Access to Public Information
Company Doe v. Public Citizen
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The African Court on Human and Peoples’ Rights (Hereinafter referred to as “AfCHPR” or the “African Court”) found that the Republic of Benin was responsible for the violation of Articles 9, 22(1), 23(1), and 26 of the African Charter on Human and Peoples’ Rights (Hereinafter referred to as “the Charter”), and Article 10(2) of the African Charter on Democracy, Elections and Good Governance (Hereinafter referred to as “ACDEG”) due to the amendment of the Beninese Constitution without the prior consultation of the Beninese society or establishing any recourse to referendum. The Court held that even if the amending law was approved by the Beninese Parliament and the Constitutional Court, in a democratic society, all citizens must have access to State-held information to encourage governmental transparency and allow civilian participation in the debates concerning the promulgation of national laws. Hence, the Court concluded that the Applicant’s rights to (i) information, (ii) economic, social, and cultural development, and (iii) peace and national security under Articles 9, 22(1), and 23(1), respectively, had been violated by the Respondent State. Also, the Court found that Benin had failed to comply with its obligations to guarantee national participation or consensus in enacting laws and the independence of national courts as per Article 10(2) of the ACDEG and Article 26 of the Charter, respectively.
On 30 October 2019, the Beninese Parliament passed the Law 2019-40, which amended the Beninese Constitution of December 11th, 1990, following a summary procedure that allowed for only deputies of the President’s party to be present at the time of the parliamentary approval. After the Parliament’s approval, the Law 2019-40 was further submitted to the Constitutional Court to determine whether it observed Beninese constitutional standards.
On 6 November 2019, the Constitutional Court of Benin issued the decision DCC 19-504, finding Law 2019-40 compatible with the Beninese Constitution. According to the Applicant, after the decision of the Constitutional Court, the Law 2019-40 was secretly adopted by the National Assembly on 7 November 2019.
Due to the lack of domestic remedies to address the matter herein, on 14 November 2019, the Applicant filed a complaint before the AfCHPR arguing, inter alia, that the Respondent State infringed the (i) right to information enshrined in Article 9; (ii) the right to peace and national security established in Article 23(1); and (iii) the right to economic, social, and cultural development under Article 22 (1) of the Charter. The Applicant also complained under Articles 10 of the ACDEG and 26 of the Charter that the Respondent State had failed to comply with its obligations to guarantee national consensus before promulgating a law and securing the Constitutional Court’s independence.
After the case submission, the AfCHPR granted the Applicant’s request for anonymity due to personal security risks. Furthermore, having found that applications 021/2019 and 022/2019 submitted by the Applicant were not related to the matter hereof, the Court decided to evaluate the instant case as an individual complaint.
With regards to the right to information enshrined in Article 9(1) of the Charter, the central issue for consideration was whether the Beninese people had access to the Law 2019-40 before its promulgation. Hence, it was incumbent upon the Court to determine “…whether under the domestic legislation of Benin citizens had access to information about the proposed revision of the constitution, from the parliamentary debates before its adoption and promulgation.” [para.114] The Court was also required to examine who bears the burden of proof in a case where the Applicant complained that such law was not made accessible to the public and the Respondent State claimed the contrary.
In this sense, the Applicant argued that the right to information includes a right whereby everyone has access to public sources of information. In this respect, the Applicant complained that the Law 2019-40, which amended the Beninese Constitution of December 11th, 1990, was not made public prior to its promulgation; this prevented citizens from participating in the debate on the proposed constitutional amendments and “appealing against the said law to the Constitutional Court.” [para.108]
On the other hand, the Respondent State submitted that the public was provided access to the Law 2019-40 via the “Official Gazette”, a government website in which laws are promulgated according to Article 86 of the Constitution of Benin. However, the Applicant maintained that even after the promulgation of the Law 2019-40 and its validation by the Constitutional Court, the Respondent State did not publish the Law 2019-40 on the official government website.
In view of the preceding, the African Court stated that Article 9(1) “…enshrines the right to receive information in relation to the right to disseminate and disseminate one’s opinions within the framework of laws and regulations.” [para. 112] In particular, access to State-held information such as the amendment of the Constitution is regarded by the African Court as “…of particular interest to all citizens as it has a direct or indirect bearing on their individual rights and the security and well-being of their society and country.” [para. 49] Furthermore, the Court added that in democratic societies, access to public information is critical to guarantee the fulfillment of the principle of “transparent government”, allowing individuals to engage in public debates on governmental operations and decisions.
In the instant case, the African Court noted that despite having found that national provisions on the right to information were consistent with international standards, the Respondent State did not contest the allegation that a draft of the constitutional revision was not shared with the public, nor did it provide evidence of the alleged publication of the debates on the Official Gazette. Hence, the Court concluded that Benin failed to fulfill its obligations under Article 9(1) of the Charter since the “…burden of proof on whether or not citizens have enjoyed their right to information lies with the State”. Therefore, since the Respondent State did not provide any evidence to discharge its international obligations, the Court held that the facts before it disclosed a violation of the right to information of XYZ under Article 9 of the Charter. [para. 118]
Concerning the principle of national consensus, the African Court recalled that Article 10(2) of the ACDEG establishes that “State Parties must ensure that the process of amending or revising their Constitution is based on a national consensus including, where appropriate, recourse to a referendum.” [para. 98] In this sense, the African Court concluded that the notion of “consensus” requires for the Beninese people to be consulted directly or through representatives before the enactment of Laws; However, in the present case, such consultation was impossible since the State did not publish a draft of the constitutional amendments for the Beninese people to access. In addition, the Court pointed out that despite being unanimously adopted, the amendment law did not meet the national consensus requirement due to its approval by a National Assembly composed only of deputies from the President’s party. Hence resulting in violation of the principle of national consensus under Article 10(2) of the ACDEG.
Likewise, the African Court ruled that exhausting a constitutional revision process without the national consensus implied a violation of the right to economic, social, and cultural development enshrined in Article 22(1) of the Charter, which allows for individuals to contribute and participate in the political development of their countries. This context also threatened the peace and stability of Benin’s citizens; therefore, amounting to a violation of the right to peace and national security under Article 23(1) of the Charter.
At last, the African Court held that the Respondent State also infringed Article 26 of the Charter in light of the discretionary powers afforded to the President of Benin and the Bureau of the National Assembly to renew or refuse to renew the term of office of the judges which composed the Constitutional Court. Therefore, even if the institutional independence of the Beninese Constitutional Court was guaranteed by Law No. 91-009 of 4 March 1991, its individual independence was compromised. In this vein, the Court referred to Article 115 of Benin’s Constitution, which established that “…the Constitutional Court shall be composed of seven judges appointed for a period of five (5) years renewable once, four of whom shall be appointed by the Office of the National Assembly and three by the President of the Republic.” [para. 68]
In the Court’s view, the faculties of the President of Benin and the Bureau of the National Assembly made it impossible for the Constitutional Court to be considered “independent,” particularly in a case in which the amendment of the Constitution was referred to the Constitutional Court by the President himself. Consequently, a violation of the obligation to guarantee the independence of the judiciary pursuant to Article 26 of the Charter was found by the African Court.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression by reaffirming international standards on access to information. In particular, the African Court held that “…every citizen in a democratic country has the right to access information held by the State. This right is considered necessary to ensure the respect for the principle of transparent government, which requires that the public has access to information to engage in a productive public debate on the conduct of government business.” [para. 113] In the instant case, the triggering event was the clandestine adoption of a constitutional amendment without prior national consensus, mainly because only deputies of the President’s party were present at the time of the parliamentary approval. In this regard, the African Court ruled that a constitutional revision was of particular interest to the Beninese society as it directly affected their individual rights and the national security and stability of the country. Hence, having access to the constitutional amendments before promulgating the Law 2019-40 was vital in preserving the Applicant’s right to access such information, notably because holding that information private prevented the Applicant from participating in political debates and challenging the Law before the Constitutional Court. By prioritizing individuals’ right to access State-held information and participate in the political development of their countries, the African Court expanded the right to freedom of expression and information.
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