A good day for open and accountable government (sort of)

On paper, the Promotion of Access to Information Act (PAIA) is a relatively good piece of legislation. It gives effect to the right of access to information guaranteed in section 32 of the Constitution, but in practice state officials seldom comply with this act. Often applications to gain access to certain documents are ignored. Sometimes applications for access to documents are denied on the most spurious grounds. It is as if many state officials have been sent on a crash course in secrecy, a course co-ordinated by Minister Lindiwe “Princess” Sisulu.

This is perplexing, to say the least, as secrecy was the hallmark of the apartheid state. We do not live in an apartheid and authoritarian state anymore but rather in a constitutional democracy. Pity that some state officials, Ministers, and the President does not always act accordingly.

But today the Supreme Court of Appeal (SCA) reminded all these people — who believe that they have a right to hide the truth about government activities from pesky journalists and the public who might have the cheek to think that the government is accountable to it — that open and transparent government and a free flow of information concerning the affairs of the state is the lifeblood of democracy.

In the case of President of the Republic of South Africa and Others v M&G Media the SCA ordered the Presidency to provide the Mail & Guardian with a report prepared by two South African judges for President Thabo Mbeki about the 2002 elections in Zimbabwe. I have not read this report, but it is difficult not to conclude that the President wants to hide this report from the public because it contains findings that might cast doubt on whether Robert Mugabe actually fairly won the 2002 election (I am choosing my words rather carefully here). Quoting from the Constitutional Court’s Brummer judgment, justice Nugent reminded state officials of the importance of the right of access to information:

in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, 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.’

As I read the judgment, it strengthens the hand of a person or a body who seeks information from a public body (including the Presidency) through PAIA. It does so by making clear that a public body may not refuse to provide the requested information merely by making bald assertions that the documents fall outside the scope of PAIA.

It has to produce tangible evidence and good reasons for denying a request of access to information under PAIA. In this case, the SCA found that the Presidency seemed to have changed its story and made wilder and wilder claims about the nature of the mission of the judges who went to Zimbabwe at the behest of President Mbeki. The SCA rejected the — what it called — sometimes absurd reasoning of officials in the Presidency and in effect found that they had not provided any evidence or any cogent reasons for denying access to the report.

Nugent did not mince his words:

If an application for information is not to be thwarted by that inequality of arms I think that a court must scrutinise the affidavits put up by the public body with particular care and, in the exercise of its wide discretion… it should not hesitate to allow cross-examination of witnesses who have deposed to affidavits if their veracity is called into doubt.

The affidavits that have been filed by the appellants are reminiscent of affidavits that were customarily filed in [apartheid era cases]. In the main they assert conclusions that have been reached by the deponents, with no evidential basis to support them, in the apparent expectation that their conclusions put an end to the matter. That is not how things work under the Act. The Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy.

It found that the Presidency’s case amounted to little more than rote recitation of the relevant sections of PAIA and bald assertion that the report falls within their terms. That is not the “stark and dramatic contrast” with the apartheid past required by he Constitution. Nor does it reflect the “culture of justification” established by that Constitution. The SCA was particularly scathing about the papers filed by a Mr Fowler, the deputy information officer in the Presidency:

Counsel for the appellants [that is the Presidency] submitted that those allegations by Mr Fowler were erroneous and should be ignored. I cannot see why allegations that have been made with deliberation under oath should simply be ignored. That the reasoning is absurd does not demonstrate that the allegations were made erroneously — it demonstrates only that the reasoning is absurd…. At first the appellants cast the judges in the role of diplomats rather tentatively. Mr Fowler described them initially as no more than ‘something in the nature of envoys’ but the appellants became emboldened as the affidavits unfolded. Later it was said that the judges were on a ‘diplomatic mission’; yet later that they were ‘special envoys’ to the President; and finally that they were ‘in essence the embodiment of the President’.

The SCA did not find “in essence” that Mr Fowler and others tried to mislead the court, but it is difficult not to conclude from the passages quoted above that Mr Fowler and others were a bit adventurous in making their “bold assertions” about what the report was for and what it may contain.

The effects of this judgment is that — at least those with money to pay lawyers — will be able to force state officials to provide them with access to documents held by the state as required by PAIA. The SCA took a strong stand against the culture of secrecy that permeates the state. The decision should therefore be welcomed and should act as a wake-up call for public officials who act as if we do not live in a constitutional democracy based on openness, transparency and accountability but rather in an authoritarian state in which state officials, ministers and the President have a right to hide important information in the public interest from the public.

Whether officials and Ministers (Minister Sisulu comes to mind) will heed the warnings of a mere court, is another matter. A culture of secrecy is like the bad stench created by cat pee – it is very difficult to get rid of.

I assume that the Presidency will appeal this judgment to the Constitutional Court. Based on this judgment and on the papers filed by the Presidency so far this would probably not be wise and would amount to a further wasting of public funds. After two court judgments the Presidency has failed dismally to provide any cogent reasons for denying access to the report, so it would be surprising if they managed to conjure up such reasons for an appeal to the Constitutional Court  – something they would need to do to have any chance of success.

But this is not the whole story. Ordinary citizens – Mrs Ledwaba in Sheshego and Mr Ntuli in Ulundi – who cannot pay lawyers to fight these cases in court will probably continue to be ignored by state officials when they request information needed to enforce their rights.

Oh, I just had a great idea: instead of creating a Media Appeals Tribunal (remember, the ANC argues it is needed because ordinary citizens cannot go to court when they are defamed) why not create an Access to Information Tribunal staffed by journalists and constitutional law academics. That way Mrs Ledwaba and Mr Ntuli might have a chance to access the information that is, indeed, the lifeblood of our democracy. Not going to happen is it? Which just goes to show, all the arguments for a MAT is utter bogus and is part of the attempt by the government to avoid accountability and to deny ordinary citizens the access to information that they have a right to obtain in order to exercise their democratic rights.

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