Compiled by Obert Bore

It is now globally acknowledged that access to information is vital for the protection of the environment and sustainable development. For interested stakeholders to participate in development processes, they require appropriate information to do so. This means public participation is essential to environmental protection and sustainable development. The Rio Declaration on Environment and Development, building on the ideals of the 1972 United Nations Conference on the Human Environment, defines the rights of the people to be involved in the development of their economies and the responsibilities of human beings to safeguard the common environment. One of the fundamental principles reinforced by the Rio Declaration is Principle 10, which entrenches public participation and states that:

“Environmental issues are best handled with the participation of all concerned citizens at the relevant level. At the national level, everyone shall have the appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities and the opportunity to participate in decision-making.”

The Rio Declaration asserted the international community’s move towards the goal of creating more transparency and inclusive decision-making in matters affecting the environment and development. For economic development to take place while protecting the environment, States must establish a new global partnership involving their governments, their people, and key sectors of society. ^[1] Access to information empowers people to participate from an informed position and contribute meaningfully. ^[2] Essentially, this means that if people are to be involved in the development of their communities, access to critical information that allows them to do so is imperative, particularly in sectors that have huge environmental impacts, such as the extractive sector.

The extractive sector has caused various violations of the environment and people. Due to those violations, a myriad of mineral governance frameworks have emerged to integrate sustainable development and responsible investments given their environmental impact. Such frameworks include the Extractive Industries Transparency Initiative (EITI) standards, the Initiative for Responsible Mining (IRMA), and the Africa Mining Vision, among others. These frameworks emphasize the importance of disclosure of information along the whole extractive industry value chain for member counties. [3] For instance, the EITI’s 2019 Standards incorporate environmental reporting and publication of data on mandatory and discretionary payments related to the environmental regulatory framework in each member country, as well as information on environmental impact. It goes further to define environmental reporting as the disclosure of information on the management and monitoring of the environmental impact of the extractive industries. [4] The disclosure of environmental information can raise awareness among affected communities, stimulate debate, and promote responsible natural resource governance. [5] In line with these initiatives, governments are increasingly developing disclosure laws and regulations to promote transparency and accountability.

Zimbabwe has not been immune to challenges associated with a lack of transparency and accountability in the extractive sector. There has been a lack of trust between actors in the mining sector. This lack of trust is fuelled by the opaqueness of the sector, with communities’ rights to fully participate in development processes being minimal. Another key issue surrounding mistrust is a lack of access to information regarding contracts signed by the government with foreign entities. The opaqueness is coupled with poor environmental compliance, violations of labor rights, and communities’ rights to benefit from the natural resources in their area. However, the Freedom of Information Act [Chapter 10:23], which was enacted in 2021, provides an opportunity to promote transparency and accountability in the extractive sector. This legislation has not been fully tested despite its progressive provisions. Therefore, in this blog, I proffer insights on how citizens, media practitioners, and civil society actors can utilize the Freedom of Information Act to request information and the procedures that should be followed.

Which law governs access to information?

The Constitution of Zimbabwe (Act No. 20 of 2013) and Freedom of Information Act No. 1 of 2020 are the main pieces of legislation that regulate access to information in Zimbabwe. The Constitution provides for the right to access information. It stipulates that 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.” [6] It further provides that every person, including the Zimbabwean media, has the right of access to any information held by any person, including the State, in so far as the information is required for the exercise or protection of a right. [7] Thus, the constitutional framework sets two reasons for the right to access information: public accountability and enforcing or protecting a fundamental right. Seeking access to information for any other reason would be outside the constitutional framework. To enforce the right in practice and comply with Section 62(4), which mandates lawmakers give effect to the right to access, the Freedom of Information Act was enacted.

What are the objectives of the Freedom of Information Act?

The Freedom of Information Act has three objects, which are

• To give effect to the right of access to information in accordance with the Constitution.
• To establish voluntary and mandatory mechanisms or procedures to give effect to the right of access to information and facilitate swift, inexpensive, and simple access to information.
• To promote transparency, accountability, and effective governance by taking any steps necessary to educate or inform the public of their rights in terms of the Act and ensuring that appropriate assistance is afforded to members of the public seeking to exercise their right of access to information to facilitate the exercise of the right.

What are the duties or legal obligations created by the Act?

The Act confers duties and obligations on all public or government institutions, agencies, state-owned entities, and holders of statutory offices. Their major obligations are

• Obligation to keep, organize, and maintain information in the interests of public accountability or for the exercise or protection of a right. This implies that public entities should pro-actively organize and maintain information to ensure that the information is readily available for purposes of public accountability and for citizens to enforce or protect their fundamental rights.
• Obligation to have a written information disclosure policy through which it discloses information in the interests of public accountability or that is required for the exercise or protection of a right. This means that public entities must have internal standard operating procedures through information disclosure policies on how to respond to requests in line with the Act.
• Duty to respond to requests for access to information.

Which entities or information are excluded from being accessed?

There are two categories of information that may not be accessed through the Freedom of Information Act, which are:

• Deliberations or functions of the Cabinet and its committees;
• information protected from disclosure in victim-friendly courts.

How is Information accessed in practice?

Any person requiring access to information from any public entity, government institution, or holder of a statutory office (i.e., for public accountability or to protect or enforce a constitutional right) has to apply in writing in a prescribed manner to an information officer of the entity. ^[8] The prescribed manner or form is found in the Freedom of Information Regulations (Statutory Instrument 229 of 2021), which provide details of the procedure. The letter must be addressed to the information officer. The information is about the head or principal of the organization as defined in the definition section. The letter from the requester must provide particulars of the person seeking access to information: the capacity in which the information is requested (on behalf of someone or in their personal capacity); the name of the entity where the information is requested; the details of the information requested (if known); the preferred method of access (print, soft copy, sound, visual, inspection of copies); and the language in which the information must be supplied. The request must be signed and accompanied by fees for the information officer’s services in locating, organizing, and making copies of the record.

What should happen after sending the letter for access to information?

After receiving the request, an information officer must immediately provide a written acknowledgement of the request. If an information officer can provide an immediate response to an applicant, the officer should do so and cannot exceed 21 days from the date of the request to determine whether to grant the request. In other words, the information officer has an obligation to notify the applicant of the decision whether to grant the request within 21 days and provide the information requested. The notification must be in writing. However, if the information cannot be searched, sorted, and furnished within 21 days, the information officer is permitted to seek an extension with the consent of the applicant. The extension cannot exceed 14 days. ^[9] An applicant also has the right to lodge an appeal with the Zimbabwe Media Commission (ZMC) if they are of the view that the seeking of consent to extend time is meant to delay access. Where access is denied, the information officer must state the reasons and basis for the denial in writing and inform the applicant of their right to appeal. Nonetheless, if an information officer does not notify a decision on a request for access to information within 21 days or after the 14-day extension period, such a request shall be deemed to have been refused. ^[10] When this happens, an applicant can appeal to the ZMC. ZMC will request the information officer provide reasons for refusing and will determine the appeal after hearing arguments from both parties and without hearing where appropriate.

Can information relating to a third party (i.e., a mining company) be accessed by the government?

Yes, the information can be accessed if it is required for two reasons: public accountability and enforcing or protecting a constitutional right. For instance, a citizen can request access to an environmental impact assessment report from the Environmental Management Agency for a project implemented by a private company. However, before the information is furnished, the information officer (EMA Director General) may first inform the company concerned. Informing the company does not imply that access will be denied, but the company may object to the release, in which case the information may inform parties to approach ZMC to determine the issue. However, through practice, where requests for EIA Reports have been filed, EMA has honored the requests if satisfied that the applicant requires the information for public accountability or enforcing a right.

What kind of information may be exempt from being accessed?

Exempted information that cannot be accessed includes

• Personal and confidential information about a third party who is a natural person (i.e., a private company), including a deceased person, unless the party consents, the party has been deceased for more than 10 years, or the information is readily available to the public.
• information that contains trade secrets of a third party or financial, commercial, scientific, or technical information that is proprietary to a third party and the disclosure of which would be likely to cause harm to the commercial or financial interests of that third party. ^[11] This also relates to information supplied in confidence by a third party whereby the disclosure could reasonably be expected to put that third party at a disadvantage in contractual or other negotiations or to prejudice that third party in commercial competition. There is, however, a caveat to this exemption. The information officer cannot refuse to grant access to the information if:
  • It is already publicly available.
  • third party consented.
  • the disclosure of which would facilitate accountability and transparency in decisions taken by an entity,
  • The information relates to the expenditure of public funds.
  • the disclosure of which would reveal misconduct or deception.
• Confidential information of a third party whose disclosure would constitute a breach of a duty of confidence owed to a third party in terms of any agreement
• Information of the entity if its disclosure would be likely to prejudice or impair the security of any property or the safety of the public; legally privileged information; information that would prejudice the security or defense of State and international relations; and information that would jeopardize the national economic interests or financial welfare or the ability of the government to manage the national economy effectively in the national best interest.

The above are some grounds that can be used by an information officer to refuse access. On the above grounds, commercial information (such as financial books, EIA Reports, and contractual agreements with the government) of third parties such as mining companies must not be refused if it facilitates accountability and transparency of decisions taken by an entity. For instance, if the public requires details of contracts and how a local or foreign private entity was awarded a contract by the government, such information will advance transparency and accountability in contracting or procurement processes, which is in the public’s interest. Similarly, the disclosure would fall within the dictates of Section 315 of the Constitution, which provides that all negotiations and performance of state contracts for joint venture contracts, contracts for the construction and operation of infrastructure and facilities, and concessions of mineral rights must ensure transparency. In the same vein, corporate environmental information of mining corporations (EIAs, environmental management plans of a company) cannot be classified as commercial trade secrets because there is no economic value that the public derives from its disclosure. Rather, it enables public accountability and allows citizens to be fully informed to enforce their rights where they are affected.

If your request is refused, what can you do?

The Freedom of Information Act provides for the right to appeal against the decision of an information officer or a third party who refuses to consent to accessing information. Thus, an applicant who has been denied access to information can appeal to the ZMC. For the appeal to be accepted, the following is important:

• It must have details of the applicant (name, address, contact information) and respondent entity’s details where the request was made, details of the information officer, and date of appeal against
• It must be lodged within 30 days of the date of notification of the decision by the information officer or a third party’s refusal to consent.
• The appeal must clearly state the nature of the appeal, provide reasons for the appeal, and may include any other relevant information known to the appellant.
• Prescribed fee

Upon receiving the appeal, the Secretary of the ZMC will inform the information officer and third party (where applicable) that an appeal has been lodged and request submissions from them. The information officer should provide the Secretary with reasons for refusal within 10 days after receipt of the notice of appeal. The Secretary should also write to the information officer and third party within 10 days of receipt of the appeal. If the Commission or the Appeals Committee finds an appeal to be well-founded, after considering the reasons submitted by the information officer and applicant and written representations, it can grant the relief sought or any decision It thinks fit without convening a hearing on the matter. However, where appropriate, the Commission can have an oral hearing and call upon the parties to come and make their submissions. The parties are also permitted to present any evidence that the Commission would consider before making a final determination. If the commission finds that the refusal was unreasonable, it may direct the information to be furnished.

In conclusion, it is opined that although there are various grounds for refusing access to information, the Freedom of Information Act is progressive legislation that citizens, media practitioners, and civil society organizations should harness. Stakeholders in the extractive sector can fully utilize this law to promote transparency and accountability in the sector by filing information requests with relevant public entities. Through filing information requests, stakeholders can also determine the willingness of public entities to implement the Act and comply with their constitutional mandate to provide access to information.

See; http://www.sustainable-environment.org.uk/Action/Rio_Declaration.php accessed on 10 August 2017
D Banisar et al ‘Moving from Principle to Rights Rio 2012 and Ensuring Access to Information, Public Participation and Access to Justice for Everyone’ (2012) Vol 12 Sustainable Development Law and Policy 10.
See; https://eiti.org/About
See; https://eiti.org/environmental-reporting
See; https://eiti.org/environmental-reporting

[1] Section 62(1) of the Constitution

[1] Section 62(2) of the Constitution [1] Section 7, Freedom of Information Act.

[1] Section 9, Freedom of Information Act.

[1] Section 10, Freedom of Information Act. [1] Section 22, Freedom of Information Act.