Wri/idrc report

Background

Introduction

South Africa has some progressive pieces of transparency legislation, though implementation remains a concern. The path of access to information over time in South Africa originally began with a positive upwards surge as to progressive enhancement of the right, though there have appeared to be worrying retrogressive steps over recent years (see further our online timeline at http://www.dipity.com/gabriellarazzano/Access-to-Information-in-South-Africa/). In order to examine this transition, we will now more closely examine key dates in South Africa’s access to information history. This has been largely informed by the annotated bibliography attached as Annexure A.

In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights. The Declaration represented the first global expression of rights to which all human beings are inherently entitled. It consists of 30 articles which have been elaborated on in subsequent international treaties, regional human rights instruments, national constitutions and laws. Of particular importance, article 19 of the UDHR states:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

This serves as the foundation for all the United Nations’ subsequent acknowledgements of access to information and freedom of expression and provides a fundamental text for understanding the international context of access to information. It also was a notable point in human rights history, marking an upsurge in the predominance of a human rights discourse as a means of directly combating the horrors arising from the Second World War.

Transition

In spite of a changing international discourse, South Africa was marred by a repressive and dictatorial Apartheid government that thrived on secrecy and oppression throughout the majority of the 20^th century. Most South Africans were forced to live without any democratic rights attributed to them by the state and suffered immense hardship and inequity. The African National Congress was one of South Africa’s strongest liberation movements and, in April 1991, they revealed their Constitutional Principles – an equal human right vision for South Africa’s future.⁹ This document served as the ANC’s key constitutional principles for promoting democratic reform in the country. Vitally, the ANC made a call for an “open society” which would serve as a foundation for many of its contributions during the drafting of the Constitution post-independence. This paved the way for our first democratic elections – held after protracted negotiations for peace on 27 April 1994. The elections were thus the key turning point toward establishing our constitutional democracy. The elections proceeded peacefully throughout the country as 20,000,000 South Africans cast their votes. This change in political regime to democracy was an essential foundation for the promotion of open governance, human rights and thus the right of access to information. Nelson Mandela was sworn in as the country’s first democratically elected President after the ANC won the elections with a 63% majority, in May of that year.

The change in South Africa’s democratic trajectory was reinforced in October 1995 when the Johannesburg Principles on National Security, Freedom of Expression and Access to Information¹⁰ were adopted. The Principles were adopted on 1 October 1995 by a group of experts in international law, national security, and human rights convened by ARTICLE 19, the International Centre against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, in Johannesburg. These Principles have been endorsed by Mr Abid Hussain, the UN Special Rapporteur on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and referred to by the Commission in their annual resolutions on freedom of expression every year since 1996. The principles serve as one of the key resources outlining principles of access to information and issues vital to any consideration involving access to information. However, this event also marked South Africa’s increasing profile internationally as a country dedicated to advancing progressive human rights reform.

Our constitutional process had begun pre-democracy, as part of peace negotiations, but by 10 December 1996 the South African President was able to assent to the Constitution of the Republic of South Africa. The Constitution of South Africa is the supreme law of the country. It provides the legal foundation for the existence of the Republic of South Africa, sets out the rights and duties of the citizens of South Africa, and defines the structure of the Government of South Africa. It is a progressive Constitution which entrenches various socio-economic rights (and not just civil/political rights) subject to progressive realisation. Within the Bill of Rights, specifically section 32, the Constitution entrenches the right of access to information, calling for the enactment of a law to give effect to this right. As a result of the requirements of section 32, the legislature passed the Promotion of Access to Information Act 2 of 2000.¹¹ This Act gives effect to the right of access to information as contained in section 32 and was the most fundamental political step undertaken by the new administration to entrench the right of access to information in South Africa.

The healing process of transition continued long after 1994. On 21 March 2003 the Truth and Reconciliation Commission Report was released. The TRC was set up in terms of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995, and was based in Cape Town. The mandate of the commission was to bear witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as reparation and rehabilitation. Importantly, in Vol. 1, Chapter 8 of the report, the Commission noted that they had discovered that an enormous number of official records had been systematically destroyed, particularly within the 1980s period as a new democratic government became more of a threat to the previous regime. This is significant, as the legacy of secrecy and destruction of information continues to influence access to information in SA today.