12 October 2023
By: Bradley Fortuin
The Botswana High Court has, in its Botswana Gazette vs. Water Utilities Corporation judgment delivered 26 September 2023, denied the right to access information in Botswana. Access to information is a fundamental right that allows citizens to hold the government accountable and participate in civic and democratic processes with sufficient knowledge. It is a right enshrined in the Constitution under the right to freedom of expression.
Keeping it flowing for you, or not.
The Water Utilities Corporation (WUC), a government-owned entity that provides water and water management services to Batswana, has been under scrutiny over the last ten years and questioned over the illegal damming along the Notwane river. The Notwane river supplies Gaborone and surrounding areas with water for homes and businesses through the Gaborone dam. The corporation, which is under the Minister of Minerals, Energy and Water Resources, refused to share information regarding the water flow that has, over the years, resulted in the corporation having to carry out water rationing exercises. This information surfaced in 2014 when it was reported that the WUC commissioned a study which allegedly revealed that dams along the Notwane river are blocking the flow of water into the Gaborone Dam, resulting in lower water levels and water rationing.
Knowing results in improving the quality of life.
The request to share this information with the public regarding public water comes when Botswana faces one of the harshest droughts. This information is essential for the nation to plan and manage what available water resources there are. This is good governance and solidifying a transparent relationship with its clients. Unfortunately, the WUC has denied the public this fundamental right which impacts the quality of life of Batswana. The right to information allows people to access information held by public authorities that perform public functions, such as the Water Utilities Corporation. This decision by the High Court blows the principles of transparency and accountability and sets a dangerous precedent for other matters pertaining to access to information and freedom of expression. The right to access information is essential for a functioning democracy. A quality that Botswana boasts of. The case has been long in the making, and the issue is, of principle, enabling citizens to participate in decision-making through transparent governance and access to information.
Interfering with the role of the media.
Freedom of expression is an essential human right for society, and the Court’s decision to deny the media access to information is deeply concerning as it interferes with the role of the media to inform the public meaningfully by limiting the media’s access to public information. This sends a message that government entities can act without consequences and that citizens have no right to know national matters that significantly impact their lives. Access to information is crucial for the media to create a forum for discussions with the public on issues of public interest. Although the right to freedom of expression – which access to information is built in – is broad, it can be limited and restricted so long as one’s expression violates the rights of another person or the values of society as a whole. However, limiting one’s ability to freely practice one’s right to freedom of expression by denying the right to access to information is unexplainable. The Court had an opportunity to advise the government on developing a legal framework that protects the right to information but left it to Parliament to enact laws relating to this.
Information now more than ever.
Botswana is highly vulnerable to climate variability and changes due to its high dependence on rain-fed agriculture and natural resources, high poverty levels – particularly in rural areas, and a low adaptive capacity to handle these expected changes. Climate change challenges are centred around water resource availability, changing precipitation patterns, accelerated evapotranspiration rates and increasing population demands, making communities vulnerable to food insecurity, unstable livelihoods and unsustainable agroecological systems, crop failure and unproductive rangelands.
The African Commission on Human and Peoples’ Rights’ Guidelines on the Right to Water in Africa (2019) requires that States “shall ensure that individuals and communities, especially vulnerable and marginalized groups, are given full and equal access, in an understandable and adapted manner, to information on their right to water and ways to exercise it and information concerning water management, water services and the environment, whether public authorities or third parties hold this information.” The Guidelines further require States to “ensure that requests for water-related information are to be processed rapidly and fairly, that an independent review of any refusals and complaints mechanisms is available and that applicants are provided with assistance if necessary.”
*Bradley Fortuin is the Program Officer at the Southern Africa Litigation Centre and a social justice activist.
