Promoting open, responsive and accountable governance through access to information
“In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.”
These words by former Constitutional Court Justice Ngcobo, quoted by Chief Justice Mogoeng Mogoeng, in delivering judgement on the My Vote Counts NPC V Minister of Justice and Correctional Services and Another, epitomise the importance of the right of access to information.
South African society is reeling in the aftermath of allegations of State capture, poor governance and high levels of corruption. Corruption and poor governance however, are not limited to the public sector solely, but equally concern the private sector. Access to information is a crucial constitutional right with which to expose corrupt practices and ineffective governance, and thereby promotes a culture of openness, responsiveness and accountability. The right of access to information is likewise essential for the realisation of various other constitutional rights, including social and economic rights.
Thus, without a free flow of information, accountability for the obligations enshrined in the Constitution cannot be guaranteed. Nevertheless, seventeen years after the Promotion of Access to Information Act 2 of 2000 (PAIA) came into effect in 2001, the public, civil society and institutions supporting democracy continue to battle to gain access to information held by both public and private entities.
The South African Human Rights Commission (the Commission or SAHRC), as the current custodian of the PAIA, has observed worrying trends in non-compliance with the PAIA over recent years. In particular, various public bodies continue to ignore duties imposed by the PAIA, or of the importance of the constitutional right of access to information more generally. Although compliance by State-Owned Entities has improved, the Commission remains concerned, as in some instances, even institutions established in terms of Chapter 9 of the Constitution to support constitutional democracy, the Commission has encountered failures to comply with the PAIA. Looking ahead, it is hoped that the full operationalisation of the Information Regulator, established in terms of the Protection of Personal Information Act 4 of 2013 (POPIA), will herald improved compliance by both public and private bodies with the provisions of the PAIA.
The POPIA contemplates that the Information Regulator will promote and enforce the PAIA. In order to achieve the right of access to information, the PAIA has been amended to provide for far greater enforcement powers through the Information Regulator. Based on almost two decades of experience, the SAHRC welcomes this development and encourages all members of society to familiarise themselves with the office of the Information Regulator, the duties imposed by both the PAIA and POPIA on public and private information holders, and the far-reaching enforcement powers at the Information Regulator’s disposal.
Recognising the importance of the right of access to information, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) passed a resolution to declare the 28th of September of every year as the International Day for Universal Access to Information (IDUAI). This year, the SAHRC partners with the Information Regulator to commemorate this day under the theme “PAIA almost two decades on: reflections and opportunities”. This partnership is aimed at affording members of the public, private and public entities together with other stakeholders, an opportunity to reflect on progress made and challenges encountered by the SAHRC in fulfilling its PAIA mandate, while anticipating the important role that the Information Regulator will soon fulfill in this respect
Ultimately, open, responsive and accountable governance in the public and private spheres is not possible without a free flow of information. The SAHRC and Information Regulator thus call on all members of society to promote transparency through the fulfilment of the constitutional right of access to information.
Advocate Bongani Majola is the Chairperson of the South African Human Rights Commission and Advocate Pansy Tlakula is the Information Regulator Chairperson