Posted on November 21, 2010
Information it is essential to the individual and collective well being of individuals, communities, organisations and states. As active citizens of a democratic country it is our right to be able to access information and our responsibility to ensure that this right is respected and exercised responsibly.
The Archival Platform is committed to promoting the role of archivists in deepening democracy through the use of memory and archives as dynamic public resources. We believe that records are fundamental to the exercise of democracy, accountability and good governance and that archives have a crucial role to play in advocacy, restorative justice, historical memory, struggles against impunity and the exercise of human rights.
In taking this position, we align ourselves with a number of key international organisations.
The "Right to Truth" , a document issued by the United Nations High Commissioner for Human Rights in 2009, asserts that "the recognition that archives and archivists play a central role in undergirding human rights has grown over the last decade."
The International Council of Archivists acknowledges the central position of archives in relation to access to information and information and democracy noting that 'archives constitute the memory of nations and of societies, shape their identity, and are a cornerstone of the information society. By providing evidence of human actions and transactions, archives support administration and underlie the rights of individuals, organisations and states. By guaranteeing citizens' rights of access to official information and to knowledge of their history, archives are fundamental to democracy, accountability and good governance'Â.
The World Bank, somewhat more pragmatically links the issues of record keeping, accountability and effective development, stating that, “records document the decisions and activities of government and private institutions, and serve as a benchmark by which future activities and decisions are measured. They document fundamental rights and obligations and differentiate the rule of law from the actions of arbitrary states. Without records there can be no rule of law and no accountability. Without good records, officials are forced to take decisions on an ad hoc basis without the benefit of institutional memory. Fraud cannot be proven, meaningful audits cannot be carried out, and government actions are not open to review.
In drawing your attention to these issues we are inspired by initiatives around the world - see our features on The Witness, the Memory & Justice initiative of the International Centre for Transitional Justice, Archivists Watch and Archivists Without Borders - and by local organisations including the Nelson Mandela Foundation and the South African History Archives (SAHA).
Archivists can make a difference! That is why the Archival Platform has, and will continue to draw your attention to the debates surrounding the Protection of Information Bill (POIB)
We are concerned that, in the hullabaloo surrounding the POIB one critical factor seems to have been missed. The controls proposed are not new. The draconian provisions of the Protection of Information Act of 1982, promulgated at the height of apartheid, are still in force. Many of the 'new' controls of the POIB are far more benign that those contained in the 1982 Act.
We understand the need to balance the state's need to preserve confidentiality with the citizen's right to known. We welcome Minster Cwele's statement that 'the Bill is evolving with the proposals that the Ministry has tabled in Parliament to the Adhoc Committee of the National Assembly. These proposals include the removal of such concepts as 'national interest' and 'commercial information', as basis for classification. These are some of the fundamental changes that will result in a Bill that is markedly different, clearer, leaner and better than the one currently on the table'. But, we remain concerned because:
- While there have been some moves to amend the POIB to protect whistleblowers, the same provisions do not apply to the media. It will criminalise the legitimate disclosure of classified information, even where it is in the public interest. In the absence of a public interest defence, investigative journalism will be completely dampened and the public's constitutional right to hold its government accountable will consequently be gravely compromised.
- It is not clear how the POIB will impact on the way in which the Promotion of Access to Information Act (PAIA) is interpreted and implemented. We call for the POIB to make clear the primacy of PAIA in relation to public access to state-held information. There is such a provision already, but it needs to be strengthened.
- The application of the POIB to all public institutions, including national, provincial and municipal departments is problematic on three counts. Firstly, it is critical that information is open and accessible so that officials can plan strategically and deliver services effectively and efficiently. None of this will be possible if information is not available. Secondly, it is critical that the records are open and accessible so that citizens can hold government to account for its actions, and celebrate its successes. Thirdly, given the increasing allegations of endemic Government corruption, we simply cannot afford to allow leaders and officials to hide behind over-classified information that has no bearing on national security.
- There are provisions in the POIB which seem to infringe our constitutional right to freedom of expression 'which includes freedom to receive or impart information or ideas which includes (a) freedom of the press and other media; [and] (b) freedom to receive or impart information ...'Â
- In the absence of an independent review mechanism, there is no guarantee that challenges to the classification of information will be dealt with in an impartial manner.
Notwithstanding the above, we welcome the replacement of the apartheid-era Act of 1982 but believe that South Africa deserves better from the legislation that will supersede it.
Protection of, and access to information is an issue of almost universal concern. It lies at the heart of struggles against repressive regimes and the stands as a beacon on the route to the universal realisation of human rights. It's an issue that we will at the Archival Platform continue to foreground and to address.
Jo-Anne Duggan is the Director of the Archival platform
See also
10 problems with state secrecy bill - GCB
PAIA has priority over secrecy bill - Steve Swart
The Secrecy Bill: Three serious concerns remain