By Longendja Isa Mboyo Henri Christin
The author is the Executive Director of CODHOD, Executive Director of COLLECTIF 24. This is a chapter in a recently issued State of Right to Information in Africa Report 2014 and is reprinted with permission. (See previous FreedomInfo.org report.)
Apart from the African Charter on Human and Peoples’ Rights, the Democratic Republic of Congo has not ratified key Africa Union treaties that recognise and promote the right to information. These include the African Convention on Preventing and Combating Corruption, the African Charter on Democracy, Elections and Governance, the African Charter on Values and Principles of Public Service Administration, the African Union Youth Charter and the African Statistics Charter. This is despite the country’s history of conflict, electoral concerns as well as huge problems arising from lack of transparency and accountability.
With the country being overdue by three reports to the African Commission on Human and Peoples’ Rights, DR Congo is an active violator of article 62 of the African Charter on Human and Peoples’ Rights.
The Democratic Republic of Congo falls short of meeting eligibility of OGP by 5 points. Adoption of progressive laws on access to information law and asset declaration for leaders would enable DRC meet eligibility for membership.
The Constitution of Democratic Republic of the Congo in Article 24 states that “all citizens have the right to get information”. This right to information concerns the right to express opinions, and to collect, receive and publish the information by means of the press. The regulation of the article 24 disposes a passive citizen and focuses the responsibility of providing information on medias and state, but concrete means of access are not recognized in the constitution that disposes that the right shall be developed by an organic law. It is in the article 13 of the law N° 96/002 of 22 June 1996, which lays down the conditions to exercise the right of freedom of press: ”the state has an obligation to assure and to facilitate the citizen to access to information. The public service has the obligation to give the information that a citizen wants”.
The right of access to information is still challenged by different factors in DRC making it almost impossible to get information from public administrations and exercise civil and political rights such as freedom of press and expression.
The draft of the Access to Information Law has not yet been tabled in Parliament. However a FOI law won’t solve the problem of provisions in other laws that are very restrictive on allowing access to information of public interest, such as in the Public Finance Law and the Penal Code, among others. In practice, a very small minority of the DRC population is able to access public information (such as lawyers or businessmen). The exclusion of the vast majority of the population from means of access to information and participation in decision–making processes are the main reason and source of corruption, bad governance, misappropriation of public resources and violation of human rights.
Moving forward
The leadership of DRC has always shown predisposition to the promotion of government transparency. The Strategic Document for Development and Poverty Reduction includes transparency and good governance as its main pillars.
With United Nations Development Programme’s (UNDP) support, DRC set up the thematic groups (groupes thématiques) as a manifestation of openness and involvement of all stakeholders including civil society in the management of key sectors of national life.
he DRC is currently in compliance with the Extractive Industries Transparency Initiative (EITI). EITI is an important mechanism for the transparent management of natural resources for the benefit of the national community. However, the DRC has not yet applied for membership in OGP. Collectif 24, a civil society platform advocating for an access to information law in DRC, is advocating to bring the DRC to join OGP, an important platform to introduce good governance practices and open data initiatives. Collectif 24 is also in contact with the DRC government in drafting a code of conduct for public officials. Civil society is leading the campaign “Publish What You Pay” but the campaign is limited and facing serious challenges because of the lack of an effective data mining system. The state itself does not have access to reliable information to make informed decisions and ensure traceability and sustainability in the mining sector.
The right of access to information is recognized in the Law N° 96/002 of 22 June 1996, which lays down the conditions for the exercise of press freedom in its articles 8 and 13 that establish: (i) “Everyone has the right to freedom of opinion and expression. For freedom of opinion and expression, it means the right to inform, be informed of, have opinions, feelings and communicate without hindrance, regardless of the medium used, subject to respect for the law, public order, the rights of others and public morals” and (ii) “The State has an obligation to provide and ensure the right to information.”
Civil society, under the aegis of Collectif 24, has identified the following challenges that obstruct access to information in DRC:
- Ruling culture of secrecy in public services
- Legal provisions for press criminalization, professional secrets and national security secrets
- Lack of capacities (human resources, techniques and infrastructure) to provide public information
- An entrenched practice of seeking permission from hierarchical superior to release information
- The government controls the public and private life of citizens
- Absence of a cross cutting FOI law
Collectif 24 leads advocacy campaigns for the passing of an Access to Information law in DRC. This law affects all fields related to public information, expecting the restrictions to protect citizen’ privacy and national security.
Advocating for a FOI law
The campaign for an ATI law in DRC started in 2009 driven by AMICUS and Comité des Droits de l’Homme et Développement (CODHOD). In June 2009, with financial support from the American Embassy, PNUD and the European Union (EU), experts from Mali and South Africa visited DRC and shared experiences with the authors of the proposed ATI law in DRC.
In May 2010, Senator Jacques Ndjoli, former president of the Independent National Electoral Commission (INEC), endorsed the first draft of the ATI law. The electoral context of 2011 retarded the voting and it was delayed until 2013, when the document was endorsed again by Senator Moïse Nyarugabo with the support of Open Society Initiative of Southern Africa (OSISA), United Nations Development Program (UNDP), INTERNEWS and Open Democracy Advice Centre (ODAC).
In November 2013 the document was submitted to the Senate that gave the approval and sent it to government. Currently the government is considering the text.
In March this year, the text was distributed to all senators although a date has yet to be set for the debate and voting. There are many political issues that can postpone the process such as the territorial system, budget issues, elections and constitutional reform.
Recommendations
- The Government of the Democratic Republic of Congo should urgently ratifiy, domesticate and fully implement regional treaties that recognise and promote the right to information.
- The long overdue draft Freedom of Information Bill should be urgently considered and adopted by Parliament.
- The Government should urgently adopt and implement laws that require senior political leaders and officials to declare assets. This should include specific provisions on such information being public.
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