No justice without the right to know
in Media Law
South Africa’s access to information legislation is regarded as among the best in the world. But is it really working in the struggle for social justice?
I remember one cold night in a community hall in a working-class township of Cape Town. A group of about 50 backyard dwellers were meeting to discuss their struggle to acquire formal housing.
Upon our request, they had also invited the newly formed Right2Know Campaign to give them a briefing on the Secrecy Bill before Parliament at the time. I looked around the room at the mostly unemployed people and wondered how I was going to make a piece of legislation as abstract and technical as the Secrecy Bill accessible and relevant to people fighting to meet their most basic need for decent housing.
It was 2010 and the newly appointed Minister of State Security had just tabled the draconian bill that proposed giving the government far-reaching powers to classify information, had no oversight mechanisms, and proposed jail terms of up to 25 years for whistle-blowers, activists, and journalists who got hold of classified documents. The Secrecy Bill would, in important respects, give securocrats power over all state institutions.
I was part of a handful of activists who decided that the provisions of the Bill posed a serious threat to democracy and that a popular campaign should be launched to oppose it. We called for a week of protest and began canvassing support around the country.
That night with the backyard dwellers I fumbled my way through a presentation and then the floor was opened for questions and comments. There was only one question: Why does the government need a new law, when everything is already a secret?
This was the response we encountered in meeting after meeting with community after community. From those seeking information on government housing or wanting details about local medicine supplies, people well understood the power of access to information and, despite constitutional and legal commandments to transparency, experienced the government as unresponsive and closed.
The state of the right to access information in South Africa is best understood in its broader historical context.
Formal apartheid ended in 1994 with a negotiated compromise. Put very bluntly, the apartheid private sector would continue to own South Africa’s productive resources. The predominantly middle class, white population would continue to enjoy their leafy suburbs, swimming pools and other fruits of an economy built on cheap black labour. The small, black middle class would grow and a select few would become millionaires overnight. The black majority would gain their political freedom, but continue to live in poverty.
The justification advanced by the African National Congress (ANC) at the time was that the compromise was necessary to prevent civil war and to usher in a human rights dispensation more favourable to the pursuit of social and economic justice. The redistribution of wealth would be achieved gradually through economic growth.
An export-led economic growth strategy saw South Africa integrate into the global economy on the assumption that attracting foreign investment would drive rapid economic growth, which would in turn result in wealth redistribution. Integration into the global economy demanded the lowering of corporate taxes, privatisation and the commodification of public services, as well as greater labour market flexibility.
Looking back, we can reflect on a decade of economic growth characterised by wage stagnation, growing unemployment, and deepening poverty. Instead of redistribution of wealth we saw growing inequality. Another decade of economic stagnation has only worsened inequity and poverty.
What does any of this have to do with access to information?
Constitutional promises vs. reality
The 1994 compromise was codified in the post-apartheid constitution. It was hailed by many as “the best constitution in the world” because of its exemplary Bill of Rights and vision of a progressive realisation of socio-economic rights.
The constitution left apartheid property relations intact and put in place a democratic system based on proportional representation in which the electorate at the provincial and national levels vote for political parties and not for individuals. This has enabled political parties (and party bosses) to mediate the relationship between people and their government.
As inequality grew and social cohesion faltered, the human rights protected in the constitution remained largely a fiction for many South Africans trapped in urban poverty or feudal relations in the countryside. They have the right to be educated, but more than half of those who start school do not complete secondary education. They have the right to health, but the poor rely on an underfunded and poorly managed public health system. They have the right to water and energy, but cost-recovery policies and the introduction of prepaid metres see a great many cut off for non-payment of services that they cannot afford.
They have freedom of expression, but ownership of the South African media has consolidated and mostly remains in the service of largely urban and middle-class markets. They have freedom of association, but remain trapped in an apartheid geography with expensive and unsafe transport systems. They have freedom of assembly, but when they organise to voice their needs, they are often met by riot police.
They also have the right of access to information held by the state and private bodies under the Promotion of Access to Information Act of 2000 (PAIA). But according to the PAIA Civil Society Network 2014 Shadow Report, 26 per cent of all initial information requests to the government and 44 per cent of internal appeals were simply ignored. Only 21.5 present of requests were met in full.
Improving access to information
In the past five years, the Right2Know Campaign has worked with many communities that realise the crucial importance of accessing information to advance their struggles for social, environmental and economic justice.
These include communities in Durban who live alongside massive polluting petrochemical refineries. The South Durban Community Environmental Alliance asked about the levels of air pollution in the area and the compliance of industries with permitted emission levels. Their initial PAIA request to authorities met with failure, as is common. The communities were eventually forced to litigate to obtain basic documents.
The PAIA monitoring report for 2014 found that less than half of private sector information requests are responded to within statutory time frames and 40 per cent are refused.
Another common challenge in accessing information related to public services is the rampant outsourcing of government services (such as refuse removal and road building) to private companies. Responsible government departments often meet information requests with a shrug, referring people to private contractors, who then refuse to disclose details of tender contracts.
Frayed social contract
Across South Africa today we see signs that the social contract negotiated at the end of formal apartheid is reaching its limits. Evidence of faltering social cohesion can be seen in the many wildcat strikes, daily township protests in many parts of the country, conflicts on our university campuses over education policies, the fracturing of the trade union federation (Cosatu), populist splits from the ruling party, and open calls for the removal of the country’s president.
South Africa is again at a crossroads. The current crisis will be resolved either by democratic or authoritarian means. While the risks to democracy are great, so too is the possibility of forging a new social contract that will see basic rights like access to information made real.
What is needed now is an active citizenry ready to organise themselves collectively to defend their rights and advance their interests.
As the Right2Know has learnt, when it comes to accessing information, strategies using public protest can be more effective than the passive and bureaucratic processes provided in the PAIA law. Not only do they often secure the desired information, they also build the confidence and capacity of citizen groups to organise for the struggles to come.
More than five years of on-going campaigning has seen over 100 amendments introduced to the Secrecy Bill I discussed with the community in Cape Town. Many of its draconian features have been removed, but substantial problems remain. It was approved by Parliament in 2013, but is still lying unsigned on the President’s desk.
Mark Weinberg is the National Coordinator of the Right2Know Campaign (R2K). He writes in his personal capacity.
This article is an adaptation of a piece that originally appeared in the AFRICAN FREE PRESS, a MISA project supported by DW AKADEMIE.
About MISA Whk25
The Media Institute of Southern Africa (MISA) Whk25 was founded in 1996. Its work focuses on promoting, and advocating for, the unhindered enjoyment of freedom of expression, access to information and a free, independent, diverse and pluralistic media.