The ruling party in Botswana again appears to have doomed the chances of a freedom of information bill passing parliament.
Supporters were optimistic last week after the General Assembly had voted Aug. 1 to bring the measure to the floor of the parliament. But president’s chief communications officer persuaded the ruling party’s backbenchers to renege on their support for the bill, according to a supporter of the bill, who said parliament’s rejection of the bill now seems likely.
The government’s objections are listed in a 46-point document by Jeff Ramsay, the Deputy Permanent Secretary for Government Communications Office of the President.
In April, the ruling Botswana Democratic Party has postponed parliamentary consideration of a FOI legislation on the basis of a secretly circulated attack document attacking the bill from the office of the president. (See previous FreedomInfo.org article.)
A similar blizzard of objections is contained in the Ramsay document, but Phenyo Butale, the National Director for the Botswana Chapter of the Media Institute for Southern Africa, wrote in a recent article that the government’s objections boiled down to four in number.
“Jeff Ramsay talks a lot of the need to instead have a Data Protection law preceding Freedom of Information,” Butale wrote. He continues:
This position is flawed in many ways as it seems to suggest that a Data Protection law can be used to protect state secrecy – such an application is inconsistent with International practice. Information privacy is defined by Privacy International in the following terms “Information privacy…involves the establishment of rules governing the collection and handling of personal data such as credit information, and medical and government records. It is also known as ‘data protection'”. This definition alone nullifies such a usage.
Another major objection, as stated by Ramsay is: ”the failure of Part IV of the Bill to make proper provision for the exemption of restricted information, through its emphasis on undefined public interest.”
Butale responds:
The nature of FOI law is such that there is a constant balancing of interests and harm. Where a provision establishes disclosure, there is a need to recognise that such disclosure may be limited or withheld in order to limit any expected, clearly demonstrable and significant harm from disclosure as the merits of each case may dictate. Vice versa, where a provision establishes an exemption from disclosure, there is a need to recognise that such exemption may be lifted in order to limit any harm that may be suffered by a requestor as the merits of each case may dictate.
The “most contentious” issue, Butale states “is the issue of what information to exempt and how to do so.” He writes:
In the ‘government position paper’ referred to above this is perhaps the most confusing, misinforming and completely erroneous critique of the draft Bill. The author states that the Bill is “materially defective” because it lacks provisions on exempt information. The fact is, the draft Bill provides for all of these exemptions/protections from disclosure that the author of the “Observations” document has listed and even more.
The fourth issue, Butale said “was a broad and sweeping statement that the style of drafting and the language of the bill are below domestic and international standards. We could not do anything about this because no examples were given and no standard pointed at for the drafters to work on improving the current bill.” He describes experts who worked on the bill’s drafting.
Butale wrote that supporters of the bill, including the chief sponsor of the bill, Dumelang Saleshando, were invited to a discussion meeting July 26 by Minister of Presidential Affairs and Public Administration, Mokgweetsi Masisi, who stated then that the government has decided not to support the bill.
Ramsay’s concluding two points state:
45. In conclusion, in its current form, the proposed legislation is characterized by unrealistic timelines and cumbersome mandates. It further fails to categorically exempt sensitive and privileged information from disclosure, while failing to uphold the right to privacy. In this respect the language of the Bill is at variance with established legislation found elsewhere and is certainly not in conformity with genuine international best practice models, such as those found elsewhere in the Commonwealth or European Union.
46. Notwithstanding its undoubted good intentions, the Bill, as drafted, could thus serve to undermine, rather than advance, good governance in our country.
A rebuttal to the arguments was written by a U.S. journalism professor who has worked in Botswana, Al Cross, director of the University of Kentucky’s Institute for Rural Journalism and Community Issues.
Another article supporting the bill, by journalist Bame Piet, argues that a FOI law would end bureaucratic paralysis. Journalism groups are among the bill’s supporters.
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