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Not so transparent after all

The Right 2 Know campaign has expressed dismay at government's stated plan to pass the contested Protection of State Information Bill into law after it had spent 18 months on the back burner. File picture: Henk Kruger

The Right 2 Know campaign has expressed dismay at government's stated plan to pass the contested Protection of State Information Bill into law after it had spent 18 months on the back burner. File picture: Henk Kruger

Published Feb 16, 2015


On paper the Promotion of Access to Information Act is exemplary, but the reality falls short, writes Candice Bailey.

Johannesburg - When the Gauteng High Court granted civil society campaigners Right2Know access to a list of the country’s national key points, the award was lauded as a victory in the battle for transparency and access to information.

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But 15 years after the Promotion of Access to Information Act (Paia) was promulgated, the victory is short-lived – as the act has not been effectively implemented.

It fails to live up to its constitutional intention: to foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information.

On paper, and by international comparison, South Africa’s legislation has been hailed as exemplary and even held up as the “gold standard” for transparency frameworks.

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The reality, however, is that the country is still grappling with teething problems in implementing the legislation effectively.

This is clear from a shadow report released this week by the Paia Civil Society Network – a grouping of non-governmental organisations that have jointly been tracking their access to information submissions and reflecting on the responses from public entities.

The overwhelming sentiment of the report is that the country still has a long way to go before the legislation reflects true transparency.

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An access-to-information culture in South Africa remains worryingly “nascent”, says the report. And unless political champions are cultivated and infrastructure is developed, the legislation as a critical accountability tool will collapse.

Led by the South African History Archive, the network includes Corruption Watch, the Open Democracy Advice Centre, the Public Service Accountability Monitor, the Centre for Applied Legal Studies and the Centre for Environmental Rights. The report will be sent to the South African Human Rights Commission, which is responsible for the implementation of the act, and the justice parliamentary committee.

The network submitted 306 requests under the act, of which 260 were sent to 63 public bodies. Of these, the records in 51 applications were received. In 13 requests, only part of the records were released. But alarmingly in 134 requests, the information was denied.

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Added to this, only 37 percent of public body requests were responded to within the statutory time frame. A further 26 percent of records received no response at all.

“An unacceptably high number of requests are simply not responded to at all… This remains a significant failure in the implementation of PAIA to achieve the constitutional right to information,” the report reveals.

Compared to 2013, the statistics reflect a slight increase in the dismal levels of compliance. But according to the report, openness and transparency by public bodies in terms of the legislation still requires “significant work”.

South African History Archive Director Catherine Kennedy, who leads the network, says the transparency pool is not working because of the lack of accountability.

Aside from the obstacles such as under-resourcing, poor communication and poor record keeping by departments that hinder the implementation of the legislation, the figures reflect a mixture of disdain and no real entrenchment of the notion of accountability from government departments, she adds.

“There is no understanding that government is there to answer to the people. There is no embedded sense that government must be answerable. Paia is supposed to be a way of government communicating with citizens who want to engage,” says Kennedy.

Corruption Watch executive director David Lewis agrees with Kennedy. Lewis says: “Our constitution provides that open government should be the norm, the default position. Paia was passed to give effect to this constitutional principle. In fact, as we see from government’s woeful record in actually providing access to information, government officials have made secrecy the default position. The passing of the Protection of State Information Act confirms government preference for secrecy over openness.”

Whereas transparency, he says, should be the government’s default position.

A refusal to provide information should be an exception.

Kennedy is, however, quick to point out that the act goes beyond a simple information request.

“Government should be assessing its own records and figuring out which ones should be made readily available on their websites. It would save everyone a whole lot of time and money – and it talks to actively engaging with citizens,” says Kennedy.

Public bodies should be producing manuals, accessible on their websites and at their offices, to give the public an idea of which records are available without the need for an access-to-information application and how they would access this information.

This provision is, however, not being adhered to.

Currently, while litigation should be the last resort, because of the poor decision-making processes by information officers, it seems the only way to get results.

She says hundreds of thousands of rand are being wasted by government defending its often baseless decisions.

A clear illustration of this is the court granting the Mail and Guardian newspaper access to the Khampepe Report, which reviewed Zimbabwe’s 2002 presidential elections, after 12 years.

Where to from here?

If Kennedy has her way, there will be a change management strategy. This includes rolling out education campaigns to information officers and the public and resourcing departments adequately.

This, she says, is needed to deal with the legacy of the failure to roll out Paia and a failure to resource departments, which we are seeing currently.

“Everyone expects the legislation to work without any change management and investment.

“If you are telling people to produce records you need to give them the records to produce, give them the tools,” says Kennedy.

The access-to-information legislation is a record-centric piece of legislation, says Kennedy, and this requires both electronic and paper information systems to be in place for it to work as a well-oiled machine.

And unless these mechanisms are put in place, despite the legislations being from the top shelf of transparency legislation, the next 15 years will provide a similar battle for ordinary citizens trying to gain access to information.

* Candice Bailey is a journalist at Corruption Watch.

** The views expressed here are not necessarily those of Independent Media.

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