A Decade of Constitutionalised Right to Access Information in Morocco: Reflections on the Progress and Challenges

Author: Reda Benkhadra
Researcher

Originally limited and considered as a right to access administrative records, the right to information has evolved over time to become a key element in strengthening good governance and institutional transparency. By endorsing foundational texts such as Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the United Nations Convention against Corruption (UNCAC), member states have committed to advancing the recognition of this right. In fact, the UNCAC calls upon state parties to take appropriate measures in accordance with their domestic laws to ensure the right to information and facilitate its access.

While the choice between constitutionalising the right to access information or merely enshrining it in a basic law is a matter for each country to decide, constitutionalisation is seen as a means to provide it with a more robust guarantee of existence. Nonetheless, the promulgation of a specific law remains necessary to detail the exercise of this right further. In this regard, Morocco initially leaned toward the latter option before eventually embracing constitutionalisation, a shift influenced by the wave of the Arab Spring.

Prior to the ratification of the UNCAC in 2007, two government parliamentary groups^[1] had taken the initiative by proposing bills two years earlier aimed at promoting access to information, but unfortunately, these efforts did not materialise. Similarly, the biennial anti-corruption plan (2010-2012) included measures to ensure the right to access information, including the development of a specific law for this purpose and the revision of provisions in the General Civil Service Statute. The latter imposed a duty of professional discretion, making information access contingent on hierarchy (ministerial authority), and the plan sought to lift this restriction.

The constitutional reform of 2011 provided the opportunity to enshrine and introduce the right to access information into the country’s legislative framework, even elevating it to the status of a constitutional right, which is a significant step forward long-awaited by civil society and the politico-militant sphere.

Article 27 of the Constitution grants citizens the right to access information and designates the entities responsible for disclosing information, namely ‘the public administration, elected institutions, and organisations entrusted with a public service mission.’ It also specifies the areas of exception, such as national defence, the internal and external security of the State, individuals’ privacy, and the prevention of violation of rights and freedoms.

However, it took nine long years of waiting between the constitutionalisation of the right and its implementation through the implementing law. Law 31-13 regarding the right to access information was adopted in February 2018 but its implementation is spread over two years. One year is allocated for the law to come into effect, followed by another year for public institutions to develop the necessary infrastructure and ensure compliance with the law.

The law, consisting of 30 articles divided into 7 chapters, expands the scope of eligible individuals to access information to include foreign residents in Morocco, provided their stay is legal, in addition to Moroccan citizens, as already provided for in the Constitution. It also establishes free access to information but requires the information requester to cover the costs of reproducing or processing the requested information and delivery costs.

Unlike the Model Law on Access to Information for Africa, the Moroccan law lacks a preamble that clearly outlines its objectives, the values that inspire it, and the references that guide it, while specifying the spirit in which the law should be interpreted. A preamble asserting the primacy of the principle of the right to access information over any conflicting provisions could have prevented potential legal conflicts.^[2]

Another point of divergence from the Model Law is the independence of the oversight mechanism. Although Law 31-13 establishes the Commission for the Right to Access Information (CDAI) as the body responsible for ensuring the proper exercise of this right, with the authority to receive and adjudicate requests filed by applicants, provide opinions on legislative and regulatory texts, and make recommendations and proposals to improve the quality of access to information procedures, in addition to allocating a place for a member of civil society within the Commission, the issue of its hierarchical attachment remains problematic. Its creation under the authority of the Head of Government could jeopardise its independence, as the Head of Government constitutionally controls the public administration and the executive power, thus being both judge and party. Furthermore, this Commission is chaired by the President of the National Control Commission for the Protection of Personal Data, which also has a council composed of seven members. This setup makes the CDAI appear as a sub-commission and raises concerns about its efficiency. To the date of publication of this article, the CDAI has not presented or published any annual reports on its activities, as stipulated by the law, which would have allowed for an assessment and diagnosis of the state of access to information in the country.

The creation of a completely independent commission from the executive power, as suggested by the Model Law, with an expansion of its powers to ensure compliance of institutions with Law 31-13, could strengthen its role in enforcing the law.

Non-compliance poses a significant challenge as it leads to a lack of essential information. This is especially true at the level of territorial collectivities (local authorities) whose official websites do not provide the requested information, such as data related to budgets, planned projects, allocations, and services. However, the Commission for the Right to Access Information remains powerless in enforcing the legislation by all administrations and bodies falling under the scope of the law. The Commission does not have the authority to compel administrations to provide information or to sanction those who delay or refuse to proactively publish information on their websites or resist reforming their information systems per legal requirements. Current legislation simply confers on the CDAI the role of providing institutions with advice and expertise in establishing enforcement mechanisms for the proactive publication of information.

The lack of responsiveness from several institutions obliges the legislator to strengthen the Commission’s status through a revision of the law. This perspective is also shared by the Special Commission on the Development Model, which, in its final report, considers that the legislative framework adopted in 2018 is outdated. It argues that ‘improving access to information also requires a revision of the law on access to information and the full adoption of Open Government standards to which Morocco has subscribed.’ It further adds that ‘strengthening evaluation as a tool for accountability and efficiency in the design and implementation of public action requires open, reliable, and regular access to information, while respecting the protection of personal data.’

In terms of accessibility, despite the delayed implementation of the right to access information in Morocco, the government has established various means to facilitate access requests. The Commission for the Right to Access Information has developed a request form that can be filled out and submitted directly, online, or by postal mail. Additionally, the Department of Administrative Reform has launched the unified platform chafafiya.ma, simplifying the management and processing of requests. This platform allows information seekers to track the progress of their request from submission to receiving the final response. The information requesters receive notifications at each stage of the process. Currently, the platform encompasses over 1700 participating institutions and organisations. Since January 2022, the General Directorate of Territorial Collectivities has also joined this initiative. More than 17,500 requests have been filed on the platform, with over half of them being processed. However, it is important to note that the average response time is 72 days, whereas Law 31-13 stipulates a 20-day timeframe for obtaining a response to an information request. This period can be extended by 20 days if the concerned entity cannot respond within the stipulated period. Not only are the deadlines not being met but they also pose a significant problem for journalists and media outlets. Article 6 of the Press and Publishing Law states that journalists and other media have the right to access information ‘within legally established deadlines.’ However, they cannot afford to wait for such an extended period for information. They also cannot benefit from the 3-day emergency procedure provided by the law, as it is only possible in situations involving the protection of life, security, or freedom of individuals.

It is imperative, therefore, that different stakeholders seriously consider amending and revising Law 31-13 to address the current shortcomings and advance the legal framework, drawing inspiration, in particular, from the African Model Law. This approach would help improve the efficiency of the information access process in Morocco and ensure greater government transparency and accountability.

[1] Socialist Union of Popular Forces (center-left) and Popular Movement (center-right)

[2] Numerous legislative texts also have significant implications for the right to access information in Morocco, such the Commercial Code, the Public Procurement Code, the Law on Press and Publishing, Laws related to Archives, the Consumer Protection Law, the Law governing the Status of Journalists, the Data Protection Law, the Land Conservation Law, the Law on the Motivation of Administrative Decisions, and the Decree on the Publication of Legislative and Regulatory Draft Texts.

About the Author:

Reda Benkhadra holds a BA (Cum Laude) in International Affairs from Al Akhawayn University in Morocco and MPhil in Human Rights and Democratisation in Africa from the Centre for Human Rights, Faculty of Law, University of Pretoria. He has contributed, in different roles, to advance digital rights and support local development through community engagement, research and advocacy. Reda is particularly interested in issues related to governance and access to fundamental human rights.