The Access to Information Act (2005)

This law is an offshoot of Article 41 (1) of the Constitution which provides for the right of every citizen of access to information in the possession of the State or any other organ or agency of the State. The Article provides for exceptions where the release of the information can be denied if it will prejudice the security or sovereignty of the State or interfere with the right to the privacy of any other person.

The main purpose of the Act is: ‘to empower the public to effectively scrutinize and participate in “government decisions that affect them”. It is supposed to promote an efficient, effective, transparent and accountable government by providing the public with timely, accessible and accurate information in the confines of the government agencies.

The Act also provides for the classes of information that can be obtainable from the government agencies; the procedure to be followed in accessing information sought, and any other matters incidental or related thereto. The Act seeks to provide a platform for the media fraternity to use and access what has always been hard to get information from the government agencies. However, on numerous occasions, journalists have been denied information by public officials on flimsy grounds.

On the 8th February, 2013, an investigative journalist submitted to the Inspector General of Government (“IGG”) a statutory request for information regarding “the wealth declarations of all permanent secretaries of all ministries in Uganda, under
the Access to Information Act, 2005 and the Access to Information Regulations 2011 (“the Regulations”). The request was refused on the basis of four grounds:

1-That the information requested for was omnibus in nature and the IGG was thus concerned about the high costs associated with the retrieval and reproduction of this information;

2-The Leadership Code Act does not yet provide for a prescribed form through which the IGG can divulge the information requested for to the public;

3-The Access to Information Act does not apply to information submitted to the Inspectorate under the Leadership Code Act; and

4-The IGG and Attorney General could be sued for breach of right to privacy for indiscriminately releasing the information requested for because it extends to the affairs and property of leaders’ spouses, children and dependants, especially since the requester could publish these details in the press once they are divulged to him.

The IGG in her response raised questions of law of great and general importance to the public. The complexity of these questions is compounded by the fact that the request in question universally touches on the perceived rights of an elite group of leaders, of which the trial magistrate and appellate judges are members. Whatever the reasons for justifying the refusal complained of by the requester, it cannot be gainsaid that the IGG raised substantial questions that beg for extensive and intensive research and analysis from a legal, political and constitutional perspective.

It is worth noting that the Access to Information Act was passed without repealing the Official Secrets Act of 1964 (OSA). This OSA directly counters what would have been fruits of the Access to Information Act 2005 but further provides for the protection of ‘official information’ more particularly the information concerning national security. It makes it an offence to ‘obtain, collect, record, publish or communicate in whatever manner to any person’. As such, the continued existence of this Act has equipped some officials of government with the means to deliberately deny the public access to information by classifying it as official and subject to the Official Secrets Act and cannot be released to the public.

Additionally, is the Public Service Standing Orders bar any officers from disclosing information that is privy to them for official use unless authorized by a superior not lower that the rank of a Permanent Secretary in the department or institution
with the authority to release the information on request.

Uganda Broadcasting Corporation Act 2005 This law was enacted in 2005 to merge the two existing government information
dissemination machinery, Radio Uganda and Uganda Television into one body, Uganda Broadcasting Corporation (UBC) with a view of creating a public broadcaster for the country.
Section 5(1) (d) of the Act provides for the functions of the UBC to include: establish autonomy of management in rendering public broadcasting services. However the Act falls short of the basic tenets of a public broadcaster financed and
controlled by the public. The Act created a government broadcasting company, a model untenable in the present day democratic dispensation.

Section 3 (1), (2) and (3) of the Act outline the establishment and ownership of the UBC. It provides that:
(1)There is established a corporation to be known as the Uganda Broadcasting Corporation.
(2)The Corporation is the successor of the state media known as “Uganda Television” and “Radio Uganda”.
(3)The Corporation shall be wholly owned by the Government.

Providing in the law that the UBC shall be owned by the government, the Uganda government went against its commitment it made under part six of Declaration of Principles of Freedom of Expression in Africa which provides that: State and government controlled broadcasters should be transformed into public service broadcasters, accountable to the public through the legislature rather than the government, in accordance with the following principles:
• Public broadcasters should be governed by a board which is protected against interference, particularly of a political or economic nature;
• The editorial independence of public service broadcasters should be guaranteed;
• Public broadcasters should be adequately funded in a manner that protects them from arbitrary interference with their budgets;
• Public broadcasters should strive to ensure that their transmission system covers the whole territory of the country; and
• The public service ambit of public broadcasters should be clearly defined and include an obligation to ensure that the public receives adequate, politically balanced information, particularly during election periods.

The UBC Act is in total deviation of the principles laid down in part six of Declaration. Section 7(2) mandates the Minister of Information to appoint the Board of Directors and where there is a vacant position; section 7(5) allows the minister to fill it. The Minister is empowered to direct the board in the course of its works under section 6 (a) and (d) which undermines the independence of the board. Besides section 10 of the Act entrusts the Minister of Information to determine the remuneration of the board. In addition, the Minister is further empowered under section 11 (2) of the Act to approve the appointment of the
managing director of the Corporation by the Board of directors.

The UBC Act falls short of creating a public broadcaster and has instead set up a State owned company to disseminate government controlled information which is unsustainable in the current era of free flow of information. Public broadcasting
has been described in the following manner:
“The “public” is the entire population of the country (or region) which the public broadcaster is responsible for serving. “Entire population” has a twin meaning:
Firstly, in terms of technical coverage, it means that ideally every household in the service area should be in a position to receive the programme service. This is akin to the universal service concept which is familiar in other – result-oriented –
public services such as water, gas, electricity, telephony and public transport.

– Secondly, it means all groups and sections of society: rich and poor, old and young (and in-between), educated and less well educated, people with special interests (whether they be cultural, religious, scientific, sporting, social, economic or anything else), but also society as a whole. The entire population, in this sense, must be served by public service programming (even though it is impossible to please everybody all the time).

If, positively expressed, public service broadcasting is made for the public, for the entire population, it follows, negatively expressed, that it is not made for the government, Parliament, or President, for a political party or a church or for any other (private) interest group or for shareholders. It must be independent of all of these, serving “only” the interests of the population, of people as citizens rather than as consumers.

Thirdly, as long as there is funding from the State budget, the broadcasting organization is likely to be a State company, with all the constraints that that implies. In particular, the broadcasting organization is probably bound by a State salary structure, which is a critical handicap in a system where there is direct competition with commercial broadcasters. Where there is licence fee funding, it may be assumed that the broadcasting organization also has the right of self-administration (whilst naturally being subject to public control).

Therefore, if it is clear that State broadcasting is no longer viable, the prospects for public service broadcasting as the democratic replacement of State broadcasting should not be too bad.”

                                                    To read the full Law click here.

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