Wri/idrc report

Regional developments

Access to information reform was slower to advance in the African region, with South Africa leading the way from the 1994 period. However, on 11 July 2000 the African Union adopted its Constitutive Act, which served as the foundation for the AU’s commitments and powers. Within this Act, Articles 3 and 4, both emphasised the significance of good governance, popular participation, the rule of law and human rights. This then created a foundation for the advancement of access to information as a commitment of all AU countries.

Subsequently, the AU Convention on Preventing and Combating Corruption was adopted by the heads of state at the African Union Summit held in Maputo on 11 July 2003. The AU Convention provides a comprehensive framework and covers a range of criminal offences including bribery (domestic or foreign), diversion of property by public officials, trading in influence, illicit enrichment, money laundering and concealment of property. It calls for measures on prevention, criminalisation, regional cooperation, mutual legal assistance and recovery of assets. It covers both public sector and private sector corruption, both supply and demand side. Particularly, Article 9 states:

“Access to Information: Each State Party shall adopt such legislative and other measures to give effect to the right of access to any information that is required to assist in the fight against corruption and related offence”.

This remains a seminal convention for outlining African member states legislative commitments for access to information.

The Centre for Human Rights, in collaboration with the Special Rapporteur on Freedom of Expression and Access to Information in Africa, held a public consultation on the Draft Model Law for AU Member States on Access to Information in Africa on 29 April 2011, during the 49th Ordinary Session of the African Commission on Human and Peoples’ Rights (ACHPR) in Banjul, The Gambia. The aim of the consultation was to introduce the Draft Model Law, developed pursuant to Resolution 167 (XLVIII) 2010 of the ACHPR, authorising the Special Rapporteur to initiate the process of developing a model access to information legislation for Africa. This is the first step toward advancing access to information throughout the region, with SA playing a leading role in the drafting and advocacy, while also using aspects of the Model Law to review PAIA.

As a way of reigniting the push in Africa for access to information reform, 19 September 2011 marked the day of the signing of the African Platform on Access to Information (APAI) Declaration. The declaration establishes fourteen principles designed to guide the right to information on the continent. The declaration also includes a call to action, challenging international and Pan African bodies as well as national governments to take action to implement the principles. It also calls on civil society to:

1. 
   engage with governments in developing, enhancing and implementing access to information laws;
   
2. 
   monitor progress on the implementation of access to information laws;
   
3. 
   create awareness on access to information and provide assistance to facilitate public access to information;
   
4. 
   ensure transparency in their own activities; and
   
5. 
   promote international right to know day, 28 September.
   

Significantly, the Declaration has a strong African focus for realizing access to information. It further provides a call for action for access to information activists from Africa.

Promotion of Access to Information Act

The majority of the sections of the Act came into effect on 9 March 2000 (though all sections were only finally effective in February 2002). In spite of the fact PAIA was assented to on 2 February 2000, there had been a staggered date for the enactment of various sections. However, following what became known as PAIA’s “hiatus” period, the majority of sections within PAIA came into operation and the Act was thus able to be utilised by those wishing to seek access to information.

On 9 March 2001 the Minister passed Regulation 187 in regard to PAIA. Acting under his powers as prescribed by the Act, the Minister passed Regulations which outlined the necessary content for the South African Human Rights Commission guide and the PAIA manual for public and private bodies. However, most importantly, it outlined the cost of applicable fees which public or private bodies can charge for an individual making a PAIA request , as well as the applicable charges for access to records. The Regulations also provided the format for forms to be used when making a PAIA request. The Regulations create uniformity in applicable charges and provided procedural clarity. However, it is believed that these costs are still prohibitive in regard to access information.

In a key political event, the Rules of Procedure for Application to Court in terms of PAIA Government Notice No. R. 965 (GG 32622) come into operation on 16 November 2009. These rules as passed were the key procedural step required to facilitate PAIA matters to be heard in the Magistrates Court as the court of first instance – as opposed to the High Court as before. This was as a result of section 78 of PAIA which makes allowance for a requester to apply to court for appropriate relief, as expanded by General Notice 585 of 14 May 2004 (GG 26332). However, even though the rules of procedure necessary for the use of Magistrates’ Courts have now been passed, there continue to be obstacles placed before requesters who wish to utilise the Magistrates’ Court to seek appropriate relief, largely because Magistrates have not been properly trained and assigned as required by the section read in full.

The vitality of PAIA has meant several key cases have been litigated in respect of the Act since it was passed. For instance, on 24 March 2005 judgment was handed down in Clutcho v Davis 2005 (3) SA 486 (SCA).¹² This was followed by such cases as Transnet Ltd and Another v SA Metal Machinery Co (PTY) Ltd 2006 (6) SA 285 (SCA)¹³; Unitas v van Wyk 2006 (4) SA 436 (SCA)¹⁴; Mittalsteel South Africa Limited v Hlatshwayo [2007] 1 All SA 1 (SCA)¹⁵; Biowatch T rust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14¹⁶; Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21; and M & G Limited v the President and Others [2010] ZAGPHC 43. However, judicial redress remains inaccessible for the majority.