Presented on the “Pan African Investigative Reporters Summit”
Held in Johannesburg, from October 26th to 31, 2008
(English version)
I. INTRODUCTION
Dear
Girls,
Gentlemen, Colleagues,
We know now that free access to information sources improves the governance of states when it improves popular control and participation in the management of public affairs.
These have the benefit of transparency and clarity of management by the leaders as well as reduce corruption to the best of democracy.
Like in most countries in sub-Saharan Africa, this in Democratic Republic of Congo is still a major challenge.
Indeed, most of journalists and activists who work or have worked in the Democratic Republic of Congo agree that the freedom to access to information sources is very small. This difficulty seriously hampers the work of all those people who work in the information and activism domains.
That is the small summary around which my modest intervention will turn around.
This intervention wants to be an advocacy and a sensibilsation of all of us here so that we can influence the set up of the reforms we need in our respective fields and improve the press freedom and the free access to information sources.
Globally, it will analyze two key points including: the content of the law regarding freedom of access to information sources and the sad reality that takes part in the failure of the relevant provisions of the law.
To avoid repetition my colleague Guedegbe will come back to the point relating to the law content, while myself will expose on the sad situation that concerns the difficult to access to information sources in DRC.
II. THE LAW PRINCIPLES
By law, I mean all national and international agreements to which the Democratic Republic of Congo has taken part.
In accordance with the Article 215 of the Constitution, “international instruments to which the DRC is has taken part have superior legal force to domestic laws, if they have been duly ratified and brought into the internal legal arsenal”.
That is why I analyse first the international texts, on which we are not going to spend much time, because all of us are more or less familiar and accustomed to them.
The Democratic Republic of Congo has sign several international and regional instruments on the freedom of the press. All these texts affirm the principle of freedom of access to information sources.
This is essentially the case of:
à The Universal Declaration of Human Rights adopted by the UN General Assembly in its resolution 217 A (III) of 10 December 1948;
à The African Charter on Peoples’ and Human Rights;
à The International Covenant on Civil and Political Rights adopted by the UN General Assembly Resolution No. 2200 A (XXI) in its meeting on 16 December 1966.
The Constitution affirms the principle of freedom of access to public information sources.
Following the general elections in 2006, the Democratic Republic of Congo has set up several reforms in political, legal and institutional domains.
These launched reforms have not yet reached the area of the press freedom domain whose legal framework is unfortunately still the one adopted in 1996 under the dictator President Mobutu. It is the Law No. 96-002 of 22 June 1996 laying down the procedures for exercising freedom of the press in the Democratic Republic of Congo. This law was promulgated at the end of the work of political and social forces met in the Sovereign National Conference and Conclaves policies held between 1990 and 1992.
Despite of that press law includes pluralism principles; it seeks by that it strongly fights against its own principles through its strong enforcement for crimes of opinion.
Even the apparent changes it makes by the principle of free enterprise in the press domain, only people who are closed to successive regimes in Kinshasa used to be allowed to make Medias, resulting in a proliferation of political media whose quality remains vary low.
Generally, when previous closed persons to the Kinshasa regime become opponent, they loose opportunity to continue being media leader. Most of time their Medias are shuttered. The last case is that of Molière TV accustomed to release investigative information’s.
Regarding access to information sources, the law reaffirms the principle that “The public sources of information should be left to free access of media professionals, researchers and all those who need it”.
Article 13 of the 1996 Act provides to this effect that:
“The DRC is obliged to secure and make the right to information.
The media and communication related to the state of public services whose functioning is governed by an independent legal structure with the Ministry of Information and Press in its powers”.
These provisions supplement Article 8 of the Act establishes the principle that the public’s right to information in these terms: “Everyone has the right to freedom of opinion and expression. For freedom of opinion and expression, it means the right to inform, to be informed, for his opinions, feelings and to communicate without hindrance, regardless fool medium, subject to compliance with the law, public order, the rights of others and good manners”.
Under these laws, the withholding of information from public sources of information constitutes a breach of these laws and opens the possibility that an action for damages in favour of medias professionals and information researcher about the damage they face after refusal access to information sources.
III. THE DIFFICULT ACCESS TO INFORMATION SOURCES
These information sources include public and private.
As we said earlier, despite of that press law includes pluralism principles; it seeks by that it strongly fights against its own principles through its strong enforcement for crimes of opinion.
And even the apparent changes it makes by the principle of free enterprise in the press domain, only people who are closed to successive regimes in Kinshasa used to be allowed to make Medias, resulting in a proliferation of political media whose quality remains vary low.
A. Public sources
In the Democratic Republic of Congo, access to state archives is quite a superhuman effort, even when these archives are not subject to any form of secret-defense.
This is what we faced with all the doors closed under our noses while we were investigating on the abortion and abandonment of babies cases registered in maternity and other public services in Kinshasa.
Clearly, people did not accept to give us information. Some of them who was about to accept to give information wanted us to pay money.
During more than two months we were unable to have official information on the number of “illegal” abortions and the abandonment of babies in the Kinshasa streets, although they exist in the public offices regarding social, health, demographics, domains, etc.Facing these difficulties we finally realised that only the researcher’s ability and flexibility can bring him to get effectively the information hi’s seeking for.
Thus, old friends and acquaintances were used to obtain “quite-fraudulently” information.
In that way, documents was also obtained by pure friendship or giving a tip to an agent who wishes to help researchers to obtain information.
All those techniques are some of unconventional methods we used to get information. Another one we used is the “small surveys” because we had difficult to get official documentation.
This consists in getting information by setting up a kind of investigations using interviews among the population and getting their answer on some important issues, especially when the activist investigator cannot get documentations.
The unconventional character of this method consists in that most of non investigative journalists refuse to use it while it is one of the most important one whenever the investigator or activist reporter does not have any document information source.
B. Private sources
Here is the field of a big arbitrary. Those holding private information never feel any obligation to deliver it.
The situation is worse when such information relates to persons’ situations or statute when those persons are closed to the political, economics or military regime.
Defamation, insult, false rumors, etc... are most of time the cases those bring prosecutions against journalists who disseminate personal status or information regarding the republic management.
These are the offenses erected and maintained in the law to reduce the publication of information relating to the management of the public affairs.
Private persons can have important information need by the population when, for example, they have been closed to the political, military or economic regime. They can also have important information when they were ministries, ambassadors, high placed in the administration, economic, military domains, etc.
They never want to deliver information relating to their management even if the given information can help to improve the situation.
IV. ON BEHALF OF PUBLIC'S RIGHT TO INFORMATION
It may well wonder about the wisdom of reporting by using “unconventional methods” to obtain the information. At the other side, one might also ask questions about how and why to do it.
Our strong conviction is simply that if we do not do that the information relating to the public affaires management will still hided by the bad managers.
And because population needs to be informed on those issues, the answer is simple: an investigative journalist is also an activist for freedom of the press and for the public’s right to information.
So all the risks taken by an activist investigator are jut done on behalf of the only public right to information and the press freedom.
Indeed, as an activist, if the investigative journalist does not research and publish information which are important for the people, holders of power will continue to deceive the public by hiding important information about the management of the public affairs as well as while they are behind corruption cases, embezzlement, murders, etc..
On the other side, is there an ethical or moral question that appears when an activist or an investigator reporter uses “unconventional methods” to get information?
It seems to me that a priori no! For the simple reason that researched information is often that the authorities are unwilling or unable to voluntarily deliver to the population despite the fact that it is needed.
One of the immoral sides of getting information using unconventional methods is when an investigator receives a tip (payment) while getting information from one, may be a politician, wanting to make defamation or insult to another. This generally appears when a politician wants to eliminate an opponent.
In this case the big risks taken by the investigator in releasing such information bring threats and prosecutions for defamation, slander, false rumours, incitement to commit crime, etc.
In the worse case, the activist can simply be secretly killed.
This is the first cause of that investigative reporter need to integrate the legal defense, the judicial protection and provides legal assistance in their activism, provided that it is safe from his professional work.
That is why we have put in place an organisation called “Publication En Danger”, PED, in the Democratic Republic of Congo, which brings together Congolese investigative journalists in order to promote the public’s right to information through professional journalism and activism.
The deal is to get good histories published despite of the fear of a number of writers, editors, etc.
That, in a few words the situation we face daily in the Democratic Republic of Congo, and perhaps in your respective countries, but against what we have to set an activism that is able to generate reforms by all of us for many years and for all the word.
Dear
Girls,
Gentlemen, Colleagues,
Thanks too much to all of you.
Charles-M. MUSHIZI.
Held in Johannesburg, from October 26th to 31, 2008
(English version)
I. INTRODUCTION
Dear
Girls,
Gentlemen, Colleagues,
We know now that free access to information sources improves the governance of states when it improves popular control and participation in the management of public affairs.
These have the benefit of transparency and clarity of management by the leaders as well as reduce corruption to the best of democracy.
Like in most countries in sub-Saharan Africa, this in Democratic Republic of Congo is still a major challenge.
Indeed, most of journalists and activists who work or have worked in the Democratic Republic of Congo agree that the freedom to access to information sources is very small. This difficulty seriously hampers the work of all those people who work in the information and activism domains.
That is the small summary around which my modest intervention will turn around.
This intervention wants to be an advocacy and a sensibilsation of all of us here so that we can influence the set up of the reforms we need in our respective fields and improve the press freedom and the free access to information sources.
Globally, it will analyze two key points including: the content of the law regarding freedom of access to information sources and the sad reality that takes part in the failure of the relevant provisions of the law.
To avoid repetition my colleague Guedegbe will come back to the point relating to the law content, while myself will expose on the sad situation that concerns the difficult to access to information sources in DRC.
II. THE LAW PRINCIPLES
By law, I mean all national and international agreements to which the Democratic Republic of Congo has taken part.
In accordance with the Article 215 of the Constitution, “international instruments to which the DRC is has taken part have superior legal force to domestic laws, if they have been duly ratified and brought into the internal legal arsenal”.
That is why I analyse first the international texts, on which we are not going to spend much time, because all of us are more or less familiar and accustomed to them.
The Democratic Republic of Congo has sign several international and regional instruments on the freedom of the press. All these texts affirm the principle of freedom of access to information sources.
This is essentially the case of:
à The Universal Declaration of Human Rights adopted by the UN General Assembly in its resolution 217 A (III) of 10 December 1948;
à The African Charter on Peoples’ and Human Rights;
à The International Covenant on Civil and Political Rights adopted by the UN General Assembly Resolution No. 2200 A (XXI) in its meeting on 16 December 1966.
The Constitution affirms the principle of freedom of access to public information sources.
Following the general elections in 2006, the Democratic Republic of Congo has set up several reforms in political, legal and institutional domains.
These launched reforms have not yet reached the area of the press freedom domain whose legal framework is unfortunately still the one adopted in 1996 under the dictator President Mobutu. It is the Law No. 96-002 of 22 June 1996 laying down the procedures for exercising freedom of the press in the Democratic Republic of Congo. This law was promulgated at the end of the work of political and social forces met in the Sovereign National Conference and Conclaves policies held between 1990 and 1992.
Despite of that press law includes pluralism principles; it seeks by that it strongly fights against its own principles through its strong enforcement for crimes of opinion.
Even the apparent changes it makes by the principle of free enterprise in the press domain, only people who are closed to successive regimes in Kinshasa used to be allowed to make Medias, resulting in a proliferation of political media whose quality remains vary low.
Generally, when previous closed persons to the Kinshasa regime become opponent, they loose opportunity to continue being media leader. Most of time their Medias are shuttered. The last case is that of Molière TV accustomed to release investigative information’s.
Regarding access to information sources, the law reaffirms the principle that “The public sources of information should be left to free access of media professionals, researchers and all those who need it”.
Article 13 of the 1996 Act provides to this effect that:
“The DRC is obliged to secure and make the right to information.
The media and communication related to the state of public services whose functioning is governed by an independent legal structure with the Ministry of Information and Press in its powers”.
These provisions supplement Article 8 of the Act establishes the principle that the public’s right to information in these terms: “Everyone has the right to freedom of opinion and expression. For freedom of opinion and expression, it means the right to inform, to be informed, for his opinions, feelings and to communicate without hindrance, regardless fool medium, subject to compliance with the law, public order, the rights of others and good manners”.
Under these laws, the withholding of information from public sources of information constitutes a breach of these laws and opens the possibility that an action for damages in favour of medias professionals and information researcher about the damage they face after refusal access to information sources.
III. THE DIFFICULT ACCESS TO INFORMATION SOURCES
These information sources include public and private.
As we said earlier, despite of that press law includes pluralism principles; it seeks by that it strongly fights against its own principles through its strong enforcement for crimes of opinion.
And even the apparent changes it makes by the principle of free enterprise in the press domain, only people who are closed to successive regimes in Kinshasa used to be allowed to make Medias, resulting in a proliferation of political media whose quality remains vary low.
A. Public sources
In the Democratic Republic of Congo, access to state archives is quite a superhuman effort, even when these archives are not subject to any form of secret-defense.
This is what we faced with all the doors closed under our noses while we were investigating on the abortion and abandonment of babies cases registered in maternity and other public services in Kinshasa.
Clearly, people did not accept to give us information. Some of them who was about to accept to give information wanted us to pay money.
During more than two months we were unable to have official information on the number of “illegal” abortions and the abandonment of babies in the Kinshasa streets, although they exist in the public offices regarding social, health, demographics, domains, etc.Facing these difficulties we finally realised that only the researcher’s ability and flexibility can bring him to get effectively the information hi’s seeking for.
Thus, old friends and acquaintances were used to obtain “quite-fraudulently” information.
In that way, documents was also obtained by pure friendship or giving a tip to an agent who wishes to help researchers to obtain information.
All those techniques are some of unconventional methods we used to get information. Another one we used is the “small surveys” because we had difficult to get official documentation.
This consists in getting information by setting up a kind of investigations using interviews among the population and getting their answer on some important issues, especially when the activist investigator cannot get documentations.
The unconventional character of this method consists in that most of non investigative journalists refuse to use it while it is one of the most important one whenever the investigator or activist reporter does not have any document information source.
B. Private sources
Here is the field of a big arbitrary. Those holding private information never feel any obligation to deliver it.
The situation is worse when such information relates to persons’ situations or statute when those persons are closed to the political, economics or military regime.
Defamation, insult, false rumors, etc... are most of time the cases those bring prosecutions against journalists who disseminate personal status or information regarding the republic management.
These are the offenses erected and maintained in the law to reduce the publication of information relating to the management of the public affairs.
Private persons can have important information need by the population when, for example, they have been closed to the political, military or economic regime. They can also have important information when they were ministries, ambassadors, high placed in the administration, economic, military domains, etc.
They never want to deliver information relating to their management even if the given information can help to improve the situation.
IV. ON BEHALF OF PUBLIC'S RIGHT TO INFORMATION
It may well wonder about the wisdom of reporting by using “unconventional methods” to obtain the information. At the other side, one might also ask questions about how and why to do it.
Our strong conviction is simply that if we do not do that the information relating to the public affaires management will still hided by the bad managers.
And because population needs to be informed on those issues, the answer is simple: an investigative journalist is also an activist for freedom of the press and for the public’s right to information.
So all the risks taken by an activist investigator are jut done on behalf of the only public right to information and the press freedom.
Indeed, as an activist, if the investigative journalist does not research and publish information which are important for the people, holders of power will continue to deceive the public by hiding important information about the management of the public affairs as well as while they are behind corruption cases, embezzlement, murders, etc..
On the other side, is there an ethical or moral question that appears when an activist or an investigator reporter uses “unconventional methods” to get information?
It seems to me that a priori no! For the simple reason that researched information is often that the authorities are unwilling or unable to voluntarily deliver to the population despite the fact that it is needed.
One of the immoral sides of getting information using unconventional methods is when an investigator receives a tip (payment) while getting information from one, may be a politician, wanting to make defamation or insult to another. This generally appears when a politician wants to eliminate an opponent.
In this case the big risks taken by the investigator in releasing such information bring threats and prosecutions for defamation, slander, false rumours, incitement to commit crime, etc.
In the worse case, the activist can simply be secretly killed.
This is the first cause of that investigative reporter need to integrate the legal defense, the judicial protection and provides legal assistance in their activism, provided that it is safe from his professional work.
That is why we have put in place an organisation called “Publication En Danger”, PED, in the Democratic Republic of Congo, which brings together Congolese investigative journalists in order to promote the public’s right to information through professional journalism and activism.
The deal is to get good histories published despite of the fear of a number of writers, editors, etc.
That, in a few words the situation we face daily in the Democratic Republic of Congo, and perhaps in your respective countries, but against what we have to set an activism that is able to generate reforms by all of us for many years and for all the word.
Dear
Girls,
Gentlemen, Colleagues,
Thanks too much to all of you.
Charles-M. MUSHIZI.
