Learner’s Submission: Access and Protection to Information in South Africa

“Tuesday, the 22^nd of November 2011 (Black Tuesday), marked the passing of the controversial Protection of State Information Bill (Secrecy Bill) by the African National Congress (ANC) dominated National Assembly in South Africa.

Although it is still a proposed law and has now been referred to the National Council of Provinces(NCOP) – the lower house of parliament – for further consultations, it has been widely critised for its provisions that could help the government hide corruption and is in direct contravention of the 1995 Freedom Charter.

The following are some of the contents of this piece of legislation:

• There are espionage and hostile activities offenses which punish the communication of classified information which the person “knows or ought reasonably to have known would directly or indirectly benefit” a foreign state or a non-state actor, or prejudice national security. These offenses attract jail terms ranging from 3 years to 25 years;
• Intentionally accessing classified information or unauthorized possession of classified material is a criminal act and can land one in jail for up to 10 years;
• Foreign spies are required to register their status as agents with the government or face between 3 to 5 years in prison;
• Any head of an organ of state may classify or reclassify information. The State Security Ministry is the custodian of all classified information and material remains classified for no longer than 20 years, unless the state provides a compelling reason to keep it secret;
• Disclosing classified information unless protected under the Protected Disclosure Act or the Companies Act is punishable by a fine or a maximum jail term of 5 years;
• Failing to report the possession of and to return a classified document attracts a fine or a maximum 5-year jail sentence;
• The branch that classifies information can decide whether to grant requests for declassification;
• Computer hacking of state records is a criminal offense which attracts a jail sentence of 5 years to 10 years.

The criminal sanctions this bill seeks to impose are very stiff indeed and of great concern, is the absence of a public interest defense clause, which would allow journalists to publish classified information without fear of being arrested for exposing wrongdoing in government or any state organ. It would allow careful decisions to be made by the journalist and editor concerned about whether the public interest indeed justifies disclosure, and if this decision is wrong, there will be criminal law consequences.

In 2002, the African Commission on Human and People’s Rights adopted the Declaration of Principles on Freedom of Expression in Africa, which states:

• Public bodies hold information not for themselves but as custodians of the public good and everyone has the right to access this information, subject only to clearly defined rules established by law;
• The right to information shall be guaranteed by law in accordance with the following principles;
• Everyone has the right to access to information held by public bodies;
• Everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;
• Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;
• Public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest;
• No one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society;
• Secrecy laws shall be amended as necessary to comply with freedom of information principles;
• Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.

In the meantime the ruling Tripartite Alliance is clearly divided over this piece of proposed legislation which has already been passed by the National Assembly.” – Butholezwe Bhebhe – Johannesburg, South Africa

Learner’s Submission: Access to Data in South Africa

“There is legislation in South Africa that relates to access to data. The main act that deals with access to information in South Africa is The Promotion of Access to Information Act (PAIA), Act of 2000. PAIA gives 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.

PAIA has a number of objectives which are: to give effect to the constitutional right of access to any information, to set out justifiable limitations on the right of access to information aimed at protecting people’s privacy, confidential commercial information and ensuring effective, efficient and good governance; to balance the right of access to information with all the other rights in the constitution; to promote a culture of human rights and social justice; to establish mechanisms and procedures to enable persons to obtain access to records as swiftly, inexpensively and effortlessly as is reasonably possible; to promote transparency, accountability and effective governance; to empower and educate everyone to: understand their rights in terms of the act; understand the functions and operation of public bodies; and effectively scrutinize and participate in decision-making by public bodies that affects their rights.

The South African Human Rights Commission offers a guide to this law and how to use it. There is also a DVD guide available through the South African History Archive which includes case studies of how citizens went about using the Promotion of Access to Information Act in order to obtain data and information. This DVD was made possible through the funding of the Claude Leon Foundation and the Open Society Foundation for South Africa.

There is also an Electronic Communications Transaction Act of 2002 that regulates electronic communications and transactions and works to promote the sharing of electronic information. Currently, there is a hot topic that is in the news that deals with the Protection of Information Bill. This bill is now being debated in Parliament and would allow government to withhold information from the public that they believe could be ‘harmful’ to the benefits of nation building. However, it is proposed that the bill allows government to withhold information relating to tenders, for example, since it covers the protection and preservation of all things owned or maintained for the public by the State and also commercial information in the government’s possession. Many journalists and citizens at large are very concerned about this proposed restriction of access to information because of the imminent allegations of corruption within the South African government, especially with regard to tenders.

I personally have never had the need to access data from the state or from the private sector and have not had the need to use any legislation to obtain information or data. I have only made use of the University of South Africa’s library, other libraries, the internet and the media for my information requirements.” –  Shanti Coetzer – Pretoria, South Africa

Learner’s submission: Decentralization in South Africa

“The Republic of South Africa is divided into 9 provinces, namely, Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West and Western Cape Each province has got its own legislature and is headed by a Premier who is assisted by his members of executive council (MECs).

Gauteng is the wealthiest province and is divided into 3 metropolitan municipalities, namely Ekurhuleni, Johannesburg and Tshwane, and 3 district municipalities, which are Metsweding, Sedibeng and West Rand. It is further divided into 9 local municipalities.

Johannesburg City comprises 7 regions and these regions are further divided into 130 wards, with each ward led by a Local Ward Councilor who is selected through the ballot during the National Municipal Elections.

The City of Johannesburg is led by an executive Mayor who is also elected through the ballot and takes ultimate responsibility for the City and leads a 10 man- City Council.

The City’s central administration is headed by a City Manager along with a Chief Operations Officer and the Executive Directors for Finance and Economic Development, Development Planning, Corporate Services, Transportation and Environment and The Contract Management Unit. The Head of Emergence Management and Chief of Johannesburg Metro Police (JMPD) also report directly to the City Manager. The City Manager and his Senior Management are appointed on five-year performance contracts and are the link between the administrative and political arms of the City Government.

The City’s administration is subdivided into 9 Core administrations, 11 decentralized administrative regions and 12 separate companies known as utilities, agencies or corporatised entities (UACs).

The core administration is further divided into 3 types of departments, which are:

• 1^st grouping- provides central distribution functions that deliver services directly to consumers such as finance, metro police, development planning and emergency management services;
• 2^nd grouping- provides internal support services such as corporate services;
• 3^rd grouping- comprises of functions based on the concept of separation between policy, monitoring and evaluation on the one hand and operations on the other. These include the contract management unit of the UACs, health, housing and social development, which incorporates social services, libraries as well as sport and recreation.

Utilities provide electricity, water and sanitation and waste management services and are registered companies run on business lines. They are self-funding receiving no annual grants from the city government and provide billable services direct to individual households.

Corporatised entities such as Johannesburg Civic Theatre were created to deliver specialized services and relate closely to their consumers.

Agencies include Johannesburg Roads Agency (JRA)-focus on roads maintenance and storm water, Johannesburg Development Agency (JDA) – area-based economic development and Johannesburg City Parks-parks and cemeteries. Agencies perform a service to the public at large-there are no direct charges to individual consumers and are structured as separate companies which rely on the city government for funding.

In order to ensure optimal management of the UACs, the city government established a Contract Management Unit to oversee the contractual obligations of the entities and the Shareholder Unit, which is tasked with financial and investment performance of the UACs and their corporate governance.” – Butholezwe Bhebhe – Johannesburg, South Africa