Pay or be denied: The impact of fees and charges on journalists’ perception of the effectiveness of Ghana’s Right to Information Law

Author: Kwaku Krobea Asante
Senior Programme Officer, Media Foundation for West Africa (MFWA)

Introduction

There has been a global upsurge in the demand for transparency, accountability and the establishment of norms in favour of democracy [1].  These norms include the passage of universal Access to Information (ATI) laws and the respect for the right to access information across the world[2].

In Africa, the adoption of the Model Law of Access to Information for Africa in 2013 was a response to emerging questions about widening inequality, widespread poverty, corruption and lack of accountability in public office. Indeed, the model law is consistent with other relevant laws including the African Charter on Human and Peoples’ Rights (the African Charter).

The recent rise in military coups, autocracy, economic mismanagement, and general recession of democracy and its ideals in Africa underscores the need for the consolidation of the implementation of ATI laws, easy flow and accessibility of information on the continent.

On the contrary, in Africa, even in countries where ATI laws have been passed, such as Ghana, there appears to be a widespread restriction to information access, especially among journalists [3] whose profession lies at the heart of the right to seek, receive, and impart information. Sometimes, the denial comes in the form of exorbitant fees charged before the release of information.

In the context of the current information age where misinformation and disinformation spread in record time, denying journalists access to information does not only infringe fundamental human rights but portends danger to the general public.

This paper will therefore:

• Examine the nature of access to information denial to journalists in Ghana based on fees charged for the information requested.
• Ascertain the perception of journalists on Ghana’s Right to Information law pertaining to the provision on fees and charges

The paper purposively sampled cases reported in the media as well as cases published on Ghana’s Right to Information Commission’s website where journalists who requested information were denied access based on fees charged by public institutions. These cases were analysed to ascertain the nature of access to information denial to journalists. Four journalists who have been denied access to information based on fees under the law were interviewed to ascertain their perception of the effectiveness of Ghana’s RTI law.

Ghana’s right to information law and its implementation

The 1992 Constitution which ushered Ghana into the Fourth Republic makes provision for the right to access information in article 21 (1) (f) which states that: “All persons shall have the right to information, subject to such qualifications and laws as are necessary in a democratic society.”[4]

Therefore, public discourse about promulgating an Act that would facilitate the fundamental right to access information contained in article 21 (1) (f) commenced a few years into the Fourth Republic. The first draft of the law was presented to Parliament in 1999. [5]

After about 20 years of advocacy by civil society organisations, anti-corruption crusaders and the media, spanning four successive governments that paid lip service to the passage of the law, Ghana Right to Information Law, 2019, (Act 989), was passed by Parliament in March 2019.

After its passage, the law came into force in 2020 with much acclaim that the piece of legislation would be a game-changer in Ghana’s fight against corruption, especially in the work of journalists in promoting transparency and accountability. However, the impact of the COVID-19 pandemic ensured that the implementation of the law was delayed. Thus, while the law had been activated for citizens to use, there were no structures to facilitate its usage.

In October 2020, Ghana’s President Nana Addo Danquah Akufo-Addo inaugurated the Right to Information (RTI) Commission to oversee the implementation of the law[6].

Provisions on fees and charges in Ghana’s Right to Information law and absence of Miscellaneous Act

Section 75 of Ghana’s Right to Information (RTI) Law, 2019, (Act 989) stipulates that an applicant shall not, among other things, pay for the cost of the search and preparation of the information or for the time an information reviewing officer spent in reviewing an applicant’s request for information.

The law states that an applicant shall only pay a public institution the fee or charges for the cost of reproduction of information requested. This cost, the law stipulates, must be approved by Parliament in accordance with the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793).

However, at the time the RTI law was passed, the Fees and Charges (Miscellaneous Provisions) Act, 2009 (Act 793) had been repealed pending the passage of another. It was not until July 2022 that a new law, Fees and Charges (Miscellaneous Provisions) Act, 2022, (Act 1080) was passed[7].

Thus, for over two years when Ghana’s RTI law was effective, there were no approved fees to be charged by public institutions. Therefore, before the passage of the new Fees and Charges Act, many public institutions arbitrarily determined the fees.

Some selected cases where journalists and media organisations were charged high fees  

Below are five selected cases where journalists or a media organisation were charged high fees by public institutions for information requested:

• On July 22, 2020, one of Ghana’s media regulators, the National Communication Authority (NCA), charged the Media Foundation for West Africa (MFWA) GHS 2,000 (about USD 200) as cost for searching for information. The NCA justified the fees charged by citing its establishing law, the Electronic Communication Act 2018, Act 775[8].
• On June 7, 2021, Ghana’s mining regulator, the Minerals Commission, charged Evans Aziamor-Mensah, a journalist with the investigative journalism outlet, The Fourth Estate, the equivalence of $1,000 for information. The Minerals Commission said the charge was determined under the Minerals and Mining Act, 2006 (Act 703) [9].
• On October 15, 2021, Ghana’s Scholarship Secretariat demanded GHS 3,500 (about $300) from Kwaku Krobea Asante, a journalist with The Fourth Estate to reproduce information requested [10].
• On March 10 2022, the Ghana Enterprises Agency (GEA) charged Michael Aidoo, a freelance journalist, GHS 12,650 (about USD 1,100) for the reproduction of information requested [11].
• On July 18 2023, the Ghana Enterprises Agency (GEA) charged Philip Teye Agbove, a journalist with The Fourth Estate, GHS 1,300 for the reproduction of information requested [12].

Some of these selected cases were either presented to Ghana’s High Court or the Right to Information Commission for adjudication.

Observations from the cases where journalists were charged high fees for information

From the five cases above, it can be observed that in four of the incidents (NCA v. MFWA; Minerals Commission v Evans Aziamor Mensah; Scholarship Secretariat v Kwaku Krobea Asante; and GEA v Michael Aidoo), there were no Fees and Charges Act prescribing how much the public institutions should charge the applicants. This presented a carte blanche to the public institutions to demand any amount they pleased.

“You must understand that these public institutions do not ordinarily want to release information to a journalist who’s likely to use the information against them through critical reporting. So, a situation where there are no prescribed fees is interpreted by the institutions to mean a situation where a journalist must be made to pay exorbitant fees or be denied access,” one of the journalists narrated.

Also, in charging the fees, two out of the five selected cases show that the public institutions (NCA and Minerals Commission) relied on their establishing acts (Electronic Communications Act and Minerals and Mining Act respectively). However, this is in contravention of the RTI law which states in Section 85 that:

“Where an enactment in existence immediately before the coming into force of this Act, provides for the disclosure of information by a person or an authority, the disclosure of the information is subject to this Act.”

Thus, even when there appears to be a conflict between a public institution’s establishing act and RTI law, the latter takes preeminence. Indeed, the High Court and the independent Information Commission that adjudicated these two cases affirmed that the RTI law is superior [13].

Journalists Perception

The journalists who were interviewed averred that, despite the high fees they were being charged , the Right to Information law has in the last two years provided a considerable amount of support to their work. But they believe it could be better.

“Accessing information is perhaps one of the greatest challenges for many journalists here. The RTI law has to some extent forced the hands of government institutions to disclose information. But there are too many limitations in the law and its implementations that must be improved.”

Other journalists bemoaned that the RTI Commission must do more about the fees and charges provisions as some institutions are using it as a pretext to avoid accountability.

“If I am asked to pay so much for information I would ordinarily not need but for my profession as a journalist, what would be my motivation to continue using the law? The Commission must be very clear and insistent on how public institutions must charge for information because despite the new Fees and Charges Act we’re still being denied access to information due to exorbitant fees.”

Despite, the passage of the Fees and Charges (Miscellaneous Provisions) Act, 2022, (Act 1080), journalists believe that some public institutions are adopting strategies that circumvent the process of releasing information requested in electronic or PDF version, rather insisting on providing them in hard copies to make the applying journalists pay for cost of printing.

“Many of the public institutions are just being plainly clever and mischievous with the law. I see that when you put in an application and indicate that the manner access should be in soft copy or PDF form, they would insist that they don’t have it in that form and rather give them to you in printed copies therefore demanding you to part ways with so much before getting the information you need.”

“Take my experience with the Ghana Enterprise Authority for example. I made the request after the Fees and Charges law was passed. But what happened? They still found a way to demand monies from me. And unfortunately the RTI Commission is even backing them. That’s the reality now.”

Conclusion

In conclusion, the paper found that two main prevailing conditions that fueled the denial of access to information to journalists based on fees and charges:

• The absence of the Fees and Charges Act that prescribes approved fees to be charged by public institutions at the time the RTI law was passed in 2019
• Misinterpretation of the RTI law and the conflict between the establishing Acts of some public institutions and the RTI law as relates to information disclosure.

The paper also found that even though the journalists believe the law helps them a great deal in accessing information for their work, the weaponizing of fees to deny them access is gradually eroding their confidence in the effectiveness of the law.

Bibliography

[1] Samuel P. Huntington, The third wave of democratisation in the late twentieth century, (Spring 1991) https://www.ned.org/docs/Samuel-P-Huntington-Democracy-Third-Wave.pdf

[2] John M. Ackerman and Irma E. Sandoval-Ballesteros, The Global Explosion of Freedom of Information laws, Administrative Law, Review, Vol. 58, No. 1 (Winter 2006), pp. 85-130

[3] Egielewa, Peter, and Paul Atagamen Aidonojie. “Media and Law: An Assessment of the Effectiveness of the Freedom of Information Act by Journalists in Nigeria using Auchi, Edo State as a Case Study.” International Journal of Current Research in Humanities 25 (2021): 415-434.

[4] Ghana’s 1992 Constitution (January 1993) https://constitutionnet.org/sites/default/files/Ghana%20Constitution.pdf

[5] The Right to Information, Ghana’s Journey (Commonwealth Human Rights Initiative, 2019) https://www.humanrightsinitiative.org/download/1570075247RTI%20GHANAs%20JOURNEY%20(1992%20-%202019).pdf

[6] Prez Akufo-Addo inaugurates seven-member RTI Commission Board (Daily Graphic, 2020) https://www.graphic.com.gh/news/general-news/prez-akufo-addo-inaugurates-seven-member-rti-commission-board.html

[7] Parliament passes Fees and Charges (Miscellaneous Provisions) Bill, 2022 (Graphic Business, 2022) https://www.graphic.com.gh/business/business-news/fees-and-charges-bill-2022-passed.html

[8] MFWA sues media regulator over right to information request on shutdown of radio stations (Media Foundation for West Africa, 2021) https://www.mfwa.org/mfwa-sues-media-regulator-over-right-to-information-request-on-shutdown-of-radio-stations/

[9] Minerals Commission demands $1000 from The Fourth Estate in a Right to Information request (The Fourth Estate, 2021) https://thefourthestategh.com/2021/06/18/minerals-commission-demands-1000-from-the-fourth-estate-in-a-right-to-information-request-2/

[10] Narrated to researcher

[11] Narrated to researcher

[12] Narrated to researcher

[13] Minerals Commission loses case against RTI Commission over $1000 charge for information (The Fourth Estate, 2022) https://thefourthestategh.com/2022/03/18/minerals-commission-loses-case-against-rti-commission-over-1000-charge-for-information/

About the Author:

Kwaku Krobea Asante is a media and communications professional, journalist, trainer, and researcher with interests in media and good governance, freedom of expression, fact-checking, and access to information laws in Africa.

He also has interests in development communication research and the intersection of disinformation campaigns and democracies in Africa.

He’s a Senior Programme Officer of the Media Foundation for West Africa (MFWA), the foremost freedom of expression and media and governance organisation in the West Africa region, where he leads the Communications Team. He’s also currently the Team Lead of Fact-Check Ghana, a fact-checking project of the MFWA.