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Commentary

My bitter-sweet journey in testing Uganda’s Access to Information law

The Leadership Code Act was amended to prevent me from accessing information on wealth declarations of permanent secretaries. I was told I wouldn’t be given the details about beneficiaries of State House scholarships even if I dragged the Chief Justice to the place. When the National Forestry Authority refused to give me information on four requests, I sued them and won. Several cases I filed in 2015, 2016 and 2017 are still pending in court.

Working on some project with an international organisation in 2011, I came across Peter Nsenkeng, a Cameroonian journalist with whom we struck a friendship that still blossoms.

Our regular meeting place was the then famous Just Kicking bar, located at Kisementi in Kampala. For some reason, many journalists loved the place.

Nsenkeng, then a journalist working with a media entity that had offices in Kampala, was as interested as I was in the issues that affect journalists, and we would discuss many of them over a drink.

It was during one of our discussions that I picked interest in the Access to Information law in Uganda. I went out to the Uganda Bookshop and bought a copy of that law, together with the Regulations, and studied them. The Regulations (guidelines) to the Access to Information law were passed by parliament in 2011, while the law itself had been passed in 2005.

In mid-2012, Nsenkeng got a better job in New York and left the country.

After his departure, I started talking to some journalist colleagues about what they thought of the Access to Information law in Uganda, and whether applying the provisions of this law could enrich their work.

To my dismay, all the responses I got from my colleagues were almost the same; “those things do not work in Uganda.”

I had heard of a case in 2009, in which two journalist colleagues, Angelo Izama and Charles Mwanguhya who both worked with Daily Monitor at the time, had applied to a court of law, quoting the Access to Information law, requesting a Chief Magistrate to issue an order forcing the government to disclose the Production Sharing Agreements (PSA’s) that the government had signed with oil companies in that had ventured into Uganda’s nascent oil industry.

Their request was denied by the Chief Magistrate, on grounds that the PSAs had confidentiality clauses and could not be accessed by the general public.

Despite the negative feedback – both from the court case and the attitudes of some journalists I had spoken to – I decided to try it out myself.

In convincing myself, I reasoned that since the Izama/Mwanguhya case was in 2009 yet the Access to Information Regulations were passed in 2011, it was possible that a fresh request using the Information Request forms that had been introduced by the Regulations could make a difference.

What the ATI law says

The Access to Information Act 2005 provides for the right to citizens to access information in the custody of State agencies, including government ministries, departments, local governments, statutory corporations, commissions and any others.

The law also specifies the types of information in the custody of the state that cannot be accessed, especially cabinet records, court proceedings before conclusion of cases, information that is likely to prejudice the defense, sovereignty and security of Uganda, and information whose release may compromise commercial or proprietary interests of individuals or entities.

The key idea behind the law is to promote an efficient, effective, transparent and accountable government, while empowering citizens to effectively scrutinise and participate in government decisions. The law gives citizens the right to the sue the government if the citizen feels that they have been unfairly denied access to public information.

To make an Information Request to a government body, the law requires one to fill in the Information Request Form, stating the type of information one is seeking, and deliver it to that specific government office’s information officer.

“Information Officer”, for purposes of this law, means the Accounting Officer of that particular entity – permanent secretary in case of a ministry, executive director in the case of a state authority, and for a local government, the chief administrative officer (CAO).

Once an information request is filed with a government entity, the law gives the concerned entity up to 21 days to respond to the request, either by way of providing the information asked for, or giving reasons why the information cannot be provided.

Testing the law

In my endeavor to test the implementation of the law, I filed different information requests to different government bodies. In fact, I filed hundreds of them, sometimes making multiple requests to one government office depending on the issues I wanted information about.

The law states that for every issue one needs information about, the one who needs the information must prepare a separate information request. One cannot request for information about more than one issues in one information request, and that is how I found myself filing multiple requests to particular entities.

Some of the most interesting requests that I filed in the formative stages were to the Inspector General of Government (IGG), State House, the President’s Office, the Uganda Land Commission (ULC), that National Forestry Authority (NFA), and the National Environmental Authority (NEMA).

I also filed requests to the Bank of Uganda, multiple local governments, and the ministries of Finance, Energy, Education and Lands.

All my requests were based on issues that were trending at the time, derived from different reports, newspaper articles and parliamentary records.

For example, I requested for information from the IGG to access the details of declarations of assets by the Permanent Secretaries in all the ministries. I filed this request at a time when six Permanent Secretaries had been indicted on corruption-related charges. I wanted to find out what kind of assets these civil servants had declared with the IGG.

I could not request the IGG for the asset declarations of only the indicted officials as that would give the impression that I was witch-hunting some individuals.

Lady Justice Irene Mulyagonja

Lady Justice Irene Mulyagonja

In a response to my request that came in promptly, the IGG then, Justice Irene Mulyagonja, wrote to me noting that much as I had the right to access that information, she could not grant it because she had to protect the privacy of the PSs, and that their assets declarations had information about their wives and children.  She said she feared that releasing such information would prompt the PSs to seek redress in courts of law.

I wrote back in protest, stating that the law under which government officials are required to make declaration of assets (Leadership Code Act 2002 before it was amended in 2017) stated thus: “once declarations of assets are made to the IGG, they become public information.”

I wondered how they would sue her when the information I was requesting for was already public information under the law. She did not respond to my query.

I reacted by suing the IGG over the matter. The case was in court for over three years, before Justice Steven Musota of the High Court, until the judge sent us for mediation before the then Principal Judge, Yorokamu Bamwine.

When we appeared before the Justice Bamwine, lawyers from the Attorney General’s office representing the IGG asked for more time – a full year – saying the government was in the process of coming up with some amendments to the Leadership Code Act 2002.

I protested the request, saying a year was a very long time, but Justice Bamwine prevailed on me and I also found myself in a position where I had no choice but to give in. That was 2015.

A year elapsed and I never heard from the Attorney General’s office, until 2017 when I learnt that the Leadership Code Act had been amended, making it much harder to access information about declarations of assets of government officials.

Under the amended Act, one is now required to state the reasons why they need to access the sought for information, which means the IGG now has the discretion to decide whether to grant or deny access, depending on the reasons one gives.

This is contrary to the Access to Information Act, which states thus: “a person’s right of access is, subject to this Act, not affected by (a) any reason the person gives for requesting access or (b) the information officer’s belief as to what the person’s reasons are for requesting access.”

Under the Access to Information Act, one is not required to give any reasons to access information.

The amended Leadership Code Act 2017 now requires one to pay Shs200,000 to access information from the IGG. On the other hand, the Access to Information Act provides for one currency point (Shs20,000).

In the end, I never got the information I requested for from the IGG.

In light of the amendments made to the Leadership Code Act 2002, I instructed my lawyers to file a Constitutional Petition challenging the legality and constitutionality of the Leadership Code Act (amended) 2017, and that Constitutional Petition, No. 03 of 2020, is still pending decision.

Peeping into State House

The Information Request I made to State House was about the students that were beneficiaries of the State House scholarship scheme at the time. I became interested in that issue after news reports that there was suspicion that the intended beneficiaries of that scheme had been mainly sidelined, and it was children of the connected wealthy politicians that were benefitting.

I asked around and got information that President Museveni had established that scholarship scheme to benefit those students who performed well but failed to raise funds to further their studies.

I delivered the request to the office of Lucy Nakyobe, then the State House Comptroller.

When her secretary saw and read the request, she asked me: “who do you think you are to come here asking for this information?”

I told her that the request was not addressed to her but to her boss, so her job was just to receive it and take it to her boss. The boss must have heard the argument and she sent her military Personal Assistant to receive the request, and asked me to wait while she considered it.

After reading it, the State House Comptroller called in the then Presidential Press Secretary, Tamale Mirundi, to look at the request. “You handle that,” Nakyobe ordered the press secretary.

Having known the press secretary before as a colleague in the journalism world, he asked me to walk down with him to his office. On reaching his office, Mirundi asked me: “Sekyewa, when did you join the opposition, look at your shirt! I was coincidentally putting on a light-blue short-sleeved shirt, a colour that was very popular for the Forum for Democratic Change (FDC) party.

I told him I was nowhere near politics in regards to the request I made. My intention was just to find out who the beneficiaries of the scholarship scheme were, because that is supposed to be public information.

He accused me of wanting to get that information and take it to the opposition parties so they could “make noise.” He bluntly told me that even his children were benefitting from the same scheme, so “even if you walk in here with the Chief Justice of Uganda, we shall not give you this information.”

I asked him to put his response in writing but he just laughed it off. I bade him farewell and left.

I waited until the 21 days that the law provides for a concerned information officer to provide a response elapsed; and indeed they did not grant me access to that information. I knew deep down that I was not going to sue State House because I did not want the would-be repercussions of raising too much of their attention, so I let that be.

I was, however, not very surprised by the reception I received from the State House officials, because in my initial planning, I anticipated that some public officials would behave in different ways depending on the impunity levels prevailing within different entities and individual characters.

My shot at NFA

To the National Forestry Authority (NFA), I filed four requests on four issues.

One of the issues arose from a World Bank report. This was about funds that had been extended to NFA by the World Bank to upgrade roads in central forest reserves (CFR’s) and procure fire-fighting equipment which would make it easier to fight fires in the CFRs. I wanted to find out from NFA if this project, which was supposed to be completed in three years, had been undertaken and completed.

The other issue was about the implementation of the NFA Business Plan 2009-2014. This plan entailed several initiatives which were supposed to be undertaken, and my major interest was the implementation of the Forestry Information System (FIS), which was priority No. 8 in the business plan. My request was intended to ascertain how far the entity had gone in implementing the FIS since it was filed at a time when the project period had almost run out.

The third issue was about claims that had appeared in newspapers, where individuals that were encroaching on national forests claimed that they had legally acquired the land from NFA to conduct their private businesses. I wanted to find out from NFA who these private developers were, whether the public body had a catalog or list of these individuals and which forestry land had been given away to them around the country.

The fourth issue was about the implementation of the North Ruwenzori CFR Management Plan, which NFA had drawn for that particular CFR.

NFA denied me access to all the four sets of information. I wrote to them that I would sue over the matter. After several weeks of no response from them, I filed a suit against them and won the cases.

They were, among others, ordered to provide me the information I requested for. When they gave me the information, I understood why they were hesitant to do so in the first place. I shared that information with some colleagues in the mainstream media but I never saw any stories about them in the papers.

Are presidential pledges tracked?

The president makes pledges to different groups and individuals once in a while, but there was a time when media reports were awash with groups petitioning the Presidency over unfulfilled pledges, some of them going as far as 20 years back, so I wanted to find out whether the presidency keeps track of presidential pledges to have them fulfilled.

I therefore filed an information request to the presidency, which they never responded to.

Todate, I still file Requests to entities depending on issues of interest to me or in public interest, especially if I intend to write an article about a certain issue.

One thing I learnt in the course of filing my initial information requests is that many government officials were unaware that we have a law that obliges them to give information to citizens, whether on demand or proactively. What many of them knew about was the Official Secrets Act, under which they swear to protect government secrets.

Another thing is how slow and frustrating the courts in our country can be. I still have several Access to Information suits in courts that were filed in 2014, 2015, and 2016 but have yet to be be concluded.

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