Saturday, 26 May 2012

Freedom of Information: An African Example

In 2000, South Africa passed one of the most comprehensive freedom of information laws called the Promotion of Access to Information Act (also referred to as PAIA and can be found here) and together with its progressive post-apartheid constitution has made it the darling of open government activists in the world. South Africa has taken such a strong lead in granting broad freedoms to its citizens (The SA constitution has one of the broadest definitions of discrimination!) partly due to the nature of the repressive apartheid regime that discriminated against the majority of its population for many generations. South Africa also has a vibrant culture of civil activism, which traces its history to apartheid-era protests, and this was instrumental in passing Promotion of Access to Information Act.

Some of the highlights of this law are:
  • Any person can request government bodies for information without having to show a reason. Government officials must respond within 30 days of the request.
  • This law is unique in that it also applies to private bodies and corporations when sufficient proof can be provided that it is necessary for the exercise or protection of people's rights.
  • There are certain exemptions within the law however most of these are balanced against the "public interest defence" which means the potential harm of the request must be compared to the potential benefits to the public. This means that no information can be strictly classified and is open to challenge via the application of strict harm-benefits test usually via a high court judge or an impartial enquiry commission.

PAIA in South Africa has had many successes, but the most notable one is getting the government to provide free anti-retrovirals in public hospitals to pregnant HIV positive women. Initially, the government had refused to provided this service citing lack of resources. However, local NGOs led by Treatment Action Campaign (TAC) managed to obtain government policy documents using PAIA which showed that the Ministry of Health did not have a plan to deal with HIV mother to child transmission. This together with further evidence provided by TAC showing the effectiveness of ARVs and the lack of counter evidence from the government, the Health Ministry was mandated by the courts to immediately provide access to life-saving ARVs. 

All that said, freedom of information even in a country with a progressive constitution such as South Africa is fragile. In 2011, the government introduced a bill called the Protection of State Information Bill (POIB) which among other things will curtail some of the right to access information as set out in PAIA. This bill, also dubbed the "Secrecy Bill" by civil society organisations, gives power to officials in almost all state organs to classify information which then puts it out of reach of even PAIA regulations. Furthermore, this bill does not include the all important public interest defence and imposes harsh punishments of upto 25 years in prison for anyone disseminating information that has been classified. This issue has not been taken lightly by activists in the country. There has been strong backlash against this bill particularly by a coalition known as the Right2Know Campaign which has spearheaded efforts to introduce robust checks and balances into the Secrecy Bill so as to prevent its misuse by government officials to hide acts of corruption. Currently, the ruling party ANC has relented to pressure from activists and is considering amendments to the bill including a public interest defence.

What this exchange between the Government and civil society shows is that far from being broken, the political system in South Africa is functioning as it should. On the one hand we have the policymakers in the Executive trying to enact laws that would ease regulation and make it easier to govern where as civil society only accepts those laws that are in their collective best interests while vigorously opposing ones which restrict their freedoms! A lesson to be learnt for all.

Right to Know Campaign

Further reading 
Success stories using Freedom of Information laws


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