Why Ghana, unlike the UK and US, does not need a Right to Information Act

The U.K. does not have a written constitution. The right to information is therefore guaranteed by and in statutes passed by Parliament such as the Freedom of Information Act, 2000.

In the US, its Supreme Court has held in Houchins v. KQED, 438 U.S. 1 (1978) that neither the First nor the Fourteenth amendments “mandates a right of access to government information or sources of information within the government’s control,” nor do they grant the media a right of access that is greater than the public’s right of access, and that although there were Supreme Court cases that upheld First Amendment rights to communicate information, those cases did not construe the First Amendment as providing a right to obtain information from the government.

And as recently as 2013, the Supreme Court stated in McBurney v. Young, 133 S.Ct.1709, 1718 (2013) that it “has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOI[Act] laws.”

But Ghana beats a different path and sings a different (more melodious) tune. Article 21(1)(f) of the Constitution provides specifically as follows: “All persons shall have the right to… information, subject to such qualifications and laws as are necessary in a democratic society.”

In the recent case of In Re Presidential Election Petition; Akufo-Addo & 2 Others v. Mahama & 2 Others (No. 3) [2013] SCGLR (Special Edition) 61, the Supreme Court, speaking by Sophia Adinyira JSC stated emphatically that all persons have a right to information, from which is inferred a right to be given access to public documents. Her Ladyship stated specifically as follows: “This Court affirms the right of all persons to information, as expressed in Article 21(1)(f) of the Constitution, 1992. This right to information implies a right to access public documents.”

In the more recent case of Justice Paul Uuter Dery v. Tiger Eye PI & 2 Ors. [4/2/2016] Writ No. J1/29/2016, the court was called upon to comment on the right of the people to information, vis-à-vis the constitutional right of a judge to the confidentiality of proceedings to remove him from office under Article 146(8) of the Constitution. The Supreme Court, speaking by Bennin JSC, held that although the confidentiality provisions operated as a “constitutional injunction” on the right of the public to information, it only applied from when a removal petition is submitted to the President to when the work of the investigation committee was concluded. Thereafter, the right of the people to information must be upheld and respected. His Lordship explained as follows: “Once the Committee’s work is concluded and it has submitted its report, the constitutional injunction no longer applies… The public is not completely denied the right to know, but not before a prima facie case has been made by the Chief Justice or the committee has completed its work and submitted its report, whichever of these terminates the proceedings. The rights of the people were merely postponed for a time…”

In the earlier case of New Patriotic Party v. Ghana Broadcasting Corporation [1993-94] 2 GLR 354, Francois JSC described an attempt by a public body (in that case, a media agency, but the principle applies to all public bodies) to withhold information from the public as “reprehensible” and a “wilful violation of the Constitution.” He said: “It would seem therefore that where a media created as a public agency, to secure for the citizens of this country information, rather withholds it, contrary to the abjuration in Articles 163 and 21(1)(f) of the Constitution, 1992, it is wilfully violating the Constitution.”

It is therefore clear that all the ink, time and money that has been spent by government and NGOs on the so-called Right to Information Bill has been a waste of time, energy and resources and probably a subtle effort by the governors to deny the governed a constitutionally guaranteed right to information under the guise of passing a Bill to that effect. Surely, if the governor had good intentions to pass this Bill (superfluous as it may be), it would not take nearly a quarter of a century, since the Constitution was passed, to enact the Act.

This is my view:

Absent any strict constitutionally or legally permitted limitation, qualification or derogation, the right of the citizen to public information is absolute and must be respected.

One Response to “Why Ghana, unlike the UK and US, does not need a Right to Information Act”

  1. Martin Kpebu Says:

    Senior Counsel. I read the incisive piece above and wish to ask a few comment and ask a few questions.

    It is a fact that accessing information comessage with a cost. So question is should all of the information be given free of charge at all cost? Especially when we still have schools under trees?

    The constitution does not spellets out how soon the information should be given. So an act of parliament had to spell these out. Also I have seen decided cases in England where the person seeking information says he wants the soft copy in word and yet the authorities in charge of the information want to give him a pdf version etc. See for example Inner v Information Commissioner (2015)2 All ER 560. In fact I could go on and on. We will also need an information Commissioner to whom we can lodge complaintso in the event of a refusal or delay. We need not always go to court, which is expensive. In a nutshell it is good to copy from the best practices in the UK Freedom of Information Act 2000 and the EU convention.

    So though you have made a good case, it certainly cannot be the case that an Act of Parliament is not necessary.

    So we should rather revive the advocacy to get the Act passed.

    Maybe we can do a gargantuan demonstration to drum home the point to Parliament.

Leave a Reply