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Failures, Threats To Fulfillment Of Public’s Right To Information In South Sudan

By Roger Alfred Yoron


South Sudan’s Right of Access to Information Act explicitly recognizes the constitutional right of citizens to access information held by public or private bodies, as fundamental to fulfilment of human rights and fighting corruption. But nearly three years since enactment, the law has failed to achieve its purpose.

Nicodemus Ajak Bior, the Information Commissioner together with his deputy Moses Wol Deng Atak were appointed by President Salva Kiir and took oath of office in February 2016 with the mandate to amongst others, promote maximum discloser of information in the public interest provide for in the Act, a task they both have failed to execute. 

Wol resigned nearly two months ago, citing absence of political will and institutional support to ensure independence of the commission.

Ajak who still holds office blames the commission’s failure on lack of budget and funding from donor sources.

“We cannot start when we don’t have people. We need people.  The whole structure of the office is in place but we don’t have individuals to do those jobs. Like if it is receiving and reviewing complaints from requesters, we need to have a department for that,” he said in an exclusive interview with The Nation Mirror.

“We need people to monitor compliance and how other government institutions are making information available. We need people to do the training, public awareness so that people are aware that there’s a law that actually gives them the right to access information. This is the challenge now we have. Not many people know that the law permits them to seek information.”

Ajak said the Information Commission has not been considered for any “budgetary allocation” because it was established when the Country was already in the middle of the Financial Year 2015/2016. 

He currently occupies “temporarily” an office space inside the Public Information Center, a department within the Ministry of Information after failing to secure an “establishment fund” from the government for an acquisition of an office. 

Article 24 Sub-Article 2 and Article 32 of the Transitional Constitution of South Sudan respectively provide that “All levels of government shall guarantee the freedom of the press and other media as shall be regulated by law in a democratic society.” And “Every citizen has the right of access to official information and records, including electronic records in the possession of any level of government or any organ or agency.”  The Right of Access to Information Act is one of the Media Laws which have been enacted to give effect to the exercise of those constitutional rights in the Country. 

However, right groups continue to call for reform of the laws to conform to international human rights law. “Everyone, not just citizens of South Sudan should be entitled to access information under the law,” partly read a submission by Article 19 to the upcoming Universal Periodic Review of South Sudan.

Commissioner Ajak however disagrees insisting that “...we have it (the right of access to information) in our Constitution, there is nothing that can stop it from being the right of everybody in this country. That is why there are institutions like the Information Commission.”

On his part, Oliver Modi Benjamin the Chairperson of the Union of Journalists of South Sudan UJOSS and an Executive Member of the Association of Media Development in South Sudan AMDISS reiterated calls for full implementation of the law.

Speaking to The Nation Mirror, Modi urged that the vacancy of the deputy commissioner vacated by Wol be filled in line with provisions of the Act. He however maintained that there are better alternatives to solving work differences than resignation.  

“When those people resigned, they have their own reasons which I cannot be able to pre-empt but all I can say is some people need a peaceful environment and some people can work throughout, in peaceful environment and in hardship... but rather my advice to my fellow South Sudanese is that, resignation is not a solution to our offices, to our responsibilities,” Modi said.

Modi said members of the commission should be “active and collaborative” with local partners. “We are eager to sharing with them, not necessarily all that they want but I think sharing of opinion, ideas and information,” he said. The Information Act criminalizes obstruction or destruction from public of information not exempted under the law.

The Commissioner of Information said the commission will embark on enlightening government officials on their obligations under the law once there is a budget. 


Commissioner to Regulate Fees 

The Act authorizes the commissioner after consultations with the ministers of information and of finance to regulate amongst other modes of pay and maximum fee payable to public and private bodies for cost of production of information.

“The fee amount… shall exclude costs of searching for the information requested, the time spent examining and redrafting the relevant information, or those related to those related to transcribing the information,” states section 12 subsection 2 of the Act. Ajak said the commission is still going slow on the matter.

“This is a fee that we will all agree [on] because we don’t want to overcharge people and even make it hard for people to access information. We also don’t want to make it so free so that even other administrative things don’t happen. That can only be done with the ministry of finance, once we settle the budget, once we have the place, and we hire people,” the commissioner said before conceding that the fee shall be only for production cost of information.

Meanwhile, Modi has called for “flexibility” from the institutions saying affordable amount of fee should be adopted because of the current inflation in the Country. “Because at the moment it is very difficult to determine a cost of a document because of the high prices in the market... So we shall not be able to have a stable price that can really make such kind of activity to run,” he said. 

The information Commissioner agrees that it would be difficult to find an appropriate affordable amount  Two Journalists spoke to The Nation Mirror on condition of anonymity expressing concern that the fees should not go beyond a reasonable production cost of providing the information.

Ajak said the information commission will compel all government institutions to establish a “working interactive” websites, equipped with the activities and personnel of each body to in order to reduce the cost of accessing of information by the public. 

“You don’t need to go to every particular institution in order to find some information. When I worked in the Ministry of Petroleum, people were coming to us to ask even very simple things,” the commissioner said as he decried the poor mode of communications amongst institutions of the government.

“So we will work with those institutions to see into it that if they have websites that have stalled and are not working, they are brought back to work.  If there are institutions who do not have websites, they need to create them.  Every public institution....”

He pointed out that the use of personal emails for office correspondences, an act commonly practiced by South Sudan’s government officials, is hampering the rights of the public to access information.

Some ministers when relieved from duties leave with office computers and files, forcing their successors to start from scratch, Ajak added.

“Some of those information that goes like that are very, very sensitive and then it becomes difficult for citizens to get those information, not because they were not there but simply because there was no laid down procedure of keeping that information,” the commissioner said adding that he will work to see in to it that government emails for officials in “sensitive positions” are created. 

“Correspondences of the government either within or outside must be done with the government emails...so that when you leave, that email does not function with you and you don’t leave with all the government information,” he stated.

Threats and Hopes 

With only a logo approved by the cabinet, a temporary office space, no “support staff,” no Deputy, no agency supporting it, coupled with the economic crises facing South Sudan, the Information Commission’s hope is centered on the new budget for the Fiscal Year 2016/2017 which is currently under discussion.

That hope almost came into a complete end last week when the ministry of finance “accidentally” issued the Commission a budget limit of 5 Million South Sudanese Pounds (SSP) for the proposed budget for the new financial year.  

“What we are seeing now is that the ceiling that has been given to us is a bit worrying. We have been told that the access to information commission has an operating ceiling of 5000000 pounds, at this particular rate this is less than 75 Thousand [US] dollars. Basically there is nothing you can do with such an amount of money,” Commissioner Ajak said at the time. 

He later told The Nation Mirror on Saturday that the finance ministry has now rectified the matter after realizing that the Commission is an independent institution and not a department within the ministry of information. 

Ajak said an SSP 75 Million budget prepared by the Commission “to ensure for full implementation of the Act” will now be presented to the cabinet for consideration in the Fiscal Year 2016/2017 budget.

“We just have already the one that we have done, it is only unfortunate that they did not put it in this new budget but we will have to make our case again, and the minister of information will have to take it back to the cabinet for reconsideration,” he said.

Concerns have been raised on whether the commission’s budget passing through the executive (cabinet) as opposed to parliament direct would not jeopardize the work or independence of the commission.

“We are hopeful that the council will work this out… and will pass it and we will take it to the ministry of finance, so that it is included in the new budget,” the commissioner said.

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