By Roger Alfred Yoron Modi
A little over a week ago, in two decrees announced on South Sudan Broadcasting Corporation (SSBC), President Salva Kiir, “relieved” Nikodemous Ajak Bior as “Commissioner of Information Commission in the Ministry of Information” and “appointed” Muyiga Nduru Korokoto as “Commissioner of Information Commission in the Ministry of Information.”
In both decrees, President Kiir cited “powers” conferred upon him by the Civil Service Act, 2011 and The Interpretation of Laws and General Provisions Act, 2006. This is cheating and a deviation from The Right of Access to Information Act, 2013.
Information Commissioner is not “Commissioner of Information Commission in the Ministry of Information”
It is the Right of Access to Information Act, 2013 that explicitly recognizes the constitutional right of every citizen to access information held by public or private bodies, as fundamental to the fulfilment of human rights and fighting corruption and also establishes the office of Information Commissioner with the mandate to, amongst others, promote maximum discloser of information in the public interest.
It was under the Right of Access to Information Act, 2013 that Nicodemus Ajak Bior got appointed as Information Commissioner and he continued to operate in that capacity, not as “Commissioner of Information Commission in the Ministry of Information” under The Civil Service Act, 2011 as President Kiir’s decree in question is claiming.
For example in an interview, I did with Ajak in 2016 and published on The Nation Mirror Newspaper and also mentioned in my book Freedom of Expression and Media Laws in South Sudan, on the issue of the budget for the Information Commission, he said the ministry of finance first “accidentally” issued the Commission a budget limit of 5 Million South Sudanese Pounds (SSP) for the financial year 2016/2017. However, he added that the ministry of finance later rectified the matter after “realizing that the Commission is an independent institution and not a department within the ministry of information.” On several other times throughout the years, the Office of the Information Commissioner conducted duties in line with The Right of Access to Act, 2013, as well as in collaboration with the government and other partners on the same.
If President Kiir wants to appoint “Commissioner of Information Commission in the Ministry of Information” under The Civil Service Act, 2011, he should not mix that with the Office of the Information Commissioner which is under the Right of Access to Information Act, 2013 and which Ajak was occupying. It should also be noted that Section 2 of the Right of Access to Information Act, 2013, inter alia, provides that any existing legislation on the subject governed by The Right of Access to Information Act is, as a result of the enactment of the Right of Access to Information Act, repealed.
Background to the Right of Access to Information Act and why it is important to be respected:
Section 3 of The Right of Access to Information Act provides that the purpose of the Act is to: a) give effect to the constitutional right of access to information; b) promote maximum disclosure of information in the public interest; c) establish effective mechanisms to secure that right; and d) provide for incidental matters.
Section 4 provides the following:
1. The Right of Access to Information Act is drafted under Article 24 (2) and Schedule (A) paragraph (45) of the Constitution which grant the National Government powers to legislate on matters of telecommunication, national information, publications and mass media and to regulate freedom of the press and other media.
2. The Right of Access to Information Act provides for the right of access to information as fundamental to the fulfilment of human rights and is essential in fighting corruption.
3. The Right of Access to Information Act provides for the Right of Access to Information held by a public body in accordance with the principles that such information shall be available to the public, that necessary exceptions to the Right of access to Information shall be limited and specific, and the decisions on the disclosure of such information under The Right of Access to Information Act shall be reviewed independently of the Government.
Section 15 of The Right of Access to Information Act enshrines that:
1. The (Information) Commissioner shall, as soon as practicable, compile a guide containing practical information to facilitate the effective exercise of rights under The Right of Access to Information Act and circulate the guide widely in an accessible form. (2) The guide in subsection (1) of Section 15 shall be updated as regularly as possible. Section 16 of The Right of Access to Information Act stipulates that: (1) Every public body shall establish an information office, designate an Information Officer and ensure that members of the public have easy access to information concerning the Information Officer, including his or her name, duty and contact details pursuant to provisions of The Right of Access to Information Act.
2. The Information Officer designated under subsection (1) of Section 16, shall in addition to any obligations specifically provided for in The Right of Access to Information Act, have the following responsibilities: (a) Serve as a central contact for receiving requests from persons seeking to obtain information and receiving individual complaints regarding the performance of the public body in relation to information disclosure. (b) Promote best practices in relation to record maintenance, archiving and disposal of information within the public body.
It is true that the commission on several occasions had not been able to execute its mandate as required by the law, for instance in 2016, Ajak, the Information Commissioner, told me in an interview published on The Nation Mirror Newspaper and in my book that they had a logo approved by the cabinet, a temporary office space, but no “support staff” due to lack of budget.
“Like if it is receiving and reviewing complaints from requesters, we need to have a department for that,” he said at the time. “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.”
The Right of Access to Information Act, 2013 authorizes the commissioner, after consultations with the ministers of information and of finance, to regulate, amongst others, modes of pay and maximum fee payable to public and private bodies for the 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,” Section 12 (2) of the Act states. Ajak at the time told me the commission was 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 the production cost of information as stipulated in the Act.
In the same interview, Ajak said the Information Commission would compel all government institutions to establish “working interactive” websites, equipped with the activities and personnel of each body in order to reduce the cost of accessing 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 communication 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…”
Well, though a few government institutions now have a presence online, much more still needs to be done, including on making those presence formal (official.)
What should have been happening?
Indeed the term of office of Nikodemous Ajak Bior lapsed. And indeed in my Book Freedom of Expression and Media Laws in South Sudan, I recommended that The Right of Access to Information Act, 2013 be reformed in some Sections to ensure respect for the Right of Access to Information in South Sudan.
A way forward for South Sudan is for Media Associations and Civil Society described in Section 35 (1) of the Right of Access to Information Act, 2013, to find consensus on reforming the Act and appointing another Information Commissioner, not abandoning the Act.
Conclusion: This circle of war, then peace agreements, then war again in South Sudan, is a trick by a few short-sighted and selfish individuals in South Sudan and beyond who do not value peace. They just want power, to the exclusion of other South Sudanese who they wrongly think will be dead or blocked from power through continuity of wars. Those few individuals and their corrupt organizations and media have employed a method that frustrates making and implementation of good laws in South Sudan so that the people feel aggrieved and start or continue with the circle of unending wars, instead of reconciling and healing the Country and making sure that our institutions and laws are democratic. Their intention is to get power, not to serve the public, unfortunately.
President Kiir and all our leaders including those in the opposition (in and outside the Revitalized Agreement) should not allow this trick, which is being done by a few selfish people, to continue succeeding.
In fact, in the Declaration of Principles reached by the Parties that make up the South Sudan Opposition Movement Alliance (SSOMA) in The Hague, The Netherlands, the opposition parties said one of their objectives is to “Establish and enact media laws that create a conducive environment for unfettered independent media, which is free from government control and upholds full access of information to the public.”
I urge President Kiir to respect The Right of Access to Information Act, 2013 and all relevant laws, including the Media Authority Act, 2013, and The Broadcasting Corporation Act, 2013. Meanwhile, the Rome Process through the Community of Sant’Egidio can include those laws among those to be reformed.
On the reforms needed in those Acts, I urge the public and everyone interested to read my book: “Freedom of Expression and Media Laws in South Sudan: Details, Implementation level, Critiques and Recommendations for Reform.”
Roger Alfred Yoron Modi is a South Sudanese journalist and the author of a new book Freedom of Expression and Media Laws in South Sudan, available in bookshops in the region and also available for online (on Amazon). He’s the Producer and Host of The Weekly Review: Making Sense of Relevant Topics and News, a program of Sawa Sawa Network and available on Sawa Sawa Network Facebook Page and YouTube Channel. Roger is also a former Editor-in-Chief of Radio Bakhita and former Managing Editor of Juba Monitor Newspaper. He can be reached via his email [email protected] or twitter handle @RogerYoronModi