At the MACOSS workshop on the Introduction of a Freedom of Information Act in Mauritius which was held on Friday 26th February 2016, three resource persons from South Africa were present, namely:
- Maxwell Kadiri, Legal Officer at the Open Society Justice Initiative
- Chantal Kissoon, Provincial Manager of the Gauteng Office at the South African Human Rights Commission
- Lola Shyllon, Programme Manager: Freedom of Expression and Access to Information at the Centre for Human Rights of the University of Pretoria
What I appreciated the most was the fact that they were all very thorough in their presentation of the South African experience, listing all issues they faced, the strategies they used to address those issues (such as prioritising grassroots access and incentivising public officers to adapt to FOI) and also the mistakes and lessons learned. They were very honest in their assessment of their own strategies and acknowledged that no system is perfect.
This is possibly the most important thing we, Mauritians, need to retain from our South African peers. There are many of us who wish to make things move forward but we can only do this if we do it together (without trying to take all the credit separately or trying to discredit others as is often the case) and if we are more humble and adopt a can-do, learning-by-doing and learning-from-mistakes approach.
After the presentations and Q&A sessions, we were asked to form working groups to brainstorm on issues and potential recommendations to follow up on the workshop.
I was the rapporteur for the first group and you can read below the report of our discussions and recommendations.
Overall, it was a very enriching experience which will hopefully be built upon to move forward towards a FOI Act in Mauritius. For context, you can read some of my previous publications on FOI and the related topic of media regulation here.
Proposals on the introduction of a Freedom of Information Act (FOI) or Right to Information Act (RTI) by working group #1
- Strengths / opportunities
Freedom of expression is already enshrined in the Mauritian Constitution as a fundamental right.
- Successive governments have promised to introduce a Freedom of Information Act but this has never materialised. However, it is the first time that a government has published an official announcement by the cabinet of ministers, going beyond political party manifesto or PM and president’s addresses:
Cabinet has taken note that the Freedom of Information Bill, as announced in the Government Programme 2015-2019, is being prepared. The main objective of the Bill will be to promote transparency and accountability in public administration
This represents a tremendous opportunity to move forward and all stakeholders should lobby collectively towards its realisation with extensive consultation and participation.
- There is already much information which is published online by government agencies though they are not always presented in a user-friendly way and updated in a timely manner.
- There is already a Data Protection Act and a Data Commissionner. The office could be consolidated and asked to collaborate on the FOI.
- There are structures such as Citizens Advice Bureaus but they need to be disconnected from the political and used as a real nexus for information to citizens.
- There is some media regulation through the Independent Broadcasting Authority but it needs to be disconnected from the political and reclaimed as a really independent body.
- Mauritius has a system of representative democracy with MPs who are supposed to represent their constituencies and they do put forward questions to governing parties on behalf of citizens but this is limited. This role should be reinforced and citizens should have better access to their MPs for requests for information.
Issues/challenges and potential solutions
- Timeline for the law: One main issue is that promises are often made but rarely fulfilled. For FOI to really happen, there should a clearly identified timeline for the different stages, for example:
- Consultation with all stakeholder groups
- Presentation of Bill, voting of Act and enactment in Government Gazette
- Setting up of process and training of civil servants
- Setting up of independent appellate mechanism (for requests that are denied)
- Deployment (including regular monitoring and adoption of corrective measures
- Review of conflicting laws: There are laws, regulations and practices which can potentially hinder the application of FOI in Mauritius, for instance:
- The Official Secrets Act
- The human resource management manual of the civil service 5 which prohibits civil servants from giving out information
- Sections of the Criminal Code relating to the dissemination of information such as the ones relating to publication of false news, defamation and sedition as well as laws relating to contempt of court and public gathering, etc.These need to be reviewed in order to harmonise with the application of a proposed FOI Act.
- Protection of private information: Currently, there is little protection for citizens whereby the latter would be made aware of any data relating to their own selves held by either government agencies or private entities. All individuals should be allowed access and knowledge of such data as in France (CNIL – Commission Nationale de l’Informatique et des Libertés) in order to avoid any abuse of personal information.
- Delays to process requests: Very often, response to requests from the public take a very long time for many reasons (e.g. delaying tactics, inefficiency, etc.). The FOI law should specify reasonable timelines/delays to process requests from the public as well as to provide the information requested.
- Preference for electronic data: Regarding payments for requests made, it is understood that there would be a fee for filing the request and a fee for the printout (to cover costs and to encourage sensible and responsible use of the service).
One possible solution would be to reduce the costs associated with the printout by primarily providing the data in electronic format. This would also reduce ecological impact and facilitate further use by the citizen.
- Assistance for fees: However, it is also understood that the imposition of a fee may deter underprivileged citizens from exercising their right to access information. It is thus proposed that a public fund be set up to assist in payment of the fees for processing and printout in case the citizens are under-equipped for data in electronic formats. This would go towards enhancing equality of justice for all.
- Appeals against rejections: Some agencies may abuse of clauses for protection of access to data which may be of public interest. In order to ensure this is not the case, there should be an independent appellate mechanism to examine the validity of requests which have been rejected, as is the case in South Africa. However, in a small country like Mauritius, it may be very difficult to identify really independent people to examine appeals. It is proposed that the entity should encompass representatives of multiple stakeholder groups and interests to compound possible lack of indepedence.
- Avoiding manipulation and stigmatisation: In a tiny country like Mauritius, controlled leakages and abuse of confidential information about individuals or partial information (resulting in manipulation / bias / sensationalism) may lead to stigma for individuals concerned. There is a need for regulation in the public spehere but not merely by a single entity and certainly neither solely by the State or by media companies. The preferred model is that of independent co-regulation of the media. There should in fact be sanctions for inaccurate information which may be published and which can cause stigma.
- Literacy and awareness for grassroots: Very often, elite groups are the ones which benefit the most from systems which are supposed to benefit all. In order to ensure that there is equality in access to information, there should also be solid literacy and awareness actions for grassroots levels, right from school and at all customer care offices in the public service.
- Eliminating language as a barrier: Another deterrent to use of facilities given by FOI may be language. But ordinary citizens do not necessarily have a good command of English or French. The use of the Creole language, our mother tongue, should also be admitted for filing requests with proper assistance and while taking care to avoid stigmatisation.
- An inclusive working group: We strongly believe that it is important that the working group which will be set up tp lobby for the FOI should encompass all stakeholder groups with a collective agreement and a positive mindset in order to be able to move forward. The media should be taken onboard as well as more grassroots level organisations. There should be no backbiting or competitive attitude as FOI is not for a few but for the benefit of all citizens
Download the report on proposals of Working Group #1