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The case for reforming the Sudanese Access to Information Act

Categories: Advocacy, Disinformation, Free Expression, Human Rights, Law, Protest, Sudan, Sub-Saharan Africa, UPROAR

Protestors near the Sudanese army headquarters in Khartoum in April 2019. Photo by M. Saleh (CC BY-SA 4.0)

The month of December 2018 marked a turning point in contemporary Sudanese history. What started as peaceful demonstrations in a few cities outside the capital, Khartoum, morphed into a political revolution that deposed a military regime that ruled the country for 30 years [1] under former President Omar Bashir.

Such a regime did not sustain itself merely through the execution of enemies, civil wars, and corruption — it also legislated and enacted laws that protected and served its interests. One of these laws is the Sudanese Access to Information Act of 2015. The law — still implemented today —places several restrictions on the right to access information. In this post-revolution Sudan period, activists say the law should be amended as part of the country’s long road to democratic and civilian rule.

Sudan’s freedom of information law: ‘A mere cosmetic process’

The right to freedom of information is recognized at the international level through the Universal Declaration of Human Rights [2] (UDHR) and the International Covenant on Civil and Political Rights [3](ICCPR). This right is also enshrined in the African Charter on Human and Peoples’ Rights [4]. Sudan is a state party to both the ICCPR and the African charter.

Article 19 of the UDHR states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. 

Under Article 9 of the African charter, ‘’every individual shall have the right to receive information.

The Sudanese Access to Information Act [5] is the first of its kind in Sudan, although Article 39 (1) of the 2005 Sudan Interim Constitution  [6]— which was recently repealed — enshrined the right to receive and disseminate information.

The Act, which includes 19 sections and eight chapters, has its shortcomings, particularly in terms of which types of information people are allowed to access. When the law was passed in 2015, activists reacted with doubt about the incentives, goals and agendas behind it. 

Ali A Khalil, a renowned Sudanese lawyer, in a published paper [7] titled “The Sudanese Access to Information Act 2015: A Step Forward?” criticized the law's adoption as “a mere cosmetic process intended to whitewash the unpleasant record of the Sudanese government on issues of transparency and accountability’’. 

Salma Maarouf, a journalist, attacked [8] the timing of the law and the incentive behind it: “[They] are trying to use this law as a quick fix to remove the specter of Transparency International's rankings, which placed Sudan at the bottom of the list of countries as the least transparent.” 

Sudanese blogger Usamah Mahmoud slammed [8] the law and the exceptions it places on access to information. “They made it very clear that a lot of information is going to remain classified. They have codified this law so they can go after the press if they cross the line,” he told the Committee to Protect Journalists after the law was passed in 2015.   

The law’s shortcomings 

The law lists [9] 12 types of classified information that are restricted from citizens, including information related to national security and foreign policy. The language of these exceptions is intentionally vague to protect the interests of the government. 

Another obstacle to information access is the fee charges. The law states that ‘’the public body may charge fees, upon approval by the Commissioner, to meet the costs of preparing and providing the information”.

While governments may be able to charge those requesting access to information certain fees, these ‘’should not be such as to deter applicants and it should never exceed the actual cost of searching for, preparing and communicating the information”, Article19, a nongovernmental organization, explained [10]. In a country where almost half of its citizens face poverty [11], such fees represent a real barrier that deters citizens from enjoying their right to freedom of information. 

In an apparent attempt to silence those who oppose the regime, the law totally neglected to mention or allude to the protection of those who request information from being tracked or attacked by any governmental body or any other person or organization that could benefit from concealing the requested piece of information. There is also no article that protects whistleblowers who leak information for the public interest. For example, in 2014, former police officer Abuzaid Abdalla Salih was sued for defamation, stripped of his rank, and fined and sentenced to four years in prison [12] for leaking information pertaining to the corruption of the Sudanese police [13]

By contrast, the law positively acknowledged the right of people with disabilities to access information. However, Alradi Abdalla, a disability rights activist based in Khartoum, pointed out that the law falls short of clarifying how this information will be provided:

Freedom of information to counter disinformation

When it comes to the spread of ‘fake news’ and misinformation online, Sudan is no exception. During the recent anti-government protests that sought an end to military rule in the government, journalists and activists documented several cases of mis- and disinformation such as manipulated photos [15], government-sponsored disinformation campaigns [16], and even fake accounts on Instagram that hijacked solidarity and donation efforts during the revolution [17]. These incidents reveal the dire need for amendments to the freedom of information law to make it easier for journalists and media groups to counter disinformation. The government, as well as the private sector, should take the lead in sharing information online and making it accessible to the public, a step that would facilitate fact-checking efforts by individuals.

On August 21, Abdallah Hamdouk was appointed as prime minister [18] and the members of the Sovereignty Council [19] of Sudan were sworn in [20], as part of a power-sharing agreement to guide Sudan’s three-year transition toward civilian rule, in accordance with the Constitutional Charter for the 2019 Transitional Period [21].

The charter, signed by the Transitional Military Council and the political coalition that represents the protesters, Forces of Freedom and Change [22], repealed the Transitional Constitution of Sudan of 2005.

Under the new charter, laws that were issued previously will remain in force ‘’unless they are repealed or amended”. Article 56 of the charter states that “every citizen shall have the unrestricted right to freedom of expression, to receive and publish information and publications, and to access the press, without prejudice to public order, safety and morals, as defined by law”.  

Indeed, the law referred to in the charter is the Sudanese Freedom to Information Act, which with its shortcomings, was designed not to liberate people but rather to help serve those who rule by making it hard for people to access information.

With the appointment of a new transitional government and a transitional legislative council, which will be tasked with amending and enacting new laws, citizens now have the opportunity to discuss, debate and propose a new law that would serve the genuine needs for a new Sudan — a Sudan where freedom of information serves the public’s right to know and enables citizens to hold those in power to account.

Raising public awareness of the importance of amending this law, will be a challenge, but this is the real meaning of revolution: an unending battle for liberty beyond the mere ousting of a dictator from his chair.