Twenty years after the Windhoek Declaration on press freedom

How <strong>the</strong> right to information
makes a difference
By Mukelani Dimba
Mukelani Dimba is <strong>the</strong> Deputy
Executive Director of <strong>the</strong> Open
Democracy Advice Centre, www.
opendemocracy.org.za .
The dawn of democracy in South
Africa was grounded on <strong>the</strong> interim
constitution of 1993 which was a
direct product of negotiations for a
new dispensation.
One of <strong>the</strong> most important aspects
of <strong>the</strong> interim constitution was <strong>the</strong>
introduction of a Bill of Rights designed
to ensure equal protection of
a broad range of human, socioeconomic
and civil rights. 1 Among <strong>the</strong>
rights upheld was that of access to
publicly held information. 2
By entrenching an independent
right of access to information —
ra<strong>the</strong>r than leaving it to be protected
by <strong>the</strong> right to freedom of expression,
as had generally been <strong>the</strong>
case in international human rights
Section 4: Access to Information
instruments — <strong>the</strong> dr<strong>after</strong>s underscored
this significance of this right
to South Africa’s constitutional order.
3
The right to information (RTI) was
finally given effect to through <strong>the</strong>
adoption of <strong>the</strong> “Promotion of Access
to Information Act” (PAIA) in
2000, making South Africa <strong>the</strong> first
African country to adopt an RTI law.
Contrary to <strong>the</strong> popularly-held belief
that an RTI law is primarily a media
tool, our experience in <strong>the</strong> usage of
PAIA shows that <strong>the</strong> South African
media has been an infrequent
user. This is largely because some
of <strong>the</strong> bureaucratic procedures for
accessing information in terms of
PAIA are seen by <strong>the</strong> media to be
lengthy and cumbersome.
For example, <strong>the</strong> law provides a 30day
period within which institutions
have to process a request for
information. For a journalist seeking
information for a story that s/he
needs to file within eight hours,
this makes <strong>the</strong> law unattractive. So
reporters tend to prefer to access
information through sources that
<strong>the</strong>y’ve cultivated over a long time.
There have been some important
cases of papers like <strong>the</strong> Mail &
Guardian obtaining documents that
would o<strong>the</strong>rwise have been withheld
— like <strong>the</strong> government’s contract
with FIFA over <strong>the</strong> services to
1 Section 8(2) of <strong>the</strong> interim constitution stated: ‘No person shall be unfairly discriminated against, directly
or indirectly ... on one or more of <strong>the</strong> following grounds in particular: race, gender, sex, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.’ The final
constitution added pregnancy, marital status and birth to <strong>the</strong> list of grounds [section 9(3)].
2 Sections of this article related to <strong>the</strong> legislative history of South Africa’s right-to-information law draw
heavily from Calland, R and Dimba, M. Freedom of Information Law in South Africa: A Country Study,
Open Democracy Advice Centre, 2002 found at www.opendemocracy.org.za and Calland, R. and Tilton, D.
In Pursuit of an Open Democracy: A South African Case Stud.y. Commonwealth Human Rights Initiative,
2001.
3 Jonathan Klaaren, Access to Information, in Constitutional Law of South Africa, ed. Mat<strong>the</strong>w Chaskalson
(Pretoria: Juta & Co. Ltd., 1996), 24-1.
Media in Africa - 2011 | 163