The tabling of an Access to Information (ATI) Bill 2023 on Friday 10th November 2023 presents an opportunity for Zambia to enhance its democratic credentials. Enacting an Access to Information comes packed with a lot of benefits for the government and Zambians. Access to public information is key in having informed citizens who can effectively participate in government policies and programmes and express their freedom of expression more meaningfully.

For instance, there will be no effective participation in government programmes such as the Constituency Development Fund (CDF) if the citizenry do not have access to information about the CDF and its guidelines. An ATI law will further be crucial in reducing misinformation and fake news as it is presumed that under an umbrella of an ATI that citizens will have the correct information on platforms served by the government. An ATI law should also serve as a foundation on which trust between the government and the citizens is accomplished.

In an environment of government secrecy and non-disclosure, the people tend not to trust the government. The fight against corruption is a chase after the wind if the country does not have access to information.

The ATI Bill 2023 is currently at Committee stage where parliament is now receiving comments from stakeholders; hence the public should be interested in goings on in the legislative house as this Bill will affect all Zambians.

The last time an ATI bill was on the tables of the National Assembly was in 2002, when the bill was called the Freedom of Information Bill (FOI). In 2002, the New Daw Administration was an opposition political party; The current Vice President Her Honor Honorable Mutale Nalumango was Minister of Information and Broadcasting in the Movement for Multi Party Democracy (MMD) government; The Patriotic Front (PF) was one year old. A baby born in that year is now 21 years old. This is how far the journey for the country to have an ATI law has taken.

The FOI however did not enjoy a long life in the National Assembly as it was withdrawn at second reading stage on the premise that government then wanted to consult further. However, another reason can decipher from the debates on the bill then was that the FOI, now Access to Information bill, was misconstrued to be a media law, which would have been a powerful tool in the hands of the journalists who would later intrude into the personal lives of politicians under the guise of access to information.

This was a misconception as that an Access to Information law is a media law or a law for journalists but the truth is that an ATI law is a universal law that affects everyone — government, farmers, nurses, students, persons with disability, teachers, marketeers, including someone on the streets.

From 2002, four presidents namely Levy Patrick Mwanawasa, Rupiah Bwezani Banda, Michael Chilufya Sata, and Edgar Chagwa Lungu have been residents of plot one and left without enacting the ATI. The MMD ruled and lost power to the PF which had promised to enact the access to information law. The PF ruled and lost power without enacting the ATI. Thus, when the UPND got the reins of power from the PF, it was just natural for stakeholders to remind the new administration on their campaign promise to enact the ATI.

A quick glance into the ATI bill 2023 reviews that the bill is generally a good proposed law that meets most of the requirements of an internationally accepted access to information law, but the bill still lacks some key clauses which may prove problematic in the future.

Challenges in the draft

Supremacy of the Act – The model law on Access to Information for Africa has a supremacy clause. However, the Zambian ATI bill 2023 that was presented to the National Assembly by Information and Media Minister Cornelius Mweetwa does not have a supremacy clause. The supremacy clause, subject only to the constitution, is key in addressing issues of conflict of laws which naturally arises when a new piece of legislation has been enacted.

Proactive Disclosure – Proactive disclosure of information is the heartbeat of an ATI law. Without an express proactive disclosure clause in the ATI law makes access to information costly and ineffective. In the ATI 2023 bill, the proactive disclosure has been collapsed from a stand-alone part hence watering down its importance as a heartbeat of an ATI law. Under the spirit of proactive disclosure, a public body should proactively disclose information to the public through available media, including digital technologies. The net effect is that government will not be compelled to release information that is of public interest if that information has not been requested.

Binding decisions of the Commission – It is interesting to note that section 4 (3) in the old ATI Bill that was validated on by stakeholders provided that the decisions of the Commission were binding on the government. Section 4 (3) of that bill read that “Decisions of the Commission are binding on the Government.” However, this section has been replaced with a new section 4 (3) which provides that –

‘The Ministry responsible for information is responsible for monitoring and reporting to the Commission on compliance by information holders with respect to their obligations under this Act.’

This means that government is not bound by the decision of the Commission but that government will be monitoring itself on compliance and report back to the commission! In the African Union model law, the responsibility for monitoring compliance lies with the oversight body and in case being the Huma Rights Commission.

Automatic declassification – Access to information law principles demands that information should not be withheld indefinitely, but that after a specific number of years that the information should be declassified and become accessible. The framers of our ATI Bill 2023 have not included a clause for declassification on information of public interest. The spirit of an ATI law is about public information that is of public interest or benefit and not personal information.

Security of property – The Terms such as “security of property” in section 25 of the bill is too broad as things deemed as property are too many and creates a conducive environment to technically expand on exemptions under the guise of “security of property”.

Public disclosure – Section 21(d) has a very interesting provision. In access to information, public interest is usually used to justify disclosure, but it interesting in our ATI 2023 that the framers of this proposed law have inserted a provision for public interest not to disclose information. I am sure there will be need for the use of massive scales to determine who outweighs who.

Commendable sections in the draft

Some notable good provisions that have been retained in the new bill are that of “Transfer of requests” under section 11. Public bodies are not everywhere in the country. However, by the strength of section 11 and by implication, it will be as if all public bodies are now in all the places since a requester can go to an available public body in his or her area which public body will later transfer a request to a right institution.

On another positive note relates to section 22 whose net effect is to reduce on exemptions. A good ATI law should limited and specific exemptions. An information holder under section 22 of the ATI Bill 2023 has an obligation to disclose information where the public interest in the disclosure of the information outweighs the harm to the interest protected under the relevant limitation. Therefore, even if the information exempted from disclosure, it will be disclosure if the public interest is greater than the harm likely to be occasioned by its disclosure. This is a commendable inclusion on the part of the framers of this ATI bill 2023.

Section 24 is also another good inclusion in the new bill as it promotes the spirit of transparency and accountability that an ATI law is aimed at. An information holder is obligated to grant a request to access information if the information requested for is information the disclosure of which would facilitate accountability and transparency. Citizens and communities can only call on their counsellors and Members of parliament to account when there is access to information by the constituents. Without access to information by the people, then the communities are in the dark and those who steal thrive in an ecosystem of darkness. But ATI comes in to shine a light on deeds of the dark and call on leaders to be transparent and account on how public resources are utilized.

There will be need to open conversations on how the budgetary allocations will be enhanced to implementation of ATI law by the Human Rights Commission. Despite the few cited clause which might be problematic, the proposed ATI 2023 bill is generally a bill that should be supported by all the 166 Members of Parliament in the Zambian National Assembly.

(The author Joe Nkadaani is a Senior Media Lawyer at USAID Open Spaces Zambia project which is a consortium of Civil Society Organisations.)