On October 12-13, 2015, Legal Information Institutes (LIIs) in East Africa gathered to deliberate on Partnering to Sustain Free Digital Access to Law in East Africa. East African LIIs in attendance include the Uganda Legal Information Institute (ULII), the Seychelles Legal Information Institute (SeyLII), Abyssinia Law, and Kenya Law. Also in attendance were delegates from Malawi, Somaliland, South Sudan and Tanzania (countries in the process of setting up LIIs) and the Zambia Legal Information Institute (ZambiaLII).
The importance of free access to law, the need to lift restrictions on free access and create value became began to be emphasized from the onset. Kenya’s Justice Minister, Prof. Githu Muigai, who was represented by the Solicitor General, …, described access to law as an important tenet of governance that paves the way into the future and calls on Legal Information Institutes (LIIs) to shift focus from ‘freeing the law’ (i.e., providing access) to making ‘legal information increasingly useful’ (i.e., adding value). As stakeholders in Africa’s development, LIIs have the ‘potential to pave the way into the future’ not only by providing access, but also by fostering understanding of the legal frameworks that underpin which the regions democratic and economic aspirations and processes.
The Honourable Chief Justice of Kenya, Dr Willy Mutunga, reinforced the above premise by grounding free access to law in constitutional provisions that place information at the core of governance and of lives and livelihoods. The transformational constitutional imperatives of participation, accountability and transparency, the equitable distribution of resources, the affirmation of human dignity, equality before the law and social justice are values and aspirations that only become meaningful when citizens are empowered to access and utilize information constructively. LIIs fulfil an important function in the achievement of these goals. They are drivers of positive change, allied with the judiciary in the ever important transformative project of enabling citizen participation and strengthening public accountability. Access to law pushes the boundary against autocratic tendencies to monopolize information. It strengthens open government by facilitating access to information. Importantly, it creates opportunities to network African jurisprudence and offer access regionally and internationally.
Summary of Presentations
Presentation 1 – FAL and Regional Economic Integration
Professor Richard Calland (UCT) highlighted positive trends in Africa’s rule of law and judicial landscape, and the crucial role this trends will play securing the region’s economic potentials as a destination of choice for investments. Strengthening the rule of law can be conceived as a democratic project that is just as crucial to economic development. Businesses want to know there is a degree of certainty about contracting, property rights, protection of investments and the enforcement of legal remedies. It is in this context that LIIs need to conceptualize access to law. Countries with strong rule of law indicators have more competitive advantage. LIIs therefore need to see their work as part of the economic infrastructure of their countries. This raises crucial questions about what social purposes LIIs fulfil, how their work aligns with the interest of the society, the values the they bring to the information
ecosystem, better ways to make the law more useful, how to stir interest in the law in a particular direction, how access to law can serve of economic development better.
These questions are to be contemplated not in isolation, but in the wider context of regional economic integration in Africa. Since regional economic integration is an essential factor in advancing Africa’s economies, LIIs must re-imagine how to package access to law as part of the grand narrative of Africa’s economic development. They should make economic development a focus, adopt thematic approaches to categorizing laws, identify specific needs for legal information and develop products that meet the needs. They should simplify and create tools for comparative analysis of laws between different countries.
Presentation 2 – Developing Open Standards
Dr Getao (ICT Secretary, MoICT, Kenya) made a presentation on establishing a legal framework for public data urged the need for agreement on an open document standard and for discussions around how to get governments to share documents. She identified a set of rights, protections and principles that a model legal framework should be predicated on. These rights, protections and principles extend to ownership, jurisdiction, identity, privacy, the right to be forgotten, intellectual property, data stewardship and independent complaint mechanisms.
Presentation 3 – Re-Imagining Development Aid
Ms Njonjo’s presentation challenged LIIs to help funders understand the challenges they (LIIs) face and explained Hivos’ strategic focus on using technology to change the landscape and strengthen voices in the public space. The focus recognizes that Information must be free and easily accessible for the rule of law to be widely understood. This challenges LIIs to think hard about the context of their work and strategies. However, facilitating access to law without enhancing how citizens understand and engage with the rule of law has limited benefits, especially when examined against the background of Africa’s human development challenges. LIIs need to deploy information technology in ways that enhance solutions to underdevelopment. One critical area to consider for instance, is property rights: LIIs need to engage with ICT solutions that facilitate or enhance the digitization of land records – an intervention that may prove crucial to social stability, property ownership structures and agrarian economies. Ms Njonjo challenged LIIs to stay true to the principles of the Free Access to Law Movement, to develop specialized skills that out them on the threshold of advancing legal knowledge, to evolve standards and be creative in identifying and finding solutions to their needs. The needs that were mentioned in response to Ms Njonjo’s prompting include how to generate resources that will ensure that free access to legal information is sustained, how to guarantee the authenticity of uploaded data (different suggestions were offered in this regard, including watermarking documents, establishing an authenticating authority, and timestamped downloads, all of which would require resources), securing cooperation of institutions that generate primary legal data, the protection of privacy, and lastly, the need to be conversant with these challenges and to develop a guidebook to address them.
Presentation 4 – Forging Strategic Partnerships
Mr Murungi (Google Kenya) identified three principles as essential to forging partnerships. First, state policy should support freedom of information. Secondly, there should be agreed information standards, and thirdly, the rules about access to information should be relaxed. Drawing on Kenya Law’s experience, he discussed how new products were created through partnerships with private actors, using data provided by Kenya Law. These products could not have been achieved without the private sector because of the costs associated with creating them. At any rate, they were bound to happen. There are enormous demands for information (data) for sundry uses including statistical research, economic planning, investment decision making, etc, which government lacks the capacity to meet. People are not just interested in information per se, but in handy snippets of contextually relevant information. People, businesses and institutions want relevant information when they need it and how they need it, and are willing to pay for it. LIIs need to have capacity to develop relevant data that target specific audiences and should seek strategic partnerships that create capacity and data products. Such partnerships can be negotiated from within the free access to law fraternity, or with government agencies in the information value chain, civil society or data developers/innovators in the private sector.
Presentations 5 & 6 – Sustainability Models for Free Acess to Law in East Africa
Two other presentations by Mr Long’et Terer (Kenya Law) and Mr Liku Worku (Abyssinia Law) focused on statutory and non-profit models for LIIs. Kenya Law, which is a statutory body enjoys the unique advantage of being a LII with a statutory mandate to publish legal information. This provides it with the necessary policy and statutory environment to work with a state funded budget that meets its core needs. Other sources of income are derived from sales of printed publications. All online publications are free. Abyssinia law on the other hand, is a non-profit. Mr Worku detailed a number of commendable achievements that Abyssinia Law has made, through the services of a part time volunteer staff, amidst monumental challenges.
The Workshop Consensus
The consensus that emerged during the presentations and the discussions that followed, is the view that legal information should be construed as an essential component of Africa’s economic blueprint, and access as a necessary feature of the region’s development infrastructure. However, regional economic development must be seen as an important component of Africa’s regional development and as requiring progressive realization through cooperation. LIIs have an important role in achieving this. Access to legal information not only strengthens the rule of law, it enhances the ability of citizens to make informed political and economic choices and to take advantage of transnational trade opportunities. In their various presentations, the participating LIIs described their work as meeting critical needs for legal information in their respective countries. There are immense opportunities, but they are also challenged by the overwhelming demand for legal information. LIIs identified manpower shortages, absence of internet facilities for many courts, manual record keeping processes, the need to develop specialized products that targeted specific communities and to strengthen the legal framework to be critical issues that bordered on the sustainability of free access services.
Taking the presentations into consideration, workshop participants affirmed:
1. The crucial links between access to information, economic development and open, accountable and stable African democracies;
2. The character of legal information as a universal common heritage;
3. The primary responsibility of government to provide information that affects the public;
4. The importance of building relationships that will enhance the publication of information in more accessible formats;
5. The crucial role of LIIs in servicing the information ecosystem, by packaging and offering contextually relevant information and targeted at specific interests or to fulfil specific objectives; and
6. The importance of developing capacities that secure the long term prospects LIIs.
Having made the above affirmations, participants proceeded to make for sets of resolutions, as follows:
Regarding Free Access to Law and Regional Economic Integration, LIIs must:
i. Think beyond just putting laws online;
ii. Take cognizance of the differences in our laws, approaches, languages and experiences
iii. Take further cognizance of current opportunities, include:
a. Experience sharing through the LII community in (East) Africa;
b. Processes already in place for collecting data;
c. Developing benchmarks through knowledge sharing;
d. Support in the public and private sector for access to legal information; and
e. New technologies, the ability to deploy same being of utmost important to the free access to law movement;
iv. Contextualize free access to law to respond to existing realities and demands for legal information, recognizing:
a. That free access to legal information facilitates cross-border understanding of legal systems and fosters legal certainty;
b. The need to develop common, progressive standards that enhance the relevance and utility of the law for regional economic integration purposes;
c. The need to engage with translations that foster understanding of the law, and with the possibilities of developing a common language; and
v. Develop strategies that enhance free access to law for the purposes of regional economic integration, by:
a. Engaging with regional economic blocks (such as the EAC, SADC, COMESA) and the rest of African LIIs;
b. Developing a common agenda and forum for East African LIIs;
c. Harnessing technology to allow access;
d. Creating efficient communication channels for information sharing across East African LIIs and the wider African LII community;
e. Sensitizing and involving governments through rotational participation in regional legal information workshops and forums;
f. Encouraging each LII to make efforts to achieve agreed goals by contextualizing legal information to serve information needs in their respective countries; and
g. Developing and offering specialized legal information products (such as information on common markets, custom unions, tax regulations, etc) targeted at specific audiences; and
h. The coordination of these efforts to avoid duplication of efforts, for example by hosting specialized products on one website.
Creating Relevance and Value through New Legal Information Products
LIIs should focus on adding value and developing specialized products that place legal information at the user’s finger tips. New offerings may include legal wikis, secondary interpretative material, explanatory notes, etc.
LII Communities in Africa
The need to strengthen free access to law in Africa calls for strong emphasis on building LII communities in Africa. A model could be regional communities for East, West and Southern Africa and one for the continent, where all regional communities converge. These African LII community should:
a. Host annual regional meetings for African LIIs
b. Prepare quarterly updates on the implementation of these resolutions;
c. Work together to advocate judicial and legislative policy on legal information;
d. Exchange ideas on donor and stakeholder support; and
e. Explore opportunities for collaboration with government and regional bodies
Growing functional LII Models
LIIs should grow their capacity to become self-reliant. An effective model that would enhance self-reliance would ensure that all the stakeholders are represented on the Board of the LII.
LII Relations with the Donor Community
LIIs should seek robust engagement with donors. A strategy for doing this may include:
a. Widening the governing boards of LIIs to ensure broad stakeholder representation;
b. Identify key priority areas for funders – this would entail examining the missions and goals of funding organizations, and looking for areas of intersection;
c. Approach donors as a block; and
d. Open new frontiers in donor aid. New possibilities include:
i. Bar Associations
iii. Other LIIs
LIIs should also understand that donor/stakeholder assistance could be non-monetary. Aid may come in the form of assistance that meets specific capacity requirements, or facilitates access to primary legal information, or with developing components of specialized legal information products and services. Therefore, LIIs should strategically seek relationships with private sector actors that would be advantageous to them.
LII Relations with the State
LII relations with the state should be conceptualized around the understanding that it is the primary mandate of the state to publish information that affects the public. LIIs should advocate governments to fulfil this role, or at the least, provide free access to legal information. Advocacy should seek to cultivate strategic ongoing relationships with key state organs, and may be directed at urging government to:
a. Adopt policy and legislation that facilitate free access; and
b. Provide seed funding for legal information institutes
It is particularly important that LIIs foster good relations with legal providers of laws, such as the judiciary, state law offices and government printers, etc