How access to information laws influence investigative journalism in West Africa

Although the enactment of Access to Information (ATI) laws has been helpful in investigative reporting in West Africa, journalists say there are major setbacks.

At a webinar organised by the Media Foundation for West Africa (MFWA) on how investigative journalists can use ATI laws to enhance their reportage, a mixed-bag of concerns were raised by journalists in Nigeria, Ghana and Sierra Leone.

A senior journalist with the Premium Times, a leading investigative newsroom in Nigeria, Ameh Ejekwonyilo, said the country’s Freedom of Information (FOI) Act has been a “veritable tool.”

He said the Premium Times has relied on the law to write some great stories.

However, as a reporter focused on the judiciary, a sector known to be “conservative” rather than generous in providing information, he said it has been challenging for him to obtain information through the FOI Act.

“It’s been quite difficult to use the Freedom of Information Act to extract the necessary information that we need in the course of reporting,” he said.

When Nigeria’s FOI Act was passed in 2011, government institutions in the country set up desks to provide requested information. The institutions are mandated to provide the information within seven days. When it is impossible for this statutory period to be obeyed because of the volume of information requested, the institution is required to write to the requesting entity.

Although they are supposed to, “not all government agencies respond” to requested information, Ameh said. As a result, in his reporting, the FOI Act is used as a “last resort” when informal sources fail him.

Regardless of the challenges Nigerian journalists face in using the Act, the Premium Times has devised a means that forces institutions to respond to their requests. Their journalists demand that the institutions they request information from acknowledge receipt of their letters on a different copy of the letter. When the seven days elapse without any communication from an organisation, they write to indicate that the institution is in breach of the law. And if there is still no response, and their stories are ready, they publish them with the acknowledged letters embedded to show that they sought a response but were refused.

“We’ve done that several times. By doing that, it became obvious that organisations are compelled to respond because it embarrasses them when it is reported that they refused to comply. That has been our strategy over time and it has worked for us as an organisation,” he said.

This strategy has also been extensively used by The Fourth Estate, MFWA’s public interest and accountability journalism outlet.

A senior journalist at The Fourth Estate, Seth Bokpe, told the webinar’s participants that Ghana’s Right to Information (RTI) Law has been very helpful. He said the law, which was passed in 2019 but became effective in 2020, allowed both experienced and entry-level journalists to obtain credible information to do impactful journalism.

The Fourth Estate has used the RTI to reveal how over a hundred water producers were producing water without licences from Ghana’s Food and Drugs Authority.

Public officials in Ghana are mandated to declare their assets. However, this law has been flouted for years. Information obtained through the RTI law formed the basis of a story that compelled many Members of Parliament and political appointees in Ghana to comply with the asset declaration law.

Despite these successes, there are several constraints in the implementation of the RTI law in Ghana.

Seth said sometimes “it takes basically forever” for public institutions to release requested information. He added that there have been a few instances that the data provided were not reliable.

Unlike Nigeria which lacks a specified body (Commission) mandated with the implementation of the ATI law, Ghana’s law empowers the Right to Information Commission to ensure institutions are complying with the law.

The Commission has fined several public institutions for their refusal to provide requested information. The institutions are not paying the fines. And many of them are not providing the information though they have been fined.

According to Seth, the institutions assume that the moment they are fined they are not required to furnish the information.

“The fine is not a substitute for the information requested,” the seasoned journalist said.

Ghana’s access to information law gives institutions 14 days to provide requested information. If the information is not provided, the applicant is required to send another letter to the head of the institution. This takes 15 days. After this period, the applicant is supposed to notify the RTI Commission of the refusal.

Seth said the final decision from the Commission takes too long. There is no specific time for the Commission to make a determination on a request.

“At least they should give themselves 60 days, because we are journalists, what we need is information. If the commission does not do its work, it defeats the purpose,” Seth said.

If an applicant or an institution is not satisfied with the decision of the RTI Commission, he or she can take it up to the High Court. The Minerals Commission in Ghana demanded $1,000 from The Fourth Estate to provide information requested under the RTI Law in 2021.

The Fourth Estate petitioned the RTI Commission on the charge. The RTI commission ruled that the Minerals Commission should release the information to The Fourth Estate at GH¢1.90 (less than a dollar) for PDF copies and GH¢1.80 (less than a dollar) per page for an A4 photocopy.

The Minerals Commission disagreed with the RTI Commission’s ruling and went to both the high court and the Court of Appeal to challenge it. Both courts upheld the RTI Commission’s ruling. And it took more than a year for the case to be finalised.

Ameh of the Premium Times in Nigeria said though defaulting organisations can be prosecuted, cases that end up in court “take forever” to reach a determination.

“So, that discourages a lot of journalists from filing the FOI requests,” Ameh, who is also a Digital Public Infrastructure Fellow at the MFWA, said.

A fellow of the MFWA’s Next Generation Investigative Journalism Fellowship, Victor Jones, said during the webinar that although Sierra Leone’s access to information law is one of the best in Africa, its implementation has been appalling.

“Yes indeed, we have one of the most fantastic laws on access to information in Africa. That doesn’t transcend, anyway, into the implementation of same. I laughed when I was being introduced to it. These laws are mere white elephants,” he said.

He stressed that state authorities in Sierra Leone have consistently refused to provide requested information, especially from journalists. He has requested information from several state agencies this year but has received none.

“One of our veteran journalists, the BBC’s Umaru Fofana, has made several requests to several offices in Sierra Leone. None of his requests has been responded to,” he said.

Victor said Chapter 12 of the country’s law on access to information labels some information as exempted from being released to the public. He has, however, observed that this caveat in the law has been used by most institutions to deny many requests.

As a result, he thinks that the law, although made to make Sierra Leone a transparent society devoid of corruption, “in actual fact it supports corruption to thrive”.

During his time as a fellow at the MFWA, Victor recounted how his critical reporting of the Sierra Leonean government cost him his job as a news anchor at Sierra Leone Broadcasting Corporation. According to him, one of the major impediments in the implementation of the access to information law in his country is that the judiciary does not enforce the rights of citizens. The posture of the judiciary, to him, therefore, emboldens institutions to flout the law, which was passed in 2013.

After the disputed elections in Sierra Leone early this year, a lawyer requested the country’s electoral management body to provide him with a breakdown of the results. He was refused. He decided to appeal the matter in court. In the end, the court sued him for contempt because he had made a statement on social media.

“The man had asked for information. It was not provided. So, he turned to the judiciary for them to assist him. What they did was to sue the very person who had sued the electoral commission of Sierra Leone. So that is what it is. And that was done to a lawyer. A very seasoned, senior legal scholar and lecturer in Sierra Leone,” Victor said.

These instances have created a pessimistic cloud in Victor’s mind. He is convinced that the access to information law, although “fantastic” on paper, “is partly the reason why investigative journalism is not thriving in Sierra Leone.”

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