Opinionista Guy Berger 8 March 2019

South Africa’s journey to the right to know

The International Conference of Information Commissioners, set to take place in Midrand on 10-13 March, will bring together officials from all over the world, whose job it is to serve their citizens’ ‘right to know’ and who will share successes and challenges in protecting the right to information in their jurisdictions.

South Africa has come a long way from apartheid-era secrecy to a constitutional democracy rooted in transparent government and the right to know.

In 1995, a powerful editor and a powerful politician sat next to each other at a VIP dinner in Grahamstown, now called Makhanda. Contrary to expectations, the journalist spoke against a democratic South Africa getting a law to guarantee the right to demand information from the State.

The editor was Ken Owen, then editor of the Sunday Times. Owen feared that a law could give the government a pretext to keep things secret. For example, a vague clause on “national security” could be used to deny requests for information.

The politician was Thabo Mbeki, at the time vice president of South Africa. He argued that in order to ensure respect for people’s rights in the post-apartheid period, the state had to be transparent.

Mbeki was correct: freedom of information law is key if we want to stop civil servants from using secrecy to foot-drag delivery or capture state power for corruption. Mbeki’s idea contrasted sharply with apartheid’s control of information by using the power of a closed state. The challenge for Mbeki was to upturn the tables. What would have been hidden in earlier times should now become open to scrutiny.

So it was that the Promotion of Access to Information Act (PAIA) came into being in 2001. Since its introduction, PAIA has been used to shed light on the confidential contract between the government and FIFA about the 2010 World Cup, about the real costs of Nkandla, and much more.

However, as the ANC evolved, so PAIA came under challenge. Even beginning with the Mbeki presidency, there was a bid to undercut the law with a new one – the Protection of State Information Act. This new secrecy law would enable the government to refuse to release information that it judged to threaten “national security”. It also excluded the possibility that “public interest” – such as exposing corruption – could override secrecy.

History has proved both Mbeki and Owen right, it seems.

It’s now well known that the Press, the courts, opposition parties and the Right2Know Coalition succeeded in stopping the roll-back, though alarms sounded again with the Critical Infrastructure Bill.

Overall, the result today is that the South African state remains accountable. The people still enjoy a right to see inside the machine.

Putting PAIA into practice is far from perfect. There are too often slow or non-existent responses to requests for information. But the existence of PAIA is a real reason why corruption has been hard to hide.

This history is particularly pertinent as South Africa prepares to host the International Conference of Information Commissioners (the ICIC2019), an international gathering of Information Commissioners from more than 25 countries and representing all continents.

Colloquially called the “World Cup of Information Commissioners”, the ICIC, set to take place in Midrand on 10-13 March, will bring together officials in each country whose job it is to serve their citizens’ “right to know” and who will share successes and challenges in protecting the right to information in their jurisdictions.

These Information Commissioners also often work to protect personal information, which has become a critical issue due to surveillance, data breaches, artificial intelligence, and in the wake of the Cambridge Analytica scandal and its impact on the elections in the United States.

From 2012 to the end of 2018, the number of countries with Freedom of Information Laws worldwide has risen from 93 to a total of 125. This growing momentum has many reasons, but one is an event that took place in Cape Town in 2011. That event, called the Pan African Conference on Access to Information, urged UNESCO to recognise 28 September every year as a special date for the right to know.

In 2015, a total of 195 Member States at UNESCO recognised the day as the International Day for Universal Access to Information. More and more, people worldwide use the occasion to defend and deepen their right to information.

Africa has provided further impetus to this momentum. South Africa’s Pansy Tlakula led an African Union initiative to produce a model law on access to information, as well as to develop guidelines about transparency during elections. Acting in her role as the then African Rapporteur for Freedom of Expression and Access to Information, Tlakula has since been appointed as the Chairperson of the Information Regulator in South Africa, and has – as the country’s official “Information Commissioner” – been a driving force behind the upcoming ICIC2019.

The ICIC2019 marks an important and timely milestone in the march towards openness and the recognition of access to information as a human right. Information Commissioners will gather in Johannesburg just a few months before key sessions at the UN General Assembly, where global leaders will – for the first time – assess progress on the right to information within the framework of the Sustainable Development Goals (SDGs), with a specific focus on SDG 16.10, which specifies “public access to information and fundamental freedoms” as a necessary prerequisite for sustainable development.

The right to access to information is intended to ensure that countries deliver jobs, gender equality, protection of the environment, health, justice, and all the other ambitions of the SDGs. South Africa will be one of the states which is expected to report at the UN this year. South Africa’s trajectory – from apartheid-era secrecy to a constitutional democracy rooted in transparent government and the right to information – will undoubtedly be of great interest, and provide many lessons to learn and pitfalls to avoid, to other countries. DM

Guy Berger is the Director of Freedom of Expression and Media Development at UNESCO.

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