By Pregs Govender
Pregs Govender, Deputy Chair of the South African Human Rights commission (SAHRC), argues that secrecy has been integral to the oppression of people and to the exploitation of land and mineral resources across the world. Developing a human rights culture requires a transformation of institutions and mindsets. However the culture of secrecy has continued to characterize Government’s most controversial decisions including the adoption of GEAR, the arms-deal and the HIV/Aids debacle. Today more than 80% of local government structures remain non-compliant with the Promotion of Access to Information Act (PAIA) and the Protection of Information (POI) Bill will only deepen the culture of secrecy.
“What happens when the poor lose faith in democratic institutions – when their requests are not heeded and their opinions are not taken into account? People know that budgets (from National to Local Government) reflect policy priorities and choices. They reflect, more than any rhetorical speech, who and what is valued…or not. People want to know the basis for Government’s choices”
Secrecy has been and remains integral to the oppression of people and to the exploitation of land and mineral resources across the world. Colonisation, genocide, slavery and Apartheid were all dependent on secrecy. Those who abuse power depend on secrecy to deny others their rights – within and through states, corporations, religious, traditional, health, educational and media institutions as well as homes and families.
Secrecy enabled Apartheid to create a highly militarised, authoritarian, unjust and unequal society. Those who exposed its secrets were detained, banished or killed by its security and intelligence forces. However, Apartheid seldom completely silenced their voices. From Ruth First to Steve Biko, their examples inspired and laid the foundation for our right to freedom of expression.
In the 80’s and early 90’s, poor women in urban and rural areas, shared information, united and stood against soldiers, vigilantes and oppressive chiefs and husbands. Information was critical to struggles for the right to life; freedom from violence; land, decent housing, healthcare, education, sanitation, water and other socio-economic rights. On the factory floor, bosses could not plead poverty because workers had accessed information about their massive profits and salaries.
The world’s citizens were mobilized by information on how their money was used by their country’s banks, mining and arms industries to serve Apartheid. Ruth First’s expose of farm-owners in Bethal entrenched a tradition of investigative journalism that revealed who carried the real cost. Despite Thatcher and Reagan’s powerful media machine that described Mandela as, ‘the terrorist who should hang,’ their informed citizens stood in solidarity against Apartheid.
SA’s democracy adopted a Constitution that signaled a significant shift from the culture of secrecy that characterized our Apartheid, capitalist and patriarchal past to an open, free society characterized by democratic transparency and accountability. It proclaimed that: ‘Everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.’
The Preamble of the Promotion of Access to Information Act, 2000 (PAIA) states that ‘ the system of government in SA before 1994, resulted in a secretive and unresponsive culture in public and private bodies which often led to an abuse of power and human rights violations’. PAIA placed a duty on public and private bodies to share information that would enable the poor and the powerless to hold accountable those with the power and resources to undermine or uphold their human rights.
The Constitution established independent statutory institutions to ‘support Constitutional Democracy’ such as the South African Human Rights Commission (SAHRC). The SAHRC’s mandate is to ‘promote respect for human rights and a culture of human rights; to promote the protection, development and attainment of human rights and monitor and assess the observance of human rights’. In addition the SAHRC has a specific PAIA mandate. It has, among other things to: ‘compile and make available a guide on how to use this Act; submit reports to the National Assembly; to the extent that financial and other resources are available it has to develop and conduct educational programmes; encourage public and private bodies to participate in the development and conduct of these programmes; make recommendations for the development, modernisation, reform or amendment of this Act and train information officers and deputy information officers of public bodies’.
The SAHRC, with very limited resources but with dedicated staff, compiled the PAIA guide; submitted annual reports to Parliament; conducted educational programmes; trained large numbers of Government’s information officers and their deputies on their duty to ensure that the poor access the information they need from Government departments. However, PAIA (Section 83.2) recognizes that for the SAHRC to fully effect its Constitutional and legislative mandate, it has to have ‘financial and other resources’, including a dedicated Information Commissioner, who has still not been appointed. Compliance with this provision means that Government cannot continue to decrease the SAHRC’s financial and human resources, as it has been doing, (for example from the Mandela Administration to the current Administration the number of Commissioners has reduced by almost 50%). To ensure access to information in the context of a Bill that will diminish and deny this right, the SAHRC can play the role envisaged in civil society submissions such as that of Laurie Nathan, if it has the necessary ‘financial and other resources’. After too short a time and too few resources to effectively root PAIA within the public service, the Bill may quickly return the public service to the old bureaucratic culture of secrecy and impunity.
In its 2009 Annual Report, the SAHRC reported to Parliament that under PAIA, ‘More than 80% of local government structures remain non-compliant’. What happens when the poor lose faith in democratic institutions – when their requests are not heeded and their opinions are not taken into account? People know that budgets (from National to Local Government) reflect policy priorities and choices. They reflect, more than any rhetorical speech, who and what is valued…or not. People want to know the basis for Government’s choices. A key factor in many protests is the lack of access to information. Those protesting over the lack of service delivery see many green, well-watered golf courses in their local municipalities but no houses, toilets, schools, clinics or well-equipped and maintained playgrounds or sports-fields for their children. They ask who is benefiting from million-rand tenders when bridges collapse and children drown. They want to know why the cost of basic food is increasing and why their sick children have to make choices between food and medicine. Striking workers say society’s claim to value their contribution to social reproduction through education and healthcare is not reflected in budget choices. Ordinary citizens ask who profited from the arms-deals and the building of stadiums. They want to know what economic, trade and finance policies have resulted in them losing their jobs. They ask where are the rights and choices for poor girls trafficked into prostitution. They ask why, in the 21st century, they have no toilets or toilets without walls. They want answers not just on the symptoms of their poverty and lack of socio-economic rights but on the causes of their poverty. Parliament has the power to ensure that local to national government is held to account and that there is not an even greater sense of impunity and disrespect for compliance because of the Protection of Information Bill.
The SAHRC 2010 Parliamentary submission on the Protection of Information Bill critiques the Bill from the perspective of the SAHRC’s mandate to promote the right to access to information, the direct opposite of the ‘Secrecy Bill’. Its submission builds on its earlier submissions on bills affecting information, including the 2008 version of this Bill, and critiques the lack of harmonization between information bills. The SAHRC submission concurs with many of the concerns of civil society, especially on the impact on the rights of whistleblowers and journalists. The SAHRC systematic clause by clause submission raises serious questions about matters such as the “Minister’s unfettered powers; the broad definition of national interest (the bill states that ‘secrecy exists to protect the national interest’); decision-making around categorization, classification, standards and procedures; the concentration of power in the state over information management and protection of information; the absence of a moderating independent body and the fact that non-disclosure on the basis of commercial or financial interests cannot be over-ridden by the public interest provided for in PAIA.”
Developing a human rights culture requires a transformation of institutions and mindsets. Post-1994, the culture of secrecy continued to characterize Government’s most controversial decisions including the adoption of GEAR, the arms-deal and the HIV/Aids debacle. A recent comment by Ronnie Kasrils, the Minister who first introduced the 2008 Protection of Information Bill to deal with existing Apartheid-era legislation, critiques the ease and danger of stepping back into old mind-sets. He argues, for example, that the current Bill deletes “a provision that provided for the automatic declassification (with limited exceptions) of all information classified before 10 May 1994 (i.e. apartheid-era classifications). This reflects an inexplicable desire to maintain apartheid era secrecy.” The current debate needs to interrogate the desire for secrecy against the right to information in a society in which the lack of socio-economic rights diminishes the ability to access political and civil rights and vice-versa. It is a vicious cycle that the further secrecy of the Protection of Information Bill, will only deepen. The right to access to information that Government itself has put in place since 1994, needs to be upheld not undermined. Those who are now entrusted with power and resources need to remain committed to responsive, transparent and accountable Government.
Pregs Govender is Deputy Chair of the South African Human Rights Commission (SAHRC).
Chaired the Independent Panel Review of Parliament (2007- 2008).
ANC MP 1994-2002 – resigned after being the only MP to register opposition to the Arms Deal in the Defence Budget Vote and holding public hearings on HIV/Aids in 2001
Author: Love and Courage: A Story of Insubordination (Jacana)