Accra - Report and Outcome Statement

Open Law – Africa Workshop, Accra

Report and Outcome Statement

Introduction

On February 15-16, Legal Information Institutes and justice sector stakeholders came together to discuss the role of free access to law in deepening democracy, the rule of law, and strengthening the legal sector in Ghana and West Africa. In attendance were the Sierra Leone Legal Information Institute, the Liberia Legal Information Institute and the Ghana Legal Information Institute. Also in attendance were delegations from the Liberia judiciary, the Sierra Leone Justice Sector Coordination Office, the Ghana judiciary, Ghana's Parliament and Department of Justice, members of the Ghana civil society and the Nigerian National Judicial Institute. The workshop was organized through the collaboration of the African Legal Information Institute, the Dean of the Faculty of Law, University of Ghana, and the Ghana Legal Information Institute.

The presentations and discussions at the workshop covered a wide range of issues that impact access to law in the countries represented at the workshop, and in West Africa generally. The contributions of the rule of law to deepening democracy and regulating or stimulating development, the necessity of access to law in enhancing the rule of law, and how to facilitate free access were all thoroughly deliberated. Participating LIIs also provided reports about their work, as well as the positive impact that this was having on scholarship and the legal community. Very crucial moments of the workshop also dwelt on the challenges confronting access to law in Ghana, Liberia and Sierra Leone, as well as the necessary measures to resolve them.

The Challenges and Opportunities

Participants identified the following as serious challenges to free access to law services:

1. Capacity: All of the LIIs are short-staffed, and this affects their capacity to collect, prepare and make timely uploads of legal information.

2. Processing of documents for upload: In most cases, documents are received in hard copy. The documents are scanned into PDF formats, converted into the Optimum Character Recognition (OCR) and edited. The process is time and resource consuming. This challenge also highlights the need for public sources of legal material to preserve documents in electronic copies and use open standards that facilitate access.

3. Document repositories: This challenge varies in intensity across countries but as is often the case, LIIs have to source the documents from different sources. In Ghana for example, although the law requires that legislation is deposited at four different government offices – the Presidency, Attorney-General’s Office, Parliament and Government Printer – these offices often do not have the laws in print, let alone in digital format. There have also been cases where Parliament is unable to access important court judgments that could have impacted legislative work, or where the Supreme Court pronounced a constitutional instrument illusory because it could not find it, even though the legislation was gazetted. The absence of functional depositories with comprehensive collections of legislation and case law has serious implications

for preserving or archiving legal information, including the loss of historically significant legal documents. It also impacts the efficiency and quality of the regulatory system negatively.

4. Institutional Management of Information: It is obvious that public institutions have challenges with managing and archiving information efficiently. This partly explains why statutorily established depositories for legislation do not always have a comprehensive collection of legislation, or even a proper index or registry of laws that have been enacted.

5. Access to legal information a question of national security: Concerns were expressed that there could be serious national security implications if legal information were not properly archived and made tamper proof to ensure that developing legal information into web-friendly electronic formats retained the original content of the legal documents. Examples that bordered on national security were cited, such as the boundary dispute between Guinea and Sierra Leone, in which the only legal documents available were in Guinea’s possession. In another case, the provisions of standing rules that regulated the election of principal members of a parliament where alleged to have been fraudulently inserted to manipulate the outcome of the elections, resulting in a very controversial election that heated the polity.

6. Non-publication of by-laws: The observations that were made regarding this challenge recognized the tendency to concentrate on publishing national legislation without corresponding effort to place by-laws in the public domain. Of course, the difficulties of gathering by-laws from widely dispersed sources was acknowledged, but the impact of such laws on grassroots governance makes collating and publishing them a high priority.

7. Commercialization of legal information: LIIs should expect competition from for profit publishers of law. However, when government printers offer published legal resources at a fee or give undue advantage to commercial publishers, they impose unfair restrictions on non-profit publishers. This calls for policy changes that lift restrictions on reuse or republication of legal information. Pertinently, it calls for government policy that acknowledges the state’s primary duty to make access to public legal information free and make electronic copies available.

8. Law reporting versus publicizing case law: Imaginably, patterns in legal information use may suggest that publicized case law must always involve law reporting. It is perhaps a myth. At best, law reporting serves the needs of an elite few (wealthy lawyers especially) that can afford it. The larger public that LIIs serve are less privileged and able to afford law reports, or are interested in accessing collections of judgements for reasons other than the practice of the law. Hence, it is not enough for States to issue publishing licenses to for-profit publishers as is often the case with African States. There should be a corresponding policy commitment to facilitate access for non-profit publishers, knowing that they serve a larger public interest.

9. Accessibility and simplification of legal information: LIIs must also think more strategically about meeting the needs of ordinary citizens for services that simplify and/or explain the laws of the land.

10. Strengthening Linkages between free access to law and comparative legal research: Ms. Tabeth Masengu delivered a well-received presentation on how to use legal information accessed through LII websites for comparative legal research. Using decisions that were published on LII websites across Africa, she presented evidence that suggest that women judges

tend to impose stiffer sentences for crimes of passion than their male counterparts, leading to the inference – one that she noted deserved further investigation - that the gender composition of the bench may in fact impact sentencing for the particular crime. In his response to the presentation, Professor Kofi Quashigah, Dean of Faculty of Law, University of Ghana, mentioned that he was leading a comparative research effort into thematic subject areas of law in West African States, which would involve different universities in the sub-region. This opens an opportunity for collaboration between this research effort and West African LIIs.

11. Sustainability: This challenge can be summed up as arising from a narrow conceptualization of sustainability and from how to sustaining the collection of legal information. Most of the LIIs in attendance have at one stage or the other survived with the support of a single donor, while GhaLII has been funded and operated through the voluntary contributions and individual efforts of its two founders. Although LIIs have achieved much despite these limitations, it is obvious that limited stakeholder support has left them with few capacities.

Engagement with users via alternative channels (radio jingles, TV) and user training were pointed out as important strategic engagements with the user base of a LII. Such communications with users are vital for the relevance of a LII nationally.

LIIs need to look beyond a narrow sustainability model that patronizes a restricted pool of mainstream funders or seeks inputs from a small community of justice sector actors. LIIs need to think beyond this narrow paradigm and engage with sustainability in terms of the various inputs that add to the legal information value chain. These include sustaining information flows, organizational sustainability and financial sustainability.

12. Technology: Open source technologies, shared cloud services continue to provide effective and cost-efficient technological base for LII operations. The LII community in Africa has developed, tried and tested platforms that allow for a quick start-up and manageable publication of standards-based legal information. Solutions for updatable off-line access, as well as apps for various devices would further help entrench LII use across the region.

Charting the way forward

LIIs have much to be commended for not only because of the important services they have been able to provide in spite of the challenges above, but also because their accomplishments point to the greater impact they can make if they are well resourced. In order to make greater impact, participants agreed that:

1. Legal information should be available to all. LIIs should therefore strive towards putting more legal information online.

2. African States and regional institutions should be urged to prioritize access to legal information in order to reinforce the rule of law, deepen democracy and participation, strengthen public accountability, and ensure the efficient regulation of socio-economic activities that stimulate development.

3. Access to legal information should be conceptualized around common ownership. This requires all stakeholders to assume responsibility for facilitating or providing access to legal information. Again, this affirms the primary duty of government to publish legal information. Therefore, where circumstances or resources permit, the State should provide free and standard based access to legal information. The State should strive towards preserving legal documents in electronic formats. At the minimum, the State should enable access to such information on a non-profit basis for free access to law providers. Common ownership also calls for building a wider community of support around free access to law.

4. LIIs and other free access to law providers must work together and with other partners to achieve free access to law.

5. LIIs must develop a more sustainable model that will guarantee long term impact. The current model of sustainability that draws on a limited pool of partners is not sustainable especially in light of the repeated emphasis on simplifying and making legal information more useful to the ordinary citizen. LIIs must begin to conceptualize sustainability in terms of creating and demonstrating value for legal information. Sustainability requires creating and demonstrating the social and economic value of free access to legal information.

The Resolutions

In the light of the measures that were identified as necessary to enhance free access to law, the following resolutions were made:

Resolution 1 Regarding Sustainability

LIIs resolve to engage with a more robust concept of sustainability that enhances the social and economic value of free access to information. To enhance the long term prospects of free access to law, LIIs resolve to:

a. Develop and strengthen existing relationships with sources of public legal information, such as the Attorney General’s Office (or Department of Justice), Parliament, Courts, Law Reporting Councils and Government Printers. LIIs should aim for Memoranda of Understanding with these public bodies

Fortunately, and having regards to Ghana, representatives of the Attorney General’s Office and Parliament offered to make a collection of legislation available to GhaLII for online publication. The Dean of the Faculty of Law, University of Ghana also offered to help with this effort.

b. LIIs will work towards diversifying revenue, and experiment with generating revenue from online presence, for example by offering subscription services to value-added content, online advertisements, directory services, sponsorships and donations. LIIs should also explore opportunities to generate revenue through federated access to law initiatives.

c. To meet capacity requirements and develop services that simplify legal information for ordinary citizens, LIIs will explore new relationships consistent with a more robust sustainability model. To this end, LIIs will engage with faculties of law with a view to offering law students programmes that provide them with opportunities to contribute to making legal information

accessible. LIIs will discuss appropriate programmes with Faculties of law in their respective countries.

Resolution 2 Regarding Promoting Research and Academic Excellence in the Sub-Region

Flowing from the above resolution, and discussions on comparative research work, LIIs resolve to be part of collaborative efforts (such as the one led by the Dean of the Faculty of Law, University of Ghana) that research the rule of law, governance and development in the West African sub-region and promote the development of African law and jurisprudence, as opposed to received law. The goal must be to collaboration between LIIs and collaborative research must always facilitate access to legal information for research purposes, embark on joint efforts to simplify legal information or explain the law to ordinary people, encourage research on issues of topical African interest and provide platforms for publishing researched works on African law.

Resolution 3 Regarding Institutional Governance

LIIs should constitute governing boards that are broadly representative of justice sector stakeholders. The ideal governing board should include representatives of the judiciary, justice department, academia, law society and such others that support free access to law. A board comprised of seasoned justice sector actors can have profound impact on the future of LII services. It helps to give policy direction to the LII and mobilize support for free access – including state support. Strong governing boards enhance long term sustainability prospects and are a good model for raising financial resources for LIIs. It potentially widens the support base, bringing within the LII’s support network such other partners who may facilitate access to sources of legal information or to technology.

Resolution 4 Regarding Regional Advocacy for Free Access to Law

LIIs will work as a community to advocate regional recognition for free access to law. Regional bodies for the East African Community, the Economic Community for West African States, the Common Market for Eastern and Southern Africa and the African Union will be encouraged to adopt policies that recognize and call on member states to facilitate free access to law.

Regional advocacy should also promote national legislation that establish national electronic registries for legislation.