University of Zambia – UNZA Law Lecturer, Dr. O’Brien Kaaba says the enactment of the Access To Information – ATI Bill into Law in 2023 is a significant moment for the Country, if implemented effectively.
“It entails potentially that citizens might be able to know how certain decisions were made by the people in office. The significance is that it enhances transparency and accountability. If the people know how decisions were arrived at then that increases the possibility that the people will demand for appropriate use of the power by those who yield that power. The Act is anchored primarily on proactive disclosure of information,” he said.
Dr Kaaba, who is also a Senior Researcher at the Southern African Institute for Policy and Research (SAIPAR) said the Government should complete the process of actualising the Access To Information (ATI) Act of 2023 by putting in place the requisite standard forms and procedures and then pass the Commencement Order to trigger the Act into operation.
Dr Kaaba said Civil Society Organisations and the academia should push the Government to put in place appropriate procedures and forms for making requests for information under ATI.
The Legal Expert said the ATI Act entails that the key institutions that is public entities, are required to disclose in advance certain information which could be published online like website.
“They do not have to wait for someone to request. We already see this on the websites of institutions such as the National Assembly, the Electoral Commission of Zambia and to some extent, the Ministry of Finance. That is a culture that needs to be promoted.
The Act also provides for individualized requests for information. The requests have to be submitted to information holders who can either be public or private. The Act makes a distinction between a public and a private information holder and a public information holder. Private information holder is only required to disclose information if it is required for purposes of protecting the Rights of citizens,” he said.
Dr Kaaba said private entities have no duty to disclose information, unless, it is needed by someone to enjoy a certain Human Right.
“For public entities, the default position is that the information should be disclosed. The Act also recognises that certain sensitive information might cause problems if it is disclosed. As a result, it has a clause which lists certain information which should not be disclosed,” he said.
The SAIPAR Senior Research Fellow said information relating to national security, certain sensitive economic and commercial information, personal information and information to do with International relations is protected from disclosure by the Act.
“With those restrictions, there is also an override clause which means that the restrictions are not absolute. They are subject to an override clause which entails that if the information is required in public interest, then it could be disclosed. That is something that is yet to be seen as to how in practice it will be implemented,” he said.
Dr Kaaba said the ATI Act is not yet in force because it requires a Commencement Order to be passed by the Minister.
“This has not been done yet possibly because the Act talks about certain forms and procedures for submitting the requests. This needs to be put in place. Until these are put in place, it becomes difficult to create a systematic way of making requests. I understand that in the background the appropriate Government agencies have started to look at these. Once these are done hoping this will be soon, then the Act can be triggered into effect. The passing of the Act should not be an end in itself but is an opening to look at other restrictive laws,” he said.
He said Zambia has several laws that are restrictive while many are outdated and not consistent with the culture of disclosure.
“We have also a lot of jurisprudence from the courts which is inconsistent with ATI. The courts also firmly implement outdated content of court rules which prohibit public discourse over matters still actively in court. All these are inimical to the culture of open democracy. What is needed is to have a checklist of what else is inconsistent with open democracy.
All statutes that are inconsistent with the free flow of information should be removed from the statute books of the Republic of Zambia,” he said.