Access to information: a case of academic xenophobia

After decades of pressure from civic society calling for legislative reform, in July 2020 Zimbabwe replaced the Access to Information and Protection of Privacy Act, which was widely condemned as draconian, with a new information law that some – especially those in the media fraternity – say is not much different from the old one.

This comes as no surprise: when it comes to ‘answering’ calls for reform, the government has a long history of changing names of restrictive laws without actually removing the restrictions.

In fact, each of the two administrations that have presided over the country since independence has given new names to old laws without making any fundamental modifications – a clear attempt to make merely cosmetic changes to repressive laws.

It is against this background that civic groups like the Media Institute of Southern Africa (MISA) have questioned the genuineness of the government’s reform agenda in as far as the new information law, dubbed the Freedom of Information Act, is concerned.

While a lot of focus has been on how the new law affects the media profession, and rightly so (journalists deal with information more than those in most other lines of work), the law also has clauses that could be really problematic for researchers, particularly those from outside Zimbabwe and those who are visually impaired.

Some of the clauses, as shall be revealed, are linked to the country’s constitution, meaning any real future reform will also have to involve constitutional amendments.

What the law says

There are two clauses in the law that have implications for foreign researchers. The first clause, which quotes section 61 of Zimbabwe’s Constitution, says: “Every person has the right to freedom of expression, which includes freedom to seek, receive and communicate ideas and other information; freedom of artistic expression and scientific research and creativity; and academic freedom.”

The second clause, which quotes section 62, says: “Every Zimbabwean citizen or permanent resident, including juristic persons and the Zimbabwean media, has the right of access to any information held by the state or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability.”

There are several important things to note about these two clauses. Section 61 gives the right to seek and receive information to every person. Furthermore, it talks about academic freedom which, by definition, includes the freedom to access information.

Section 62, however, proceeds to limit the right to access information, which is guaranteed for every person by Section 61, to Zimbabwean citizens and permanent residents only. The constitution, and the information law which quotes and operates under it, are both clearly self-contradictory.

This is despite the fact that Section 62 limits the right to access information only to citizens and permanent residents where public entities are concerned. Public entities are the only ones obliged to give information, anyway.

So, by separating people into two groups, namely foreigners, who do not have the right to access information from government entities, and citizens and permanent residents who do, the constitution creates a false impression that the first group has a right to access information from other types of entities, presumably private ones.

No such right exists, because Section Seven of the Freedom of Information Act, which deals with requests for access to information does not talk about private entities, meaning they are not obliged to divulge information.

Section Seven of the Freedom of Information Act is another clause that has implications for researchers, particularly those with visual impairments.

It states: “Any person who wishes to request access to information from any public entity, public commercial entity or the holder of a statutory office in accordance with the rights granted under this act may apply in writing in a prescribed manner to an information officer of the public entity, public commercial entity or holder of a statutory office concerned.”

As will be explained in due course, people with visual impairments are better suited with an option to request information orally, not in writing as the clause prescribes. According to MISA, this option was in a draft of the act that was circulated by the ministry but it was removed later without any justification.

A constitutional problem

Clearly, when the right to access information is given only to citizens and permanent residents – and not foreigners – it is a constitutional problem. It is captured in the constitution and the act simply quotes and seeks to fulfil what the constitution says.

In any country, laws are expected to be in line with a nation’s constitution because it is the highest law of the land. This is something that some media groups that are against the law fail to take into account. The problem needs to be addressed at the root level, possibly through a constitutional amendment, because any acts relating to information that use objectionable guidelines from the constitution are simply manifestations of a deeper problem – the constitution itself.

If you are a researcher from another country who is not a permanent resident in Zimbabwe, you do not have the right to access information in that country. This is something you should consider when choosing a research topic and the geographical location in which you wish to conduct your study. It is quite possible that, if the topic you are studying is considered ‘sensitive’ you may face impediments to gaining information from public entities and the law will not be on your side.

In a country like Zimbabwe, where visually impaired students and academics do not have access to technologies that make it easier for them to produce written documents, the demand for written requests for information in the Freedom of Information Act is an unnecessary burden. Researchers with visual impairments will have to find ways to get requests written every time they need information from a public body when they could simply ask for it orally – if the law permitted.

An assault on academic freedom

Other countries, like South Africa, simply provide the right to access information without limiting it to their citizens or permanent residents. Countries like Norway go even further by expressly making the type of discrimination in Zimbabwe’s constitution, where foreigners are not treated in the same way as citizens and permanent residents, illegal.

More and more, the world is becoming a global village and researchers across the world travel to different parts of the planet to conduct research on a regular basis. If all countries took Zimbabwe’s approach, namely that of limiting the right to access information to citizens and permanent residents, academic freedom would be threatened internationally.

Zimbabwe, like any other nation, has a lot to gain from research conducted by outsiders who do not have the blinkers and biases that come from being a citizen or permanent resident of a particular country.