Namibia’s minister of information and communication technology, Peya Mushelenga, reportedly reintroduced the Access to Information Bill to the National Assembly on September 20, 2021. The bill had initially been submitted to the Namibian parliament for consideration in June 2020, but the parliament was unable to take up the bill in the past year because COVID-19 pandemic-related lockdowns had restricted its sessions.
Contents of the Bill
If enacted in its current form, the bill would have a wide-ranging application. With some exceptions, it would apply “to information held by a public entity or private entity whether or not the information had been produced before [its enactment].” (Access to Information Bill (B. 4- 2020), § 2.) The application of the bill does not extend to information relating to proceedings and decisions of the cabinet and its committees; those relating to the functions of a court, a tribunal or an investigative unit; and those relating to the nomination and appointment of judicial officers. The same is true with regard to published materials or published materials available for purchase, as well as library and museum materials. (§ 2.)
The bill would accord any person “an enforceable right of access to information” held by a public entity or a private entity if the information may assist in the exercise of protection of any fundamental human right or freedom. (§ 30.) However, the bill requires that a requestor provide a reason for requesting access to information. (§ 35(6).)
Part 9 of the bill deals with instances in which public and private entities are permitted to refuse access to information requests under one of the following specific categories of justifications:
- Public interest.
- Classified information.
- Personal and other information of third parties.
- Commercial and economic information of information holders and third parties.
- Protection of life, health, and safety of individuals and of properties.
- National security and defense.
- International relations.
- Law enforcement.
- Legally privileged documents.
- Academic and professional examinations and recruitment processes.
- Manifestly frivolous or vexatious requests.
- Facilitating the commission of offenses.
- Information about to be published. (§§ 63–78.)
For instance, the law enforcement category allows an information officer to deny access if doing so would prejudice crime prevention or detection, the apprehension or prosecution of offenders, or the administration of justice. (§ 71.) However, in denying access to information under the above categories, an information officer has the burden of proving, on preponderance of the evidence, that the information in question is exempt and the harm that would result from its release outweighs the public interest in having the information released. (§ 79.)
The bill requires the country’s president to appoint “an independent and impartial person as Information Commissioner to promote, monitor and protect the right of access to information in Namibia.” (§ 5.) One of the powers of the information commissioner is to intervene whenever an entity refuses to grant access to information on the bases of any of the above-listed categories and make a determination on whether the information in question is indeed exempt. (§ 9.)
The bill would require public entities to produce, keep, organize, and manage their information “in a manner which facilitates the right of access to information” and to proactively publish certain information. (§§ 32 & 33.) The bill would also require that public entities prepare and publish information manuals. (§ 25.) The information manual, among other things, must include “a description of the structure of the public entity and its objectives, powers and functions; … a description of remedies available in respect of an act or omission by public entity; … and the categories of information that the information holder proactively discloses and those which are made available through the formal request process.” (§ 25.)
External Assessment of the Bill
In April 2021, the Centre for Law and Democracy (CLD), a not-for-profit organization that advocates for those human rights that underpin democracy, including the right to information, provided a Right to Information (RTI) Rating for the bill. According to the CLD, an RTI rating, which consists of a set of 61 indicators for a possible total of 150 points — a higher score being better — is a “… tool for assessing the strength of national legal frameworks for accessing information held by public authorities.” According to a CLD report, the bill scored 114 out of a maximum 150 points. In its report, the CDL noted that the score puts the bill in the top 20 laws worldwide out of the 128 countries that have undergone similar assessment. The CLD further noted that changes to some of its weak parts could push the bill into the top 10 laws globally. According to the CLD, the weakest sections include “the Right of Access, Requesting Procedures and Sanctions and Protections, which focus on the legal guarantees for the right, the procedures for making and processing requests for information, and the system of sanctions and protections for releasing or refusing to release information.”