A Long-Awaited Freedom of Information Act for Mauritius. But When?

Since the independence of Mauritius in 1968, the media of the island - both print and broadcast - have been key actors in building a peaceful and democratic nation. They have advocated for the Right to Information to become as equally important as Freedom of Expression, which is guaranteed in Article 12 of the Constitution of Mauritius of 12 March 1968 (GN 54/1968). Both are widely recognized as fundamental human rights in Article 9 of the African Charter on Human and Peoples’ Rights and Article 10 of the European Convention on Human Rights. One critical element in order to have a public space is "the presence of the media capable of fuelling and enlightening public debate" (Michael Schudson, Le Pouvoir des Médias, 1995). At an international level, the United Nations (UN) has proclaimed September 28 of every year as the International Day for Universal Access to Information. As Ambassador DeeMaxwell Saah Kemayah, Sr., from Liberia clearly put it while introducing the draft resolution calling for this International Day at the 74th UN General Assembly: “Access to information is very essential for the democratic functioning of a society, shaping our political, social and economic perspectives; and vital for the sustainable development of countries.”

For many years now, the significance of having a legal framework for the right to information or access to information in Mauritius remains a widely debated topic. This has been especially the case since the introduction of social media, which undeniably represents a medium for the spreading of fake news. However, the matter has arguably not been seriously taken by authorities. The 2018 African Media Barometer for Mauritius says Mauritian authorities have repeatedly claimed that a Freedom of Information (FOI) Act was in the works, for instance, the two previous reports on public access to information submitted to the African Union contained promises to pass a Freedom of Information Act, but this has yet to be fulfilled.

From 1995 onwards, consecutive governments have been speaking about the introduction of an FOI Act for many years. During his term as Prime Minister, Navinchandra Ramgoolam, Leader of the Labour Party commissioned Professor Geoffrey Robertson QC, an eminent lawyer from the UK, who produced a comprehensive 80-page report in April 2013 (Professor Geoffrey Robertson QC, Media Law and Ethics in Mauritius: Preliminary Report by Geoffrey Robertson, 2013). The lynch-pin of the Report was regarded by many observers as being the introduction of a well-balanced FOI Act to allow a free flow of information. According to Professor Robertson, FOI is part and parcel of the definition of democracy and an important pillar of transparency and good governance. Put simply, the Report posited access to information as a right, rather than a privilege. The Alliance Lepep won the General Election in 2014 and had earlier made it a top priority in their electoral manifesto to enact the FOI Act, while another General Election took place in 2019 the Alliance Lepep is still in power, to date we are still waiting! This begs the question: Where is the good in our political leadership?

What are the reasons why the much-anticipated Act has yet to turn into a reality? What is holding successive governments back? For many observers, the time has come for politicians to walk the talk. Why are they reluctant to stick to their electoral promises by enacting and enforcing an FOI Act? The call for such legislation keeps on growing bigger and bigger day by day.

Commentators have widely pointed out the paradox we currently find ourselves in: with the advancement of technology and a fast-evolving world, the orthodox concept of State secrecy is being destroyed, but with the absence of an FOI Act, this culture of secrecy is being maintained. Save for a limited number of fields, secrecy in the exercise of power and governance is arguably not needed anymore. An FOI Act is an important tool for better regulation of information and promotion of transparency This piece of legislation shall provide the media and citizens with better access to information held by public institutions, quasi-public bodies and every other body financed by public funds. The ordinary citizen will subsequently be more than just a passive voter and no longer rely only on the goodwill of the media. The current difficulty for journalists to have access to information does not enable the media to serve as an interface and to offer information of general interest to citizens.

Will the Act pose a threat to the government? Arguably not. Instead, it shall enable politicians to become more transparent in their decisions and operations, gaining the trust of the citizens. Access to information of public concern, such as appointments in government and parastatal bodies or awarding of public contracts, will promote good governance and reduce or even eliminate mistrust and the perception that something is not transparent or is being hidden from objective monitoring. FOI laws embody the idea that information held by government bodies should be made public and can only be withheld for legitimate reasons such as national security and defense (Article 30 of the Model Law on Access to Information for Africa). Striking the proper balance between guaranteeing public safety and national security versus an open and transparent government is not as straightforward as it may seem. However, the Principles on National Security and Freedom of Information, adopted in 2013 in South Africa with the support of the African Commission on Human and Peoples’ Rights offer some guidance - basically a template that any African nation may adapt to draft a law, instead of having to start from scratch.

In many countries across the African continent, the FOI Act caters to a time frame within which, either the information should be disclosed, or written reasons need to be provided explaining why such disclosure is not warranted. The African Platform on Access to Information, which was adopted in 2011 by various prominent African media as well as information stakeholders, acknowledges access to information as a fundamental human right. Since being endorsed by the Pan-African Parliament and the African Commission on Human and Peoples’ Rights in 2013 and 2019 respectively, the platform provides that information held by public bodies is public and hence should be subject to disclosure. Additionally, the platform makes it clear that “the right of access to information shall be established by law in each African country. Such law shall be binding and enforceable and based on the principle of maximum disclosure. The law shall take precedence over other conflicting laws that limit access to information.” The fact that an FOI Act will provide for a right to information and a corresponding duty to disclose information is, indeed, critical. In the UK, by way of example, the parliamentary expenses scandal was revealed through the FOI Act in 2009 which resulted in public outcry and various MPs resigning or being fired, together with reimbursement of the expenses they incurred.

The media has an important place in Mauritian society and represents an undeniable power in today's world. Although building a democratic nation takes time, the proper functioning of the media is an essential component that should not be overlooked. In 2022, Mauritius still does not have a Freedom of Information Act. Any party which comes into power needs to be able to devise and introduce this legislation that will govern the media and safeguard the public’s right to information. This law is of utmost significance to both the press and citizens of Mauritius. Beyond the reasons stated above, it shall promote the rule of law and a democratically elected government but also ensure checks and balances. Journalists need to be adequately aware of all issues so that they can relay the correct information to citizens, including whether there are instances of mismanagement or fraud. The introduction of this law in Mauritius is the due right of its citizens, who deserve it since "knowledge is power" - as the old adage teaches us.

Effective implementation of an FOI Act in terms of providing citizens with timely, reliable and independent information remains as equally important as its adoption; this, nevertheless, still constitutes a challenge even in African nations with legal and constitutional guarantees for access to information (Africa Freedom of Information Centre, Together for Reliable Information: Civil Society Synthesis Report on Monitoring SDG 16.10, 2021). The difficulties being encountered by several countries across Africa with regard to the implementation of FOI laws are similar in various manners and lessons can therefore be drawn by Mauritian authorities. For instance, technical capacity and inadequate judicial expertise have proved to be common problems. In Uganda, a delay of around half a decade was experienced in the preparation of implementation regulations, until the latter was finally set out by the Government. Nigeria has had to adopt important measures in order to upgrade judicial capacity in applying FOI law as well as solving disputes on disclosure.

The press, which represents the 4th pillar of democracy, has an immense role to play in pushing forward for an FOI Act. On the most recent Corruption Perceptions Index, Mauritius moved up to 4th in Africa, faring even better than Rwanda (Transparency International, Corruption Perceptions Index, 2021). On the other hand, according to UNESCO, 125 out of 193 countries have an FOI Act so Mauritius is still lagging behind in terms of corresponding legislation and is lacking an opportunity to further enhance its image as a model of media freedom (UNESCO, Powering Sustainable Development with Access to Information: Highlights from the 2019 UNESCO Monitoring and Reporting of SDG Indicator 16.10.2, 2019). In a similar vein, out of 180 nations, Mauritius occupied 64th place with a score of 66.07 in the 2022 World Press Freedom ranking, thus losing three places compared to 2021 with a score of 71.26 (Reporters Sans Frontières, World Press Freedom, 2022). More recently, consecutive reports from independent bodies have been pointing to the decline of democracy in Mauritius, the latest being from International IDEA: out of 173 nations, 52 democracies including Mauritius were in decline in 2021 (International IDEA, The Global State of Democracy 2022: Forging Social Contracts in a Time of Discontent, 2022). The trust in public and parastatal bodies in Mauritius is arguably at an all-time low. One could safely conclude that the African island in the Indian Ocean needs an FOI Act more than ever before.

The views expressed and conclusions made in this article are those of the author and do not necessarily reflect the views and opinions of fesmedia Africa, the Friedrich-Ebert-Stiftung (FES), or the Media Institute of Southern Africa (MISA).