Right To Information – a Necessary Tool for Democracy

Unlike in the UK and in Nigeria, which both passed their freedom of information bills after long periods of civil society activism, Ghana’s Right to Information (RTI) Bill is still stuck before Parliament. Whilst it is necessary that a strong bill, without unnecessary exemptions, is properly formulated, it is about time that we Ghanaians start enjoying the chunk of benefits that accompanies the RTI.

The bill, if passed, would give power to the governed to know what goes on in the public offices which should help to make governments more accountable. In short the RTI bill will help to create a fuller and more dynamic democracy.

Politicians should not forget that, they are elected to work towards the betterment of those they govern. They are not elected to suit their own whims and caprices. It seems politicians always want to take the electorate for granted, but they should not forget that the electorate are becoming more discerning day in and day out.

The current NDC government and their NPP predecessors have overseen a country which has been hailed internationally as an African democratic success story, yet both parties have done little to move the bill forward. Democracy was defined by Abraham Lincoln as; government of the people, by the people, and for the people. From this definition, one could clearly see that Ghana is government of the people, by the people, but not for the people, in that the voice of the majority is not heard no matter how high they scream.

Laws are made to be obeyed, if not they become useless, as stipulated in Article 21 (1) (f) of the 1992 constitution of Ghana that “All persons shall have the right to Information, subject to such qualifications and laws as are necessary in a democratic society.”

In a democracy, the people are sovereign – they are the highest form of political authority. Power flows from the people to the leaders of government, who hold power only temporarily. As a result politicians must always remember that they are only the temporary custodians for the information they hold in trust for the people

Under a democratic government, citizens have an obligation to become informed about public issues, to watch carefully how their political leaders and representatives use their power and express their own opinions and interests.

Democracy can never be practiced to the fullest if there is no transparency, and accountability that is requisite in a proper democracy. The more they prolong the passage of the bill, the more the citizens conceive the idea that, politicians have something to hide, but no matter how thick a forest may be, the tortoise will surely find its way to its home.

Are Ghanaians safe if even in a democracy, they still cannot exercise their rights as citizens to know? Let us all rise in unity to support this worthy course, for it’s my right, it’s your right, it’s our right to know.  

Edward Balami, Ghana Institute of Journalism.

The Author wrote this article whilst on a two week placement with CHRI. See www.edwardbalami.blogspot.com for other examples of his writing.

LGBT Situation in Lesotho

Whilst Homosexuality is still illegal in Lesotho there has a gradual softening in attitudes. In November 2010 the first gay support group called MATRIX was registered as an official NGO in the county.

A recent UNDP report recognised that such a gay community existed in Lesotho. This study further identified the group as a population at very high risk of HIV infection. There was a self-reported HIV prevalence of 11.6% of the young men sampled who admitted to having sex with other men.

The report  also revealed that the group perceive themselves as having very little access to targeted HIV prevention programs. This study was commissioned as part of UNDP’s HIV & Sexual minorities. For further information click here.

Law that Criminalises Homosexuality Sodomy is prohibited as a common-law offence. It is defined as “unlawful and intentional sexual relationship per anum between two human males”[1]

Practical Consequences of the law Neighbouring SA has legalised homosexuality. Issues of tourists crossing the border without knowledge of difference in law.

Constitutional Clause on Equality or Right to Privacy The Constitution of Lesotho (1993)[2] Fundamental human rights and freedoms are protected under Article 4 and are entitled to every person in Lesotho, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to.  These rights include the right to life; the right to personal liberty; the right to respect for private and family life; freedom of peaceful assembly; freedom of association; freedom from discrimination; and the right to equality before, and the equal protection of, the law. These freedoms are limited by limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.

---

African Civil Society Urges Support for ICC

Today the weakness of the International Criminal Court was underlined as Sudanese President al-Bashir, who has been subject two International Criminal Court (ICC) arrest warrants, was free to jet off to China on a state visit.

This visit coincides with a report by African civil society activists called ‘Observations and Recommendations on the ICC’, which calls upon African ICC members to fulfil its obligations to the court. The report has been timed to coincide with the upcoming African Union (AU) summit meeting.

The 17th AU summit will hold its assembly of heads of state from June 30 to July 1 in Malabo, Equatorial Guinea. Amongst the objectives of the AU's leading institutions is a commitment to promoting democratic institutions, good governance, and human rights. African states played an essential role in the formation of the ICC, and almost two thirds of African states have ratified the Rome Statute, under which it is established.

ICC Logo

However the last few years have seen tensions arise between the AU and ICC. The initial response of the AU and its members to the issuance of Sudanese President Omar al-Bashir’s arrest warrant for war crimes and crimes against humanity provides a disquieting example. In ratifying the Rome Statute, African ICC state parties assume obligations that require them to cooperate with the court, including arrest and surrender of suspects. Despite this, several African ICC members chose to ignore the warrant and some actively invited Bashir to visit their countries. The AU itself sought suspension of the proceedings against Bashir from the UN Security Council and stated that they would not co-operate in with the ICC in his arrest. It is a welcoming recommendation therefore that this report calls for African ICC members to uphold their obligations vis-à-vis visits by persons subject to ICC arrest warrants.

The report also calls for African ICC members to press for justice for serious crimes in violation of international law in Kenya. This has been the cause of further erosion in the relationship between the AU and ICC, following the AU’s request for the Security Council to delay ICC investigation of post-election violence in Kenya. This request ran contrary to opinion polls which suggest that not only are most Kenyans in support of the ICC process, but they believe it to be the only way justice can be done for the victims of these atrocities.

AU officials have recently gone as far as to suggest that the ICC is targeting Africans. Whilst it may be true that all situations under ICC investigation to date are in Africa, this can be seen to reflect Africa’s commitment to justice for the most serious crimes. It must also be remembered that the majority of the ICC's investigations have come about as a result of referrals by the governments of states where the crimes were committed. As Stephen Tumwesigye of Human Rights Network Uganda, one of the NGO’s supporting the report, states ‘African states should urge the AU to increase - not scale down - support for holding the worst rights abusers to account.’

The AU and ICC must connect better across the physical and political borders of its members, and act in solidarity to fulfill the human rights commitment they have made to Africans across the continent. It is hoped that heads of state will note this report at this week’s AU summit and adopt its recommendations.

Alison Picton, Human Rights Advocacy, CHRI

Ghana Steps Down From UN Human Rights Council - Will Anyone Notice?

Friday the 17^th of June marked the end of the seventeenth session of the UN Human Rights Council - the last session of Ghana's five-year membership. When the Council reconvenes this September, will anyone notice Ghana's absence? Not likely.

Considered to be a leading African voice in the promotion of human rights, Ghana was elected to the Council with high expectations. Unfortunately, as its tenure at the Council ends, Ghana has neither lived up to its reputation nor the expectations. Ghana's record at the Council in the latter half of its term has been characterised by sporadic participation, occasionally negative voting practices and, most disappointingly to human rights advocates, a complete failure to be a leader at the Council.

Commonwealth Human Rights Initiative (CHRI) recently released the third report in its Easier Said Than Done series. The report compared pre-election pledges made by Commonwealth countries at the Human Rights Council, with each country's actual performance at the UN and domestic levels. The report found that, despite written commitments from Ghana in 2008 that, if re-elected, it would participate actively in the work of the Council, from mid-2008 until mid-2010 Ghana was neither an active participant, nor a positive player.

Over the two-year period reviewed in the report, Ghana rarely participated during Council debates. Whereas its regional neighbour, Nigeria, made frequent interventions on a wide variety of subjects - Ghana's representatives only raised their voices occasionally. For example, during the 12th session, which lasted three weeks, Ghana made a few brief statements of little consequence on international solidarity and migrant rights and congratulated two countries, Comoros and Chad, on their human rights performance. Ghana's lack of participation continued in the period following the 12th session, but spiked somewhat in the 16th session when its representatives became slightly more active.

Despite not regularly being involved in the Council's debates and discussions, Ghana did participate in one of the substantive parts of the Council's work - the voting on resolutions. Ghana's voting record was regrettable. Resolutions at the Council are divided into two categories - those that focus on human rights situations in specific countries and those that focus more broadly on a thematic issue. While there is often disagreement between countries at the Council over the value of particular thematic resolutions, country-specific resolutions are certainly the most controversial. Certain countries vote against nearly every critical country-specific resolution while voting in favour of weak resolutions that deflect attention from their own poor human rights situations and those of allies. In effect, these countries work against the Council's mandate, because resolutions that increase international scrutiny upon rights-abusing regimes are one of the Council's most important tools.

Disappointingly, Ghana occasionally joined these countries in voting in favour of uncritical resolutions on the Democratic Republic of Congo in March 2009 and Sri Lanka in May 2009. Ghana also voted to keep the Sri Lanka resolution weak, by opposing amendments which called for investigations into human rights violations perpetrated during the most recent Sri Lankan war. Ghana further chose to abstain from voting in 2009 on an important resolution to extend the mandate of the Council's expert on Sudan. While many African countries are shy to vote in favour of applying international pressure on other African countries, Mauritius and Zambia, both African Commonwealth countries, voted in favour of keeping international scrutiny on Sudan, while Ghana abstained, reversing its previous positive vote in 2007. Ghana likewise abstained from voting on the landmark 16th session resolution which will put more international scrutiny on Iran, while Ghana's regional neighbour, Senegal, and a fellow Commonwealth African country, Zambia, voted in favour.

Zachary Abugov, CHRI Programme Officer, Delhi Office

This is an edited article from the original. The original has been published by a number of news carriers including all AllAfrica.com See http://allafrica.com/stories/201106230656.html

African Commonwealth Human Rights Weekly Update (18/06 - 24/06/2011)

Lesotho

Saturday 18/06: Tackling Tobacco in Lesotho

The Commonwealth made available its report “Taking up the challenge of non-communicable diseases in the commonwealth: 17 good-practice Case Studies”.

The report gives an insight into successful health initiatives undertaken by Commonwealth governments. One of the seventeen case studies was The Lesotho Network on Anti-Smoking.

In 2008 it was found that 11.8 per cent of boys and 7.5 per cent of girls aged 13–15 in Lesotho use tobacco and that 36.9 per cent of children live in a house where family members smoke in their presence.

The smoking and health programme, which costs US$50,000 a year, is aimed at reducing the numbers of smokers aged between 12 and 18. The programme involves 52 secondary and high schools. Each school is visited by a member of the Network and a teacher at each school is trained in anti-tobacco activities such as counselling. In addition over 2,000 ‘peer educators’ have been trained about tobacco issues.

Rwanda

Friday 24/06: Verdict due on Genocide Charge

The International Criminal Tribunal for Rwanda is due to give its verdict on the case of Mrs Nyiramasuhuko, the first Rwandan woman charged with genocide. Mrs Nyiramasuhuko was Rwanda's minister for Family and Women's Development at the time of the genocide.

The prosecution accuses her of taking part in the government decision to create militias whose mission was to wipe out the Tutsi population as fast as possible. She is also accused of organising the kidnap and rape of Tutsi women and girls with her son, Arsene Shalom Ntahobali, who was in his early 20s at the time.

The verdict is expected on the afternoon of Friday 24/06/2011.

South Africa

Wednesday 22/06: Michelle Obama urges African women to be at the forefront of change.

As part of her official visit to South Africa and Botswana Mrs Obama delivered a keynote speech to 70 young African women leaders about the need for women to be agents of change in Africa. The speech was given in the Regina Mundi church in Soweto, which was at the heart of the anti apartheid movement.

Mrs Obama said the successful fight against apartheid should inspire young people today and stated...

"You can be the generation that ends HIV/Aids in our time, the generation that fights not just the disease, but the stigma of the disease"

"You can be the generation that holds your leaders accountable for open, honest government at every level, government that stamps out corruption."

Swaziland

Wednesday 22/06: Mswati asks SA for a bail out.

King Mswati, Swaziland’s autocratic king, has been forced to turn to South Africa for funding as his government is facing a crippling deficit. The country was badly affected by the global financial crisis and the closure of the SAPPI Paper Pulp mill in Bhunya. As a result civil servants salaries have been slashed and plans for the King’s Silver Jubilee have reportedly been shelved.

Many activists in South Africa and Swaziland are opposed to a bail out because of the country’s poor democratic credentials.

Lucky Lukhele the spokesperson of the Swaziland Solidarity Network said, “Swaziland must be given a clean slate from which to begin, both politically and economically. The country’s citizens could not ask for more than that. The world should allow king’s Mswati’s reign to prove to be the dead end that it is, so that a new political dispensation can emerge from its ashes.”

Denying Ghana’s Disabled their Rights. The Disability Act: 5 years on

June 2011 saw the publication of the first-ever World report on disability. The WHO report reveals that of the one billion people in the world who have a disability, approximately 150 million encounter significant adversities in their daily lives.

In Ghana, an estimated 2.5 million people live with a disability, making them the country’s largest minority. People with disabilities face severe social stigma, creating a culture of entrenched discrimination.  Ostracised from society, many live under the misguided belief that their lives are not worthy of respect. This should not be the case in a country that five years ago this week passed a law designed to address this inequality.

June 23rd marks the fifth anniversary since the passing of the Persons with Disability Act in Ghana. It should be a time for celebration and reflection upon the great strides that have been made in improving the lives of Ghana’s disabled. However the great strides expected have instead turned out to be a few faltering steps. Rather than celebrate, we lament this inexcusable failure of the government to fulfil the commitment it has made to its most vulnerable citizens.

The Act confers a host of legal rights upon people with disabilities in Ghana. It guarantees access to public places, free general and specialist medical care, education, employment and transportation. The Act also regulates the commitments and other responsibilities of public and private service providers. However five years on, implementation has been at best poor, and in many areas non-existent. Despite the government’s legal obligation to provide free education and establish special schools for disabled children, many children with disabilities are still excluded from any form of education. Earlier this year, a visit by the Commission for Human Rights and Administrative Justice (CHRAJ) to 233 schools revealed that no disability facilities were provided, denying disabled children access to any form of education.  The healthcare system is unequipped to accommodate the needs of persons with disabilities and the state of mental healthcare is pitiful. Commitments made to employment creation have been ignored and where persons with disabilities do gain employment they continue to face many constraints.

Despite repeated calls from civil society to formulate a comprehensive disability policy in Ghana, no such framework exists. There can be no excuses for this. The Act provided for the establishment of the National Council on Persons with Disability to formulate policies and strategies for broad implementation.  However it has taken three years for the government to establish the Council and almost five years for guidelines for the disbursement and management of the now 3% share of the District Assembly Common Fund assigned to persons with disabilities to be produced. A recent study by SEND Ghana found that out of the districts that are aware of the existence of the 3% DACF, only a third of people with disabilities in these district know how to access it.

Implementation of legislation takes time but the delay we see in Ghana’s disability law is excessive. Disabled people continue to have their rights abused on a daily basis, as a direct result of the government’s failure to uphold the very rights they themselves have conferred upon this already vulnerable group. Running parallel to the delay in implementation is the continued deferral of government to ratify the Convention of the Rights of Persons with Disabilities (CRPD), which sets an international standard recognising the equal worth and dignity of all persons living with a disability. Despite being on the first countries to sign the Convention on it’s opening day, it was only four years later, in December 2010 that the government indicated its commitment to ratification. Six months later, no further progress has been made.

People with disabilities have the right to live independently in a society that actively encourages their participation in all areas of life.  If Ghana wants to preserve its reputation as a respected country it must protect and uphold human rights for all of its citizens.  On the fifth anniversary of its passing, we call on the NCPD to take urgent action to ensure that the legal obligations enshrined in the Persons with Disability Act are met. We urge the government to ratify the CRPD and send a message to the world that they are serious about the human rights of all people with disabilities.

Alison Picton, CHRI Africa

LGBT Situation in Kenya

Last week The UN passed a resolution on Human Rights, Sexual Orientation and Gender Identity. The resolution was adopted by a vote of 23 in favour, 19 against, and 3 abstentions. It requests that the High Commissioner should establish a committee to document discriminatory laws and acts of violence against individuals based on their sexual orientation and gender identity.

The Commission will be active in all regions of the world, including Cameroon, Ghana, Nigeria and Uganda who all actively voted against its formation. The Commission will report on how international human rights law can be used to end violence and related human rights violations based on sexual orientation and gender identity.

In addition the UN will convene a panel discussion during the nineteenth session of the Human Rights Council which will pick over the commission’s findings and suggest follow on recommendations to the High Commissioner.

In the meantime here is CHRI’s assessment of the LGBT situation in Kenya.

Kenya

Law that Criminalises Homosexuality Penal Code of the Laws of Kenya, Rev. 2009[1] Under section 162 it is an offence to have carnal knowledge of any person against the order of nature or of an animal; or to permit a male person to have carnal knowledge of him or her against the order of nature.  Whoever commits this felony is liable to imprisonment for fourteen years, or in the case that said carnal knowledge was without the consent of the person, or with consent obtained by force, intimidation or false representations, imprisonment for twenty one years. Under section 163 it is an offence to attempt to commit any of the offences specified in section 162, whoever commits this felony is liable to imprisonment for seven years. Under section 165 it is an offence for any male, whether in public or private, to commit any act of gross indecency with another male person, or to procure or attempt to procure another male person to commit any act of gross indecency with him.  This felony is liable to imprisonment for five years. Under the Sexual Offences Act of 2006, section 3 criminalises rape by a woman or man who intentionally and unlawfully commits an act which causes penetration with his or her genital organs; and the person does not consent to this penetration, or the consent is obtained by force or intimidation.  Whoever is guilty of this felony is liable to imprisonment from ten years to life.

Practical Consequences of the law In February 2010 police crashed a ‘gay wedding’ and arrested five men.[2] GALCK – Gay and Lesbian Coalition of Kenya is a group which seeks to promote recognition, acceptance and defend the interests and rights of LGBTI organizations and their members including their health rights. http://galck.org/

Constitutional Clause on Equality or Right to Privacy Constitution of Kenya, 2010[3] Article 27 guarantees equality before the law, where equality includes the full and equal enjoyment of all rights and fundamental freedoms.  It also guarantees the right to equal protection and equal benefit of the law.  Neither the State nor a person shall discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 24. expands upon limitations to the rights and freedoms of the constitution and affirms that right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; and the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others. Article 28 guarantees the innate and inherent dignity of every person and the right to have that dignity respected. Article 31 guarantees to every person the right to privacy including having their family or private affairs unnecessarily revealed or the privacy of their communications infringed.

A Step Forward for Nigeria, a Standstill for Ghana

Sad to say, but Ghana will have to take a backseat to Nigeria on progressive legislation. Late last month marked a significant date on the Nigerian democratic calendar. After collaborative efforts on behalf of the Media Rights Agenda, Open Society Justice Initiative, Right to Know Movement, Nigeria, and OSIWA, Nigeria’s President Goodluck Jonathan passed the Freedom of Information Bill into law.

This road to freedom of information was not an easy one. In 1999 the FOI Bill was presented to Nigeria’s fourth National Assembly; however there was little development for several years. In 2003 the bill was again presented to Nigeria’s fifth National Assembly, and by 2007 was signed by both Chambers. This seeming progression, however, revealed itself to be a chimera when President Olusegun Obasanjo rejected the bill, stating that it would be a threat to national security. Nevertheless, after over eleven years of steadfast persistence, on 28 May 2011, Nigeria marked itself as the sixteenth member of the Commonwealth, and the seventh country of Africa, to have passed a law granting a right to information.

So what does this development mean for the country of Nigeria? By granting a right to information, people have the right to access, and public institutions must proactively disclose, government-held public records and information that was hitherto considered confidential, and therefore kept away from public scrutiny. People can access information from departments of the government, corporations, and companies in which government has a controlling interest.

                                              President Goodluck Jonathan who passed Nigeria's FOI Bill
With this law, private companies utilizing public funds, providing public services or performing public functions are open to public scrutiny. Right to information grants insight into goals and decisions of the government, allowing for more informed decisions by the public; thus reinforcing a true democratic society. This means that traditionally closed governments and reluctant bureaucrats will have to fundamentally change their ways of working. Openness and not secrecy will have to reign. Bringing this change about is the greatest challenge now before the nation.

The Bill also provides protection to whistleblowers, ensuring immunity of any person disclosing malfeasance by their employers. This is particularly important as a great many powerful people, in long term, cozy relationships with each other, will find their questionable benefits under threat from disclosure.

Coming after so long, it is almost churlish to point out some of the law’s infirmities, but a glaring one is the absence of an Information Commission. The Information Commission works to oversee the implementation of the law and adjudicate cases of complaints and appeals when people do not receive information or are aggrieved by the decisions of the public institutions. Instead, the law requires someone who has been refused information to go to high court or the Federal Court. This expensive, time-consuming process is by no means possible for the majority of people.

Even as Nigeria has enacted a freedom of information law, Ghana still lags behind. After six long years Ghana’s first Bill, drafted in 2003, was finally approved by the Cabinet – thus allowing it to be presented before Parliament. However, despite the seeming progression, Parliament claimed it had never received the Bill. As of 2009 a startling sense of déjà vu was sensed as the bill was once again approved by Ghana’s Cabinet and presented to Parliament for consideration, this time successfully.

For the moment Ghana’s FOI bill lies stagnant in Parliament, and Ghanaian citizens are far from placid. On 28 January 2010 Accra was flooded with approximately 500 people, all demonstrating a united desire to see the FOI bill passed by Parliament. Headed by Mr. Seth Ablorsu, an executive member of the Trade Union Congress, and Nana Oye Lithur, a Human Rights activist, the demonstrators identified themselves as “Coalition on the Right to Information”.

As it stands, Ghana’s draft Bill contains many critical deficits that could render superficial citizen’s right to know. For instance, the staggering list of items restricted from public enquiry (as many as 53) severely limits information available for scrutiny. For example, according to section 5 (1), “Information is exempt if it is for submission or has been submitted to the Office of the President or the Vice-President”. The Bill goes on to exclude information pertaining to the Cabinet or Armed Forces. By restricting access to presidential deliberations, Ghanaians are unable to make informed decisions about their political leaders. Moreover, without enforced transparency it makes it difficult to unveil potential political corruption.

The unduly long time-period within which information can be made available is another matter of concern. After a request is made asking for a particular bit of information, the information officer can take up to 21 days simply to decide whether the information may be released – something that could be achieved in one day. Moreover, after the decision as to how much information can be released, it can take an additional fourteen days to deliver it.

The Ghanaian Bill also suffers the same deficiency as the Nigerian one in not having an Information Commission.

All in all, Ghana seems to be two steps behind Nigeria when it comes to a right to information. The sluggish manner in which Parliament seems to be processing the FOI Bill is a matter of unrest for many Ghanaians. If it is going to catch up, Parliament will need to let go of its lethargy, consult openly with, and listen to, a wide public, and significantly improve the pending law. The solidarity and support of various organizations as well as public demonstrations is an important step in achieving a right to know. Ghanaians are creating a loud message for their desire for human rights, and it is high time for Parliament to step up, listen and learn from their neighbours.

Chanté Blais, Canadian intern for the Commonwealth Human Rights Initiative in Delhi.

Aricle also published in The Chronicle, Friday 10th of June 2011. See http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=210593&comment=0#com