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					                        Personnalité Civile AM nº72/11 du 19/11/2007 publié dans OG n o 27 du 06 07 2009

                      B.P 6333 Kigali

                      Tél : 55 10 25 13

                          E-mail: rwandacsplatform@gmail.com


                           DATE: 29TH AUGUST 2011
                                          POSITION PAPER
            By the Civil Society on the Rwandan Access to Information Bill
The Rwanda Civil Society as a community representative, cognisant:

           that there cannot be real democracy and good governance without effective citizen participation, and
            that there cannot be effective citizen participation without access to information.
           that the right to access to information is fundamental human right and a cornerstone for all other
            rights enshrined in the constitution of the Republic of Rwanda of 4th June 2003 as amended to date.
           that to attain the aspirations in the vision 2020, MDGs and EDPRS, it is critical that information is
            availed to the public for its effective participation in the development process, and for the promotion
            of transparency and accountability.

    Therefore pursuant to:

           Article 19 of the international covenant on civil and political rights which provides that:

        1. Everyone shall have the right to hold opinions without interference.

        2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek,
        receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing
        or in print, in the form of art, or through any other media of his choice.

        3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
        responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are
        provided by law and are necessary:

        (a) For respect of the rights or reputations of others;

        (b) For the protection of national security or of public order or of public health or morals1.

           Article 19 of the Universal declaration of human rights which provides that:

    Article 19 of the international covenant on civil and political rights

         Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold
         opinion without interference and to seek, receive and impart information and ideas through any media
         regardless of frontiers2.

           Article 9 of the African charter on human and peoples’ Rights which provides that:

           Every individual shall have a right to receive information3.

The Rwanda Civil Society appreciates the Rwandan Bill on access to information especially in article 33 on
the protection of applicants of access to information from the burden of proof; on the set objectives; on
limited exemption provided for in article 5 of the bill where the protection of information is confronted
against the harm test; the proactive and maximum disclosure of information in article7 and 8; a clear process
on access to information; inclusion of both public and private bodies especially in article 1 paragraph 6 and
article 17 under title iv, where it says, that information is necessary for the enforcement or protection of any
freedom or right recorganized under the constitution or any other Law; the protection of whistleblowers in
article 37; time frame for response by government bodies; fair cost on access to information under article 15
especially where the fees could be waived off in cases where payment may cause financial hardship to the
applicant, where disclosure is in public interest and where the collection fee exceeds the amount collected;
and the provision of a clear role of oversight to the office of the Ombudsman.

The Civil Society also appreciates the implementation and enforcement mechanisms provided for under
article 35, mechanisms on the promotion of the law and the provision of a strong network to raise public
awareness of the law under article 36, that is made up of Media High Council; Rwanda Governance advisory
Council; Gender Monitoring Office; National Human Rights Commission; and the Bar Association.

These positive attributes of the bill are highly appreciated, however the Rwanda Civil Society would
like to caution the Parliamentarian Political Affairs committee to consider revision of the following
areas of the bill before it can be fully adopted into Law.

       1. Exemption clause: we appreciate the nature of limited exemption of article: 5. However paragraph
          3 should clearly clarify ‘unwarranted invasion of the privacy of an individual’, to ensure that
          information of public nature on an individual is not denied to the public under the pretext of
          individual privacy.

           Paragraph 5 of the same article ‘damage a public authority’s position in any actual’ or contemplate
           legal proceeding. The highlighted sentence could be a hindrance to access to information and this
           can serve as a drawback clause that could take back the same rights recognized under the same Law.

       2. Harm test clause: The Civil Society appreciates the consultation process provided for under Article
          6 to develop guidelines determining when information would cause serious harm to national security
          of Rwanda. However we suggest that an independent organization like, Civil Society Organizations
          and Private Media, should be part of these consultations instead of limiting the coverage to the
          Minister, Office of the Ombudsman, the Human Rights Commission and the Minister responsible for
          matters relating to national security. We highly recommend that consultations with independent
          bodies by the government be carried out in order to have guidelines that reflect representative views.

       3. The role of public information officers in relation to their superiors: we appreciate the clear role
          of the information officer provided for under article 9 title III of the Bill, and that the public
          information officer shall be of sufficient rank within the public authority, empowered to make
          binding decisions in relation to information disclosure under the Law, however we recommend that

    Article 19 of the Universal declaration of human rights
    Article 9 of the African charter on human and peoples’ Rights

    in case this information officer seeks help from any other person or his superiors, this person that is
    requested should immediately and automatically qualify to be an information officer by virtue of
    receiving the request from the designed information officer seeking assistance, thus answerable and
    can also face charges and sanctions provided under this Law.

    The same article should regulate the circumstances where the information officer is unable to
    perform his/her duties due to any reason including sickness, maternity leave, annual leave or she/he
    is under suspension.

4. Time frame for response from public authority: The Rwanda Civil Society appreciates the
   realistic time frame in article 11 under title III of the bill for the information officer to respond to the
   applicant and which cannot exceed 3 working days after receiving the application, within 24 hours in
   case the sought information concerns life or liberty of a person, and 2 days in case information is
   sought for news by journalists. However we caution about the 10 days provided for under article 12
   for a response from the public authority or private body to whom the application has been referred to
   by the information officer. We therefore recommend that this period be reduced to at least 5 working
   days from the date that the application was first made, failing which the request shall be deemed to
   have been rejected, except in circumstances provided for under article 11 paragraph 4.

5. Access to information in private bodies: Article 12 under title IV should clearly specify the
   competent court a person may apply to for an order requiring the private body to provide information
   on the ground that the information is urgently and immediately required in the interests of
   preservation of life or liberty of a person. The word “private body” should also clearly be defined
   and given extensive interpretation to include individuals that might hold information necessary for
   enforcement of any freedom or right that is recognized under the constitution or any other Law.

6. Offences and penalties: The Civil Society overall, appreciates the manifested good intentions in
   providing for sanctions in article 34 under title VI of the bill. However the provided sanctions and
   penalties of 100,000RWF to 300,000RWF and 100,000RWF to 500,000RWF are not good enough
   to deter offenders of rights to access to information especially in likely cases of conspiracy between
   the management and information officers. We therefore recommend the revision of sanctions in
   general. The sanctions provided for in case of recidivism in paragraph 3 should be the one’s applied
   on first time offenders, and in case of recidivism, the penalties should be raised to 12 month
   imprisonment and a fine ranging from 2,000,000RWF to 4,000,000RWF. These sanctions are very
   critical in order to have this Law effectively implemented and to set a good and successful precedent
   in promotion of access to information freedoms. These penalties are proposed in reference to other
   laws on access to information; a case in point is the South African Public Access to Information
   Act of 2000 that provides for a two year imprisonment to offenders of Access to Information Rights.

    The Rwanda Civil Society would also like to point out the inconsistence in the three languages of the
    bill “English, Kinyarwanda and French”, for the example the court of appeal referred to under
    Article 32 in English is the High Court, (la Cour Suprême) in French and in Kinyarwanda
    (URUKIKO RWISUMBUYE) meaning the court of high instance. In this case, the same article
    provides for different jurisdiction for the same matter. We therefore recommend harmonization of
    the three versions of the text bill in English, French and Kinyarwanda before being adopted into a

7. Records that cannot be found: The bill is silent on situations where the requested information, a) is
   in the public body’s possession, but cannot be found or, b) does not exist. In this case we recommend
   that the bill imposes obligations to the public authority or the designed private body, to clearly show
   all steps taken in search for the information and inform the requester (applicant) of all taken steps
   plus contact details of those involved. In case this information is found at a later date, it should be
   availed to the requester/applicant.

      8. Gender Sensitive and Disaggregated Data: Article 1 point 9 states that the law progressively
         promotes the full realization of the freedom of information, and article 40 paragraph 4 talks about
         the ministerial order to provide for special provisions to enable persons with disability, youth,
         women and other marginalized groups to fully enjoy their rights to access information in regard to
         this Law; Although we appreciate the promotion of this full realization and the provisions to be
         provided in the ministerial order to enable persons with disability, youth, women and other
         marginalized groups to fully enjoy their rights to access information, we strongly suggest that any
         information requested should be gender disaggregated so that the law can promote gender equality
         through being gender sensitive.

      9. The role of the oversight body: The Rwanda Civil Society appreciates the provision of an oversight
         body for the effective enforcement of this law. Title V from article 25 to 31, the bill provides for
         powers of the Office of Ombudsman as an oversight body in relation to the enforcement of the rights
         on access to information, however on the other hand, Article 7 bis of the law n° 25/08/2003
         establishing the organization and the functioning of the Office of the Ombudsman as amended to
         date provides that; Faithful declaration of assets shall be confidentially kept such that knowledge of
         their content shall only be known to the owners and their receivers. If considered necessary, the
         President of the Supreme Court or the Prosecutor General of the Republic, after requesting for it in
         writing from the Chief Ombudsman, or the Senate, may be shown a faithful declaration of an
         accused person so that investigations may be carried out. However, if it is concerned with those
         dignitaries, the faithful declarations shall be requested for by their Assistants. 4 The Rwanda Civil
         Society would like to caution about the contradiction between the Ombudsman’s duties on
         confidentiality in relation to the enforcement of the rights of access to information provided under
         this bill.

      10. Finally we would also like to point out that this bill lacks article 4, and we also recommend the bill
          to define personal information under definitions in article 2. This is important in order to avoid
          ambiguity which can lead to miss use of the term by those having interest in protecting information
          of public nature. We therefore suggest that the following should be taken into consideration while
          defining this term:

            -     Information relating to the race, gender, sex, pregnancy, marital status, national, ethnic, sexual
                  orientation, age, physical or mental health, well-being, religious beliefs.


The Rwanda Civil Society is confident that if this bill is revised to take into account these recommendations,
adopted into a Law and well implemented, will not only promote an open government in Rwanda, but will
serve as a role model in the region and on the African continent at large.

Signed by......................................................

Munyamaliza Edouard

The Rwanda Civil Society Platform Spokesperson

    Law n° 25/08/2003 establishing the organization and the functioning of the Office of the Ombudsman as amended to date.


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