Promising transparency is one thing, but the South African government delivering it is quite another. If you want to know what is going on and have the temerity to ask, the chances are that you will simply be ignored. Rather than abide by their constitutional and statutory duty to respond to requests for public information, government agencies prefer to stick their head in the sand and, ostrich-like, hope the pesky interlocutor will go away without too much of a fuss.
From President Thabo Mbeki down through his Cabinet and into the African National Congress parliamentary caucus, hands will be thrown up in the air with frustration at this startling observation. The irritation is justified: the public service is frustrating the good intentions of Parliament. Proof of the pudding is in the eating, and the results of the first ever comprehensive comparison of the performance of governments in response to access to information (ATI) requests by citizens around the world are shocking.
The Open Society Institute study — conducted in Peru, Bulgaria, Armenia, Macedonia and South Africa — applied a careful methodology to test the responsiveness of 18 government agencies when faced by requests for information from different sorts of requesters — NGOs, journalists, “ordinary Joes” and “excluded groups” (such as the disabled or illiterate).
In total, 100 requests of similarly varied gradations of sensitivity were made in each of the five countries. In South Africa, not only were fewer than one in four of the requests answered (23%), but the majority of those that were successfully submitted — 63 out of the 100 — were ignored: a far worse record than any of the other four comparators. Armenia and Macedonia performed better, even though at the time Armenia’s law had not come into effect and Macedonia had barely started to contemplate one.
Almost as damaging to the reputation of the South African government, only two requests out of the 60 where no information was provided received a written explanation. Even more embarrassing, given the government’s rhetorical commitment to the rights of the disabled and the socially and economically excluded, the illiterate requester was successful in submitting only one out of the 10 requests she tried to make.
The South African law that provides for the making of a request for information, the Promotion of Access to Information Act 2000 (PAIA), requires a requester to complete a form, but, in the case of an illiterate or otherwise disabled person, obliges the agency to dispense with this necessity and assist the requester.
This did not happen; instead, she was given the run-around and dismissively questioned about why “someone like her would want information like this”. In one case, she replied that she was requesting some data to help her daughter’s research assignment, but this did not help. The motivation for the request is a completely immaterial, in fact unlawful, consideration. As when you withdraw your cash from your bank account, so too you should be free to withdraw information from your government. It is, by definition, the public’s information, a conceptual premise that appears to have escaped many public servants.
The habit of bureaucratic secrecy is clearly more deeply ingrained than we may have thought; old institutional habits die hard, compounded perhaps by new ones. Yet, legally, South Africans are theoretically in a better position than requesters in any of the four other countries.
The statutory right is underpinned by a constitutional right to ATI enshrined in Section 32 of the Bill of Rights. The constitution-makers wisely recognised that, as important as the right to water, housing and health care, meaningful access to information and knowledge is a key indicator of socio-economic transformation and progress towards the egalitarian ideals of the Constitution. As the slogan of the international ATI campaign puts it: “The Right to Know is the Right to Live.”
That it is also a vital instrument in holding the government to account is just a bonus, with significant benefits for the government as well. Often the sunlight spread from ATI can help the government uncover corruption or other kinks in the system that are denying the delivery of public services to the poor.
Furthermore, the PAIA is lauded globally as one of the best-constructed laws, if not the best. The special justice committee led by Johnny de Lange, which sweated long and hard into the recess in late 1999 to meet the Constitutional deadline of February 4 2000, is entitled to feel sorely let down. With De Lange now promoted to Deputy Minister of Justice, there is hope that the executive will receive a well-directed firework from within.
Some diagnostic work is urgently required. The public service seems to have lost sight of both the constitutional rationale and the instrumental value of the right to information. The final part of the study’s methodology involved interviewing senior public officials responsible for the operation of the law — although, in the case of some agencies, part of the problem is that responsible officers have not been appointed and/or trained, as required under the Act.
There are other problems with capacity — inadequacies in the procedures or technology, or simply knowledge about the legal obligations. Manuals required under the Act have not been produced and compliance reports have not been submitted to the Human Rights Commission (HRC), to its increasing dismay. Too many public servants do not seem to care enough.
These problems are not unique. None of the five other countries fared especially well and we have quickly learnt that passing an ATI law is the easy bit; implementing it effectively and changing the institutional mindset is a more demanding challenge. Nor should all departments be tarred with the same brush; armed with its enthusiasm for good systems and records’ management, the defence department, ironically perhaps, performed relatively well.
But what the overall evidence suggests is that there is a systemic problem of potentially chronic proportions. If so, this is a very serious case of maladministration: the Public Protector must investigate and intervene. So too the HRC, whose constitutional responsibility it is to monitor the realisation — or, in this case, non-realisation — of the rights contained in the Bill of Rights. The creation of an intermediary appeal body, such as an information commissioner, armed with order and advisory powers should be considered as soon as possible.
Access to information matters; the right to know has come of age. The rapid developments of the past decade, in which more than 40 countries have passed ATI laws, show the fundamental benefit of the right to everyone, everywhere. There is a catalogue of personal case studies in which getting access to information has changed lives and prompted important reform in government. Real evidence, real people, real change.
Tuesday is International Right to Know Day, marking the growing global recognition that the right to information is now a fully paid-member of the club of basic human rights. South Africa’s ATI law is arguably the best in the world, widely admired and regarded as a “gold standard”. But it is on the cusp of a serious failure. Concerted political will must now be imposed on an apparently recalcitrant bureaucracy. It should be forcefully reminded of its constitutional obligations and given the support necessary to redeem itself. For the government, the message of the international study is simple. Do not rest on the laurels of good law; turn good intentions into good practice, or fall behind the likes of Armenia and Macedonia.
Richard Calland is executive director of the Open Democracy Advice Centre in Cape Town, which conducted the study in South Africa on behalf of the Open Society Institute