TESTING RTI LAW: The 33 public institutions that passed or failed

By  Kwaku Krobea Asante & Seth J. Bokpe 

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“I don’t care where the letter is coming from. Drop it in that box and leave.  There is COVID-19. I will not sign anything!”

With those words uttered in very harsh tones, a receptionist at the Ministry of Education dismissed a journalist from The Fourth Estate.

No amount of explanation, including the fact that the letter was a right to information (RTI) request and needed to be acknowledged, would make her budge that afternoon of March 29, 2021.

She ranted, insisting no letter was moving beyond the airconditioned reception on a day the sun was at its fiery worst.

The letter was one of 36 requests The Fourth Estate made to 33 public institutions. Those requests were a test of the efficacy of the Right to Information (RTI) law, which had been described as an antidote to corruption.

Needless to say, the Ministry of Education, where the receptionist works, is one of the institutions that refused The Fourth Estate access to information 14 days after the letter was submitted.

When Parliament passed the RTI law in 2019, its main advocates–the media, civil society groups and anti-corruption campaigners–touted it as another arsenal to crush corruption. They said it would increase transparency in the government, ensure proactive disclosure of information and set rules for requests and responses.

Passing Ghana’s RTI law did not come easy.  It had triggered political promises and failures before and after elections.

From the outset, it appeared successive governments did not want to open up for scrutiny through the RTI. But civil society organisations moved from push to shove. And finally got it done.

The journey

In 1996, a leading governance think tank in Ghana, the Institute of Economic Affairs (IEA), wrote to the Bank of Ghana (BoG) to request information. The IEA made the request in the exercise of its fundamental right to information as enshrined in Article 21 (1) (f) of the 1992 Constitution. The request was to test a law that hadn’t been given the opportunity to even fail.

That request triggered what has been arguably the longest advocacy for the passage of a law (the RTI law) in recent years. It would take 19 years for Ghana to pass a law that Sweden approved in 1776.

The IEA drafted the RTI Bill in 1999. It was reviewed in 2003, 2005 and 2007, and presented to Parliament in 2010.

ALSO READ: RTI Commission orders Scholarship Secretariat to release beneficiaries list

The bill gathered momentum in the dying embers of the Mahama administration in 2016 but hit a snag. Members of the opposition New Patriotic Party (NPP) protested the timing of the intended passage of the bill. The NPP had won the 2016 elections and suspected that the outgoing government wanted to set traps with the law.

However, in 2019, after another round of sustained pressure from civil society, the Akufo-Addo administration passed the law. Ghana joined a global league of more than 100 countries that had passed the RTI law.

Fifty-six (56) days after the passage of the bill, on May 21, 2020, President Akufo-Addo assented to it within 24 hours of receiving the law. The assent was broadcast on national television.

“I am very happy that this law has finally been passed, and I did make the commitment that, when it was brought to me, I would give my assent to it right away. It was, in fact, brought to me yesterday afternoon,” the President said.

“But, on second thought, I felt that I should sign it in the plain view of the Ghanaian people, for you to know that this long, winding parliamentary process has finally come to an end,” he added.

The passage and assenting of the RTI law (Right to Information Act, 2019, Act 989) drew commendations from many local and international stakeholders and civil society organisations.

The law, which took effect on January 2, 2020, is expected to make it easier for the public to request and receive information from public institutions in Ghana.

But it is beginning to dawn on civil society and the media that the celebrations were premature. Very few people are using the law and very few institutions are willing to release information.

Testing the law 

Between March and July 2021, The Fourth Estate put the Right to Information Act to a litmus test. The objective was to assess how effective the legislation was being implemented in public institutions.

The Fourth Estate made 36 requests for information from 33 ministries departments and agencies (MMDAs) working under the three arms of government –-the executive, legislature and judiciary. The Fourth Estate purposively selected MMDAs that are related to the functioning of the RTI law

There was also a focus on institutions that have recently engaged in key activities or projects of crucial concern to national development. In some cases, one institution received more than one request for information.

The following institutions received The Fourth Estate’s requests for information:

Nearly 60% of the applications by The Fourth Estate were refused access to information

The RTI law emphasises time and feedback. It stipulates that an information officer of a public institution must respond to an applicant within 14 days of receiving the request for information. The response must indicate if the information requested is available and whether access will be granted or not.

“Where an information officer fails to determine an application within fourteen days after the application is received by the public institution, the application is deemed to have been refused and the applicant has the right to seek redress under sections 31 to 39.” Section 23 (5) of the RTI law states.

At the end of 14 days after making the requests, 52% (17 out of the 33) institutions failed to acknowledge or respond. In RTI terms, they refused The Fourth Estate access to information.

Even though  16  other institutions provided feedback to The Fourth Estate’s applications, not all of them followed up with granting us access to the information. Many of them merely acknowledged the requests but failed to provide the information.

However, the following institution must be separated for commendation. They did not only respond to The Fourth Estate’s application but granted access to the information within 14 days.

Internal review

In the case of refusal and neglect to provide the information requested, Section 31 of the law provides a pathway—application for internal review:

“Except as otherwise provided in this Act, a person aggrieved by a decision of the information officer of a public institution may submit an application for internal review of that decision to the head of the public institution.”

The Fourth Estate followed the process and made an application to the heads of all the institutions whose information officers did not respond to the requests or failed to give us the information requested.

The heads of the institutions included sector ministers, the Speaker of Parliament, CEOs and managing directors of state-owned enterprises. Some of the institutions provided the information following the appeal. In the case of Parliament, The Fourth Estate did not only write an internal review after the initial application, but it also wrote a reminder letter.

This means The Fourth Estate wrote three times to the institution that passed the RTI law before the information was finally granted, a case of the priest not believing in his own sermon.

Some of the responses received following the internal appeal to the heads of institutions revealed the lack of awareness and understanding of the RTI law among public institutions. They also underscored the general aversion to transparency and how the internal communication structures of the civil service are set up to block such requests.

A general aversion to releasing information despite the existence of the RTI law

The spirit of the RTI law encourages proactive disclosure of information. The law stipulates that public institutions must publish periodically a manual providing key and specific pieces of information relating to their work. The manual has not been produced by any public institution yet.

Section 18 (5)] of the RTI law envisages that institutions guide applicants in making their requests as they may not have detailed knowledge about the work of the institution:

“Where an application does not sufficiently describe the information required, the public institution to which the application is made shall so inform the applicant and offer the applicant the necessary assistance to identify the information.”

GETFund

 The Fourth Estate wrote to the GETFund requesting the list of scholarship beneficiaries and the amount disbursed to them under the Fund for 2019 and 2020. The request also included a list of education infrastructure the Fund had sponsored from 2016 to 2020.

The GETFund, after failing to make a determination on the request within 14 days, hand-delivered a letter signed by its Administrator to the premises of The Fourth Estate. 

“The response to your letter is ambiguous,” the letter said.

But a lecturer at the Ghana Institute of Journalism and RTI advocate, Zakaria Tanko, differed with the GETFund.

“These are all legitimate requests, and the request is going to a public institution. I can confidently say none of this is exempt [not supposed to be released] information,” lawyer Tanko said.

Similar responses were received from many institutions.

Ministry of Sanitation and Water Resources

The Fourth Estate requested a copy of the contract on the regional waste recycling plant from the Ministry of Sanitation and Water Resources. It made the request following news reports that the contract was between the Government of Ghana (GoG) and Jospong group, hence stated that the Ministry provided it “contracts for the construction of regional waste recycling plants between the Government of Ghana and the Jospong Group.”

However, the Ministry, in a letter signed by Anthony Komla Dovlo, responded blankly stating that “there is no contract between the Ministry of Sanitation and Water Resources, and for that matter, Government of Ghana, and Jospong.”

The ministry ignored provisions of section 18 (5) of the RTI law. It was not interested in providing any further detail on the said contract or either guide The Fourth Estate to know where to access the information.

Ghana National Fire Service

The Ghana National Fire Service denied The Fourth Estate a request for reports on the Accra Atomic Junction Gas explosion, the June 3 fire disaster, and the fire outbreak at the Ghana Revenue Authority office near the Kwame Nkrumah Circle in 2020. The fire service cited ethical constraints.

“Fire reports involving institutions and individuals cannot be made available to you. Legally, we are not bound to release such reports until permission has been granted by such institutions and individuals concerned,” is aid.

“The ethics of our profession does not entreat us to divulge such information to a third party who was directly involved in [the] said incident,” the service added.

Ministry of Works and Housing

The Ministry of Works and Housing declined to release a copy of the Ghana Institution of Surveyors audit report on the Saglemi Housing Project. It also did not grant our request to know the government’s contribution to developing the Saglemi Housing Project since 2017.

The head of RTI at the ministry, Zakaria Musah, said in a letter that the matter was under investigation at the CID and that the request would only be ready after the investigations.

Mr Tanko did not understand what the ministry meant when they say the matter was under investigation.

“For that Saglemi Housing, I don’t know whether the case has gone to court, nobody has been arrested,” he said.

“If you make that request to the police, then the police could say it is subject of investigations. But even that, if the subject is made aware of the content of the information, then you are entitled to receive the information as well. I’m not too sure what level of investigation they are talking about.”

General observations on RTI law’s functionality

Aside from the general unwillingness on the part of public institutions to release information, The Fourth Estate made some other observations based on the responses received from the institutions.

There appears to be a widespread low understanding of the law and the principles on which it functions. Specifically, many of the institutions were conflicted on whether RTI law overrode their Acts, which also guide them on how to release information.

The Ghana National Fire Service provided The Fourth Estate information on fire outbreaks and locations in Ghana from 2016 to 2020 and charged GHs 150.00. They explained that it was the standard fee they charged for the information requested, and so requesting for information under the RTI law was no different. Meanwhile, Section 78  of the RTI law indicates that an applicant only pays for the reproduction of the information requested.

Also, the RTI Commission, in a landmark ruling, directed the Minerals Commission to charge GHs 1.90 instead of the equivalence of $1,000 the Minerals Commission had asked The Fourth Estate to pay based on one of their establishing Acts.

Poor internal communication

The Fourth Estate also observed that poor internal communication channels and red tapeism that characterise the civil service are a major blockade to the functioning of the RTI law. Many of the institutions including the DVLA, GNFS, and EOCO, provided feedback to The Fourth Estate that they did not receive the initial application for information.

Meanwhile, for every application, The Fourth Estate ensured that the officers, mostly front desk officers, who received the request signed or stamped a copy as evidence that the request has been filed. Interestingly, many of these institutions would later find the application after the appeal to the heads of the institutions.

There also appears to be no clearly defined structure or destination in some of the institutions where applications were supposed to go. Indeed, a considerable number of the front desk officers who liaised between the general public and institutions did not know a thing about the RTI law and who must be the recipient of the applications.

Therefore, based on their own discretion, the front desk officers directed the requests to whichever department they were convinced must deal with the request. This creates a high possibility of an RTI application getting missing in a public institution.

The RTI law indicates that an applicant must state in which means they want the information delivered to them. In all the requests, The Fourth Estate indicated that the information be sent to it via email or that we should be invited to pick it up.

More than half of the institutions that granted access invited us to pick up the letters in person even when we had suggested the information should be scanned and sent to us via email. In fact, the EPA’s initial response to The Fourth Estate’s request was sent through the post office box without notifying the news portal that it has been sent.

Law passed, let’s make it work 

With these teething problems to grapple with, a Programmes officer at the Media Foundation for West Africa, Adiza Moro Maiga, did not mince words.

“Passing the law is not enough. The challenge is getting it running, and effective. If we don’t put in the structures to make sure it is working well and serve the purpose for which it is passed, then it becomes problematic,” she said.

Ms Maiga, who has been on the frontline training CSOs, journalists and community activists on the RTI law, said the challenge has moved from having the law passed to “having it work.”

RTI Commission’s Reviewing

In what is supposed to be the last stage of the appealing process, after the heads of institutions failed to respond, The Fourth Estate wrote to the RTI Commission. The requests were the first the Commission received since it was established in October 2019.

In all, The Fourth Estate made 11 appeals at the Commission against 11 institutions that had either failed to provide full disclosure of information or didn’t respond to our requests at all. Some of the institutions had also transferred our request to other institutions but had failed to follow it up.

At the time of filing this report, the Commission had written to all of these institutions requesting an explanation or justification for denying The Fourth Estate information.

In the cause of the appeals, the Ministry of Education and Legal Aid Commission released partial information to The Fourth Estate.

In an interview with The Fourth Estate, the Executive Secretary of the commission, Mr Yaw Sarpong Boateng, said the challenges with the release of information had been because in the past civil servants swore the oath of secrecy before taking office to protect information within the system.

“This is a novel situation we find ourselves in. Hitherto, people who have operated with secrecy are being confronted with disclosure. We obviously will have some challenges. But with education and time, we will cross the bridge,” he said.

Mr. Zakaria Tanko, who is also a member of the RTI Coalition, said, “The more you make information available to people, the more they want to hold you accountable. The more they will feel empowered, the more you will be called upon to be transparent and open in your affairs and the more issues about corruption will be in the spotlight.”

He continued: “If you want to find out why it was difficult to pass the right to information law, it is because of the fear of the unknown. It is like you are arming your enemies. During training with some MMDCEs, they were clearly angry with the government for passing the RTI law because even without the right to the information, they claimed they were being harassed by journalists and now the media is being given ammunition.”

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