Information is fundamental to all human rights. Our Constitution clearly proclaims: “Everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.”
The preamble of the Promotion of Access to Information Act, 2000 (PAIA), describes the challenge facing the PAIA: “The system of government in South Africa before 1994 resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and to human rights violations.”
The PAIA mandates the South African Human Rights Commission to submit reports to the National Assembly on compliance or non-compliance by government with the PAIA, which it does every year. Our reports show consistent non-compliance. In spite of the fact that the lack of access to crucial information is a key factor in many service-delivery protests, Parliament has not sanctioned those who ignore their responsibility to the people.
Civil society’s campaign against the “Secrecy Bill” (the Protection of Information Bill) is crucial to ensuring that government does not entrench the disrespect for people’s rights reflected by these statistics.
The commission pronounced its views on the Bill in its parliamentary submission in 2010, which built on its earlier submissions on Bills affecting information — including the 2008 draft – and criticised the lack of harmonisation among information Bills.
The commission shares many of the concerns of civil society and has challenged problems such as: the minister’s unfettered powers; the broad definition of national interest — the Bill states that “secrecy exists to protect the national interest”; decision-making around categorisation, classification, standards and procedures; the concentration of power in the state over information management and the protection of information; and the absence of a moderating independent body.
The commission is deeply concerned about the Bill’s impact on the rights of whistle-blowers and journalists who release information in the public interest. The Bill would allow any state agency, government department, parastatal or local municipality to classify public information as secret. More than 1 000 institutions would be granted such power.
The definition of “national security” remains vague and open to abuse. Ordinary information relating to service delivery can become secret and bureaucrats need not provide Âreasons. This may be used to cover up corruption.
Anyone involved in the “unauthorised” disclosure of information can be prosecuted and whistle-blowers and journalists can face lengthy prison sentences for releasing classified information in the public interest. The application of the Act, including in relation to on-site inspections, which do not place any limitation on such inspection, applies to all Chapter 9 institutions and undermines the independence and effectiveness of institutions such as the commission.
The Bill’s reference to the apartheid-era National Key Points Act, 1980, could well enable private-sector organisations to hide behind secrecy when challenged on the health or environmental impact of their conduct.
In 1994, we knew that institutions in the public and private sector would not change overnight. Since then, we have seen how easy it is for them to mould priorities and values. Those who enter the corridors of power often adopt the lens of the powerful and become blind to the powerless.
Such blindness is evident in much of the work before the commission, such as policymakers (across political divides) who build unenclosed toilets and refuse to provide the reports they themselves write referring to this disgrace as “loos with a view”. It exists in the stereotype of the violent service-delivery protester.
Andries Tatane manifested the truth that most protesters are peaceful and are met with brutality. It is evident in mining companies which take no responsibility for acid-mine drainage poisoning water, land and food. It is perpetuated by the belief that poor people steal electricity, in spite of the fact that the entity responsible for most electricity theft is agribusiness.
Globally, 10% of all water is used for personal and household purposes. Most of the remaining 90% is used by industry and agribusiness. User-fees apply to those who use the 10%. What tariffs do those who use and abuse the most water pay? The private and the public-sector nexus reshapes priorities away from the rights promised in our Constitution and breeds corruption. South Africa’s arms deal with Britain, Germany and Sweden is a case in point.
We honour the late Albertina Sisulu. The apartheid state she fought against used secrecy to protect a regime based on greed, hate and fear. Our Constitution commits government and Parliament to respect the inherent worth, value and substantive rights of the poorest. In 2011 who and what will it protect and in whose interests will it act?
Pregs Govender is deputy chair of the South African Human Rights Commission