OPEN LAW–AFRICA WORKSHOP, SOUTHERN AFRICA
JOHANNESBURG, SOUTH AFRICA
NOVEMBER 7 – 8, 2016
A regional workshop on access to legal information in Southern Africa, organized by the African Legal Information Institute (AfricanLII) and the Southern Africa Legal Information Institute (SAFLII), held in Johannesburg, South Africa, from November 7 – 8 2016. In attendance were members of the South African Bench and legal fraternity, academia, law librarians, and the community of legal information institutes (LIIs) in Southern Africa, comprising the Lesotho Legal Information Institute, the Malawi Legal Information Institute, the Seychelles Legal Information Institute, the Swaziland Legal Information Institute, the Zambia Legal Information Institute and the Zimbabwe Legal Information Institute. Also in attendance were Kenya Law, the Open Society Institute of South Africa, the Africa Capacity Building Foundation, Juta Publications and Sabinet, amongst others.
Acknowledged that free access to law initiatives have come a long way in the region, and, in many States, have become one of the most viable channels of disseminating legal information;
Acknowledged further that the initiatives stood at a critical threshold, confronted by challenges that threaten their sustainability, with such threats including low levels of state support for free access to law; the complexities of the political contexts in which LIIs function, which could limit their ability to respond effectively to legal information needs through value adds for legal information; low capacity and dwindling resources;
Reaffirmed nevertheless the importance of free access to law to deepening democracy and accountability and the important contribution that LIIs make to securing these values;
(i) Free access to law contributes to equality before the law. Free access enables equal access, which is an essential ingredient in the exercise of human rights. Access to information enables the protection of other rights;
(ii) Government has the primary task of informing the public about new laws and what they seek to achieve, as well as the legal implications, which calls for a comprehensive policy that responds to local peculiarities in the need for legal information;
(iii) The Free Access to Law Movement is driven by access to the internet: it is not enough to make law reports and legislation available to “elite groups” who have access to internet. Ordinary citizens should be able to access legal information;
(iv) The importance of sustaining offline access to legal information cannot be understated. Access to legal information must be democratised. Free access to law must be grounded in conversations around what communities do in fact need, how the law impacts citizens, what is technically possible, and what is practically accessible and useful to local communities;
(v) The democratisation of access to legal information also calls for specific measures that expand the scope of state legal aid paralegal schemes, which also affirm the relationship between government and NGO as a critical important factor in getting information out to the right people in the right format.
(vi) While it is important to stay engaged with global ICT developments, and the type of technology that communities engage with, and patterns of use, free access initiatives must also acknowledge that differential uses for information technology and social media, which are influenced by generational demographics, such that a more ideal approach to disseminating legal information could be multimedia and multifaceted, making the most of information technology but also ensuring that those without internet access are not left out of the information value chain;
Noted the imperativeness of extending free access to law initiatives to the production of bylaws for wide dissemination, because bylaws impact people on a daily basis more than national legislation do, regulating day-to-day issues that people need to be aware of.
Recognized further that
(i) Discussions around access to legal information must be sensitive to socio-economic inequalities, the digital divide between urban and rural communities (where rural populations are typically inaccessible for NGOs) and the reality that access to legal information or to justice is twice as difficult for women because they are not in the market economy.
(ii) Secondary legal information, comprising materials that analyse, discuss, explain or interpret the law, enables ordinary people to understand and engage with the law, and are therefore desirable and necessary, but access to the primary resources must remain the basis of free access initiatives, as secondary resources may only be developed when the primary resources can be accessed;
(iii) The reality of the present context, which places huge demand for value added legal information services, is beyond current LII capacity and calls for collaborations across the law publishing sector if there is to be any hope of sustaining free access to law.
(iv) A corollary of the aforementioned context, is that the legal information market is segmented or can be further segmented, and that law publishers, including LIIs may need to specialize and offer bespoke products, build linkages in the collation of information and deal with opaqueness in government information. There are opportunities for institutions to concentrate on what they do best and develop highly competitive products, leaving downstream productive activities to others.
(v) Bilateral, multilateral and international agreements between States are essential sources of legal information, but are hard to come by. Access to such information must be promoted, particularly through such models as adopted by the African Commission on Human and People’s Rights, which requires AU member States to publish documents relating to contracts that exceed a certain value, budgets and public procurement;
(vi) Access to law via the internet enhances judicial accountability, judicial transparency, access to justice and the rule of law, but it also places large dossiers of personal information in the public arena, with far reaching consequences that call for better protections for privacy rights. Online availability of legal information demands and an element of proportionality and fairness that distinguishes between private and public information, a balance between the requirements of open justice and privacy rights;
(vii) Access to legal information is critical to the success of legal aid, and requires that governments proactively invest in access to justice as much as they do in access to legal aid.
Accordingly, the participants,
Reaffirmed commitment to promoting free access to legal information and to the values of the Montreal Declaration on Free Access to Law. Primary legal information must remain free, a common heritage that should be widely accessible.
Acknowledged the importance of stronger and better coordinated collaborations between law publishers in the for profit and non-profit sectors, forged around issues of mutual interest particularly relating to policy and standards.
Therefore, they resolved to:
(i) Encourage and create platforms of collaboration on matters of standards and policy, to share resources and render mutual assistance. To this end, a law publishers’ forum of commercial and non-profit publishers should be established, to also engage with courts on the adoption of standards that facilitate open access.
(ii) Maintain the primacy of free access to primary legal information and to work towards creating secondary resources that enhance the usefulness of the law to ordinary citizens
(iii) Urgently facilitate research on the development of common standards for protecting the privacy of personal information in judgments, resulting in a set of guidelines that can be circulated across the publishing community.
(iv) Develop a draft regional protocol on protection of personal information in judgments, drawing on the guidelines, and to promote same to promoted to regional bodies and Judicial Service Commissions. can be promoted regionally.
(v) Run a better coordinated regional outreach to regional bodies and development agencies, which draws on international or regional governance and development indices on Africa to illustrate how LIIs are partners in strengthening openness, transparency and accountability. LIIs shall employ every suitable platform for advocacy, including the production of a periodic newsletter
They also recommended that
(i) The anonymization or the redaction of personal information in judgments should be at source. Judges should redact when writing judgments;
(ii) Judiciaries should take the lead in sensitizing judges to the need, issue guidelines or practice directives, and come alongside LII-led calls for the development of a draft protocol;
(iii) Depending on their respective capacities, LIIs may get involved in enforcing best anonymization or redaction practices, for example by blocking Google crawler access;
(iv) Given that the media play a major role in disseminating personal information in judgments, they need to become sensitized to the privacy rights involved, and to the need for standards and appropriate training on dealing with such information in judgments;
(v) Governments should assume primary responsibility for publishing primary legal information and for creating conditions that facilitate open access. They should prioritize the digitization of government gazettes as this could reduce the costs of producing them;
(vi) Giving also current challenges of raising core production costs that confront LIIs, LIIs should explore and develop fee-based services that will not compromise the principle of making access to legal information free.