by Matongo Maumbi
Published on: Feb 19, 2005
Type: Opinions

Without the press, no single government in the world can operate, because the press is the fourth most important estate after the executive, judiciary and legislature in any democratic state. And for the press to be really appreciated as the fourth estate, they must be accorded the freedom to access information.

In 1802, former US President Thomas Jefferson wrote that “where it is left for me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate to prefer the latter.”

This therefore means journalists are supposed to play a watchdog role over the government. For them to perform this role, they must have undeniable access to information. Unfortunately, like many African countries, Zambia does not have a Freedom of Information Act written in the constitution.

Many countries instead have the Official Secrets Acts so vaguely written that officials can interpret them in a way to avoid scrutiny of their actions or they may wish to hide something from the public. Such acts also prevent citizens from verifying information held by powerful institutions and indeed leaders of influential positions.

There is also the Public Order Act that can be used to deny the media access to information, arrest and detain journalists or search a media institution’s premises and confiscate material. These acts are sometimes justified on grounds of state security.

While it is necessary for any government to protect national security, our government often fails to distinguish between state secrets and information that has no implication on that security.

Public interest arguments might include the need for properly informed debate, exposing wrongdoing, protecting the public from danger, accounting for public funds, demonstrating that standards are being observed--that authorities are properly discharging their responsibilities and ensuring that people are dealt with fairly and not misled.

If information is withheld, the authorities should tell you which exemption it has relied on, why it thinks the public interest favours confidentiality and how to challenge the decision. The first step should be to complain under the authority’s own complaints procedure, when a more senior official with greater authority to release information is likely to be involved. Strictly speaking, it is the authorities’ job to show why information should not be disclosed, not yours to prove that it can. But if you feel the authorities may have an exaggerated view of the potential harm from disclosure or has failed to recognise public interest in openness, you should point that out.

This is a crucial period. We are expected to have elections in 2006, but without the press having access to information, it is most probable that rightful leaders will be left out. The electorate largely depends on the media for information on the candidates. This is because they do not have physical contact with the candidates.

As a free press plays a watchdog role on the government in any democratic state, people can get the information they need to exercise independent judgment in electing public officials who favour the policies they support.

The press is a major link between the governed and the governors. The governors convey their policies to the governed through the media. The governed also respond through the media. For people to make an informed choice, they must be informed correctly about the goings-on in the country and also about the candidates.

A lack of access hinders the free-flow of information. It promotes rumour-mongering among the citizenry. This ultimately breeds and sustains bad governance and in the long run hinders the democratic process.

Denial of access promotes unaccountability from the powers that be; abuse of citizens’ rights and corruption, which has characterized many African countries including Zambia. Without access to rightful information, corrupt practices cannot be exposed.

A one-sided press befools society. The Freedom Of Information Act is not for fast-breaking stories. You’re more likely to wait weeks than hours for information. But if you’re dealing with an issue that will still be the news in a month’s time or gradually putting a big story together, the Act is just what we need.

There is no special trick to making a request. Apply in writing or by fax or email to the authorities concerned. It’s a good idea to say you’re applying under the Act, but strictly speaking, you don’t need to. Any written request is automatically valid. You can ask to be sent photocopies of the originals, have material emailed or ask to inspect records in person. The authorities are required to comply with your preferences. Photocopies may give you a better feel for how much information has been withheld than a printout with the gaps closed up.

Information to the media is denied in various ways. The most common one is to delay official comment or refuse comment altogether. This prompts the media to publish the story without a comment and sometimes the story is dropped, as it might be one-sided or unsubstantiated.

Another tactic is to refer the media to the Ministry of Information, which requires all questions in writing, and then the ministry will forward the questions to the appropriate department and ministry. The response is relayed to the media through the same process. This process works against the media because news cannot wait forever.

On the other hand, the state-owned and controlled media is rewarded for its loyalty by being given better, but still selective, access to public officials and institutions. Journalists and the public have no institutionalized powers to compel officials to answer questions or provide information.

Official Secrets Acts, for example, are invoked when the media touches on matters relating to the military and the executive branch of the government. Issues related to the military and security are rightly recognized as sensitive because they affect the security of the entire nation. The harm to the nation can be immense if such information is made available to enemies or potential enemies.

However, issues of military spending and preparedness should not totally be beyond scrutiny. A balance needs to be struck between what is to remain secret and what needs to be in the public domain for the purpose of accountability of those that are empowered to carry out decisions using public funds.

The legal trial of Post Newspaper Managing Editor Fred M’membe demonstrates how the government uses the State Security Act to suppress journalists. M’membe was tried for the “offence of espionage” against the state when the newspaper published a story that portrayed Zambia’s military inferiority to Angola.

When acquitting Fred M’membe, High Court Judge Elizabeth Muyovwe ruled that she found “no evidence that the accused was spying for Angola or any other foreign power or that indeed in publishing the article it was to benefit Angola. Mere publication of the story in question does not show that it was for purposes prejudicial to the Republic nor does it establish the offence espionage.”

The continued arrest and detention of journalists prove that the government is not committed to freedom of the press. Though freedom of expression is guaranteed under Article 20 of the constitution, there needs to be an exclusive article for freedom of the press.

A state that prosecutes journalists on allegations of breaching military secrets encourages the belief that there is something to hide, creating a credibility gap with the public and tensions with the journalists and the media as an institution. There can be no worse threat to national security besides the denial of access to information.

There have been efforts to have a guaranteed freedom of the press clause in the constitution. Tawana Kupe, a Lecturer in Media Studies in the Department of Journalism and Media Studies at Rhodes University, says that there is the need for a balance to be struck which will enhance the standing of public institutions and protect the interests of society. This balance necessitates the abolition of the Official Secret Acts in favour of Freedom of Information Acts.

Kupe adds that Freedom of Information Acts can have provisions that protect sensitive information from being placed in the public domain. However, such provisions should not deviate from the principle of openness. Mechanisms must be worked out so that it can be verified that particular information is sensitive, or which aspects of such information are sensitive. “We must rectify the situation where information is declared secret and so unavailable to the local media because it allegedly endangers national security, yet it remains available to media from ‘enemy’ countries,” advises Kupe. Public officials and agencies must prove that information needs to be kept out of the public domain and not the other way around.

When a proper mechanism is put in place, journalists should adhere to the system or face the legal and professional consequences of publishing information that is legally protected. Rasheed Galant wrote in So This is Democracy? that “if a journalist cannot report something, NOBODY can report the same; if a journalist is locked up for saying something, ANYBODY can be locked up for saying the same; if a journalist cannot enter somewhere, the PUBLIC cannot enter there; if a journalist cannot ask a question, NOBODY can ask that question; and if a journalist cannot speak, who will know what is there to talk about?”

It is therefore in the interests of the journalist and the media that well-defined Freedom of Information Acts become law. Access to information will enable the journalist to dig deeper while remaining on the side of the law and not appearing to be above the law. This way, journalists can practice self-regulation and institutionally they can fulfill the best ideals of journalism by producing accurate and balanced reports for the public good.

However, the enactment of the Freedom of Information Act should be watched and scrutinized at each stage so that we do not have an Act that restricts journalists from acquiring justifiable information.

As former US President James Madison wrote, “a popular government, without popular information, or the means of acquiring it, is but a prologue or a farce or a tragedy; or perhaps both.” We need to have a popular government with popular information and undeniable means of accessing it. Remember, the right of the people to speak out through a free press is the hallmark for a democratic society.

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