Uganda’s Access to Information Regulations: Another Bump in the Road to Transparency
Jul 13, 2011

On 21 April 2011, the Government of Uganda signed into law new regulations for implementing Uganda’s Access to Information (ATI) Act of 2005. The ATI Regulations were long awaited and widely welcomed, since many local and international advocates believed their absence had hindered full implementation of the Act, and stymied efforts to increase transparency and accountability. The Regulations support implementation of the ATI Act in a number of important ways. For example, they establish procedures for citizens to request government-held information and for government to respond to citizen requests.

But the Regulations also include a number of burdensome provisions that make access unnecessarily costly and difficult and, as such, they are not in the spirit of the strong right to information provision found in Uganda’s Constitution.

Read WRI’s full comments on the regulations: http://www.wri.org/publication/avoiding-the-resource-curse

1 Comment
A bad law is what it is. A bad law.
5:51pm - Jul 13, 2011

Thank you for the good, well written critique on ATI regulations recently passed in Uganda.

My position on this issue is well known. Whereas you describe the ATI regulations as a bump, I would rather say they are a major barrier, to access to information. This may seem radical and extreme, but I honestly believe that in matters of fundamental rights, half way measures do not work. Look at it in this way. The state is encroaching on our space. Every law that is enacted narrows instead of widening democratic space. This has become a pattern.

The whole human rights laws spectrum must be looked at as a whole. Are we having a less restrictive legal regime of a more accommodating one? Be that as it may, it is trite law to determine the constitutionality of any statute one must examine its actual or potential effect (Abuki and Anor vs Attorney General Constitutional Petition No. 2 of 1997), Uganda Supreme Court.

In Near vs State of Minnesota- the US Supreme court noted that “in passing upon constitutional questions the court has regard to substance and not mere matters form….. the state must be tasted by its operation and effect.

The Indian Supreme Court has similarly held: The true test is whether the effect of the law is to take away or abridge fundamental rights. If it be assumed that the direct objects of the law or action has been the direct abridgement of the right- it is to be related to the directness or effect and not the directness of the subject matter. Bennet Coleman &Co LTD VS. Union of India (1973) SC 106.

So long as a statute has such actual or potential effect on an entrenched right, it does not matter the purpose behind the enactment. R VS Big M Drug Mart LTD (1989) 18 DLR (4th)321.

The Zimbabwean Supreme Court held: The test in determining whether an enactment infringes a fundamental freedom is to examine its effect and not its object or subject matter. If the effect is to abridge a fundamental freedom, its object or subject matter will be irrelevant. Re Munhumeso (1994) 1 LRC 282

From your critique of both the law (ATI Uganda) and now the regulations, it seems clear that you agree that both laws do limit the freedom of information. Why then do we continue to make the best of what we think they provide? This in my view is an error. We are falling into a trap. The moment we start using the law, then we are bound especially when it somehow works. For example, if we use the law and regulations to get information that one would otherwise ordinary get, you cannot faulter the state if it denies you vital information using the same law e.g, a Production Sharing Agreement. This is why the Izama case has a problem. They choose to use ATI Act to access information. The ATI act was used to deny them the information – can they now turn around and say it is a bad law?

I would therefore have loved to see a line in your critique that says these regulations are unconstitutional in view of our observations that they limit the right to access information set out in the Constitution. That there is no way they can assist access to information. They cannot operationalise Article 41 as their effect is to restrict it. The other side of the argument is whether the limitation is justified- the test to be applied under the Ugandan Constitution is that any limitation to a fundamental right must be demonstratably justifiable in a free and democratic society. Maybe this is the issue that we all ought to address first, am ready to debate this anytime, anywhere.

Am not one of those scholars who say that a bad law is better than nothing. A bad law is what it is. A bad law. I will still write my own critique of the ATI regulations pointing out the provisions that I think make them unconstitutional.

Kenneth Kakuru

Greenwatch http://www.greenwatch.or.ug/

Post new comment

The content of this field is kept private and will not be shown publicly.
  • Allowed HTML tags: <h1> <h2> <h3> <h4> <h5> <h6> <a> <em> <strong> <cite> <code> <ul> <ol> <li> <dl> <dt> <dd> <blockquote><img><i><b><p><br><div><iframe>
  • [flickr], [youtube] and [slideshare] macros embed media from other sites (click More Information for examples)
  • You can use Markdown syntax to format and style the text.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Glossary terms will be automatically marked with links to their descriptions. If there are certain phrases or sections of text that should be excluded from glossary marking and linking, use the special markup, [no-glossary] ... [/no-glossary]. Additionally, these HTML elements will not be scanned: a, abbr, acronym, code, pre.

More information about formatting options