Posted on December 13, 2011
There's a curiously reflective stillness at this time of the year - even as festivities rage. A time when it seems that so many of us are looking back at the year that's passed; congratulating ourselves on battles fought and won; rethinking our strategies and actions; and trying to make sense of the hotly contested issues that have dominated our thinking - and, in some cases, the news headlines.

It's certainly been a tumultuous year, but for us at the Archival Platform there are three issues that stand out because they affect not just the present, but the past and the future too. Firstly, we're concerned about the state of our National Archive and Records Service - and archives in general; secondly, we're concerned about what feels like a general clamp-down on information; and thirdly we're observing with interest the responses of the Constitutional Court in relation to the way in which we may or may not think about the past.

The National Archives and Records Service of South Africa Act of 1996, as amended by the Cultural Laws Amendment Act of 2001, makes provision for the establishment of a National Archives Advisory Council to advise the Minister and the Director General of the Department of Arts and Culture (DAC) on any matters relating to the operation of the Act; to advise the National Archivist on furthering the objectives and functions of the national Archives; advise and consult with the South African Heritage Resources Agency (SAHRA) on the protection of records forming part of the National Estate; and to consult with the Public Protector on investigations into the unauthorised destruction of records otherwise protected under this Act. Who, we wonder, is attending to these issues in the absence of the National Archives Advisory Council? Why has none of the authorities responsible for auditing, monitoring and evaluating government performance urged the Department of Arts and Culture to comply with this legislation? Almost every other national memory institution has a council - of some sort or another - that allows civil society to contribute to its effective functioning. We have been encouraged to see that the Minister and the DAC have made progress in appointing councils for many of the declared cultural institutions (national museums) but when we ask, will they acknowledge the importance of records and turn their attention to the National Archives and Records Service?

While we share many of the concerns raised by civil society activists in regard to the Protection of State Information Bill (POSIB), we are anxious that this Bill is symptomatic of a worrying clamp-down on access to information. We are concerned that the enactment of this Bill may deepen an already worrying culture of opacity - the secrets, taboos, disavowals and lies that hamper memory work. We worry too that the draconian penalties that will meted out to 'whistleblowers' who 'leak' classified information and the journalists who dare to make it public; and the ANC's indefensible refusal to make provision for a public-interest defence, are going to close down the free-flow of information. Already our researchers are reporting that they have been denied access to information held by provincial archives, on the grounds that it may compromise security. We are concerned that state officials will err on the side of caution, rather than risk the draconian penalties envisioned in the POSIB. How can we make sense of the past or the present, or plan for the future, when the information we need is limited or sequestered from view?

Since the early 1990s, countries around the world have enacted legislation that governs what may or may not be remembered. While South Africa has not followed suit, two recent court cases have resulted in judgements that may have a profound impact on the way in which we remember or speak about the past. The South Gauteng High Court and the Supreme Court of Appeal ruled that it was false to call Robert McBride a murderer - even though he admitted to and was found guilty of causing the deaths of three women - the Constitutional Court ruled that it was not. In the Malema 'struggle song' case, Johannesburg High Court Judge Colin Lamont ruled that the song Dubul i'Bhunu ('shoot the boer') constituted hate speech and interdicted all members of the ANC and the ANCYL 'from singing the song at any public or private meeting'. Malema has been granted leave to appeal this judgement in the Supreme Court of Appeal, but we expect the matter to reach the Constitutional Court. Whatever the outcome, we are concerned that laws and other actions which limit memory lead to the destruction of the archive and the irrevocable loss of memory.

It's not appropriate for legislation to protect a particular version of the past, any one history, memory or truth.It is possible for legislation to protect the resources on which ongoing memory, and truth processes rely: the archive. It's necessary to have the resources on hand to argue for or against a particular version of the past.It's critical to ensure that the information required for the exercise of human rights is preserved. It's essential to strengthen and make accessible an archive that extends beyond the formal record of government to include the records of non-governmental organisations, personal papers and anything else that carries memory. It's essential to ensure that information is accessible and free-flowing!

Jo-Anne Duggan is the director of the Archival Platform