Access to information in SA has suffered because of the implementation of the enabling laws, writes Dumisani Nyalunga of Misa-SA. Despite its noble intentions, the act has many problems, and it is crucial to force the state to create better channels to disseminate information.

Dumisani Nyalunga of Misa writes:

Access to information under apartheid
Under the apartheid regime, the overwhelming majority of our people were deliberately denied access to information. The government at the time made it their responsibility to control all public information and flow-channels through the Protection of Information Act 84 of 1982. This act served to restrict and regulate receipt and disclosure of information deemed sensitive by the state. Lack of access to information was the order of the day. A number of newspaper outlets were banned and closed down simply to prevent information flow. The media could not just publish any information and therefore free speech and freedom of expression was seriously curtailed but never extinguished. This gave the government a leverage to dictate what type of information the public consumes. It is safe to argue that the information made available for public consumption was simply meant to brainwash the public and also entrench its political agenda of discrimination, segregation and separate development to create an uninformed, ill-informed and unenlightened society. The ultimate intention was simply to safeguard its unpopular and infamous regime.

The argument presented here does not necessarily suggest that South Africa at the time suffered from a total blackout of information. The point to note is that numerous grass-root publications emerged and drew their strength as Anthony Hazlitt Heard in his article ‘The Struggle for Free Expression in South Africa’, from churches, campuses, trade unions and other interest groups. Anthony contended that some achieved enviable reputation such as in Johannesburg, the Weekly Mail, spiritual heir of the Rand Daily Mail; the gutsy liberal Afrikaans weekly, Vrye Weekblad; and the Catholic Church-backed New Nation. All these publications and others found their way to circumvent the Protection of Information Act and other polices meant to suppress media freedom, and ensured that the public remained abreast about what was happening at the time. There were also foreign newspapers that came into the country -Radio 702 and the BBC are the case in point, all of which like the grass-root newspapers were trying to circumvent censorship. This is to argue that there were efforts by various publications to ensure that the public is not deprived of news and information.

The Promotion of Access to Information Act
The post 1994 period heralded an era that saw the turn of the tide, from secrecy to transparency and disclosure. Therefore a departure in government attitude was made from being the sole custodian of public information to being a regime where information was deemed an invaluable tool and fundamental to democracy and nation building. In its endeavor to create an informed nation and to bestow power to the people, South Africa promulgated in 2000, the Promotion of Access to Information Act, simply known as PAIA.  The act was intended to light the candle after many years of secrecy, suppression of information and silence under apartheid.  South Africa is one of the few countries in the continent to have enacted legislation that bestows its citizenry with the constitutional right of access to information. The overwhelming majority of the people in the continent are starved of information. Tyrannical regimes and abuse of power by public office bearers are to blame for this. The new government came to a realisation that information could help reengineer social change and improve the lives of the people. Information is thus seen as a public interest matter. Public interest in the sense that information held, particularly by public bodies, is of interest and benefit to the public.

The merits of PAIA

It must be emphasised that PAIA was established with good and noble intentions. The act guarantees the fundamental right of all persons to access information held by public and private bodies. This effectively denotes that the public has a constitutional right to be informed. I can safely argue that access to information can empower people. As Richard Callard, Executive Chair of the Open Democracy Advice Center puts it “the right to access to information is a right that unlocks the door to so many other things.” He also stresses “the importance of the right to information as a linking, leverage right which enables citizens, especially the poor and most vulnerable members of society to realise other socio-economic rights enabling them to participate meaningfully in the democratic process.” Conversely, people can be disempowered by the lack of this right. Invariable, the goal to achieve an informed nation solely depends on the availability of information and its accessibility. The right of access to information ought to be recognised as a basic human right and a basic instrument for freedom of expression. The right of access to information could also inculcate a culture of openness and consequently enhance good governance. Access to information could also fast track our reconciliation project.

The de-merits of PAIA
The sad reality in this country is that information is not always made available to the public when needed. This is to suggest that the implementation of PAIA has been found lacking and sluggish in pace. We continue to see attempts, particularly within the ranks and file of government, to subtly prevent the public from accessing information including records and documents. Needless to say that the media is often denied access to information and the government often cites reasons of national security. Furthermore, the media is often prevented from capturing court proceedings and hearings. It can therefore be argued that the public including the media has not yet fully enjoyed its right of access to information.  On paper the right of access to information is guaranteed but in practice it is often met with resistance. A serious demerit is the fact that officials have demanded that the media use PAIA to gain information about issues they would normally have responded to before the Act was passed. Indeed, they use the Act to try to prevent information from being accessed. In demanding that reporters use the Act, they know they are able to delay an answer for a minimum of 30 days — and if they finally refuse which newspaper will pay the expense of taking them to court?

Undoubtedly, our PAIA is faced with numerous implementation challenges.  It can even be argued that the objectives of PAIA have not yet been fully realised and perfected, primarily because the public has not been properly educated and made aware of the existence of the act and its preachings. Consequently, ordinary people hardly make use of the provisions of the act. Similarly, public bodies have not yet embraced and incorporated the precepts of PAIA as part and parcel of their business. Again, the media is not doing enough to popularise the act. The media has an important role to play in terms of educating the public about their right of access to information. It is also the role of the media to protect the right of the public to access information if it is infringed by public or private bodies. It is the role of the media to safeguard the rights of the people as guaranteed by the constitution. The challenges do not only relate to lack of education and awareness on the part of ordinary citizenry and public officials, but also the lack of institutional arrangements to dispatch information when it is requested. More often than not, information is delayed primarily because public institutions take their own time to respond to requests for information. These are the principal factors that continue to act as stumbling blocks in terms of the proper implementation of PAIA. In its endeavor to create an informed nation, it is of paramount importance that the government inducts information officers on their duties in terms of PAIA and puts appropriate structures in place to disseminate information when sought after, in a manner that is effective and efficient. It should be born in mind that access to information could go a very long way to fight the scourge of HIV/Aids and similar socio-economic ills that continue to ravage our country.

In order to fully realise the objectives of PAIA, it is of paramount importance for the government to create proper institutional channels to disseminate information. It is also crucial to educate public officials about the objects of PAIA and also to ensure that such objects are made known to the public. It is acknowledged that the government does release a certain amount of information about issues, but should be more open and transparent by releasing more and admitting to its mistakes. It should also take advantage of the advanced information system. It should be recognised that information could help improve the plight of the people and also fight social-ills. The argument that has been developed here is that access to information may be able to uproot the undesired culture of ignorance. After all, we live in an information age and no one wants to be left out.

*Dumisani Nyalunga is media and advocacy officer of Misa in SA.