team, we are not clear on where exactly, is the bill so fundamentally flawed that it has to be trashed. The Freedom of Information Task Force hopes that the presidency will be inclined to respond to this article and suggest that if indeed it does respond, it must spare us the generalities and just point to where the train smash is! Batswana need to know!
When we met at the parliamentary general assembly on the 26th of July 2012, Minister of Presidential Affairs and Public Administration, Hon Mokgweetsi Masisi asked for a chance to go and meet the sponsor of the bill, Hon. Dumelang Saleshando and his team before the two parties could meet with the rest of the MPs. This gave us a lot of hope albeit for a short time because at the meeting very little came out except to hear the minister openly announcing even before we could enter into any discussion that that government has decided not to support the bill.
Why did the minister ask for the meeting in the first place? In trying to explain this position, the minister said they have identified even more problems with the bill. Surprisingly when we demanded to hear the ‘many issues’, the officers repeated the same issues that were raised by a mysterious memo passed to ruling party MPs when the bill was due for second reading. Thus after the discussions it emerged that there were really only four issues of concern for government and that was what the hon. MP and mover of the motion, reported to the general assembly of parliament on the 2nd of August 2012.
Background information
On the day the bill was scheduled to be presented to parliament for the second reading the office of the president distributed a document, which as we heard later was only meant to guide ruling party MPs in debate of the bill. The document as we have pointed out on numerous occasions was flawed and sought to raise unnecessary alarm. At the beginning of this interesting journey, the issue that featured predominately in the arguments presented by the government; was the issue of privacy. Dr. Ramsay talks a lot of the need to instead have a Data Protection law preceding Freedom of Information. This view was reiterated by Minister Masisi in newspapers articles where he was quoted as saying a data protection law will assist to curb information leaks. This position is flawed in many ways as it seems to suggest that a Data Protection law can be used to protect state secrecy- such an application is inconsistent with International practice. Information privacy is defined by privacy International in the following terms “Information privacy…involves the establishment of rules governing the collection and handling of personal data such as credit information, and medical and government records. It is also known as ‘data protection’”. This definition alone nullifies such a usage. This is one of the four issues that we discussed at the our meeting with the presidency and they acknowledged this, saying that, they only meant that in their own planning, they had envisaged the Data protection to come before the freedom of information bill- NOT THAT THERE IS ANYTHING WRONG WITH ONE COMING BEFORE ANOTHER! This issue therefore we believe was resolved.
The other issue that came up at the meeting and was also mentioned by the secret document (secret document in that to this day no government official or minister has owned up to crafting the document) referred to above is that, of the usage of the phrase “public Interest”. The secret document makes reference to some of the pitfalls regarding the interpretation of the term “public interest” and we have since identified all areas where the phrase is used and have come to the realisation that in most cases the phrase “public interest” can be excised without changing the meaning save for article 38 which provides for a clearly defined and narrowly crafted public interest override.
We would however like to point out that there is nothing unusual ÔÇô as the author claims ÔÇô in having one provision of a section being overturned by a subsequent provision in the same section or elsewhere. The nature of FOI law is such that there is a constant balancing of interests and harm. Where a provision establishes disclosure, there is a need to recognize that such disclosure may be limited or withheld in order to limit any expected, clearly demonstrable and significant harm from disclosure as the merits of each case may dictate. Vice versa, where a provision establishes an exemption from disclosure, there is a need to recognize that such exemption may be lifted in order to limit any harm that may be suffered by a requestor as the merits of each case may dictate. ┬áWith this issue too, the task force is prepared to discuss reasonable improvement to the draft FOIA at committee stage. The sponsor of the bill has already indicated to the general assembly of parliament that he will notice amendments to accommodate the concerns raised by the government!
The next issue which is may be the most contentious is the issue of what information to exempt and how to do so. In the ‘government position paper’ referred to above this is perhaps the most confusing, misinforming and completely erroneous critique of the draft Bill. The author states that the Bill is “materially defective” because it lacks provisions on exempt information. The fact is, the draft Bill provides for all of these exemptions/protections from disclosure that the author of the “Observations” document has listed and even more. The Bill provides for the protection of the categories of documents relating to:
a)      Internal workings of public institutions and policy formulation (sec. 28)
b)      National security and defense (sec. 29)
c)      International relations (sec. 30)
d)      Enforcement and administration of the law (sec. 31)
e)      Legal professional privilege (sec. 32)
f)      Personal privilege (sec. 33)
g)      Trade secrets and business affairs (sec. 34)
h)      Information given in confidence (sec. 35)
i)      National economic issues (sec. 36)
j)      Information whose disclosure would lead to contempt of court (sec. 37)
Even as we differ so fundamentally with the interpretation of government on this issue we have made an undertaking to relook at the exemptions and accommodate clearly substantiated concerns raised. One way of addressing this issue would be to instead of propagating for absolute exemptions, to consider excluding some arms of government from the operation of the bill. We are ready to provide parliament with examples of such an approach citing the trend of public bodies that are often left out of the operation of freedom of Information laws. Parliament will then have to decide whether this is the way to go because there is danger in blanket exemptions as they tend to work against the very spirit of the law which is transparency and accountability.
The last of the four issues was a broad and sweeping statement that the style of drafting and the language of the bill are below domestic and international standards. We could not do anything about this because no examples were given and no standard pointed at for the drafters to work on improving the current bill. The Freedom of Information Task Force would like to inform the minister and his team that on the drafting team we have a former Deputy Attorney General who led the Drafting team at Chambers and a Freedom of Information expert who took part in the drafting of most of the Freedom of Information laws on the continent. We are therefore reasonably confident that this bill as crafted conforms to both local and International drafting standards and can stand any test. With such unsubstantiated claim the task force is inclined to share the concerns of the MPs that this might just an attempt to shoot down a private members bill not on its merit or de-merits but simply because it is a private members bill.
Having given a picture of the situation as it stands now, it is critical to also point out that different stakeholders have endorsed and put their weight behind the bill. Councilors ÔÇô from both ruling and opposition parties in the Francistown and Gaborone city councils, as well as the Jwaneng and Gantsi councils supported the bill during addresses by MISA Botswana with the majority of them saying such a law is long overdue. The House of chiefs also unanimously supported the bill and IS IT NOT TIME MPs TOO, TO HEED THE VOICES OF THE PEOPLE? We are very aware that in the game of politics the question is often whether you are leaning to the LEFT or to the RIGHT, but OUR REQUEST TO YOU HONOURABLE MEMBERS THIS TIME AROUND IS TO ASK YOU TO LEAN FORWARD! LEAN FORWARD TO THE ASPIRATIONS OF VISION 2016 OF ‘An Open, Democratic and Accountable Nation’ as well as ‘A United and Proud Nation’.
Phenyo Butale
National Director
