By Dale T. McKinley · 7 Sep 2009
A large part of the political, social and economic edifice of the apartheid system in South Africa was built on, and sustained by, the control of information and enforced secrecy. This was at the heart of the anti-democratic character of the apartheid system. It was the glue that held together the institutionalised violation of the basic human rights of South Africa’s majority. The struggle against apartheid was fundamentally, a struggle for the democratic reclamation of those human rights, inclusive of the right of access to information.
It is understandable that in the post-1994 era, the central focus of both the government and the majority of South Africans - with varying degrees of legislative and ‘civic’ intensity and effect - has been on those rights whose potential realisation, historically, provided the greatest impetus to the struggle against apartheid (for example: equality before the law regardless of race, ethnic or social origin, culture and belief; freedom and security of the person, expression and association; the right to adequate housing, health care and basic education and so on). The indirect result however, has been that other constitutional rights such as the right of access to information (Section 32 of The Constitution - which provides for the right of access to ‘any information … required for the exercise or protection of any right’), have taken a backseat and been generally viewed as secondary human rights, artificially detached from the realisation of the more ‘central’ rights. This is a major elision of South Africa’s post-1994 democratic character and content.
If there is one right contained in The Constitution that symbiotically connects all other rights, it is the right of access to information. This is the case precisely because public access to information is the life-blood of any meaningful democratic participation. Without the right of access, the affirmation, and more concretely the realisation, of this basic right, all other rights are fundamentally compromised.
The tacit recognition of this reality no doubt informed the adoption of the Promotion of Access to Information Act of 2000 (PAIA), which legislated the affirmation of the right of access. In his remarks to Parliament on the occasion of the passage of PAIA, then Minister of Justice and Constitutional Development, Penuell Maduna, foreshadowed the expectations that accompanied the legislation: ‘We are turning on the light to bring to an end the secrecy and silence that characterised decades of apartheid rule and administration’. Likewise, the Government Communication and Information System (GCIS) has stated that, “all citizens of South Africa have a right to access information which affects their lives. They have a right to know how government functions and how decisions taken by them may affect their lives. This transparent flow of information between government and its citizens is necessary for democracy.”
Not surprisingly, PAIA was warmly welcomed by most South Africans (or at least those who knew about it), especially in light of the possibilities for using PAIA to access information from various levels of government around decision-making processes, the use of public finances and service delivery programmes/plans having a direct impact on both individuals and communities. Yet, almost a decade since PAIA became South African law and despite the generalised goodwill surrounding PAIA and the spirited activism of a select group of civil society organisations, the practical realisation of the right of access remains stillborn for the vast majority.
If people do not know about something then it is axiomatic that they are powerless to engage with, make use of and/or impact on, it. A 2007 national survey by Markinor revealed that only 25% of all South Africans even know about PAIA and there is no concrete indication that this has improved over the last two years. The result is that we continue to suffer from the debilitating, systemic disease of a constructed ‘ignorance’ when it comes to crucial information about the who, what, when, where and how of those who have political and economic power – and who thus make decisions that are fundamental to our lives.
The result is that most South Africans – particularly the poor - have no knowledge of the content of PAIA or how to use the legislation to enforce their rights. Any meaningful and sustained right of access to information requires that people first know their rights and secondly, know what information is in custody, that records are kept properly and that records are readily available. All of these ‘requirements’ are far from being realised/implemented with the public sector, and to a lesser extent the private sector, being generally under-resourced and unprepared to ensure effective implementation of PAIA with the key area of management of information/records being in varied states of (denied) chaos.
As if this is not enough of a body blow, a majority of those in possession of public sector information simply refuse to allow access. A 2008 study by the Open Democracy Advice Centre found that 85% of formal information requests using PAIA that went to district/local municipalities, and 60% that went to provincial government departments, were met with a ‘deemed refusal’ (non)response. In other words, they were simply ignored. Yet, such open contempt for one of the most crucial, participatory and empowering pieces of law in our country, not to mention for the principles that inform the constitutional right of access, have gone completely unpunished. Instead, they seem to be embraced and celebrated as if government has ‘gotten one over’ on those they claim to work for and represent. Even if to a lesser extent in practice and application, the same can be applied in general terms to the private sector.
When there is a response, it is most likely to be a refusal based on extremely broad and vaguely defined grounds. The most widely used grounds for refusal being, ‘unavailability’, ‘commercial and third party confidentiality’, a non-transparent ‘national and international security’, and the application of exemptions for certain senior level public institutions and officials. The only way to contest such refusals is to first lodge an ‘internal appeal’ (which, in most all cases is rejected by the very same people) and then to appeal to a court of law. Despite the Constitutional Court’s recent ruling declaring the 30-day period for lodging such court appeals to be unconstitutional, the reality is that the last procedural chance to realise access, remains out of reach of most South Africans due to its commodification.
A constructed lack of knowledge, inaccessibility and unaffordability – it’s a sure recipe for frustration, disempowerment and conflict. And, this is precisely what has happened. The tens of thousands of community protests over the last several years in South Africa are not simply reducible to a lack of physical ‘service delivery’ and/or exploitative activities of the private sector. They have been one of the few available responses by ordinary people (whether planned or spontaneous) to the almost complete lack of information and communication - and thus, institutional, democratic transparency and accountability. Similarly, those few activists and intellectuals who speak out/stand up are not some Trojan ‘third force’ or simply disgruntled naysayers.
If one of our most basic and crucial human/constitutional rights can be treated with convenient disdain simply because those in positions of power don’t like the implications that accompany their realisation, then those rights are not even worth the paper on which they are written. We must not allow our hard earned democracy to be sacrificed on the altar of the arrogance of power. In the case of information, what we don’t know can definitely ‘kill’ us.