By Moses Hategeka*

Moses Hategeka
Moses Hategeka

South Africa today, is a sovereign and democratic state, with a constitution, that was founded, built, and is promoted, with a primary aim, of advancement of human rights and an accountable, responsive, and transparent system of governance, as its core values. As per country, constitution requirement, all these core values, must be fully, embraced, promoted, and implemented, in all its, governance structures, both public and private.

Section 32(1)(a) of the Constitution of the Republic of South Africa Act, No. 108 of 1996 (hereinafter referred to as “the Constitution”) provides that everyone has a right of access to any information held by the state and any information held by another person that is required for the exercise or protection of any rights. Section 32(1) of the Bill of Rights in the Constitution, provides for the right of access to information held by the state; and any information held by another person that is required for the exercise or protection of any rights. Section 32(2) of the Constitution in turn provides for the enactment of national legislation that will give effect to this right, by respecting, protecting, promoting and fulfilling this right. As thus, PAIA, is directly derived from this, constitutional provisions.

The Promotion of Access to Information Act, No. 2 of 2000 (hereinafter referred to as “PAIA”, or “the Act” interchangeably) is the national legislation which was enacted to give effect to the constitutional right of access to information. PAIA came into operation on 9 March 2001, with the exception of sections 10, 14, 15 and 51, which came into operation on 15 February 2002.

It is important to note that, the system of government in South Africa before 27 April 1994, was characterized of impunity, abuse of power, and human rights violations, which were much deeply entrenched, into a country’s governance structures, by the discriminative apartheid system in place at the time.

As thus, the 1996 constitution, that birthed the promotion of access to information Act, was a catalyst, in laying firm foundation, on which openness, justice, accountability, and transparency, in day to day of public and private affairs, is flourishing. The South Africa’s access to information Act, is so unique in the world, in that, it is only one globally, that, that applies, to its both public and private bodies, and besides, it also translated, in its 11 official languages, allowing its citizens, to demand for good governance on a wider spectrum.

The promotion of access to information Act, has since its enactment to date, entrenched, the rule of law, and open governance, in South Africa’s body politic, and made citizens, to demand for better governance from their leaders. The South African Human Rights Commission, has also been and is playing, a pivotal, role, in educating citizens of how to make use of the access to information Act, to the enjoyment fulfillment of their constitutional rights.

All public and private bodies, are by law, obliged, to give information or document/s within their domain, being asked for, by a person/s, seeking for it, and when denied, the Act, fully empowers the person/s, to seek for legal redress, in the courts of law, or through petitioning of South African human rights commission, and on satisfactorily petitioning, the same will compel the approached institution/s to release, the asked for, information to the petitioner.

However it is equally important to note, that, the same Act, states, the grounds, upon which both public and private bodies, may refuse a person or people access to their records. For instance, matters to do with National security, defence, and international relations, are strictly guarded, in a foreseen event, that their release, will be harmful to National security, defence and International relations. This is a practice world over and keeps on raising some pertinent question/s. is this practice not the limitation on the right of access to information?

The same Act, goes on to state that, the commercial interests, involving confidential commercial information of a private company, may be denied to a person/s seeking for it, in a likely foreseen event, that its release, may hamper, the company operations, this is common world over, with multinational and direct States sponsored companies, operating in other countries. They always have confidential clauses, contractual agreements they sign with their partners, and this makes it hard for the citizens to get information from them, especially, information, regarding, their commercial profitability and local partners with stakes in them.

In sum, the enactment of, promotion of access to information Act, No. 2 of 2000, sowed the seed of open governance, justice, rule of law, and democracy, which to date continues to germinate and flourish in wider South African body politic, with citizens increasingly becoming aware and demanding for, justice, fairness, transparency and accountability from their leaders and institutions.

*Moses Hategeka, is a Ugandan based Independent Governance Researcher, Public Affairs Analyst, and Freelance Writer, with published articles in diverse areas in leading Newspapers/magazines/online platforms in Africa.Email: moseswiseman2000@gmail.com

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