The Coalition respectfully submits that the following clauses require further revising and refining to align the expected RTI Act, 2019,with among others, the Constitution:
1. Transitional provision
Introduce the following transitional provision as a sub-clause to the commencement clause in the Bill
‘The provisions of sub-section (3) of section 3, sections 42 and 50 shall come into force within ninety (90) days and the sections 57, 78, 90 and other consequential sections shall come into force within 180 days upon commencement of this Act’
These sections are the pillars of the Act and must necessarily be in place to facilitate the process. Providing a specific timeframe for them provide the opportunity to hold duty bearers accountable for the effective implementation of the law.
2. Clause 13:
Amendments effected to the clause are still inadequate to cure its negative effect. The current draft of Clause 13 could be easily misconstrued to severely, if not completely, dilute the right to information.
Our proposal to cure the defect: Parliament to introduce a Clause 13(1) (c), to explicitly state “such information ceases to be exempt after the deliberative process is over.” Without that explicit provision, Clause 13 could easily be interpreted to make the deliberative process ongoing.
3. Clause 21 – Deferred Access
Clause 21(a) is dealing with statutorily required publications or periodic publications – the idea is that if the information is required to be made public within a short period then it does not make sense to burden the institution with applications. An application should therefore be reasonably deferred when it is expected to be published shortly and it will take an applicant the same time needed to go through an RTI application for the same information.
Since it takes about 14 to 28 days to go through an ordinary RTI application, the waiting period should be reduced to 30 days from 90 days
21(b) needs revision – the use of the word ‘any person’ is nebulous and can be abused. It should state that if the information “has been prepared for submission to a person authorized to approve the information before it is published and is yet to be submitted”
Also there is a need to insert (c) which states that ‘despite (a) and (b) information should be made available within 30 days. This is to prevent an abuse of the process
4. Clause 90
Delete ‘may’ from the text as regulation will be needed to make the law operational. It should not be discretional but mandatory.
The following provisions require re-drafting to aid clarity and flow:
5. Clause 18:
Drafting needs some work–the current rendition of clause18 (1) (d) dealing with making an application on behalf of another person is confusing. The sub-clause is not about capacity but whether the person representing the applicant is duly authorized to represent the person. It fits with 18(2) where it is dealing with a person representing an applicant.
If the application is made on behalf of another person, then the representative should provide proof of the representation.
Also, 18(5), is referring to instances where an information officer has to ‘redact’ information because part is exempt.
It is better to use the technical accepted term ‘redact’
6. Clause 23: Non- existent information
There is a problem with the characterization;–’information does not exist’ is very different from information that does exist but is missing. If information cannot be found it means it is missing or misplaced and can therefore be retrieved later. It is not the same as non-existent information.
Clause 22 (10) defines non-existent information as information not generated because no obligation exists by law for it to be generated or it has been lawfully destroyed. To prevent abuse we should consider words like ‘damaged’ ‘not generated’ or lost’.
Also, clause 22 (10) belongs to clause 23 where it is dealing with non-existent information.
7. Clause 41
An applicant may be represented by a lawyer and/or may call an expert witness – the way it is currently drafted suggest the applicant may do one or the other.