Studies and reports

The right of access to information in Egypt, Libya and Tunisia

This post is also available in: Arabic

introduction:

Winds of change have howled across Egypt, Libya and Tunisia since 2011, leaving behind different results from one country to another, those results are similar in one fact: the change in each country has to be studied, documented and scrutinized. Perhaps who ever research the matter thoroughly finds accessible open doors, or dangerous gaps that must be obliterated, to support hope for a better reality for all. This study is part of a constant search for right’s reality in these three countries, and focuses on the right to information as a basic mechanism not only to understand the reality, but to improve it. 

It seems that the right to access information is more problematic in countries that are witnessing a transition process in one direction or another as instability, and legislative and structural change may present an opportunity to give effect to this right, or, on the contrary, a scope to narrow it.

The question of right to information becomes more problematic if it is raised in relation to fight against corruption, especially as a practical and procedural tool for transparency, which enables all citizens to be aware of public affairs and decision-making’s hidden issues, and gives them the power and authority to participate in and contribute to the processes of making those decisions. The right to information can also be an opportunity to assess the development of other rights and freedoms that are closely related to it, such as freedom of press, expression, participatory democracy, etc.

This study raises detailed questions, with ramifications to help the reader to answer them, as follows:

  1. How did the right to information develop?
  2. What form does this right take today?

The main purpose of this study: to draw the line for a right’s evolvement, and examine the form that contains it at a specific point in time, so as to try to estimate the impact it can have on the war on corruption, for example. Although this study focuses on the right to information, its methodology can be applied to other rights: freedom of expression and its role in the struggle against tyranny, the right to demonstrate as a mechanism to influence public policies, and others.

This study does not aspire to an approach or comparison between the three countries, but focuses on each country separately, and then compare essential points that are common in importance and different in each country’s context. The first two questions mentioned above are answered in each country by addressing the right to information’s historical development through different political and social phases and researching this right’s development manifestation in popular demands, if any exists.

This historical development paves the way to describing the current form of right to information as a policy, by looking at legal frameworks, starting with the Constitution, international treaties, laws, orders and ordinal decisions.

 It is followed by scrutinizing these legal frameworks by looking for contradictions that may exist, creating loopholes that may then represent an opportunity to secure this right, and sometimes pose a threat to guaranteeing it.

This is followed by examining effects that may change this right’s form and impact, some of which are internal effects , such as civil society components or the street or state structures impact, while other are external effects, such as financial partners or international institutions, whether governmental and non-governmental.

This takes us to the practical reality of this right, which the study features by examining possibilities provided by the state to ensure the right to information, and various attempts to enjoy it made by citizens.

This study was based on gathering information from various sources to find the best answers to the asked questions. An initial research was made in media’s coverage was received, and describing the historical development for this right in each country. Several right to information studies have also been used and we also resorted to collecting the available legal texts to describe the legal frame for information public policy in each country. The most important primary source was interviews with those are involved in developing or implementing this right, these interviews were held between Egypt and Tunisia, and because mobility in Libya is difficult we overcame that by making interviews with Libyans those who are involved in the filed in Tunisia. 

The first step on which this study is based is to unify concepts that may take different forms in the three countries, the most important of which is the right to information. This study examines the right to information in its broadest sense, but always with regard to information from its official sources, this means that the right to information is the right to access information issued by the state in all its forms, whether at the automatic publication of it, or when various attempts to claim it and get it are made. This concept comes in slightly different terms  In Egypt and Tunisia, the so-called “access to information” and in Libya, it was referred to as “access to and circulation of information”.

External and internal effects are any factor outside the relationship between who produces the information (The State) and its receiver, and affects him/her in a regulated or spontaneous manner.

The right to information development means the clarity of the language used to describe or demand it, the clarity of mechanisms that activate it, and the expansion of its popular base.

Other close rights to the right to information include freedom of expression and the press. The right to information cannot be studied in isolation from these freedoms; as the freedom of expression is what guarantees demanding information at the first place, and then gives a space for an interaction between both of them freedom of the press ensure that information is contextualized and made available to the public. Freedom of expression and press represent the safety valve for freedom of information and the power that keeps it alive.

Theoretically :

The study highlights the right to information from different perspectives, each of which is an outlet for influencing this right’s reality in all three countries, if the reader wants to imagine a role for him/herself in that, the right’s development angle proposes three aspects of its manifestation: (claiming it, making the legal framework governing it, and resorting to the right to information mechanisms).

The information public policy angle is a phase that should be studied to understand the state’s political obligations to ensure this right, which can be discerned through the legislative and executive product, which the state uses through its various structures to declare its political orientation for the purpose of ensuring the right to information, if it has any. The study also examines the angle of effects on the right to information’s development, which might be  internal and external, governmental and non-governmental.

The most diverging angle is the extent to which the right to information is applied, a point of convergence between public policy, the exercise of the right to information, and the application of the law.

 Certainly, it is evident that the right to claim is becoming popular and absolute and not specified for certain issues or crises, and that the legal framework is becoming more immune from external or internal negative influences, and that recourse to mechanisms for applying the right to information is becoming automatic and sustainable.

The right’s development :

The process of developing any right takes several aspects, either sequential or concurrent, which can be divided into three aspects: (claiming the right, making its own legal framework, and resorting to the right to information’s mechanisms). These are manifestations not steps because they have no particular order, and they may be parallel. The legal framework for information may be preceded by a popular claim to the right, and the legal frame may be preceded by resorting to mechanisms. The right to information might be claimed by one category in concurrence with another. A good analysis of the right’s development helps in understanding its reality between the citizen and the state, and the good division of the groups that claim it, and resort to it, and understand the frameworks it is organized by helps in understanding it too.

 The demand for the right to information through public protest is reflected by demonstrations, advocacy campaigns or opinion critical articles that criticize  the lack of information or transparency in the decision-making process. Claiming the right may take the form of protesting against the absence of specific information, such as the absence of information about a vital facility, or the non-publication of a government decision, or a general form, i.e. claiming the right in its absolute sense.

 The claim to the right to information is a manifestation of the right of the information’s development from the claimant’s side usually, i.e. the citizen in all the forms that organize or do not organize his/her activity

As for creating the right to information’s legal framework , it is a stage that comes after adopting it as a public policy by the State, which should not be t necessarily as a result of public pressure or demand. The legal framework is formulated at several levels that do not necessarily follow the legislation’s hierarchy. The Tunisian example witnessed a decree guaranteeing the right of access to administrative documents before being included as a right in the Constitution. 

The absence of the right at all legislation levels may be an opportunity to guarantee the right, such as the Egyptian example, that witness an absence of a law regulating the right, and there is also the Libyan example, which witness an  absence of a ratified constitution. 

Creating the legal framework for the right to information is also a manifestation of this right’s development, but it is usually specific to the entity that is required to provide the information, i.e. the State at all levels and forms of authority.

As for applying the right to information through the use of existing mechanisms – which may not necessarily be regulated by a legal framework – is also a manifestation of this right’s development, but it combines the information claimant (citizen) and the information provider (State), as it reflects the extent to which the right has been resorted to and the extent to which it has been responded to, or in anther cases, the State’s inability to withhold information, such as leaking situations.

Public policy on the right to information :

The existence of a public policy regarding the right to information is represented in the legislative and executive frameworks that regulate it (constitution, treaties, law, executive orders, decisions, circulars). There are frameworks that activate the right to information, and others that impedes it. All frameworks affecting the right to information should be examined in a comprehensive manner to assess whether or not a public policy exists.

Due to changes that emerged in the three countries at different legislative and executive levels, the legal fabric is in conflict between supporting and obstructing the right to information, either for lack of harmony, or for historical or political reasons. The focus on public policy regulations is an important point in understanding the legal fabric and assessing whether it is a safety net or a prison for this right.

Effects:

Like any right, the process of developing the right to information is influenced by various internal and external factors, which affect the right to information’s elaboration , the state’s public policy, and its implementation. The effects are either internal, national, governmental or non-governmental, and external, whether as a result of international cooperation, or non-governmental. The impact on the right to information is not always positive, and does not necessarily improve its reality , even if it changes the phases of its paths mentioned above. 

Rights are lost and diminish if positive influences are not stronger and more effective than the negative ones.

The division of effects into internal or external helps to try to predict their impact and presence, which is important at two levels: first to measure the most important effect and resort to the desired impact in the future, and second to document the various effects to try to understand the right to information stability extent, especially if the factors that have real impact in its support or at times reduce it have been studied.

For example, when external funding refrains from supporting awareness-raising campaigns on the right to information made by civil society, or when it remains confined to a small scale, where it does not affect one aspect of the right to information, which is claiming it, or when an international financial partner establishes a legal framework in support of the right to information as a condition for government funding, as it affects the legal framework’s effectiveness when a clear claim to the right is absent,  or when civil society and the state work to create a “good” legal framework, in an absent public demand for the right to information, or a technical capacity to provide it in management, this may have the opposite effect on the right’s development, etc.

History of access to information

The right may not seem clearly developed  in the Egyptian people’s demands, as some links it to freedom of opinion and expression and others links it to fight corruption, but the right to know was not directly among the Egyptian street man priorities, although it was always somehow hidden behind his daily questions about his life requirements.   It is possible to measure the beginning of an entity existing to work on access to information by establishing the Khedive the General Authority of the National Library and Documents, which was mentioned on the Egyptian Ministry of Culture website in its definition and under the title (Egyptian National Library.. The largest national library in the world) as it says: In 1870, Khedive Ismail issued a high order to establish a  national library in Cairo, the Egyptian Khedivial Kutub Khana, to collect precious manuscripts and books that were stopped to be issued by sultans, princes, and scholars on mosques, shrines and schools, in the same working patterns of national libraries in Europe.   In 1904, the Library was moved to a building established in Bab El-Khalq Square, in 1966, the Egyptian Library was merged with the Egyptian Archives in one body, and in 1971, the Library moved to the present building on the Nile Corniche in Ramlet Boulak, which was designed to be suitable for carrying out modern offices services and to be able to provide large stores suitable for preserving manuscripts , papyri, publications, periodicals and microfilms, and halls to receive the large number of visitors to the library, in addition to places for specialized centers and administrative offices to perform its function as a national library that provides services to researchers and readers in various fields.
The Ministry of Culture’s message and objectives
“Egypt inherited a cultural accumulation through different periods of history that represents successive civilizations the country went through, which made Egypt one of the first countries to have a ministry of culture whose mission is to give the Egyptian personality a definition for its history and to preserve the country’s  capabilities which include its heritage and nurturing its creative gains that resulted from its members participation.” Cultural policies will not bear fruit unless all intellectuals and cultural bodies participate – in affirming belonging to this homeland and in advancing inclusive development, especially since any plan for economic and social development remains fragile unless it is based on radical cultural development. Although many Egyptian intellectuals believe that the Ministry of Culture’s actual role was part of restricting the public domain and bringing intellectuals into the state’s side,  as it was always described, especially during Mr. Farouk Hosni’s era, the Minister of Culture in Mubarak’s regime, who was close to Mrs. Suzanne Mubarak, the President’s wife. He was working to neutralize cultural work and to make sure that no political activity will be done as subsequent for cultural activities.

Despite the fact that the right to information is guaranteed in Tunisia at all legal levels: from the Constitution to the treaties that have been ratified, to the laws that have expressly guarantee it. And although this right has reached an advanced stage in terms of legislation, it has not yet become a mature popular demand, in the effectiveness of its application or in the expansion of its popularity. This historical development of this right, from the revolution of 17 December to 14 January 2011 and beyond, Explains it quite well, and illustrates the close connection between all freedoms and the right to information.

The multiplicity of actors involved in public affairs after the revolution was one of the most important factors for pushing toward access to information, including civil society components, the state legislative, regulatory and judicial structures, independent bodies, and journalists. Each of them has a different angle to resort to the right to information, its importance, and the extent of its development.

However, the legal text’s clarity was a result of external effects that contributed to putting the cornerstone for the right’s development, from holding the second stage of the World Summit on the Information Society in Tunisia, from 16 to 18 November 2005, to mentioning “the right to access administrative documents” in a legal frame in 2011,  despite the huge difference between the repressive context in 2005 and the revolutionary one in 2011.

The right to information must be placed in its historical context in pre-revolutionary Tunisia, to make it clear that right ‘s development cannot be limited to the state’s commitment to it in its general policies speeches, but that there is a popular demand to turn this commitment into a reality in which whenever a citizen demands information, the state provides it.

The question of the right to information effectiveness as an anti-corruption mechanism in Tunisia is legitimate in an evolving context, both legislatively and politically, and the chances of good governance and anti-corruption can be assessed accordingly.

The political and social situation in Libya makes access to information different from its eastern and western neighbors, in its historical development, in its present form, and in its future. Perhaps what is seen as a danger to the guarantee of this right, the fragmentation of state ‎structures and the multiplicity of the legitimacy of each of them. If any, may in fact be an opportunity to control the way this right develops, if it is done in a ‎way ‎ that exploits opportunities and avoid risks. The historical sequence of the most important events affecting access to information in Libya ‎begins several years before the 2011 revolution, when there were clear changes in the state’‎s handling of ‎ information, and later, after the revolution, when clear changes were recorded in the citizen’s ‎handling of this right. The emergency change in 2003, which, for example, known in the status of “Chokri ghanem” as ‎chairman of the General People’s Committee (head of government), had implications for the ‎state’s ‎ handling of information, not necessarily in faith, but for “the growing Anglo Saxon influence” and ‎the new economic trends that contributed to the development of the company, British consultant ‎with a professor at Harvard University. While this General People’s Committee has seen opposition to the economic policy, which has been largely based on privatization, attracting foreign investment and liberalizing the ‎currency, which led to the status of “AlBaghdadi alMahmoudi” as the new head of government, ‎the wave of reform has continued to increase the interest of Saif al-‎Islam Gaddafi in public affairs. In 2007, ‎Gaddafi’s son had spoken about a new draft constitution for Libya, as part of a “contract that ‎governs the lives of Libyans.” The information had a space of reform space with the latter talking about the independence of certain community institutions, namely,the Central Bank, the Supreme Court,‎‎ the media and civil society. In his speech, he focused on the need for an independent media ‎body that sheds light on corruption, fraud and fraud.” However, the alleged wave of reform has been accompanied by sharp criticism on the economic and political side in general, and at times, the regime’s attempts to disseminate information aimed at “arguing that it is taking a transparent approach to public information.” Research in Libya, although it has resulted in little description of the legal pot of this right ‎for objective reason such as the fact that the Constitution remains in draft form until the line ‎of ‎these words, proposes rich details in the influences, internal and external, on this right, and proposes clear opportunities for further development in the future.

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This post is also available in: Arabic

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