Richard Anthony Chemaly.
What’s up with the state hiding things from us? They try it so often that we even forget some of the times in the not-so-distant past. By way of example, remember during the Nkandla debacle there was the matter of the national key points and how you weren’t allowed to photograph them, but you also weren’t allowed to know what they were?
Of course you probably only remembered that now that it’s being mentioned again, but admit it … you had all but forgotten about it prior to 30 seconds ago.
The latest PAIA bullet was fired at the department of correctional services and minister of justice in relation to a report on torture in a Bloemfontein prison. I’m anticipating an interesting read when the court order requiring the release of the report within 15 days is realised, but even before that, it would bode well to think just how much this Act has been executed!
Organisations such as the South African History Archives have dedicated people to make PAIA applications and, in many instances, if your organisation does not have an information officer, you’d be in breach of the law. It is truly one of the instances where the legislature got it right!
Of course, the Constitution creates an enabling right of access to information and PAIA is built on top of that, but the Constitution has created a number of other rights, too, which, decades in, we still haven’t gotten right.
This leaves us with three questions: why is PAIA successful, do the actors like it and, if not, why has nobody gotten rid of it?
One fundamental rule about creating a new law is that it creates a limitation on somebody’s freedom. It’s easy to illustrate: law created to compel me to pay tax means I lose the freedom to spend some of my money. In many instances, that balance is rarely considered. This causes conflict, eventually, when that philosophical conflict hits practical reality. A good example would be the incoming National Health Insurance Bill. Purpose of legislation v freedom is a tough conflict to manage.
Only in instances where it is difficult to dispute the importance of the purpose of the legislation, that conflict is significantly easier to manage. In this case, access to information v the freedom to hide secrets … being on the side of hiding secrets from the public is going to be a tough sale.
In 2011, the ANC was ordered to hand over documents which may have implicated Ebrahim Rasool (then US ambassador) in a scandal relating to purchasing media coverage with public funds. A presidential report on the 2002 Zimbabwean elections was ordered to be released and Airlink obtained an agreement between Comair and an Mpumalanga government entity through the legislation too. In short, PAIA is successful, but clearly a pain to those forced to make disclosures because of it.
To answer the second question, then, of course many powerful entities don’t like it … on the face of it. Why, then, has nobody sought to shut it down?
Remember school days when your friends didn’t do their homework and you gave them your book to copy from? Sure it would upset you, but you did it knowing that it was a system you might benefit from too some day when you didn’t do your homework. This is a similar situation. No matter how upsetting it may be to have to hand over information, the ability to obtain information makes the concept appealing to even those who, in the moment, are decremented by the Act. The fact that you need to have the appetite for litigation in many instances acting as a deterrent might also be appealing to those wishing to hide, erm, smaller evils.
This partially answers the question why nobody has gotten rid of it, but there’s one more factor to consider: the public.
Political will is often easy to manipulate if you begin with a critical mass. In other words, if there are enough people in the right spaces to take your side, you can cause a snowball of opinion, and this is how issues such as land, health insurance, etc, have come to the fore when they were scarcely popular issues half a decade ago. You can’t do that with access to information because the people won’t support a blatant attempt from those in power to hide information.
If anything, PAIA is a shining example of something useful and empowering that gives rise to rights at the expense of powerful political players without them being able to challenge it significantly on any level.
It also begs the question: where is the PAIA for every other right?
For more news your way, download The Citizen’s app for iOS and Android.
BACK TO CITIZEN
BACK TO PREMIUM
The Citizen. All rights