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Thursday, 4 June 2015

Should Zambia have FOI?

GRZ says that though it remains committed to enacting the Freedom of Information (FOI) Bill it plans to do so cautiously. According to Information Minister Chishimba Kambwili the Government "is concerned that some media organisations are focused on making it fail instead of providing credible checks and balances".

The government's refusal to enact FOI based on the lack of effective media regulation seems to have received new life following the decision of the Botswana parliament to reject a similar FOI Bill in order to "preserve the secrets and security of the nation". Minister Kambwili was quick to add that "in a way you can agree with [Botswana], the situation in Europe and Africa is different” .

For their part, the Botswana government has always been clear that it rejects FOI largely due to the scope of the Opposition's proposal rather than on principle. When the Bill was first rejected in 2012 it said, "in its current form, the proposed legislation is characterised by unrealistic timelines and cumbersome mandates. It further fails to categorically exempt sensitive and privileged information from disclosure, while failing to uphold the right to privacy".

Zambia has never had any parliamentary vote on FOI. Until recently, it has been careful to make it clear that whilst FOI is okay in principle the main issue is that the proposed FOI bill is at odds with various existing pieces of legislation and it duplicates what is in the Draft Constitution. What is not clear is why the Minister of Information did not simply say no work is being done on FOI for those reasons. Instead he seems to now use lack of media regulation as the reason.

The government needs to be cautious over FOI because before we do anything the government should produce a comprehensive Impact Assessment that explains the costs and benefits of such legislation. They must argue on this basis and not submit to the guess work that has come from media organisations and foreign government intent on promoting what is a very costly undertaking at a time when Zambia needs a smaller government.

As we understand it the proposal under consideration is to have an Act of parliament that gives ordinary Zambians the right to ask any public sector organisation for all the recorded information they have on any subject. Anyone would be able to make a request for information. Such requests for data would need to be handled under the relevant legislation to accommodate data protection and national security concerns.

The benefits of such a law is that is that it helps to open up government to the people and should in principle continue to reinforce the message that government is a servant of the people. Many support FOI largely from a broader “governance” perspective. Others believe government sits on a lot of information which is useful to the public. This information should ideally be published but government often doesn’t because of a culture that does not support transparency and informed public debate.

Some have suggested that the legislation may help prevent "corruption". In truth that is only the case in very few cases. FOI won't stop many forms of corruptions such as bribery between individuals, political corruption, nepotism and public theft. The reason is that FOI simply enables individuals to request information from government. Government can always refuse to release because it is "sensitive" or because it does not hold the information.

This is likely to be the case where plunder is involved. The same civil servants who are in charge of answering the FOI request would the same corrupt civil servants who you want to expose. Where information is likely to be useful is where such information allows us to assess "wilful mismanagement". Public spending data is going to be the main form of data we should hope to use FOI for.

Our view is that those who argue for FOI often do so without properly grounding their arguments. The case for FOI is largely a philosophical rather than economic one. FOI is better justified in terms of "right" language. The argument should be that people have a "right to information” that the Government holds about them and the money it spends. To argue that FOI will reduce corruption is folly because of the multifaceted nature of corruption. Also there’s no evidence across countries that FOI legislation has led to reduction in corruption (through a deterrence effect) or conviction of many corrupt officials.

Crucially, at the practical level it is very likely that the freedom of information right is one mainly likely to be mainly utilised by journalists. Academics would probably not use it as much because they need mostly quantitative data that is quality assured. It follows that we should focus on ensuring the Central Statistical Office ups it game - as I have said before we need to make it more independent as a statistical authority, but that is a subject for another time. My main point here is that the new Act would not directly benefit ordinary citizens.

Part of the reason why ordinary citizens would not benefit from this Act is due to the fact that Government itself is stuck in the dark ages as far as e-government is concerned. Fully implementing government Freedom of Information is much more difficult in circumstances where the activities of Ministries are not yet fully computerized, let alone state of the art. It is a good goal to have, but actual searching through paper records distributed around several physical sites is a time consuming and labour intensive task requiring significant expertise with the structure of the archives to perform efficiently.

So the benefit are likely to be negligible. What about the costs? Sadly, these appear not to have been properly considered because no impact assessment has been produced. There three broad categories of costs we need to think about.

First, there are costs for setting up the system of FOI. These would be mainly in form of having an independent Information Regulator to oversee the freedom of information and general data protection issues. Nearly every FOI regime in the world has this Regulator. The information Regulator is different from the Communications Regulator (ZICTA). In the UK for example, there exists the Information Commissioner Office. FOI Acts are meant to incentivise governments to act responsibly. If they don't they are subject to penalties. In other words, the FOI Act has to be credible tool to the public. To do that you need a strong Regulator and the courts have to be ready and willing to enforce issues.

Secondly, there would be costs to GRZ of responding to the FOI requests. These would be in terms of staff costs. Someone has to handle requests. It would also probably need to hire staff who would ensure internal compliance on procedures. The other problem of course is that with civil servants spending time dealing with queries there will be little time for them to actually do their real jobs. Local councils may be particularly unable to cope with the information demands! Public bodies would also most likely need to make heavy investment in new IT and other equipment.

Thirdly, there would be costs of adjudicating the FOI system itself. When someone refuses to handle your request you need to have the dispute resolved. At the basic level this would need to be done through the Regulator setting up a tribunal system that allows complaints to be adjudicated. But beyond that matters may end up in court. This is inevitable because by nature the FOI act would necessarily be qualified elsewhere e.g. where release of such information damages the public interest presumably it can’t be released. The Courts therefore would be the final arbiter. Whether the Executive or Judiciary are best placed to judge the public interest is always a matter of much debate.

When we take all these things into account and compare the huge financial costs with the benefits, it is clear that FOI bill should not be taken forward currently. It is not a financial priority when we struggling with wasteful expenditure. We cannot on one hand be calling for government to trim spending and then asking for this piece of legislation. Let us help government by focusing on things that really matter. Let us also have more evidence based policies not just guess work.

Chola Mukanga
Copyright © Zambian Economist 2015

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