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Kenya: High Court Declares Penal Code Provision on Criminal Defamation Unconstitutional

(Feb. 14, 2017) On February 6, 2017, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found unconstitutional article 194 of the country’s 1930 Penal Code, which relates to criminal defamation.  (Jacqueline Okuta & another v Attorney General & 2 others [2017] eKLR, Kenya Law website.)  Two individuals, Jacqueline Okuta and Jackson Njeru, who were on two separate occasions each arraigned on criminal defamation charges for posting items on the Facebook page Buyer beware-Kenya, brought the petition challenging the legality and continued enforcement of the provision.  (Id. at 2.)  The challenge relied on two provisions of the 2010 Kenyan Constitution: the freedom of expression clause and the limitation of rights and fundamental freedoms clause.  (Id. at 3; The Constitution of Kenya (2010), §§ 24 & 33, Embassy of the Republic of Kenya, Washington D.C.website.)

The Penal Code

The Penal Code states, “[a]ny person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel.”  (Penal Code of 1930, art. 194, Cap. 63 (Aug. 1, 1930), Kenya Law website.)  The Code defines the term “defamatory matter” as a “matter likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or likely to damage any person in his profession or trade by an injury to his reputation; and it is immaterial whether at the time of the publication of the defamatory matter the person concerning whom the matter is published is living or dead.”  (Id. art. 195.)  The general punishment imposed on conviction for a misdemeanor, including defamation, is a maximum of two years in prison and/or a fine.  (Id. art. 36.)

The Constitutional Provisions on Freedom of Expression

The Bill of Rights chapter in the 2010 Kenyan Constitution includes a freedom of expression clause.  The first  part of this clause states, ”[e]very person has the right to freedom of expression, which includes … [the] freedom to seek, receive or impart information or ideas; … freedom of artistic creativity; and … academic freedom and freedom of scientific research.”  (The Constitution of Kenya, art. 33(1).)

However, this right is not absolute.  The second part of the same constitutional provision imposes a limitation on the right to freedom of expression by limiting its application in certain instances.  More specifically, this right to freedom of expression cannot be invoked to protect expression relating to war propaganda, incitement of violence, or hate speech or advocacy of hatred, including ethnic incitement.  (Id. art. 33(2).)  Further, the provision states, ”[i]n the exercise of the right to freedom of expression, every person shall respect the rights and reputation of others.”  (Id. art. 33(3).)

The limitation of the rights and fundamental freedoms clause stipulates further limitations on freedom of expression and restrictions on the manner in which such limitations may be put in place.  It states:

(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent  that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––

 (a)  the nature of the right or fundamental freedom;

 (b)  the importance of the purpose of the limitation;

 (c)   the nature and extent of the limitation;

 (d)  the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and

 (e)  the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

(2)   Despite clause (1), a provision in legislation limiting a right or fundamental freedom—

 (a)  in the case of a provision enacted or amended on or after the Constitution of Kenya effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom,and the nature and extent of the limitation;

 (b) shall not be construed as limiting the right or fundmental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and

 (c) shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.

(3)  The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.  (Id. art. 24.)

The Ruling

At the outset of its ruling, the Court noted that most rights and freedoms that citizens enjoy are not absolute in nature and that such rights are “subject to limitations that are necessary and reasonable in a democratic society for the realization of certain common good such as social justice, public order and effective government or for the protection of the rights of others.”  (Jacqueline Okuta & another v Attorney General & 2 others, supra.)

The issue in the case revolved around the instances and the degree to which the rights may be limited.  On this, the Court noted that restrictions on freedom of speech must be limited to the prevention of “the expression of thought which is intrinsically dangerous to public interest and [nothing else].”  (Id.)  The Court found that criminal defamation does not fall into that category because it “aims to protect individual interests” and not that of the public.  (Id.)  The Court further noted that a “common way” for ascertaining whether a limitation imposed on a fundamental right or rights is warranted is by undertaking the proportionality test.  (Id.)  It outlined a four-prong proportionality test developed by a number of authors under which a limitation would be permissible.  These are:

[if] (i) [the limitation] is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right.  (Id.)

However, the Court noted, even in instances where the limitation may be proportional, imposing a limitation may still be unjustified if doing so would have a severe impact on individuals or groups.  (Id.)

The Court then moved to determine whether it is necessary to criminalize defamation in order to accomplish an ordinarily legitimate purpose.  It split this question into two parts, one relating to the consequence of criminalization and the other to the availability of alternative remedies to dealing with defamation.  (Id.)  With regard to the first question, the Court found that the offence of criminal defamation, while similar to other offences in many ways, is distinctive in that it has a stifling and chilling effect on “the right to speak and the right to know.”  (Id.)  The Court elaborated as follows:

For example it cannot be denied that newspapers and modern communication methods play a vital role in disseminating information in every society, whether open or otherwise. Part and parcel of that role is to unearth corrupt or fraudulent activities, executive and corporate excesses, persons who are dangerous to the society and other wrongdoings that impinge upon the rights and interests of ordinary citizens. It is inconceivable that the citizens, the media and Civil Societies could perform investigative and informative functions without defaming one person or another. The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.  (Id.)

The Court further noted that the gravity of the penalty imposed for this offence adds to the severity of its effect and “is clearly excessive and patently disproportionate.”  (Id.)

With regard to the second question, the Court found that the availability of a civil remedy for defamation means that criminalization of  defamation does not meet one of the elements of the proportionality test, which is “[a]nother very compelling reason for eschewing resort to criminal defamation.”  (Id.)

The Court then held that “the invocation of criminal defamation to protect one’s reputation is … unnecessary, disproportionate and therefore excessive and not reasonably justified in an open society based on human dignity, equality and freedom.  (Id.)  The Court further held that article 194 of the Penal Code is “unconstitutional and invalid to the extent that it covers offences other than those contemplated under Article 33(2)(a)-(d)” and its continued enforcement against the petitioners “would be unconstitutional and/or a violation of their fundamental right to the freedom of expression … .”  (Id.)

Topic: Constitutional law, Constitutional law, Crime and law enforcement, Criminal code, Freedom of speech, Freedom of the press

Jurisdiction: Kenya

Author: Hanibal Goitom

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United States: Conventions Proposed by U.N. Commission on International Trade Law Submitted to Senate for Ratification

(Feb. 14, 2017) On November 16, 2016, the U.S. State Department’s Advisory Committee on Private International Law held its annual meeting to discuss ongoing work involving the negotiation and drafting of instruments governing private cross-border transactions. The Committee announced that it had sent transmittal letters for each of several treaty documents to the Senate in hopes of receiving the Senate’s advice and consent to ratification of three conventions proposed by the United Nations Commission on International Trade Law (UNCITRAL).  (S. Treaty Doc. No. 114-5, 2016, CONGRESS.GOV; S. Treaty Doc. No. 114-7, 2016, CONGRESS.GOV; S. Treaty Doc. No. 114-9, 2016, CONGRESS.GOV.)  The United States has already signed two of the three conventions. (Status: United Nations Convention on the Use of Electronic Communications in International Contracts (New York, 2005), UNCITRAL website; Status: United Nations Convention on the Assignment of Receivables in International Trade (New York, 2001), UNCITRAL website; Status: United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 1995), UNCITRAL website (all last visited Feb. 10, 2017).)

The Committee, after having read each Convention, referred them by the transmittal letters to the Senate Committee on Foreign Relations.  At present, none of the treaties has been reported on or heard for consideration in Congress.  (S. Treaty Doc. No. 114-5, supra; S. Treaty Doc. No. 114-7, supra; S. Treaty Doc. No. 114-9, supra.)

Convention on Independent Guarantees and Stand-by Letters of Credit

The first transmittal letter seeks advice and consent to ratification of the United Nations Convention on Independent Guarantees and Stand-by Letters of Credit, which was adopted on December 11, 1995. The purpose of the Convention is to minimize the uncertainty and inherent risks associated with international business transactions.  The United States signed the Convention on December 11, 1997.  (Status: United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 1995), supra.)

This Convention’s provisions, with two minor exceptions, are substantively similar to article 5 of the Uniform Commercial Code, which all U.S. states, the District of Columbia, Puerto Rico, and the Virgin Islands have enacted. (S. Treaty Doc. No. 114-9, supra.)  As stated in the documents prepared by the State Department, “[r]atification of this Convention would ensure that global laws governing essential cross-border payment instruments would be similar to the commercial statutes and rules utilized in the United States.”  (Id.)

Convention on the Assignment of Receivables in International Trade

The second letter seeks advice and consent to ratification of the United Nations Convention on the Assignment of Receivables in International Trade, adopted on December 12, 2001, and signed by the United States on December 30, 2003. The purpose of this Convention is to promote the movement of goods across borders by facilitating access to lower-cost credit, particularly for small businesses.  (United Nations Convention on the Assignment of Receivables in International Trade (New York, 2001), UNCITRAL website (last visited Feb. 8, 2017) (click on hyperlinks to view Convention text and status).)

This Convention sets forth modern uniform rules for global receivables financing, to produce the same results as those under article 9 of the Uniform Commercial Code on secured transactions. (S. Treaty Doc. No. 114-7, supra.)  “Drawing on laws and best practices prevalent in the United States and other countries where receivables financing flourishes, the Convention would promote the availability of capital and credit at affordable rates and thus facilitate the development of international commerce.” (Id.)  It is expected that micro, small, and medium enterprises would receive the most benefit from the Convention, because they would be able to obtain often-needed financing to improve U.S. exports in a simplified way and thereby help create more jobs in the United States.  (Id.)

E-Commerce Convention

The third letter requests ratification of the United Nations Convention on the Use of Electronic Communications in International Contracts (E-Commerce Convention), which was adopted on November 23, 2005, and entered into force on March 1, 2013. The goal of the Convention is to facilitate the use of electronic communications by assuring that international commercial contracts concluded and other communications exchanged electronically are as valid as their paper-based equivalents.  (United Nations Convention on the Use of Electronic Communications in International Contracts (New York, 2005), UNCITRAL website (last visited Feb. 8, 2017).)  If ratified, the E-Commerce Convention would be consistent with the widely-adopted domestic Uniform Electronic Transactions Act (UETA), which has established similar requirements in the states where it has been enacted.  (Description: Electronic Transactions Act, UNIFORM LAW COMMISSION website (last visited Feb. 10, 2017).)

In addition to the Convention’s significance in facilitating international digital trade, it appears to further existing U.S. treaty commitments.  Article 20 of the E-Commerce Convention extends the scope of interpretation of past UNCITRAL treaties to which the United States is a Contracting Party.  (United Nations Convention on the Use of Electronic Communications in International Contracts, UN Doc. A/RES/60/515, art. 20, Dec. 11, 1995, U.N. website.)

Specifically, the E-Commerce Convention would eliminate the obstacles posed by certain formal requirements of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the United Nations Convention on Contracts for the International Sale of Goods. (Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), 7 ILM 1046 (1968); United Nations Convention on Contracts for the International Sale of Goods (CISG), 19 ILM 668 (1980); United Nations Convention on the Use of Electronic Communications in International Contracts (New York, 2005), supra.) Ratification of the E-Commerce Convention, it is argued, will be helpful in the interpretation of the New York Convention and the CISG, which are both silent as to the use of electronic communications.  (United Nations Convention on the Use of Electronic Communications in International Contracts (New York, 2005), supra.)

Prospects for Ratification

According to the transmittal documents, the proposed Conventions were endorsed by leading U.S. associations and organizations, particularly the American Bar Association, the Institute for International Banking Law and Practice, and the United States Council on International Business. (S. Treaty Doc. No. 114-5, 114-7, & 114-9, supra.)  Despite these endorsements, potential delays in the ratification process could arise, because two of the three Conventions are not self-executing and would require implementation legislation.  (Id.)

Furthermore, because U.S. practitioners have shown their strong preference for the Uniform Commercial Code over some existing U.S. treaty obligations otherwise applicable by default, even the slightest variations in the proposed treaties could create some opposition to their ratification. (Peter F. Fitzgerald, The International Contracting Practices Survey Project: An Empirical Study of the Value and Utility of the United Nation’s Convention on the International Sale of Goods (CISG) and the Unidroit Principles of International Commercial Contracts to Practitioners, Jurists, and Legal Academics in the United States, 27 JOURNAL OF LAW AND COMMERCE 1, at 1, 14-15 (2008).)

Prepared by Alexander Janvelian, Law Library Extern, under the supervision of Peter Roudik, Director of Legal Research.

Topic: Commerce, Contracts, International law, International organizations, Trade agreements and negotiations, Treaties and International Agreements

Jurisdiction: United Nations, United States

Author: Peter Roudik

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Italy: New Legislation on Alternative Fuels in Force

(Feb. 13, 2017) On January 14, 2017, new legislation implementing European Union regulations on alternative fuels entered into effect in Italy. (Legislative Decree No. 257 of December 16, 2016, Implementing Directive 2014/94/EU of the European Parliament and of the Council of 22 October 2014 on the Deployment of Alternative Fuels Infrastructure (L.D. No. 257), GAZZETTA UFFICIALE (Jan. 13, 2017), NORMATTIVA (in Italian); Directive 2014/94/EU of the European Parliament and of the Council of 22 October 2014 on the Deployment of Alternative Fuels Infrastructure, 2014 O.J. (L 307) 1, EUR-LEX.)

Legislative Decree No. 257 seeks to reduce Italy’s dependency on foreign oil and to mitigate environmental impacts caused in the transportation sector. (L. D. No. 257, art. 1(1).) To that end, the legislation sets forth minimum requirements for the construction of infrastructure; for the development of alternative fuels and the establishment of charging stations for electric vehicles; and for establishing charging stations for vehicles that use natural gas, hydrogen, and liquified oil gas.  (Id. art. 1(1).)

Strategic Framework

The law mandates the establishment of a National Strategic Framework (NSF) for the development of an alternative fuels market in the transportation sector and for the creation of related infrastructure. (Id. art. 3(1).)  The NSF regulates the supply of natural gas for transportation and for other uses and also the development of the supply of liquified natural gas for maritime and inland water nagivation and for road transportation, among other uses. The second subsection covers the development of the supply of compressed natural gas to be used in connection with road transportation.  (Id. art. 3(4).)  Further specifications for the NSF are included in an Annex to Legislative Decree No. 257.

Charging Stations

New rules on the supply of electricity for transportation are also included. (Id. art. 4(1).)  Before December 31, 2020, an adequate number of charging stations accessible to the public must be created throughout the country in order to facilitate urban and suburban transportation services in highly populated areas. (Id. art. 4(1).)  Specific incentives are established for the installation of charging stations for electric vehicles, for the supply of hydrogen used for road transportation, and for the supply of natural gas and liquified oil gas used for transportation. (Id. arts. 4(10), 5, 6, & 7.)

The law provides that industry must give clear, coherent, and “appropriate” information to consumers concerning motor vehicles that may use alternative fuels that will become available on the market. (Id. art. 8(1).)

Simplification of Administrative Procedures

The law includes measures simplifying administrative procedures for the granting of government permits related to the construction of infrastructure throughout the country for the storage and transport of natural liquified gas considered to be in the national interest. (Id. art. 9(1).)  The law sets forth strict terms for administrative procedures to review substantial amendments of the master plan of the port system, to implement the construction of infrastructure for new alternative fuels in a port area or in an area of land contiguous to it. (Id. art. 13(1).)

Additional Technical Specifications

The new legislation contains an annex with the technical specifications applicable to recharging stations for motor vehicles. In particular, new provisions regulate the standard power for alternate current designed for electric vehicles.  (Technical Specifications, art. 1.1.)  Technical specifications are also included for natural gas refueling stations.  (Id. art. 3.1.)

Topic: Alternative and renewable resources, Energy, Energy assistance, Energy efficiency and conservation, Oil and gas, Power generation and transmission, Public utilities and utility rates

Jurisdiction: Italy

Author: Dante Figueroa

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China: Supreme People’s Court Adds Four More Circuit Courts

(Feb. 13, 2017) On December 28 and 29, 2016, the Third, Fourth, Fifth, and Sixth Circuit Courts of China’s highest court, the Supreme People’s Court (SPC), officially inaugurated their operations.  (Zuigao Fa Disan Disi Xunhui Fating Jiepai, Kaishi Zhengshi Bangong) [SPC 3rd and 4th Circuit Courts Launched, Started Formal Operations], XINHUANET (Dec. 29, 2016); Zuigao Renmin Fayuan Diwu Diliu Xunhui Fating Jiepai Bangong [SPC 5th and 6th Circuit Courts Launched and Started Operations], XINHUANET (Dec. 30, 2016).  The First (located in Shenzhen) and Second (located in Shenyang) Circuit Courts were officially launched on January 28 and 31, 2015, respectively.  (Zuigao Fa Disan Disi Xunhui Fating Jiepai, Kaishi Zhengshi Bangong, supra.)

With the addition of the Fourth to Sixth Circuit Courts, the area covered by the Circuit Courts is now nearly the entire country: 20 provinces,  4 autonomous regions, and 2 municipalities with the status of provinces.  The locations and jurisdictions of the Circuit Courts are as follows:

  • First Circuit Court (located in Shenzhen, Guangdong Province):
    • Guangdong, Guangxi, Hainan, Hunan.
  • Second Circuit Court (located in Shenyang, Liaoning Province):
    • Liaoning, Jilin, Heilongjiang.
  • Third Circuit Court (located in Nanjing, Jiangsu Province):
    • Jiangsu, Shanghai, Zhejiang, Fujian, Jiangxi.
  • Fourth Circuit Court (located in Zhengzhou, Henan Province):
    • Henan, Shanxi, Hubei, Anhui.
  • Fifth Circuit Court (located in Chongqing):
    • Chongqing, Sichuan, Guizhou, Yunnan, and Tibet.
  • Sixth Circuit Court (located in Xi’an, Shaanxi Province):
    • Shaanxi, Gansu, Qinghai, Ningxia, Xinjiang.

The SPC headquarters in Beijing covers the rest of  the country: Beijing, Tianjin, Hebei, Shandong, and  Inner Mongolia.

In the future, the SPC may open additional Circuit Courts and adjust the existing Circuit Courts’ jurisdiction boundaries.  The SPC may also change the types of cases the Circuit Courts may accept.  (Zuigao Renmin Fayuan Guanyu Xunhui Fating Shenli Anjian Ruogan Wenti de Guiding [Provisions of the Supreme People’s Court on Several Issues Concerning the Hearing of Cases by Circuit Courts] (Circuit Court Provisions) (Jan. 5, 2015, as amended on Dec. 19, 2016, effective Dec. 28, 2016), art. 1, SPC website; English translation available at Westlaw China online subscription database.)

According to the Circuit Court Provisions, these Courts are established as subdivisions of the SPC located outside of Beijing.  The judgments, rulings, and decisions rendered by Circuit Courts are deemed to be rendered by the SPC itself, i.e., Circuit Courts have the same level of jurisdiction as the SPC.  (Id. art. 2.)  The Circuit Courts hear cases from their respective circuit jurisdictions “that shall be accepted by the Supreme People’s Court,” which include not only appeals from the High People’s Courts, but also certain major first-instance cases.  (Id. art. 3.)

The Circuit Court Provisions also set out types of cases the Circuit Courts cannot hear, including those involving  intellectual property rights, foreign-related commerce, maritime issues and maritime commerce, death sentence reviews, and state compensation.  (Id. art. 4.)  In addition, the SPC may decide to hear at its headquarters a case accepted by a Circuit Court if the SPC determines the case to “be of great significance in guiding the unified application of law.”  (Id. art. 8.)  A Circuit Court may also request that the SPC headquarters hear such a case that it has accepted.  (Id.)

Topic: Judiciary, Jurisdiction, Jurisdiction and venue

Jurisdiction: China

Author: Laney Zhang

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Vanuatu: Right to Information Law Comes into Force

(Feb. 10, 2017) On February 6, 2017, Vanuatu’s first freedom of information law came into effect, following the unanimous passage of the law by the Parliament on November 24, 2016. (Right to Information Becomes Law in Vanuatu, RADIO NEW ZEALAND (Feb. 8, 2017); Jane Joshua, PINA and MAV Laud Historic RTI Law, VANUATU DAILY POST (Feb. 7, 2017); Right to Information Act Becomes Law in Vanuatu, PASIFIK (Feb. 7, 2017).) The purpose of the Right to Information Act 2016 is

(a) to give effect to the right to freedom of expression under paragraph 5(1)(g) of the Constitution of the Republic of Vanuatu [PacLII]; and

(b) to provide access to information held by Government agencies, relevant private entities and private entities, subject to exceptions provided under Part 5 of this Act; and

(c) to establish voluntary and mandatory mechanisms to give the public the right to access to information; and

(d) to promote transparency, accountability, and national development by empowering and educating the public to understand and act upon their rights to information; and

(e) to increase public participation in governance. (Bill for the Right to Information Act No. … of 2016, cl. 1, Parliament of Vanuatu website.)

Information to Be Published by Government Agencies

Under the Act, government agencies and relevant private entities are required to “publish and disseminate an initial statement of its organization in each official language,” with the statement to include certain types of listed information, and to update that information every six months. (Id. cl. 6(1) & (2).) In addition, they must “publish all relevant facts, important policies or decisions which affect the public,” provide reasons for certain decisions, and publish information related to tenders and finalized contracts. (Id. cl. 6(3).)

The Act also obligates the government to publish information regarding its functions and activities, including:

(a) laws, rules or guidelines applicable to elections; and

(b) electoral rolls for public inspection; and

(c) the broadcast of sessions of Parliament across Vanuatu; and

(d) transcripts of parliamentary proceedings; and

(e) copies of all Bills and subsidiary legislation; and

(f) terms of reference, submissions and final reports of Parliamentary Committees; and

(g) Court decisions.  (Id. cl. 7(1).)

The Process of Applying for Information

The Act provides rules and processes related to applications for accessing government information by members of the public. To that end, each agency is required to appoint a Right to Information Officer (id. cls. 11-12) and any person must be able to submit a request for specified information, which can be done “in writing, orally or through any electronic means, in any official language.” (Id. cl. 13.) A Right to Information Officer must make a decision on the request within 30 days and inform the requester, although a 48–hour time limit applies to information “that appears to be necessary to safeguard the life or liberty of a person.” (Id. cl. 16.)

Part 5 of the Act allows requests to be refused when one of the listed exemptions applies to the information. This includes when

  • there is an overriding public interest in nondisclosure (id. cl. 38);
  • releasing information would involve disclosing personal information (id. cl. 42);
  • the information is subject to legal privilege (id. cl. 43);
  • the release of the information would constitute an actionable breach of confidence or reveal a trade secret (id. cl. 44);
  • granting access to information would affect law enforcement processes (id. cl. 46);
  • releasing the information would prejudice the defense or national security of the country or the economic interests of the state (id. cls. 47 & 48);
  • “serious prejudice” to the effective formulation of government policy or an adverse impact on the implementation of a policy from disclosure would result (id. cl. 49); or 
  • protected sites or endangered plants or animals could be interfered with or damaged as a result of releasing the information (id. cl. 50).

The Act also sets out procedures for a person to amend personal information held by a government agency. (Id. pt. 4.)

Appeals, Guidelines, and Offenses

The government is to appoint an Information Commissioner to investigate appeals regarding the decisions of Right to Information Officers and to monitor compliance with the Act. (Id. pt. 6.)  The Act sets out certain investigation and enforcement powers with respect to appeals. (Id. pt. 7.)

The Commissioner and his or her associated unit are also tasked with issuing guidelines on best practices for agencies and with developing a code of practice on records management. (Id. pt. 8.)

The Act also contains a provision on the protection of whistleblowers (id. cl. 83) and sets out various offenses and punishments for breaching the Act’s provisions. (Id. cl. 86.)

Reactions

The Media Association of Vanuatu (Media Asosiesen blong Vanuatu) commended the passage of the Act, saying it was a “major development and achievement not only for Vanuatu’s growing media industry but for the Vanuatu government also.” (Historic Right to Information Act Passed in Vanuatu, INTERNATIONAL FEDERATION OF JOURNALISTS (Dec. 7, 2016).) The International Federation of Journalists (IFJ) stated:

The passing of the RTI Act in Vanuatu is a significant milestone in this country’s history.  Public access to information is crucial for democracy.  Enshrined in law, this will ensure that the Vanuatuan media will be able to report more accurately and responsibly on government activities, and that the public will be better equipped to engage in democratic processes.  (Id.)

The Prime Minister of Vanuatu, Charlot Salwai, referred to the country’s international obligations under the International Covenant on Civil and Political Rights and the United Nations Convention Against Corruption in regard to transparency, accountability, and respecting the right of people to seek and receive information.  He said that the Act is part of national policy, “reflected in the government’s commitment that information is a right and fundamental cornerstone of the democratic principle of good governance.”  (Jane Joshua, Historic RTI Bill Passed, VANUATU DAILY POST (Nov. 25, 2016).)

The IFJ noted that, with the passage of the Act, Vanuatu had joined 105 other countries with right to information legislation. (Historic Right to Information Act Passed in Vanuatu, supra.)

Topic: Freedom of information, Freedom of speech, Freedom of the press

Jurisdiction: Vanuatu

Author: Kelly Buchanan

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