Image: Centre for Environmental Rights
By Matshidiso Dibakwane
First published on Maverick Citizen
The failure and unwillingness of the North West provincial government to release the findings of the Mafereka commission of inquiry — despite requests under the Promotion of Access to Information Act (PAIA), a high court order and correspondence addressed to the North West provincial government — is nothing less than abuse of authority. The Mafereka Commission on Traditional Leadership Disputes and Claims in the North West province was established in 2011 and concluded its work in 2013. The report of this commission has never seen the light of day, despite being submitted in 2015.
The Bapo Ba Mogale community, owners of the platinum-rich land between Brits and Rustenburg, are both affected by and interested in the finding of this report. However, regardless of all legal attempts to obtain such information, the provincial government has remained unwilling and uninterested in ensuring transparency, ignoring court orders and calls from CSOs. This is not in line with the founding principles of democracy and public participation.
A commission of inquiry is appointed in terms of South Africa’s Constitution or in terms of an empowering section in an Act of Parliament. It is a quasi-judicial process and should be open and transparent in nature. This allows various stakeholders and affected parties to participate and have access to all information pertaining to the findings of such a commission, and to engage the findings and assert their rights.
The responsibility of ensuring transparency lies with the body establishing a commission of inquiry. But when affected parties demand access to information and reports of commissions of inquiry, and the relevant bodies abuse their power by ignoring these calls, this has devastating consequences for affected persons. It leaves people unable to participate and advocate for their rights.
Access to information is a constitutional right
Access to information is fundamental to a healthy democracy. In The President of the Republic of South Africa and Others v M & G Media Ltd (2011), a leading case on the right to information, the Constitutional Court described the importance of this right, as well as its relationship with media freedom, as follows:
“To give effect to [the] founding values [of our democracy], the public must have access to information held by the state. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information’.”
South Africa’s Constitution, in section 32(1), provides that everyone has the right of access to “any information held by the state” as well as “any information that is held by another person and that is required for the exercise or protection of any rights”.
The PAIA is the empowering legislation. It provides a list of grounds on which a public or private entity may refuse access, but also provides for public interest overrides which means that despite a ground of refusal applying, the information officer must grant a request for access if:
- “The disclosure of the record would reveal evidence of a substantial contravention of, or failure to comply with, the law; or an imminent and serious public safety or environmental risk; and
- “The public interest in the disclosure of the record clearly outweighs the harm contemplated in the ground of refusal.”
After PAIA, the constitutional right plays an important role in access to information. It has been argued that that section 32 of the Constitution can be relied upon directly to claim access to information which the PAIA does not cover, including information that may not be accessed due to:
- Reasonable protection of privacy;
- Commercial confidentiality; and
- Efficient and effective governance.
PAIA limitations are set in a manner that balances the right of access to information with any other rights, including those rights in the Bill of Rights in chapter 2 of the Constitution. However, the use of section 32 is difficult when dealing with uninterested and unwilling officials who benefit, directly or indirectly, from lack of transparency. Such public officials are able to abuse their authority to a point that renders constitutional rights and obligations ineffective, to the detriment of mostly poor communities.
Transparency often a rare occurrence
In South Africa, there is a large body of litigation work that suggests that government ignores, frustrates or refuses legitimate access to information requests from citizens. As a part of our work, Corruption Watch makes requests for information at various government departments and provincial governments. Often, the requests are simply ignored. Alternatively, the information officer’s details are not accurate, which delays or halts the process.
Sometimes members of the public will, through the courts, request information in terms of the PAIA. But public institutions have been known to ignore an order of a court to share information with the respective applicant. It is concerning that instead of upholding constitutional values and fulfilling their duty to protect the rights of ordinary citizens, public officials deliberately ignore judicial processes and orders to act accordingly. When elected officials bypass the mandate of the offices they hold, they act without legitimacy. However, we have seen little to no accountability for clear instances of abuse of power.
Where issues of transparency are concerned, choosing to be silent and attempting to conceal information should be treated with contempt. The frustration of information request processes and the withholding of vital information that directly impacts on people’s socio-economic rights is tantamount to a calculated attack on our constitutional right to hold public bodies to account.
Secrecy enables corruption
The reality is that corruption thrives in a culture of secrecy. The design of the right to information is focused on strengthening the need to promote transparency and accountability as well as combat corruption.
With the dawn of the Political Party Funding Act and amendments to the PAIA, it remains unclear if requests under the act will be better received, thus ensuring transparency and accountability of public officials as the case may be.
Access to information is a constitutional right. However, public officials ignore judgments and court orders to provide such access, thus exhibiting clear intentions of abuse of power, regardless of the detriment to those affected by withholding such information — affected parties with no remedies and unable to hold the transgressors accountable. Affected parties such as the Bapo Ba Mogale.
Matshidiso Dibakwane is an attorney at Corruption Watch.