By Mukelani Dimba, Training Consultant, Open Democracy Advice Centre
UPDATE – Media Release, 11 OCTOBER 2002
The Open Democracy Advice Centre (ODAC) today released the results of a study that exposes the government for failing to implement a crucial Transparency Law passed over two years ago.
A Landmark Law Opens Up Post-Apartheid South Africa
Throughout the apartheid era, South Africa’s minority government suppressed access to information-on social, economic, and security matters-in an effort to stifle opposition to its policies of racial supremacy. Security operations were shrouded in secrecy. Government officials frequently responded to queries either with hostility or with misinformation. Press freedom was habitually compromised, either through prior censorship of stories or through the banning and confiscation of publications. Information became a crucial resource for the country’s liberation forces and their allies in international solidarity movements as they sought to expose the brutality of the apartheid regime and hasten its collapse.
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Consequently, progressive groups came to see unrestricted access to information as a cornerstone of transparent, participatory and accountable governance.
This consensus was ultimately captured in South Africa’s new constitution. A democratic parliament then gave further shape to the right of access to information by enacting enabling legislation-a process in which civil society organizations played an unusually influential role.
One of the most important aspects of the constitution was the introduction of a Bill of Rights designed to ensure equal protection of a broad range of human, socio-economic and civil rights, irrespective of race, gender, sexual orientation, disability, belief, and other factors.
Among the rights upheld was that of access to publicly held information. Following the historic general election of 1994, the interim constitution’s broad right of access to information was expanded further. Section 32(1) of the final constitution, enacted by the National Assembly in 1996, guarantees ‘everyone … the right of access to any information held by the state and any information that is held by another person and that is required for the exercise or protection of any rights.’
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Shortly after the democratic government took office in 1994, it appointed a five-member Task Group on Open Democracy under the auspices of the then-Deputy President Thabo Mbeki. The Task Group was established to draft appropriate enabling legislation. After about fourteen months the Task Group produced a draft bill.
It took nearly five more years-and revisions so extensive that not even the bill’s original name survived-before the legislation was enacted.
Civil Society Takes the Lead
Civil society played an extensive and influential role in helping Members of Parliament to craft the final Act. From the outset, civil society organizations took a keen interest in open democracy legislation, including its information access provisions. A lot of these activities were done under the auspices of the Open Democracy Campaign group.
The Open Democracy Campaign continues to track the implementation of the final Act and has commented extensively on proposed regulations associated with the legislation. And from its roots, a new initiative – the Open Democracy Advice Centre – has emerged, with a central objective: to help make POATIA work well in practice and to ensure that it does not “gather dust”.
POATIA or the Promotion of Access to Information Act 2000, which came into force on March 9, 2001, is an important and far-reaching law that has great significance for all three sectors: public, private and civil society. It recognizes that information is not just a necessity for people – it is an essential part of good corporate and state governance. Weak companies and bad governments need secrecy to survive. Secrecy allows inefficiency, wastefulness and corruption to thrive.
Access to information allows people to scrutinize the actions of their government and is the basis for proper, informed debate of those actions. For the private sector, access to good information is vital for tendering, for open competition and for an efficient market place of ideas and products.
The POATIA aims to:
- create the framework and the rules to allow people to access the records that government holds on their behalf and also records that private companies, organizations or individuals hold and which are needed to exercise or protect any right;
- set out how exactly people will be able to access these records; and
- set out how exactly private bodies and government should deal with requests for records.
The Objects of the Act are (section 9):
- to give effect to the Constitutional Right to Access Information (section 32 of the Constitution)
- and to generally promote transparency, accountability and effective governance of all public and private bodies, by establishing procedures to do so, which enable requesters to obtain records held by the State and by private bodies as swiftly, inexpensively and effortlessly as reasonably possible
- in a way that balances the right with other rights in Chapter 2 of the Constitution (the Bill of Rights)
- and the need for certain justifiable limitations, such as privacy, commercial confidentiality and effective, efficient and good governance.
In addition, the Act’s objects include the empowerment and education of everyone so as to:
- understand their right to access information in order to exercise their rights in relation to public and private bodies
- understand the functions and operation of public bodies
- effectively scrutinize, and participate in, decision-making by public bodies that affect their rights.
This Act applies to both public bodies and private organizations. It defines public bodies to include government departments and other government agencies. Private organizations/bodies would be private businesses, individuals who carry or have carried on any trade, business or profession, but only in that capacity and other juristic persons.
Challenges in Implementation
We live in an “information age”. There has been an explosion in the amount of information held by governments, companies and NGO. Information is vital for individual citizens, communities and citizen’s organizations if they are to participate in the democratic process and to realize the many other rights that are now enshrined in the South African Constitution.
Under POATIA citizens and organizations, such as companies, have the right to access records held by private bodies and government, provided that they have made the request for the record in the prescribed way, and an exemption does not apply.
The Act encourages private bodies and government to adopt a “right-to-know” approach, in the interests of both the holder of the information and the citizen, whereby as much information as possible is automatically published. This is cheaper for private bodies and avoids individual requests having to be made and adjudicated upon.
It is very interesting to note the fact that because the Act applies “horizontally” to private organizations, as well as government, it means that community organizations and individual citizens may also be subject to requests for access to information.
The horizontal applicability of the Act and the fact that it influences policy and strategy implementation, as well a other pieces of legislation which determine the way South Africans are governed, employed and the way they do business, is intended to give a good shot in the arm for the campaign aimed at creating and nurturing openness, transparency and accountability in government, business and the community at large.
Still, at this stage, there are still problems with implementing the act and in providing speedy access to information.
(a) The Act and Media
While the media in South Africa welcomed the Act and support the spirit of the Act – which establishes a culture of openness in South Africa – there seems to be some dissatisfaction with the clauses in the Act which slow down the process of accessing information in bureaucratic requirements.
(b) The Process
The Act calls for highly bureaucratic requirements to be satisfied before any requester can be granted access to records. The requester must complete an official application form and pay the required application fee. The body with whom the application is being lodged then has 60 days to decide on the application. If the application is denied, there are even longer periods involved in taking the process into appeal and getting a decision in the appeal.
This certainly does not help the journalist who wants to hand in the story by the deadline which is “next week,” but it’s more suitable for a journalist who is working on an investigative report over an extended period.
(c) Costs
The Act provides for payment of different kinds of fees for access to a record. These include:
- Request Fee of R35,00 (to access government records) and R50,00 (to access privately held information)
- Reproduction and Access fees (charge per page of the record or type of media in which they are reproduced)
- Appeal fees, if the decision on request is subject to an internal appeal (government records)
- Legal costs, if the decision on the request is subject to an appeal by the High Court (privately held records)
All these costs are very prohibitive to the majority of South Africans, many of whom are poor, unschooled and illiterate.
(d) Awareness and Attitudinal Change
Creating openness in a society which used to be closed is not an easy task at all. The main goal is to create awareness about the Act. We can say without doubt that currently the majority of South Africans are not aware of their rights and responsibilities in terms of the Act. It then becomes the duty of government, NGOs and the media to educate people.
Other bodies, it seems, have had difficulty in appreciating the fact the Act is aimed at creating openness. There are still situations where officials will only release information because they feel like it and not because it is required in terms of the Act. Only when people are aware of legislation can we have the required attitudinal change, to create a more open society.
It has been just over a year since the Act came into operation and implementation is starting to be detected, even though such cases are few and far in between. It was to be expected that an Act whose main charge is the transformation of South Africa into a more open and transparent society would take years to be fully entrenched in the psyche of the nation.
The Open Democracy Advice Centre is currently conducting a survey that will show how far South African government departments and companies in the private sector have gone in implementing the Act. Early returns of the survey questionnaire indicate that the poll will show mixed results.
The responses from government departments show that about 70 percent of government departments sampled for the survey know about the Act and have begun the process of putting in place mechanisms as demanded by the Act. The most exemplary is the Department of Water Affairs. Private bodies have been slower to implement the Act. Most say they have not heard about the law and would like to get more information about it.
The experience of the Khulumani Support Group, which consists of people who were victims of torture and other related crimes at the hands of the apartheid-government security agencies, shows the problems with the Act. Members of the support group made submissions to South Africa’s Truth and Reconciliation Commission (TRC). The Truth & Reconciliation Act mandates that individuals who have made disclosures to the TRC as victims of torture or as relatives of those killed by the security forces will be given some form of monetary reparation.
After the TRC hearings were concluded, some payments were made to the victims and a promise of more substantial reparations at a later stage was made. The promise remained just that, however, so the Khulamani Support Group approached the Open Democracy Advice Centre for assistance in getting a copy of the government’s Reparations Policy. The support group made a request in accordance with the terms of the Promotion of Access to Information Act. After the 90-day period had lapsed and there was still no response from the government, this was deemed as a refusal in terms of the Act.
The group and ODAC are currently considering other legal options available as the way forward.
The Rest of Africa: Ghana
Much like South Africa, various other African countries are realizing the need for access to information legislation as an important tool in pushing for more openness and transparency in their countries which until recently have been plagued by what the West has dubbed “The African Disease: Corruption”.
Although South Africa and Malawi are the only two countries in Africa which have passed a freedom of information act, the right to information is enshrined in a number of African constitutions.
Some countries have begun to take action by ensuring that they begin with the process of drafting legislation that will enable the exercise of the right to access to information as enshrined in their constitutions. Civil society organizations and the media have been key players in this process.
Currently there are a few right to information bills which are waiting to be enacted by various parliaments in Uganda, Botswana, Namibia, Ghana and Nigeria, among others.
In Ghana, the 1999 Right to Information draft bill contains provisions which are similar to the South African Promotion of Access to Information Act, but with some interesting differences.
Part 1 of the Bill provides for all people to have access to information, “including official documents”.
One fundamental difference between the Ghanaian bill and the South African Act is the provision for time required to process an application or request. As stated above, in South Africa the holders of information have between 60 days to respond to a request; in Ghana the “custodian of the information” has between three and 30 days to respond to an application.
Part 2 of the Bill contains exemptions. This part exempts various types of documents and officials from application of this draft Bill. The whole draft Bill has 22 Sections/Clauses and, unfortunately, 13 of that 22 deal with exemptions and a provision (Section 6) that a Minister or professional Head of Department can withhold information by simply issuing a certificate that specifies the nature of the public interest which will be endangered by the disclosure of information. There are no clear guidelines, however, on how this decision can be taken. This provision can be abused to unfairly or unjustifiably refuse access to a record.
But it is interesting to note that in terms of Section 5, the Supreme Court can order access to records which are exempt in terms of the Act. The complication is created by the stipulation that the requester must get the order of the Court first before applying for the record with the custodian. This means that the requester should have prior knowledge of the fact that record is exempt, even before he makes the application. This is hardly ever the case. It would work better if the requester had been allowed to apply to the custodian first and if the custodian refuses access on basis of the fact that the record is exempt THEN the requester can go to the Court to seek access to the record. A public interest-override is provided for in the Bill.
The scope of the Act is not clear. A bulk of the Bill addresses the procedures relating to organs of state, but is not clear whether the Bill will also apply to individuals as holders of information or private and business organizations.
Nigeria
The Media Rights Agenda, an NGO in Nigeria, has worked tirelessly to introduce the Freedom of Information Bill in Nigeria. The Bill carries with it the same spirit as the South African Act. Disclosure, however, applies only to government departments and state agencies which perform a public duty. One of the most impressive sections in the Nigerian draft bill is Section 6, which gives the head of the department which has custody of the record 14 days to grant the requester a decision. If search or preparation of the record is to be extensive, Section 8 allows the agency to extend the 14-day period by a maximum of seven more days. Unfortunately, the bill is silent on what would happen should the custodian fail to meet these time frames.
The Act also seeks to provide the disclosure of public records or information by public officers without authorization if it is for public interest; such officers are also protected from the adverse consequences of such disclosure.
This is provided for in Section 31 (1) & (2) in terms of which an official would not be subject to civil or criminal proceedings. However, the Act does not provide for protection of that official against suffering an occupational detriment, like being dismissed, demoted or even harassed at the workplace.
Zimbabwe
Earlier on in this document mention was made of the fact that as far as we know South Africa and Malawi are the only states in Africa with an Access to information Act, we still maintain this position even in the light of the fact that Zimbabwe also has a legislation called the Access to Information and Protection of Privacy Act. The Act was passed by the Zimbabwean parliament in early 2002.
It is quite difficult to regard this legislation as a freedom of information legislation similar to those in South Africa, the United States and Sweden. In reality, the Act has little to do with access to information.
The Act is more about control of the media than about creating mechanisms for citizens to access information held by the state. Its no wonder therefore that throughout its troubled-midwifery the predecessor to the Act was called the Media Bill, and seldom was it ever called the Freedom of Information Bill or Access to Information and Protection of Privacy Bill.
To their credit, the drafters of the legislation made provisions in Act:
- to formally establish a right to access information held by public bodies
- to impose limits on the collection of personal information by public bodies
- and, control the way such information is put to use.
Multilateral Interventions
As can be observed from developments in some countries and the lack of it in others, there needs to be concerted effort by multilateral organizations in Africa to take the necessary steps to ensure that most countries get on board and actually start to put in place some mechanisms of ensuring that the right to Information is protected, enhanced and respected.
There have been attempts to ensure that other countries in Africa join in the campaign. The most important action was certainly the declaration of the African Charter on Human and Peoples’ Rights, which guaranteed that freedom of expression is a fundamental human right. Countries that are not signatories to the Charter are still bound by the Universal Declaration of Human Rights, which has the same provision.
Such declarations need to be supported by effective instruments which are aimed at ensuring that the people actually get to enjoy such rights. To this extent we fully support the efforts in Africa to establish continent-wide standards on freedom of expression and freedom of information.
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