Wri/idrc report

Other legislative advances

The Protected Disclosures Act 26 of 2000 was a significant legislative addition to the open government landscape of South Africa. The Act makes provision for procedures in terms of which employees in both the private and public sector may disclose information regarding unlawful or irregular conduct by their employers or other employees and be protected. The Act provides labour protections for whistle-blowers (though not criminal protections) which enhances release of information in the public interest.

Civil society

Civil society has always had a significant role to play in advancing and monitoring access to information in South Africa. The Open Democracy Advice Centre¹⁷ was launched in October 2000 as a niche, not-for-profit partnership between the Institute for Democracy in South Africa (Idasa), the University of Cape Town: Department of Public Law, and the Black Sash Trust. It is the only specialist Centre of its kind in South Africa (and on the African Continent). It serves as a practical, specialist service organisation to assist social justice-based organisations to access their rights in relation to PAIA and PDA. Civil society organisations have had, since 1994, a significant role to play in the development of access to information law and reform in SA.

In 2001 the civil society framework was strengthened even further by the launch of the Freedom of Information Programme at the South African History Archive. The Programme was launched with the aim of creating awareness of, compliance with, and use of PAIA by submitting requests for access to information. Since its inception, the programme has built up a comprehensive collection of released materials. It also assists in direct community-based training about PAIA.

In November 2008 the PAIA Civil Society Network¹⁸ was established in response to the need for greater collaboration and cooperation amongst organisations and individuals working to achieve a culture of openness and accountability through the effective implementation of the PAIA in South Africa. The first meeting was held at the University of Witwatersrand, Johannesburg, in February 2009. This is one of the few collaborative networks of entities that work with PAIA in SA, and serves as an essential sounding board for strategising and planning advocacy on access to information issues in SA.

The international civil society community has also had an important influence. For instance, “Right to Know Day” was established on 28 September in 2003 by access to information advocates from around the globe. The aim of the day is to raise awareness of every individual's right of access to information. Accordingly, many SA access to information initiatives are centred on this date as a part of international access to information advocacy. The day serves as an international rallying date for coordinated access to information advocacy.

In 2011 the Centre for Law and Democracy released its Global Access to Information Rating.¹⁹ South Africa ranked 12th out of 89 countries in the Centre for Law & Democracy's Global Access to Information Ratings (ATI Ratings), a two year comparative analysis of 89 legal regimes for access to information across the globe, and 13th out of 80 nations in an additional study that dealt with implementation of access to information laws, known as the Six Questions Campaign (the Campaign). In the ATI Ratings, South Africa benefited from the broad application of its legislation, which is complemented by a strong constitutional right to access information. Negatives in South Africa's legal regime identified by the ATI Ratings included the damaging exceptions for records of the cabinet and members of parliament, as well as the inability of the Human Rights Commission to provide proper solutions for the review of a refused request for information. These obstacles are directly linked to the non-existence of an Information Commissioner. The report reflects on the relative strength of the current legislative regime in SA, though not attempting to incorporate consideration of the implementation issues.

The changing South African environment

Mid-2010 marked the introduction by the Ministry of Safety and Security of the Protection of State Information Bill, and a shift in government’s attitude toward a legislative promotion of secrecy. Regardless of this backward force, in September 2011, as a result of significant civil society campaigning, the ANC withdrew the Protection of State Information Bill from tabling in Parliament.²⁰ The Protection of State Information Bill (also known as the “Secrecy Bill”) has seen sustained criticism from civil society since it was introduced by the Ad Hoc Parliamentary Committee in 2010 for its perceived infringements on access to information and press freedom in SA (the Bill creates offences around classified information with no public interest defense). On the eve of its tabling before parliament – after the ANC had used their political weight to push it through the parliamentary process with very few of the amendments advanced by the public – the ANC withdrew the Bill in response to growing political pressure, allowing more time for campaigners to promote adoption of the changes necessary in order to make it consistent with the Constitution. However, the Bill is now – mid-2012 – back before the National Council of Provinces. Though advances have been made, concerns remained which were tabled before the Council, such as:

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  Continuing concern in regard to application. While the application of the Bill has been curtailed, the power of the Minister to opt-in agencies into its application should be more limited.
  
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  A reverse onus is contained in the offence created in section 43.
  
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  The inadequacy of whistle-blower protections in cases of non-employees.
  
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  The criminalisation of mere possession of state insecurity information contravenes international principles.
  
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  The inclusion of economic, scientific and technological information is potentially problematic.
  
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  The public cannot approach the Classification Review Panel for any reason and recourse in terms of the Bill lacks adequate independence and accessibility.
  
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  The Bill does not adequately align with PAIA, either procedurally or substantively, and in fact the current draft seeks to override it expressly.
  
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  The burden on the National Archives is too heavy.
  

However, in October 2011 the Justice Committee confirmed that they would extend the powers of the Information Commissioner currently being created under the Protection of Personal Information Bill to include PAIA. Though still in a Bill, the Justice Committee has noted their intention to create an Information Commissioner who will have powers under both the Protection of Personal Information Bill (also known as the “Privacy” Bill), as well as the Promotion of Access to Information Act 2 of 2000. Over the past ten years of PAIA, one of the most repeated criticisms has been the lack of an Information Commissioner to act as an empowered independent oversight mechanism in order to provide a realistic avenue of recourse, and also push monitoring and awareness-raising from a centralized and coherent body. This will serve as one of the greatest gains in regard to the management of PAIA since it was passed. Observations internationally have shown the necessity for an Information Commissioner to ensure an efficient and open access to information regime, as well as providing useful precedent to directly influence implementation of the law.