Posted on June 22, 2010
I suppose I should be excited by South Africa's evolving freedom of information landscape. Back in the day - 1995 to be precise, when nothing seemed impossible as we restructured the South African state and rewrote its legislative underpinnings - we carried the dream of 'Open Democracy' legislation. We wanted it all, so to speak. Access to information. Access to archives. Protection of privacy. Protection of whistleblowers. Access to meetings of government structures. The latter - 'government in the sunshine' - got lost along the way. But today we have a new archives act, a Promotion of Access to Information Act (PAIA), and a Protected Disclosures Act. A bill for the protection of personal information is in Parliament. As is a bill to replace the 1982 Protection of Information Act, our very own apartheid-era official secrets act. We're getting there, right?
But I'm not excited.
I'm not excited by a Protected Disclosures Act which seems not to have protected a single whistleblower yet.
I'm not excited by a National Archives which is so desperately under-resourced and politically hamstrung that it can barely perform the simplest of its mandated duties.
I'm not excited by PAIA's track record. This ten-year tale is one of the odd victory (by those with tremendous resilience, good lawyers and access to resources) against a relentless stonewalling by state bureaucracies. Often the stonewalling has surfaced a cynicism in relation to law which reminds me of nothing so much as that of the National Party government in the early 1990s. Take for example the current High Court case of the Mail and Guardian versus the Presidency. The M&G wants access to a report commissioned by former President Mbeki on elections in Zimbabwe. The Presidency refuses access on the grounds that PAIA does not apply to cabinet records. Huh? Was the report a cabinet record? No. Was it presented to cabinet? No. But the President of South Africa is a member of cabinet, so therefore, the argument goes, every record created or received by the President is by definition a cabinet record. And therefore exempt from the operation of PAIA. It's simple - if you find no way out in the law, twist the law to suit your purpose. Even if everyone can see that you're twisting the law.
And I'm not excited by the new Protection of Information Bill (POIB), pleased as I am to see the back of a piece of apartheid legislation which has been intimidating would-be whistleblowers for three decades. Don't get me wrong. It's a vast improvement on the old Act. But it has features which worry one. Take its definition of general principles. Beautiful. Ranging from access to information as a basic right to the benefits of a free flow of information. But ending with the qualification that all of this good stuff is subject to 'national security'. Get it? And you've got to love the Bill's spanking new definition of 'national security' - “the resolve of South Africans as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life, and includes protection of the people and occupants of the Republic from hostile acts ... blah blah blah.†Sound like apple pie? Or boerebeskuit?
One has to applaud POIB's introduction of an automatic declassification of records 20 years after they were classified. But these records only become accessible to the public when they have been transferred to the National Archives and described in a database kept by the National Archives. Uh-oh. The same National Archives which has no space to accept new archival acquisitions? The same National Archives which has enormous processing backlogs? The same National Archives which cannot maintain existing databases?
I'm not inclined to draw lessons from all of this. That might be too depressing ...
The Memory Bandit
