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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 1002 OF 2017
BETWEEN:
JONATHAN MESULAM
First Plaintiff
AND:
PHILIP TOKAM
Second Plaintiff
AND:
PASTOR METAI IMBAK
Third Plaintiff
AND:
LUCIELLE PARU
Fourth Plaintiff
AND:
GUNTHER JOKU, MANAGING DIRECTOR
CONSERVATION AND ENVIRONMENT PROTECTION AUTHORITY
First Defendant
AND:
HON. WERA MORI, MP,
MINSTER FOR ENVIRONMENT AND CONSERVATION AND CLIMATE CHANGE
Second Defendant
AND:
PHILIP SAMAR, MANAGING DIRECTOR,
MINERAL RESOURCES AUTHORITY
Third Defendant
AND:
HON. JOHNSON TUKE, MP,
MINISTER FOR MINING
Fourth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant
Waigani: Tamade AJ
2022: 16th February, 4th May
CONSTITUTION – s.51 – right to freedom of information – access to official documents – restrictions to private & confidential documents.
CONSTITUTION – s.51(2) – a law that complies with s.38 may regulate or restrict the right guaranteed by this section.
CONSTITUTION – s.38 – qualifications on qualified rights – restrict rights guaranteed under S.51 of the constitution.
MINING ACT (1992) – s.163 – confidentiality of information – unlawful to disclose certain information without prior written approval of the person who provided the information except where it is authorised by law.
ENVIRONMENT ACT (2000) – s.55(2) – public review and submissions –director may give directions to advertise availability of any information or statement for public review.
Cases Cited:
The following cases are cited in the judgement:
Florian Yasangi v Elias Padura (2015) N5871
Sealark Shipping Pty Ltd & Anor v Secretary for Treasury & Corporte Affairs [1998] N1732
Barrick (Niugini) Ltd v Nekitel [2020] PGSC 99; SC2010
Turama Forest Industries Pty Ltd v Soi & Associates (Unreported, 1996)
The State v The Independent Tribunal: Ex Parte Sasakila [1976] PNGLR 491
Legislation:
Constitution of the Independent State Of PNG
Mining Act 1992
Environment Act 2000
Reference Books:
Brian Brunton & Duncan Colquhoun-Ker, The Annotated Constitution of PNG, University of PNG Press, 1984
Dr Eric L Kwa, Constitutional Law of Papua New Guinea, The Law Book Co, 2001
Counsel:
Mr Anthony Walep , for the Plaintiff
No appearance for the Defendants
04th May, 2022
2. The Plaintiffs are citizens of Papua New Guinea and pursuant to their Amended Originating Summons filed on 23 September 2021, they are claiming declaratory reliefs pursuant to section 51 of the Constitution of Papua New Guinea to have access to official documents in the possession and custody or control of the following offices:
3. The documents sought by the Plaintiffs are quite exhaustive as listed in the Annexure attached to the Amended Originating Summons and are in relation to the “Solwara 1 Project” which the Plaintiffs say is the experimental deep seabed mining project being developed in the Bismark Sea by the company, Nautilus Minerals Niugini Limited. The Plaintiffs have not named Nautilus Minerals Niugini Limited as a party in these proceedings.
4. The documents sought by the Plaintiffs are in relation to the Environmental Permits, Environmental Management Plan as well as Exploration Licences etc and specifically named documents as captured in the regulatory processes in the custody of CEPA and MRA, documents which may originate from Nautilus Minerals Niugini Limited, from other sources conducting independent reviews and or from these regulatory offices etc in relation to the seabed mining project.
5. The Plaintiffs say that they are citizens of PNG and will be in one way or another affected by this proposed seabed mining.
6. Mr. Jonathan Mesulam, one of the Plaintiffs in his affidavit states that he is a resident of Danu village on the west coast of New Ireland and is a member and representative of the Mandak people of New Ireland.
7. Mr. Philip Tokam, another Plaintiff states in his affidavit that he is from Molot Village in the Duke of York Island, and he represents the Ramuaina Indigenous People.
8. Ms. Lucielle Paru, as Plaintiff states in her affidavit that she is a resident of Porebada village in Central Province and is a member of the Motu Koitabu people representing the Central Province Pressure Group.
9. All the Plaintiffs state that they are from areas that will be impacted by the Solwara 1 Project and that they have concerns about the project that it will negatively impact their people and their livelihood as they depend on the land and sea for their survival. The Plaintiffs concerns also relate to the impact the project will have on the environment and therefore request this information from the Regulators and the State.
10. At the hearing of this matter on 16 February 2022, I directed that Mr Walep for the Plaintiffs email to my Associate a written submission on the matter in regard to section 51 of the Constitution and the question of privilege or confidentiality of documents under the two legislations that govern CEPA and the MRA as the information and official documents sought in these proceedings are against CEPA, MRA and the Offices of the Ministers concerned.
11. Mr Walep has submitted a written submission under the hand of Mrs Evelyn Wohuinangu and I now address those submissions in this decision.
12. Section 51 of the Constitution states that:
51. RIGHT TO FREEDOM OF INFORMATION.
(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of–
(a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization); or
(b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities
as are prescribed by Organic Law or Act of the Parliament; or
(c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or
(d) parliamentary papers the subject of parliamentary privilege; or
(e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior
to completion; or
(f) papers relating to lawful official activities for investigation and prosecution of crime; or
(g) the prevention, investigation and prosecution of crime; or
(h) the maintenance of personal privacy and security of the person; or
(i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for
the regulation or supervision of financial institutions; or
(j) geological or geophysical information and data concerning wells and ore bodies.
(2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.
(3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.
(4) This section does not authorize–
(a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or
(b) withholding information from the Parliament.
13. Section 51(2) refers to a qualified right in section 38 of the Constitution which states that:
38. GENERAL QUALIFICATIONS ON QUALIFIED RIGHTS.
(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that–
(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary–
(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in–
(A) defence; or
(B) public safety; or
(C) public order; or
(D) public welfare; or
(E) public health (including animal and plant health); or
(F) the protection of children and persons under disability (whether legal or practical); or
(G) the development of under-privileged or less advanced groups or areas; or
(ii) in order to protect the exercise of the rights and freedoms of others; or
(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,
to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.
(2) For the purposes of Subsection (1), a law must–
(a) be expressed to be a law that is made for that purpose; and
(b) specify the right or freedom that it regulates or restricts; and
(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made,
by an absolute majority.
(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.
14. It is the Plaintiff’s submissions that the Constitution takes precedence over all other laws and therefore pursuant to section 10 of the Constitution, any other law that restricts the right in section 51 is subject to the Constitution. The Plaintiff implores me to find that section 51 is a guaranteed right and or is superior than any other law that restricts the application of section 51 of the Constitution and therefore any restrictions and or qualifications on section 51 should not be taken into account, a submission that inhibits the Court to assess the qualification and or restriction on section 51.
15. Plaintiff makes reference to the cases of Florian Yasangi v Elias Padura (2015) N5871. In this case, Justice David Cannings considered an application by a citizen who claimed that he had gone into business with the Respondent who was a non-citizen. The Applicant in those proceedings claimed a breach of his rights pursuant to section 42 and section 51 of the Constitution. The Court held that:
“The human right in Section 51(1) of the Constitution confers the right of reasonable access to "official documents" on citizens, which means access to documents of the Government or some governmental body. The right of access does not extend to documents of a private company.”
16. Plaintiff also relies on the case of Sealark Shipping Pty Ltd & Anor v Secretary for Treasury & Corporate Affairs [1998] N1732 where the Court made reference to section 51 of the Constitution regarding the failure of the State to pay out a judgement sum obtained by the Plaintiffs. The Court in making orders for mandamus to the Secretary of Treasury in paying the judgement so ordered made reference to section 51 of the Constitution where the Court stated that:
“What is quite disturbing here is that the Secretary for the Treasury has made no effort to properly inform the plaintiff or the Solicitor-General the reasons why he has failed to comply with the requirements of the Section. There is an increasing call within the community for a greater ‘transparency’ as the populace and media say, and it seems clear that there has been a failure by the State officials and the Parliament to fully appreciate the responsibility placed on them in Section 51 of the Constitution. This matter before me here is right on the point of freedom of information and transparency in the actions of Government. “
17. I am of the view that the right in section 51 as referred to by the Court in the Sealark Shipping case does not fall within the exceptions or restrictions in section 51 of the Constitution.
18. The Plaintiff relies on the Constitutional Planning Committee’s intention behind section 51 on Freedom of Information.
19. The Plaintiff states that the right to seek the information and or documents as pleaded in the Amended Originating Summons does not come under “secrecy as is reasonably justifiable in a democratic society” nor do they fall under privilege or confidentiality in the relevant provisions of the Environment Act and the Mining Act referred to herein.
20. The Plaintiff points to the reasoning of Justice Polume- Kiele in these proceedings where she gave a written decision on 11 September 2020 on an interlocutory application to dismiss these proceedings by giving an opinion on section 51 and section 38 of the Constitution in agreeing with the Constitutional Planning Committee (CPC) on the intentions of these provisions of the Constitution. I defer to the submissions by the Plaintiff persuading me to rely on Her Honour’s comments on section 51 and section 38 of the Constitution and say that Her Honour was not considering the merits of this case as to section 51 and section 38 of the Constitution however she may have expressed an opinion to point the fact that this matter has merits and that it should not be dismissed summarily and therefore I am not bound to Her Honours comments as they did not go to the substantive merits of the matter though they may appear to be progressing in that direction.
21. The Plaintiff therefore points to the confidentiality provisions under the Environment Act and the Mining Act and say that those provisions on confidentially and or privilege of information is still subjective to section 51 of the Constitution. The Plaintiffs submissions are dissuasive and do not explore the restrictions placed by section 51 of the Constitution.
22. Section 1 of the Mining Act states that:
1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.
(1) This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C of the Constitution (Qualified Rights), namely–
(a) the right to freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and
(b) the right to freedom of employment conferred by Section 48 of the Constitution; and
(c) the right to privacy conferred by Section 49 of the Constitution; and
(d) the right to freedom of information conferred by Section 51 of the Constitution,
is a law that is made for the purpose of giving effect to the national interest in public order and public welfare.
23. Section 163 of the Mining Act states that:
163. CONFIDENTIALITY.
(1) Information disclosed under this Act to the Minister, to an officer of the Department, or to a member of the Board shall not be disclosed to any person who is not an officer or employee of the Department without the prior written approval of the person who provided that information, except–
(a) to the extent that disclosure is authorized or required under this Act or any other law; or
(b) to the extent the person providing the information authorized its disclosure at the time of providing the information; or
(c) to the extent necessary for the Director to publish statistical information concerning the geology and mineral resources of the
State; or
(d) to the extent necessary for the Director to give advice to the National Executive Council, other Departments and the Central Bank
on a confidential basis.
(2) An officer of the Department or member of the Board who uses, for the purpose of his personal gain, any information disclosed under this Act that comes to his knowledge in the course of, or by reason of his employment as an officer of the Department or his membership of the Board, is guilty of an offence.
Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding four years, or both.
24. The Supreme Court considered the case of Barrick (Niugini) Ltd v Nekitel [2020] PGSC 99; SC2010 (6 October 2020) in relation to section 163 of the Mining Act. The Appellant had sought a judicial review over a decision by the State not to renew its Special Mining Lease and sought disclosure of documents in the judicial review proceedings. The Supreme Court discussed section 86(4) of the Constitution and in regard to section 163 of the Mining Act said that:
“Section 163 of the Mining Act makes it unlawful to disclose certain “information” without the prior written approval of the person who provided the information except where amongst other things disclosure is authorized by law. The documents sought by the appellant in its application for discovery did not fall within the category of “information” caught by s 163, but if they did, their disclosure to the appellant could be authorized by the Court through orders for discovery, thereby rendering the disclosure lawful under s 163(1)(a).
...That s 163(1) is intended to preserve the confidentiality of information “disclosed” to the Minister, an employee of the Authority or to a member of the Mining Advisory Council, by persons external to those persons or authorities, such as the appellant, is apparent from the enforcement provision in s 163(2). Breach of the obligation of confidentiality by an employee of the Authority or a member of the Council is an offence. It is not the case that s 163(1) was intended to preserve the confidentiality of all communication amongst the persons and bodies administering the Mining Act.”
25. The Supreme Court noted that the admissibility of documents in disclosure in Court is subject to the rules of admissibility in Court at the trial of the matter. The Supreme Court’s decision in Barrick v Nekitel above gives the Court power to order disclosure for documents that fall within section 163 of the Mining Act however where section 163 hinges on the restrictions in section 51(1) of the Constitution, care should be given in the consideration of the information which falls in the restriction of section 51. There is no discussion on section 51 by the Supreme Court in the case as the issue in the Supreme Court surrounded section 86(4) on the non-justiciability of advice given to the Head of State.
26. In looking at the Environment Act, a similar provision akin to section 1of the Mining Act is also found in section 1 of the Environment Act 2000.
27. Section 1 of the Environmental Act states that:
(1) This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C (qualified rights) of the Constitution, namely: –
(a) the right to freedom from arbitrary search and entry conferred by Section 44 of the Constitution; and
(b) the right to freedom of expression conferred by Section 46 of the Constitution; and
(c) the right to privacy conferred by Section 49 of the Constitution; and
(d) the right to freedom of information conferred by Section 51 of the Constitution; and
(e) the right to freedom of movement conferred by Section 52 of the Constitution,
is a law that is made for the purpose of giving effect to the public interest in public order and public welfare.
28. Plaintiff submits that section 55(2) of the Environment Act which gives the Director of Environment the power to exclude any “confidential information” which is contained in any statement or report from a public review is subject to section 51 of the Constitution. Plaintiff submits that all documents they are seeking under the Environment Act on behalf of the Plaintiffs are all for public review. I digress from this view as can be seen from the long exhaustive list of documents sought attached to the Amended Originating Summons that documents such as agreements between the developer Nautilus and the State-Owned Enterprises or the State are confidential.
29. Dr Eric Kwa refers to the case of Turama Forest Industries Pty Ltd v Soi & Associates (Unreported, 1996) in his book Constitutional Law of PNG, LawBook Co, 2001, the landowners through their lawyers sought access to the project agreement between the State and the logging company for the development of forestry resources within their area however the Court refused their request stating that the project agreements were private contracts of commercial nature and were confidential.
30. Dr Erik Kwa discusses section 51 of the Constitution that there is yet to be a legislation that will give effect to section 51 of the Constitution as to the manner in which information can be accessed according to the 1993 National Policy on Information and Communication of Papua New Guinea. (Dr Eric L Kwa, Constitutional Law of Papua New Guinea, Law Book & Co, 2001, page 164)
31. This Court is tasked to interpret the law whilst the task of enacting the law is with the Legislature. The documents and information sought by the Plaintiffs are far and wide, some falling within the ambit of section 163 of the Mining Act which is subject to authorisation and subject to privilege and confidentiality from the author of these documents or information which is Nautilus Minerals Niugini Limited which makes it an offence if documents or information are given contrary to this provision without authority. Privileged information and or documents in the custody or possession of MRA and CEPA may be subject to copyright as well and therefore the notion of section 51 as a complete and guaranteed right as submitted by the Plaintiffs is misconceived. The knowledge of where the exact location of the mineral is pursuant to an exploration licence and or a tenement be it under the seabed or beneath the surface of the earth can be privileged from production to the public at large due to competing exploration companies etc. Considering section 51 in light of the national interest in the development of the resources of the country, and the information in the custody of State authorities where individual and private interests are contained is, therefore, a balancing act.
32. In looking at the intention of the CPC in drafting section 51 of the Constitution, the following excerpts are important to bear in mind. The CPC Report, Chapter 5, Part 1, page 13 states the following:
“14. FREEDOM OF INFORMATION
78. For our citizens to be able to participate effectively in the public affairs of the country, it is essential that they have access to official information. Without information as to government activity as person can not make a meaningful contribution to discussion of the issues involved in government policies and programmes. The degree to which citizens are able to fully participate in debate on the public affairs of the country will be a good measure of the extent to which our system of government is truly democratic.
79. Governments in many countries fail to communicate effectively to their people the actions they are taking or contemplating, and the problems which face them. Sometime this is due to sheer inefficiency on the part of the government information office but sometimes it is a case of the government wanting to keep from the voters the truth about the matters which might cause a loss of support for the government if they were widely known.
80. In developing countries such as Papua New Guinea, it is an unfortunate fact that often foreign businessmen know far more about the actions and policies of the government than do all but a select few of its own citizens. Thus, these business interests are in a position to exercise influence on the government without any reaction from nationalist groups being felt by the Government until it is too late for it to take any positive action in response to such reaction.
81. We have therefore recommended that a further civil right-that of freedom of access to official documents- be included in the Constitution, subject to appropriate qualifications which take account of the need for such secrecy as is reasonably justifiable in a democratic society in respect of matterss such as-
-those relating to national security and relations between Papua New Guinea and foreign states;
-national economic interests and the legitimate economic interests of communities and individuals;
-minutes of meetings and associated papers of the National Executive Council and of such other government authorities as a specified in a law;
-incomplete official reports and memoranda;
-parliamentary papers (not, for example, Hansard) which are privileged;
-the prevention, investigation and prosecution of crime; and
-maintaining privacy, the safety of individuals and decency.
82. From our own experience, we fully appreciate the need for confidentiality in the preparation of reports for government and parliament, but once a report is completed, it should be readily available to the general public. “
33. Scholars have suggested that section 51(1) makes provision for reasonable access to official documents and section 51(3) of the Constitution directs that provision shall be made by law to establish procedures by which citizens may obtain ready access to official documents however the right could be accessed only in a reasonable manner and there is no need for a prescribed manner of how this right should be addressed. (Brian Brunton & Duncan Colquhoun-Ker, The Annotated Constitution of Papua New Guinea, University of Papua New Guinea Press, 1984, page 185)
34. Interpreting the Constitution therefore demands looking at the intention of the drafters. The drafters of the Constitution understood the qualifications and restrictions on section 51 “as is reasonably justifiable in a democratic country”, their words. The role of a judge is not to be a policymaker, it is to be as interpreting the law as to its originalism in print and being pragmatic as possible to its application as the law is and not how it should.
35. Section 10, section 25 and section 64 of the Constitution dictate how the Constitution should be read, implemented and enforced.
36. Section 10 of the Constitution therefore states:
10. Construction of written laws.
All written laws (other than this Constitution ) shall be read and construed subject to—
(a) in any case—this Constitution ; and
(b) in the case of Acts of the Parliament—any relevant Organic Laws; and
(c) in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were
enacted or made,
and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section,
have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of
that authority.
37. Section 25 of the Constitution refers to the duty of the Court to take into account the National Goals and Directive Principles. Section 25 states that:
25. Implementation of the National Goals and Directive Principles.
(1) Except to the extent provided in Subsections (3) and (4), the National Goals and Directive Principles are non-justiciable.
(2) Nevertheless, it is the duty of all governmental bodies to apply and give effect to them as far as lies within their respective
powers.
(3) Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or
another kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the
Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least
not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.
(4) Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or of any other body prescribed for the purposes
of Division III.2 (leadership code), which shall take the National Goals and Directive Principles fully into account in all cases
as appropriate.
38. Section 63 of the Constitution states that:
63. Enforcement of the Basic Social Obligations.
(1) Except to the extent provided in Subsections (3) and (4), the Basic Social Obligations are non-justiciable.
(2) Nevertheless, it is the duty of all governmental bodies to encourage compliance with them as far as lies within their respective
powers.
(3) Where any law, or any power conferred or duty imposed by any law (whether the power or duty be of a legislative, judicial, executive,
administrative or other kind), can reasonably be understood, applied, exercised, complied with or enforced, without failing to give
effect to the intention of the Parliament or to this Constitution , in such a way as to enforce or encourage compliance with the
Basic Social Obligations, or at least not to derogate them, it is to be understood, applied, exercised, complied with or enforced
in that way.
(4) Subsection (1) does not apply in the exercise of the jurisdiction of the Ombudsman Commission or other body prescribed for the
purposes of Division III.2 (leadership code), which shall take the Basic Social Obligations fully into account in all cases as appropriate.
39. The approach to interpreting the Constitution as put forth by Kearney J (as he then was) is the judicial ingenuity approach (in The State v The Independent Tribunal: Ex Parte Sasakila [1976] PNGLR 491, at pp.506-507) as;
“...The ‘dynamic character’ of the Constitution is emphasized; in interpreting the laws, the judges are urged to use ‘judicial ingenuity’ in appropriate cases, to do justice. One consequence of this approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or ‘plain meaning’ test nor should it attribute to the legislature an intention to produce a capricious or unjust result. The search through out is for the intention of Parliament, a process which remains, formally at least, one of interpretation and not of legislation, one in which the best guide remains the provisions of the Act itself.”
40. The documents and information sought by the Plaintiffs in regard to the Solwara 1 Project or the Bismarck deep seabed mining which is contained in an exhaustive list to my mind falls under the restrictions of section 51(1)(b)(c)( e ) and (j), particularly these subsections as underlined below:
51. Right to freedom of information.
(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably
justifiable in a democratic society in respect of—
(a) matters relating to national security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations
with the Government of any other country or with any international organization); or
(b) records of meetings and decisions of the National Executive Council and of such executive bodies and elected governmental authorities
as are prescribed by Organic Law or Act of the Parliament; or
(c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body; or
(d) parliamentary papers the subject of parliamentary privilege; or
(e) reports, official registers and memoranda prepared by governmental authorities or authorities established by government, prior to
completion; or
(f) papers relating to lawful official activities for investigation and prosecution of crime; or
(g) the prevention, investigation and prosecution of crime; or
(h) the maintenance of personal privacy and security of the person; or
(i) matters contained in or related to reports prepared by, on behalf of or for the use of a governmental authority responsible for
the regulation or supervision of financial institutions; or
(j) geological or geophysical information and data concerning wells and ore bodies.
(2) A law that complies with Section 38 (general qualifications on qualified rights) may regulate or restrict the right guaranteed by this section.
(3) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.
(4) This section does not authorize—
(a) withholding information or limiting the availability of records to the public except in accordance with its provisions;
(b) withholding information from the Parliament.
41. Justice Polume- Kiele in her interlocutory decision on this matter made reference to the Affidavits of Gunther Joku as the Managing
Director for CEPA and the Affidavit of Stanley Nekitel, the Registrar of Mineral Tenements filed in these proceedings.
42. Mr Joku and Mr Nekitel both state in their Affidavits that the Environment Impact Statement accepted by the Director for Environment for technical assessment resulting in the Environment Permit granted on 29 December 2009 can be accessed on the Nautilus website.
43. I am of the view that where documents are given public access by Nautilus or CEPA and MRA, those are documents that do not fall under the restrictions in section 51. Where official documents are subject to confidentiality under the Environment Act and the Mining Act, the privileged attached to those documents shall be so protected as per the intention of those legislations unless such privilege is waived by the relevant authority. This Court will not waive such privilege as the MRA and CEPA being custodians of these official documents are best placed to decide on the confidentiality and privilege of these documents taking into account matters of confidentiality and copyright attached to any information in the private interest of owners or authors of this information.
44. Any other official document that is not given public access by Nautilus or CEPA and MRA and that is requested by the Plaintiffs which fall within the restrictions in section 51 are private and confidential as to matters of commercial nature and those that fall under section 51 that is subject to secrecy as is reasonably justifiable in a democratic country shall not be given access to and is privileged within the exceptions of section 51 of the Constitution.
45. I, therefore, find that the Plaintiffs are on a fishing expedition with an exhaustive list and where their enquiries have been answered to the contrary, they are adamant to seek section 51 as a guaranteed right without giving due consideration to the qualifications in section 51 of the Constitution. The Plaintiff’s claims are therefore dismissed on the reasons given in this decision.
46. I, therefore, make the following orders:
Orders accordingly.
_________________________________________
CELCOR Lawyers : Lawyers for the Plaintiff
No Appearance for the Defendants
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