Adopt Bill on Access to Information (SN0013)

Description of the commitment

What public issue will the engagement address? Citizen access to information is a fundamental right recognized and enshrined in several international and national texts. However, its effectiveness remains relative, notably due to the non-adoption of the law on access to information and its subsequent texts. Added to this is the absence of an operational implementation system.

What are the objectives of the commitment? The commitment aims to establish a legal framework that facilitates public access to information held by public authorities. The specific objectives consist of:1) Encourage compliance with international commitments and meet open governance standards; 2) Promote the transparency of government action by allowing citizens easy access to (public) information; 3) Allow citizens, researchers, media and organizations to access information; 4) Strengthen public confidence in governmental and constitutional institutions; Preventing crises by providing information to the public

How would the engagement help to solve the public problem? Fulfilling the commitment will allow Senegal to create an environment where information is available and accessible for citizens

Why is this commitment relevant to the values of the OGP? This commitment corresponds to the OGP values of transparency, citizen participation and accountability.

Additional information

The bill on access to information is in the validation process. He received a favorable opinion from the Supreme Court. Commitment is also important for Senegal, which aims to increase its score on access to information from 3/4 to 4/4. The adoption of the law and its subsequent texts in this area would be a major asset in achieving this objective.

Important actions with a verifiable deliverable | Starting - Closing | Estimated budget | Responsible

Conduct awareness-raising and advocacy activities for the adoption of the law on access to information and its subsequent texts (-Organize meetings with institutions; -Meet the Law Commission of the National Assembly -Plea to the Prime Minister, to the Secretary General of the Government) | January 2024 - June 2024 | 5,000,000 | National steering committee

Establish an independent administrative authority and make it operational | January 2024 - December 2025 | 240,000,000| SGPR

Create the OGP Senegal website | January 2024 - December 2025 | 50,000,000 | DPBG

Update data from the Open Data platform (https://senegal.opendataforafrica.org/) Senegal continuously by December 2024 | January 2024 - December 2024 | 100,000,000 | SENUM SA

Popularize the law and its subsequent texts for the public administration, civil society organizations, the private sector, the media and the public | July 2024 - December 2025 | 100,000,000 | National Steering Commitee

Action Plan Review

Commitment 1: Access to Information Bill [Directorate for the Promotion of Good Governance (DPBG) of the Ministry of Justice]

For a complete description of the commitment, see Commitment 1 in https://www.opengovpartnership.org/wp-content/uploads/2024/01/Senegal_Action-Plan_2023-2025_December_EN.pdf.

Context and objectives

Senegal remains of the few West African countries without an access to information law. Current legislation allows for piecemeal access to government-held information, such as legislation relating to archives and administrative documents, contract awards and execution procedures, the General Code of Territorial Collectivities, and a law on freedom of the press. [1]

Senegalese civil society have advocated for an access to information law since 2008. [2] Senegal’s first OGP action plan sought to pass an Access to Information (ATI) Law, which is one of the eligibility criteria for OGP membership. [3] However, the draft has remained pending for over five years now. It was collaboratively drafted by government and civil society based on the African Union’s model ATI Law. However, civil society expressed concerns with the version of the draft law that underwent judicial review during the previous action plan period. [4]

Senegal has renewed its commitment to pass an Access to Information Law and establish an administrative authority to implement the law. Milestones aim to adopt and popularize the law as well as establish an independent authority to promote and ensure right to information. The Government of Senegal could consider submitting this commitment to the OGP Challenge, as it meets the criteria for a challenge submission. [5]

Potential for results: Modest

Senegalese citizens, media, and civil society currently face challenges in accessing information on government activities, policies, and decisions due to the absence of a dedicated ATI law. [6] Journalists have highlighted an inability to access the government information necessary to fulfill their role to inform the population. [7] A lack of public information also impacts the private sector. In 2021, 60.7% of women-owned businesses cited the difficulty of accessing information as the main obstacle to obtaining public contracts. [8] As of 2021, the Ibrahim Index of African Governance scored Senegal at 44.8 out of 100 possible points for access to public records, 61.1 out of 100 for access to public information, and 73.2 out of 100 for quality and reliability of information requests. [9] Civil society in Senegal has indicated that effective access to information can only be achieved through a specific law to protect administrative agents and journalists and give researchers and the public the ability to request information from administrations and any entity in charge of a public service. [10]

The arrival of a new administration following the March 2024 elections raised hopes among government and civil society stakeholders for the long-sought passage of an ATI Law [11] after almost a decade of an ATI Law advocacy with a draft law pending for over five years. Under the leadership of President Bassirou Diomaye Faye, who was elected on a platform to combat corruption and increase government transparency, the Ministry of Justice included the passage of the ATI Law as one of its ministerial priorities. [12]

The content of the latest draft ATI Law remains a concern among civil society. [13] Civil society has not had access to the latest draft, which is awaiting adoption by the Council of Ministers. [14] However, both government and civil society representatives expressed optimism that there will be opportunity to improve the draft and reach a consensus during the remainder of the process. A representative of Article 19 Senegal noted that the draft’s continued progress is a priority and hoped that parliamentarians will improve the draft when it reaches the National Assembly. [15]

Civil society’s concerns include ensuring the independence of the National Commission for Access to Information (CNAI) and limiting exceptions for information disclosure. According to a representative of Article 19 Senegal, CNAI should be an independent body responsible for promoting and protecting the right to information. CNAI can be made up of independent experts and be independent from the executive branch, instead reporting to the public. Additionally, a version of the draft included vague language on exceptions to information disclosure. The numerous exceptions provided run counter to the principle of maximum disclosure enshrined in the 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa, [16] especially the African Commission on Human and People’s Rights Model ATI Law. [17]

The IRM researcher was not able to consult the draft law to verify this information, assess the quality, and compare it with international best practice. This commitment is currently considered to have a modest potential for results given the history of stalled progress and a lack of consensus on the current draft. However, the commitment may achieve significant results if an ATI Law that protects the right to information and reflects international best practices is adopted. This could include a law based on the principal of maximum disclosure and an independent implementing entity with resources and authority to fully operationalize the law.

Opportunities, challenges, and recommendations during implementation

Passage of an ATI law is a shared priority of the Ministry of Justice and civil society. However, obstacles remain to reaching a consensus on the draft and navigating the remaining approval process. Therefore, keeping the passage of the ATI Law high on the government’s agenda will be key. Additionally, reformers can reopen consultations with civil society, particularly on defining exemptions and ensuring the independence of CNAI.

Various OGP members demonstrate a path to pass and implement ATI laws through their OGP processes. [18] Kenya and Ghana have both adopted ATI laws and continue to strengthen implementation in current action plans. In addition, Kenya has undertaken records management, created a digital repository for government records and data, and mainstreamed ATI training for civil servants. Kenya’s ATI Working Group with dedicated civil society and government co-chairs have been a driving force for ATI progress. [19] In 2021, Ghana passed an ATI law and established an independent authority. Reformers are now working to strengthen procedures, guidance, and capacity to ensure even implementation across ministries. Both Ghana and Kenya are working to pass regulations to support their ATI laws. [20]

While not an OGP member, the Gambia's 2021 Access to Information Act is ranked in the top five globally. [21] The legal framework (including jurisprudence) recognizes a fundamental right of access to information and creates a specific presumption in favor of access to all information held by public authorities, subject only to limited exceptions. The legal framework contains a specific statement of principles calling for a broad interpretation of the ATI law. It emphasizes the benefits of the right to information as everyone (including non-citizens and legal entities) has the right to file requests for information. [22] With these opportunities, challenges, and examples in mind, the IRM recommends that reformers consider: