Adopting Right to Information Legislation (SN0001)

What is the public issue that the engagement will address? The right of citizens to have access to information contained in administrative documents is a fundamental right recognized and enshrined in several national texts. However, its effectiveness remains relative, due in particular to the absence of a legal framework specifying the scope of the right of access to information as well as the conditions of its exercise. In addition, there is no operational mechanism for its implementation.

What are the objectives of the commitment The main objective of this commitment is to pass the Access to Information Act and its subsequent legislation. Specifically, this consists in: • specifying the scope of the right of access to information and the procedures for its implementation; • providing citizens with administrative and judicial remedies to enforce this right; • establishing an independent administrative authority to promote and protect the right of access to information.

How would the commitment contribute to solving the public problem? The commitment will allow Senegal to: • strengthen transparency and accountability ; • improve the quality of public debate by providing citizens with legal and operational means to build their opinions on the basis of reliable information drawn from authentic sources; • to improve the quality of services provided by public and private administrations to their users; 15 • to comply with its international commitments.

Why is this commitment relevant to the values of the OGP This commitment corresponds to the OGP's values of transparency, citizen participation and accountability. It promotes openness to the public, improves the quality of citizen participation based on reliable information and facilitates objective citizen oversight. The commitment is also important for Senegal, which aims to raise its score on access to information from 2/4 to 4/4. The adoption of the law and its subsequent texts on the subject would be a major asset to achieve this goal.

Further Information The Access to Information Bill is in the administrative validation process.

Important activity with a verifiable deliverable Agenda Start Closure Advocate for the adoption of the Access to Information Act and its subsequent legislation January 2022 December 2023 To popularize the law and its subsequent texts for the public administration, civil society organizations, the private sector, the media and the population. May 2022 December 2023 Establish an independent administrative authority to promote and protect the right of access to information May 2022 December 2022 Appoint members and recruit staff May 2022 August 2023

Action Plan Review

Commitment 1: Adopting the Access to Information Act and Subsequent Legislation

(Ministry of Justice / Direction for the Promotion of Good Governance (DPBG); Article 19, Forum Civil, ONG 3D, Union des Radios Communautaires du Sénégal (URCS), Syndicat des Professionnels de l'Information et de la Communication du Sénégal (SYNPICS), Convention des Jeunes Reporters du Sénégal (CJRS), Association des Editeurs et Professionnels de la Presse en Ligne (APPEL))

For a complete description of commitment 1, see the action plan: https://www.opengovpartnership.org/wp-content/uploads/2021/08/Senegal_Action-Plan_2021-2023_EN.pdf

Context and objectives

Although enshrined in the Senegalese constitution, the right to access information is not the subject of a specific law. It is divided between different sectorial laws relating to archives, public procurement, public officials’ asset declarations, among others. [1] Therefore, without a comprehensive and binding legal and institutional framework, this right is not systematically guaranteed.

Commitment 1 pursues the adoption of access to information legislation and the creation of the administrative authority to ensure enforcement. While the country was admitted to OGP in 2018, it scored low in the 'access to information' eligibility criteria. Through this commitment, Senegal will fulfill a key requirement for OGP membership. [2]

Citizen consultations held during the co-creation process revealed that adopting the access to information law was a top priority across regions and among civil society organizations. As with all commitments in the plan, the commitment was then endorsed by consensus by the OGP National Technical Committee. [3]

The commitment contains clear milestones to pass the national law and subsequent legislation and create an independent administrative authority with sufficient powers and resources to guarantee its implementation. This involves establishing the scope and the conditions to exercise the right to access public information, establishing enforcement mechanisms and eventual sanctions. The commitment also foresees the important aspect of dissemination the law among the general population to ensure that the right to access public information is altogether known, understood, and put into practice.

Potential for results: Substantial

Setting up the legal and institutional framework for the right to access public information is an essential step to increase transparency and, indirectly, to inform citizen participation and public accountability.

Currently, the Code of Budgetary Transparency allows citizens in Senegal to ask for financial information related to the state budget. At subnational level, the Local Authorities Code [4] allows requests to mayors and presidents of departmental councils to obtain information on local affairs. Specialized organizations have used sectorial laws to raise awareness among the general population about the importance of access to information and targeted specific sectors, such as health or the extractive industries. [5] Despite these possibilities, CSOs and the media face difficulties in accessing strategic information on public finances and public policies and programmes, which complicates their monitoring role. For this reason, ensuring systematic legal access information is important for civil society organizations working on governance issues. [6]

This commitment promises substantial improvement to citizens’ access to information through the adoption of the first national access to information law and the creation of a responsible public authority. As a national priority supported by international development partners [7], commitment 1 feeds into a process already underway in Senegal. In December 2020, the Ministry of Justice shared a draft access to information bill with civil society actors. [8] According to Article 19, the draft bill provided for the establishment of an administrative authority, the National Commission for Access to Information (CONAI), with a dedicated state budget.

Civil society participated in and contributed to the development of the draft bill. For instance, Article 19 submitted several observations on the draft regarding the composition of CONAI, restrictions on access to information and litigation procedures. [9] At the time of preparing this evaluation, the draft bill had entered the administrative circuit and Article 19 was not informed of the latest modifications and adjustments on the text. [10]

The IRM researcher was unable to consult the draft bill, so it is difficult to assess the quality of the future law and compare it with international best practice. However, Article 19 stated that committing to adopt access to information legislation as part of the OGP action plan could trigger the consolidation of the political will to implement access to information in Senegal. [11] Provided that the resulting law includes civil society input and institutionalizes the right to information across sectors and government agencies, the commitment has substantial potential to improve access to information and to lay fundamental groundwork for the pursuit of other open government reforms.

Opportunities, challenges, and recommendations during implementation

There is significant national political support for adopting access to information legislation. Institutionally, the reform is led by the Directorate for the Promotion of Good Governance, which is the OGP focal point, and supported by the main civil society organizations involved in public transparency and accountability that participated in the regional consultations, as well as development partners.

In terms of challenges, the January 2022 local elections were a challenge for momentum and general support to the law. A more important issue is securing the resources for its dissemination and implementation. While the National Commission for Access to Information (CONAI) is expected to have a dedicated budget, the government has not specified the amount of funding, particularly for awareness-raising and training activities. Concerning implementation, the COVID-19 pandemic presents a hurdle for resource availability and management and has proved, in many countries, to be a test for the timely response of access to information requests. [12]

Reformers can refer to successful OGP commitments to strengthen access to information in law and in practice, as this is one of the most popular policy areas in OGP action plans with proven strong results. [13] For instance, in 2016, Tunisia, Kenya and Sri Lanka enacted their Access to Information Acts. Tunisia created the Authority of Access to Information, which provides a grievance mechanism for citizens whose requests for information are denied or not granted properly. [14] Kenya called for a number of initiatives to facilitate access to information, such as developing comprehensive records management policies, carrying out access to information education for citizens and public officials, and establishing a central digital repository for government records and data, among others. [15] Sri Lanka’s commitment established concrete milestones, which ensure that right to information requests could be processed within 6 months of the adoption of the law, while appointing and training Information Commissioners and Information Officers. [16] Nigeria also improved right to information procedures in their 2019 action plan. Specifically, the aim was to proactively disclose information, establish an electronic portal for information requests and mandate annual reports on request and response rates. Additionally, they called for more freedom of information officers within public agencies. [17]

When enacting its first national access to information law, Senegal should refer to countries that comply with the highest standards, as recognized by the Global Right to Information Rating. [18] To fully benefit from implementation of Commitment 1, the IRM specifically recommends the following measures:

Results Report

Commitment 1: Adopting the Access to Information Act and its subsequent legislation

The main objective of this commitment was to pass the Access to Information Act and its subsequent legislation. This consisted of (i) specifying the scope of the right of access to information and the procedures for its implementation; (ii) providing citizens with administrative and judicial remedies to enforce this right; (iii) establishing an independent administrative authority to promote and protect the right of access to information.

Senegal’s draft access to information law has been pending for the last five years. An initial draft was developed by a steering committee with government and non-government members and modeled on the African Union model access to information law. However, members of civil society expressed concerns regarding the version of the draft law that underwent judicial review. Civil society noted that this version differed from the initial draft, that it is not in line with international standards, and may not open up access to information. In a letter [1] published in the media, eleven civil society organizations, including Article-19, the Forum Civil, the NGO 3D, Afrikajom Center and the Senegalese League for Human Rights, denounced the non-inclusive nature of the drafting process, which they claim has been dragging on for over fifteen years. They point out that “the latest draft of the Access to Information Act was sent to the civil society members and introduced into the circuit well before the deadline for their comments had passed. As a result, the numerous observations made by civil society were never taken into account in this new process” [2]. They also raised concerns that the Directorate for the Promotion of Good Governance did not share the final version of the text at the end of the workshop organized in May 2023 in Sally, Senegal.

[1] “CSO tribune for the adoption of the law on access to information in Senegal.” Le Quotidien 2023. https://lequotidien.sn/tribune-des-osc-pour-ladoption-de-la-loi-dacces-a-linformation-au-senegal/

[2] “Civil society organisations call on Macky Sall to have the draft law on access to information adopted.” Agence de Press Senegalaise. 11 November 2023. https://aps.sn/des-organisations-de-la-societe-civile-invitent-macky-sall-a-faire-adopter-le-projet-de-loi-dacces-a-linformation/