For the first time in its modern legal history and after various failed attempts, Egypt might see its first freedom of information draft law in the next few weeks.
The proposed law would establish a process by which Egyptian citizens can access government information, while requiring the government to make more information public.
The draft law that Egypt is considering has been written by Toby Mandel, an expert on information legislation, president of the US-based Center for Law and Democracy and a consultant for the World Bank.
The current draft is being deliberated through the cabinet’s Information and Decision Support Center (IDSC) with a group of independent human rights advocates, academics and journalists.
Mohamed Ramadan, executive director of IDSC, sees such a development as positive, but also a natural progression. “In 2000, 19 countries had a freedom of information law. By 2010, about 90 countries adopted a law,” he says.
In several international experiences, information acts became a measure for dealing with corruption in countries where it is entrenched. Important examples include Mexico’s 2002 Federal Law of Transparency and Access to Public Government Information and India’s 2005 Right to Information Act.
According to Ramadan, the law falls well within Egypt’s current democratic transition. “Providing access to information can be the best way for the government to strike accountability and manage expectations,” he says.
Ramadan hopes to reap the fruits of this collaborative effort, after at least 10 different failed attempts in the past to draft a freedom of information law.
“There is a general positive direction from the government of engaging civil society, which is good,” says Amr Gharbeia, technology and information project officer with the Egyptian Initiative for Personal Rights, who was involved in the deliberations around the draft.
The 38-article draft law organizes the process by which citizens can acquire information from the government. It is divided into nine sections that cover key definitions, the right to access, routine publishing of information, the process of requesting and acquiring information, exceptions to the right to access information, promotion mechanisms and penalization.
In the first section of the law, participating civil society members worked on adding specific definitions to terms, otherwise broadly referenced in the draft, which could lead to restrictions to access to information.
“We worked on defining 'national security', which is a crucial exercise even beyond the scope of this law. On 28 January, communications were cut using 'national security' as a legal excuse,” says Gharbeia.
In their proposed addition to the draft, civil society members defined national security as matters pertaining to military information, such as arms acquisitions and production, military plans and foreign threats to local security.
In the exceptions section, which draws legal limitations on the right to access information, the deliberating parties worked on adding specifics to minimize those limitations. Examples of exceptions include: information that could be harmful to a criminal investigation; private information about a third party; the previously defined national security matters; or information that could harm the development of governmental policies in the making.
While the general agreement is that the draft is a promising and ambitious one, concerns loom about the implementation process. Government establishments, among others, have not accumulated a well-instituted record management practice that permits easy access. “We have a long history of practice according to which records are not properly managed in a way that facilitates their use and circulation,” adds Gharbeia.
Another possible impediment to the implementation is an existing arsenal of laws, some of which could conflict with this draft. “We’re working with the premise that the most recent law supersedes the previous ones,” says Ahmad Ezzat, a lawyer at the Law Unit of the Association for Freedom of Thought and Expression, an independent NGO working on those issues. “What matters is to have a constitutional principle that protects the law.”
Ezzat adds that in the 1971 constitution, the right to information was limited to journalists as opposed to citizens at large. This means that human rights advocates will bring the battle for freedom of information to the discussion over the new constitution, set to be drafted after parliamentary elections in September.
Ezzat has doubts that the draft of the information law will be accepted by the cabinet and the ruling military council with all their included amendments. “The state still treats information like arms and explosives, from the highest-ranking employee to the lowest. It’s a long-standing heritage that can only change if there is a true political will,” he says.
The political will is in question. The passing of a freedom of information law has been widely associated with Egypt’s quest to receive development and investment funds from international organizations such as the World Bank and the International Monetary Fund. For those funds to be processed, accountability is a precursor.
“Things like a freedom of information law should be considered a positive condition,” says Amy Ekdawy, regional program manager at the US-based Bank Information Center, which acts as a watchdog on World Bank policies. “People are sensitive to the concepts of conditionality and state sovereignty. But accountability is in question here.”
Ekdawy adds that the Development Policy Loans of the World Bank are a form of funding that goes directly into the state budget, and hence expenditure cannot be tracked in a tangible project. “With a transitional government like that of Egypt today, donors need to have extra measures to ensure transparency and accountability, especially since the debt will stay for generations to come.”
On Saturday, Finance Minister Samir Radwan said that Egypt will not borrow from the World Bank and the International Monetary Fund after revising its budget and cutting the forecast deficit.
Whether this move will have reverberations on the passing of the freedom of information draft law, which could be an incentive for the receipt of those loans, remains to be seen.
