The ordinary citizen will soon have the right of access to information held by public or private bodies, writes Barry Streek
A massive breakthrough for human rights and accountability to the public was achieved in Parliament this week with the adoption of four Bills, which in terms of the Constitution must be signed by President Thabo Mbeki by February 4.
There has been considerable compromise, revision and negotiation, generally far too much for the opposition parties. However, South Africa’s Constitution, arguably the most progressive in the world, has taken an important step further.
The Promotion of Access to Information Bill (formerly the open democracy Bill), the Promotion of Equality and Prevention of Unfair Discrimination Bill, the Promotion of Administrative Justice Bill, and the Preferential Procurement Policy Framework Bill are all significant. They are intended to promote transformation and give ordinary citizens the right to make the government – on all levels of power – accountable.
The Promotion of Access to Information Bill, for instance, states in its preamble that the right of access to “any information held by a public or private body” can only be limited by restrictions that are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution.
The Bill, it continues, is intended to “foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information and actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights”.
Certainly, there was a major dispute in Parliament about extending these rights to the government when it is acting in “the public interest”, but that aside, the intention of the Bill is truly democratic.
The Bill will technically become law next Friday once Mbeki signs it, but the real test will be its implementation.
The legislation has extensive provisions for the monitoring of its implementation and it will considerably add to the responsibilities of the Human Rights Commission as well as public and private bodies who will have to appoint “information officers”.
Within 18 months of the commencement of the new law, the commission will have to compile a guide in each official language containing information “in an easily comprehensible form and manner, as may reasonably be required by a person who wishes to exercise any right contemplated in this Act”.
These guides will have to contain the objects of the law, “the postal and street address, phone and fax number and, if available, electronic mail address” of the information and deputy information officers of every public body, the details and manner of access to public bodies, assistance available from the commission and all remedies in law available about an act or failure to act in respect of rights and duties under the law.
Information officers will have to submit annual reports to the commission which in turn will also include information in its annual report to the National Assembly on the number of requests made for information and what happened to these requests. It will also have to conduct public education programmes about the measure.
In theory, at least, that is real accountability. But implementation of these laudable goals will largely depend on what resources are allocated for this purpose. Will, for instance, Minister of Finance Trevor Manuel substantially increase the allocation of funds to the Human Rights Commission when he presents his budget on February 23?
Within six months of the law coming into effect, the information officer of every public body – which means any department of state or administration in the national or provincial sphere of government, or any municipality in the local sphere of government, and any body exercising power in terms of the national Constitution, provincial constitutions or under any legislation – will have to compile a manual “in at least three official languages” giving extensive details about their department or organisation.
That provision also has significant administrative and financial implications. Have the budgets been provided and the staff earmarked for this?
There are eight clauses in the Bill which provide for internal appeals against decisions of information officers, the costs of appeal and applications to the courts, again with substantial bureaucratic consequences and costs.
Still, assuming that there is a determination in the government on all levels to make the law work, citizens will in future be able to submit formal requests for information about themselves and about government bodies if this is required for the exercise and promotion of any rights, if the requester complies with procedural requirements and if there are no grounds for refusing the information.
The new measure will not apply to the Cabinet and its committees, judicial functions, individual MPs and MPLs, the mandatory protection of the privacy of third parties, tax records other than the personal details of the requester, commercial and confidential information of third parties, bail docket, defence and security as well as international information.
Requests can also be refused if the safety of people or the protection of property is jeopardised, if the economic interests of the government are threatened, if the operations of public bodies are jeopardised and if they are “manifestly frivolous or vexatious”. Research is also protected.
So there are wide-ranging limits to the right to request information, which will undoubtedly take lawyers and bureaucrats years to interpret and define. There are sound reasons for these restrictions, but this should not detract from the aim of the new law – to give citizens the right to information.
These rights of access to information are also applicable to private bodies which are defined as natural people or partnerships who carry on any trade, business or profession, and former or existing juristic persons.
Once the Promotion of Access to Information Bill becomes law, it will have vast implications for South African society, but it is a bold step towards greater accountability and even “transparency”.
ENDS