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Tanzania

To Enact a Freedom of Information Act by December 2014. (TZ0026)

Overview

At-a-Glance

Action Plan: Not Attached

Action Plan Cycle: 2014

Status: Inactive

Institutions

Lead Institution: Ministry of Constitutional and Legal Affairs (MOCLA)

Support Institution(s): Attorney General's (AG) Office, unspecified civil society and private sector organizations

Policy Areas

Legislation & Regulation, Right to Information

IRM Review

IRM Report: Tanzania End of Term Report 2014-2016

Starred: No

Early Results: Major Major

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information

Potential Impact:

Implementation i

Completion:

Description

The legislation will be established in line with international best practice and shall include:-
(i) Recognition of a human right to information, along with a broad presumption of openness of information held by public bodies, including state-owned enterprises and bodies, and private bodies undertaking public functions or operating under public funding;
(ii) An obligation to publish a wide range of information on a proactive basis;
(iii) Robust procedures for making and processing requests which are simple, free and quick (with a clearly specified maximum response time).
(iv) A limited regime of exceptions based on preventing harm to protected and security related interests, a public interest override and severability where part of a record is exempt;
(v) A right of appeal.
(vi) Protection for good faith disclosures and sanctions for obstruction of access; and
(vii) Obligations to report on requests received backed up by sanctions for refusal to disclose information without reasonable cause.

IRM End of Term Status Summary

Commitment 3.1. Access to Information Act

Commitment Text: To enact Access to Information Act by December 2014

The legislation will be established in line with international best practice and shall include:

(i) Recognition of a human right to information, along with a broad presumption of

openness of information held by public bodies, including state-owned enterprises and

bodies, and private bodies undertaking public functions or operating under public funding;

(ii) An obligation to publish a wide range of information on a proactive basis;

(iii) Robust procedures for making and processing requests which are simple, free and

quick (with a clearly specified maximum response time).

(iv) A limited regime of exceptions based on preventing harm to protected and security

related interests, a public interest override and severability where part of a record is

exempt;

(v) A right of appeal.

(vi) Protection for good faith disclosures and sanctions for obstruction of access; and

(vii) Obligations to report on requests received backed up by sanctions for refusal to

disclose information without reasonable cause.

Responsible institution: Ministry of Constitutional and Legal Affairs (MoCLA)

Supporting institution(s): Attorney General's (AG) Office, unspecified Civil Society Organisations (CSOs) and Private Sector Organisations (PSOs)

Start date: 1 July 2014 End date: 31 December 2014

Commitment Aim:

The commitment aims to enact an Access to Information (ATI) law, and it evolved from a commitment previously outlined but never implemented in Tanzania's first OGP action plan (2012-2013). Tanzania's first OGP action plan lacked specific details on the contents of the access to information legislation. The government created this commitment in response to recommendations made in the IRM progress report for the first OGP action plan, including inclusive consultations with stakeholders and a set deadline for enacting the law.

Prior to drafting the commitment in the second OGP action plan, accessing government-held information was difficult, and there was no legal requirement for the government to disclose information.[Note 1: Lillian Nalwoga, 'Access to Information in Tanzania: Laws, Policies, and Practice,' Collaboration on International ICT Policy in East and Southern Africa (CIPESA), 24 March 2015,

http://cipesa.org/2015/03/access-to-information-in-tanzania-laws-policies-and-practice/.] Issues of public interest were not regularly disclosed, and civil servants responsible for providing such information often applied excessive censorship. The commitment thus seeks to ensure that information held by the government is accessible to all, provided within specified time limits, and shared among communities, media, and the general public.

Status

Midterm: Limited

By 30 June 2015, the Ministry of Constitutional and Legal Affairs (MoCLA) had made limited progress on the commitment. Although the Access to Information bill went through the first and second readings, it was not passed by the Parliament in 2015. Parliament rejected the bill because it lacked wide stakeholder consultation,[Note 2: IRM Progress Report 2014-2016: Tanzania, http://www.opengovpartnership.org/wp-content/uploads/2001/01/Tanzania_IRM_Progress_Report_2014-15_for_public_comment.pdf.] delaying the process.[Note 3: Tanzania's Parliament Rejects Media Censorship Bill, 21 November 2013, http://bit.ly/1VIUcG9.] According to civil society stakeholders interviewed, the process further stalled due to the general elections held on 25 October 2015.

To pass the ATI law, MoCLA had to redraft the bill, conduct broad stakeholder consultations, and receive approval from the Parliament. For more details, please see the IRM progress report (2014-2016).

End of term: Substantial

The commitment to enact legislation on access to information was completed during the reporting period for the IRM end-of-term report but missed the commitment period deadline of 30 June 2016. The bill was submitted to Parliament and went through two readings, deliberations, and finally approval on 6 September 2016.

Did it open government?

Access to information: Major

As a result of the ATI law, Tanzanian citizens have a legal right to request and access government-held information. In the past, one could not cite any legal instrument for accessing similar information, save for under Clause 18 of the National Constitution (URT, 1977). The new access to information legislation increases the amount of information available to the general public; however, it contains a subcategory of defined exceptions that could hinder full information disclosure.[Note 4: Interview with media stakeholder, 29 September 2016, Dar es Salaam.]

In April 2015, the Centre for Law and Democracy awarded the Access to Informtion Act 91 out of a possible 150 points for providing a right to information. The Centre applauded the relatively broad scope, narrow categories of exceptions, and oversight by the independent Commission for Human Rights and Good Governmance as major steps in the right direction. However, the Centre expressed concern over the law's lack of detail on requesting appeals procedures, the small number of promotional measures to publicise the law, and the exclusion of legal entitities and non-citizens from being covered by the law.[Note 5: Centre for Law and Democracy, Tanzania: Note on the Draft Access to Information Act, 2015, May 2015, http://www.law-democracy.org/live/wp-content/uploads/2015/05/ATI-Law-analysis.rev_.pdf. ] All these gaps are still evident in the ATI law enacted in September 2016.

The ATI law was passed at a time when the government implemented many legal changes that may hinder the effective exercise of the right to information granted by the new law.[Note 6: Tanzania Assembly Backs Information Access Bill, Freedominfo.org, 8 September 2016, http://www.freedominfo.org/2016/09/tanzanian-assembly-hears-criticisms-of-pending-ati-bill/.] An access to information expert from a Tanzanian CSO[Note 7: Interview with civil society ATI expert, 21 October 2016, Dar es Salaam.] expressed concern that the law does not go far enough to limit loopholes for shielding potentially confidential information or data that may be considered unflattering or controversial in nature from public scrutiny. For example, the law gives the government 30 days to respond to a request, which according to Deputy Chairman Deodatus Balile of the Tanzania Editors Forum is too long a period for a journalist to wait for information.[Note 8: http://www.freedominfo.org/2016/09/tanzanian-assembly-hears-criticisms-of-pending-ati-bill/.]

While the ATI law represents important progress in improving legal access to information in Tanzania, it is unclear whether or not the law is undermined by the regressive and draconian Cybercrimes Act that also passed in 2015. In a report prepared by Privacy International, the Collaboration on International ICT Policy in East and Southern Africa (CIPESA), and Tanzania Human Rights Defenders (THRD) Coalition,[Note 9: Excerpt from https://www.privacyinternational.org/sites/default/files/privacy_tanzania.pdf.] Clauses 31, 32, 33, 34, 35, and 37 in the Cybercrimes Act[Note 10: Ibid.] 'give powers to law enforcers to search and seize computer systems, data and information without court order thus can infringe right to privacy' and freedom of information.[Note 11: Excerpt from https://www.privacyinternational.org/sites/default/files/privacy_tanzania.pdf.] These contradictory legal grounds for accessing and using information could limit the ability of citizens to freely use information for civil society purposes.

This commitment represents a major achievement in providing legal mechanisms to establish the right to information. Stakeholders[Note 12: Interview with an anonymous source, 29 September 2016, Dar es Salaam.] have hailed the enactment of the ATI legislation as opening more doors, especially for oversight institutions and stakeholders such as CSOs. The law could be important for citizens seeking previously unavailable information on local policies and programs that directly affect their communities. For example, citizens can request budget and expenditure reports from local councils when conducting public expenditure tracking surveys (PETs) and other similar social accountability monitoring exercises. Establishing the legal right to information helps create the necessary environment for holding public officials accountable.

Carried forward?

The third OGP action plan draft[Note 13: Tanzania's third OGP action plan draft, multi-stakeholder consultation workshop at the State House in Dar es Salaam, 6 September 2016.] includes and builds upon this commitment, with two planned activities under the new commitment to enact the Access to Information Act by December 2016. Another proposal under the draft ATI commitment is to develop the Access to Information Act's regulations by June 2017 in consultation with civil society and other stakeholders. The draft action plan has been published online.[Note 14: http://www.twaweza.org/uploads/files/FINAL%20OGP%20ACTION%20PLAN%20III%2030_8_2016.pdf. ]

 

It is not clear whether this commitment'”as written in the draft action plan'”will be maintained given that Parliament already has enacted the ATI legislation before the third OGP action plan has been finalised. During a national consultative workshop in September 2016 to review the draft action plan, civil society stakeholders thought that the commitment may be removed altogether because of its current implementation status. Some argued that it is important to have fewer commitments in the final action plan document. They[Note 15: Interview with an anonymous source, 24 September 2016, Dar es Salaam.] were of the opinion that this commitment should be omitted from the forthcoming action plan given that the most important part of the commitment (having the ATI Act in place) has already been accomplished prior to the implementation of the third OGP action plan (July 2016-June 2018). They instead call for a new commitment to be incorporated for disclosure of assets and liabilities of senior politicians and civil servants.


Commitments

  1. Starred commitment To Enact a Freedom of Information Act by December 2014.

    TZ0026, 2014, Legislation & Regulation

  2. To Establish an Open Data System by December 2016.

    TZ0027, 2014, Capacity Building

  3. To Make Budget Data (Eight Key Budget Reports), Audit Committee Reports and Tax Exemptions Publicly Available by December 2014.

    TZ0028, 2014, E-Government

  4. Make Land Use Plan, Ownership and Demarcated Areas for Large Scale Land Deals Accessible Online for Public Use by June 2016.

    TZ0029, 2014, Land & Spatial Planning

  5. Tanzania to Fulfill Its EITI Commitments by June 2016

    TZ0030, 2014, Extractive Industries

  6. Dashboard of OGP Progress

    TZ0001, 2012, OGP

  7. Water Data and Mapping

    TZ0002, 2012, Water and Sanitation

  8. Citizens’ Website

    TZ0003, 2012, E-Government

  9. National Audit Office Website

    TZ0004, 2012, E-Government

  10. Client Service Charters

    TZ0005, 2012, E-Government

  11. Participation by Email and Mobile Phones

    TZ0006, 2012, E-Government

  12. Reporting on Medical Supply Orders

    TZ0007, 2012, E-Government

  13. Starred commitment Access to Health, Education, and Water Data

    TZ0008, 2012, Open Data

  14. Government Websites

    TZ0009, 2012, Open Data

  15. Open Forum on OGP Commitments

    TZ0010, 2012, E-Government

  16. Complaints Register

    TZ0011, 2012, E-Government

  17. Starred commitment Citizens’ “How Do I?” Website

    TZ0012, 2012, Public Service Delivery

  18. Local Government Service Boards and Committees

    TZ0013, 2012, E-Government

  19. Citizens' Budget Document

    TZ0014, 2012, E-Government

  20. Contact Point for OGP Communication

    TZ0015, 2012, E-Government

  21. Global Practice on Data Disclosure

    TZ0016, 2012, E-Government

  22. Donor Funding

    TZ0017, 2012, Aid

  23. Open Government Innovation by Local Entrepreneurs

    TZ0018, 2012, Capacity Building

  24. Disclosure of Public Officials’ Assets

    TZ0019, 2012, Asset Disclosure

  25. Allocation of Grants to Local Governments

    TZ0020, 2012, E-Government

  26. Budget Execution Reports

    TZ0021, 2012, E-Government

  27. Local Government Transparency

    TZ0022, 2012, E-Government

  28. Reports on Tax Exemptions

    TZ0023, 2012, E-Government

  29. Best Practices for Freedom of Information Laws

    TZ0024, 2012, Right to Information

  30. Parastatal Organisations

    TZ0025, 2012, E-Government