FREEDOM OF INFORMATION
One of the most important and fundamental aspects of a well functioning democracy is the extent to which it guarantees and makes adequate provisions for the citizen to be not only informed in a timely manner but also to have unimpeded access to any information which any state institution may have on him or her.
UNIMPEDED ACCESS
The unimpeded access to information which the state has on a citizen by that citizen is the principal element that defines the difference between democracy and totalitarianism. In totalitarian states, such as the former Soviet Union, citizens were often “convicted” simply on the basis of information the state held on them but which they had no right to see or know. Our Constitution guarantees us the right of access to official information the state has on us, precisely to ensure that our society is distinguishable from that of a totalitarian state.
(Article 28(1), which forms part of our Charter of Fundamental Rights and Freedoms states: “The State recognizes the right of access of every person to information relating to that person and held by a public authority which is performing a governmental function and the right to have the information rectified or otherwise amended if inaccurate.” The question remains, how does the citizen exercise that right?
Our Constitution also explicitly states the conditions under which the State may deny us that right to know. These conditions are contained in the same article and are explicitly stated. Article 28(2) states: “The Right of access to information contained in Clause (1) shall be subject to such limitations and procedures as may be prescribed by law and are necessary in a democratic society including –
(a) the protection of national security;
(b) for the prevention and detection of crime and enforcement of law;
(c) for the compliance with an order of a court or in accordance with a legal privilege;
(d) for the protection or rights or freedoms of others;
It is clear that any limitation must be prescribed by law not the whims and fancy of President Rene or Mr. Michel or their sycophants in the ministries, departments or authorities. Any law which limits our access must also be one that is necessary in a democratic society, the Constitution says. Here the framers of our Constitution meant western societies not the so-called people’s democracies like
If, when you will be given access to information the state has on you, it may also reveal measures being taken to defend our country against an external enemy, the state – the constitution says - may deny you that information on yourself. But the state does not enjoy an arbitrary or absolute right of denial that cannot be contested. It must justify its decision in a court of law too.
Equally, if you are a known criminal and you are being investigated, the state will be within its right to withhold the information it has about you until such time as you are brought to trial. Otherwise every criminal will have the opportunity to, for example, falsify evidence or create bogus alibis or corrupt officials. On the other hand, while you not may be suspected of any criminality there could always be information unwittingly collected about you while someone else was under investigation or under indictment. Revealing such information to anyone, including you could result in compromising the trial.
Also a court of law may sequester information about you in order to protect a minor or a disadvantaged citizen. The information the state may have on you could have been obtained as a result of a privilege, such as when a court has ordered certain things done in the pursuit of justice.
Finally, your right to obtain the information on you could also mean that you will know confidential information about another citizen. Unless protection can be provided for the privacy of the other citizen – which is a fundamental right – the state may not be compelled to provide you with the information it has on you.
All the above, however, cannot be decided by a civil servant or minister. The deficiency of our current Constitutional Right to Information is that no effort has been made to pass a law that would facilitate the citizen’s enjoyment of the right to information and to provide for proper judicial review when the state or its servants make decisions that affect one’s enjoyment of this right – in other words restricting access to information.
To date nothing has been done to institutionalize (both administratively and legally), this right to freedom of information, guaranteed in our Constitution. It is still quite common practice in
Medical records at the hospital – crucial information about the health of an individual - have been “lost” when “enemies” of the government came to look for them. Indeed, the State today holds its citizen to ransom by exacting not only money to release such information but can bureaucratically do nothing to facilitate the citizen demanding the information. The only recourse a citizen has for redress is access to a Minister, which effectively means either political affiliations or discrimination. There is also a need to educate civil servants about the Constitution and their obligations under it.
RIGHT OF ACCESS TO STATE INFORMATION
MISD, now the National Bureau of Statistics (NSB), collates vast amount of information that are helpful to citizens to make crucial commercial or individual decisions that can improve their economic well-being. The information they collate, while they may be derived on personal basis (e.g. census), are only made available to the public on a collective basis – what statisticians call on the aggregate. Until today, such information was kept as a privilege of the State or government Ministers and civil servants. Citizens had no access to them as of right, in defiance of our constitutional right to know. When they are released very often, the information would generally be out of date.
NSB has been created under a law that tries to codify and obligate the collating of statistical information for the benefit of the community. But this law falls short of obligating NSB to provide timely information to the public, regardless whether that information is of embarrassment to the government of the day. This is not to denigrate the hard working staff of NSB. This is reproach to our government for not providing adequate resources to the NSB, despite both the IMF and the World Bank calling for adequate resources for this crucial exercise.
At the Registrar General’s office, information on land titles or commercial contracts etc., that need to be in the public domain at all times are very often removed from public access without explanation or their insertion is delayed usually to avoid political embarrassment of the government.
In President Michel’s budget address at the end of November 2005, he made use of financial information available to him through not only from the Ministry of Finance – which is his portfolio, but also the Central Bank, which according to the new Central Bank Act was independent. Under the Constitutional Right to Information all that information should have been in the public domain.
In fact, the Central Bank deliberately delayed issuing timely financial information to the public in its possession that would have rebutted most of the claims made by President Michel on the real state of the economy. Requests made by this newspaper to the Central Bank for such data to be made available to us on a timely fashion bereft of their comments – the standard practice in democratic countries - has been constantly ignored by Mr. Francis Chang Leng for reasons that we all know so well.
FREEDOM OF INFORMATION ACT OVERDUE
“Open Access” to information which our government has is particularly important not only to safeguard our individual liberty and right to know, it is also an important safeguard against corruption by government officials and Ministers. Corruption festers when citizens do not have timely and accurate information and therefore fall prey of unscrupulous government officials.
A Freedom of Information Act is overdue in order to codify the manner by which citizens can gain access to information as of right – within the safeguards provided for by the Constitution. Such an Act must also provide the avenues for redress when citizens are deprived of their constitutional right to information, which may cause not only inconvenience or financial loss, but also unnecessary death or permanent handicap.
Information is power. Information in the hands of the citizen, as our Constitution provides, is meant to empower the citizen. Without access to timely and accurate information the citizen becomes a ward of the State and a victim of abuse by its government. The citizen is the dog while the government is the tail. In short, the citizens of Seychelles today, and for the last 29 years, have been the dog, whose tail – the government – has been wagging.