The South African experience

SANDEEP SAXENA

Interview with Mothusi Lepheana.

The only Constitution that specifically provides for the right to information is the Constitution of South Africa. Section 32 of it says that "everyone has access to information held by the state and any information held by another person and that is required for the exercise or protection of any rights". The Promotion of Access to Information Act, 2000, came into force in 2001. The Director of the South African Human Rights Commission's Access to Information Unit, Mothusi Lepheana, was recently in New Delhi to attend a conference organised by the Commonwealth Human Rights Initiative (CHRI). The conference brought together representatives from Jamaica, Canada, the United Kingdom and Mexico, and activists, non-governmental organisations, Members of Parliament and government officials to initiate a discussion on how the provisions of the Right to Information Bill could be best implemented. Siddharth Narrain spoke to Mothusi Lepheana on the South African experience with the law relating to the right to information. Excerpts from the interview:

Was the South African law that provides for the right to information a result of the struggle against apartheid?

The very existence of apartheid was based on secrecy. The right to information is a direct system of making sure that we do not go back to apartheid and violation of human rights.

How is the office dealing with access to information structured?

The South African Human Rights Commission is responsible for the protection and promotion of human rights. We have many commissioners, one of whom is responsible for the right of access to information. This is a huge responsibility for which we have set up a separate unit. Among other units is one dealing with socio-economic rights and the right to equality. Our work involves monitoring the development of this right and assisting people who have been denied access to this right. We have the power to take people to court over any refusal to assist people to gain access to information.

How does the Indian Right to Information Bill compare with the South African legislation?

The two pieces of legislation are similar, but in South Africa the legislation applies to all private companies as well. The time given for the Indian legislation to come into effect is only 120 days. This is a very short period, during which all the officials have to be trained and information officers have to be appointed. In South Africa, the law was passed in 2000. We waited until 2001 before it became operational. Even then, four sections were suspended until February 15, 2002. Also, in South Africa we have a provision that makes it compulsory for government officials to compile manuals. A manual is a document that explains what information each government department has and how a member of the public can access such information. Our experience has shown that the state would spend less money if it put most of its non-classified information on the voluntary disclosure list.

What are the difficulties you have faced while implementing the Access to Information legislation in South Africa?

Compliance by government departments is a major problem. Many people are unaware of the legislation. There needs to be political backing for the legislation. In South Africa, the Deputy Minister of Justice was working on this legislation even before he became a Deputy Minister, so he supported this legislation fully. Political backing must be reflected in financial help, to train government officials and so on. In South Africa, many people feel it is expensive for private bodies to come up with manuals. The easiest solution is a template that the Information Commission provides to all government departments, a structure of how the manual should be prepared. In South Africa this is what we did. But with private companies we suspended this exercise because many private parties felt it was too expensive.

How do you monitor the implementation of the Access to Information Act?

Each government department submits an annual report to us with details on how many requests it received and how much money it allocated for this. We compile this data in the form of a report and submit it to Parliament. What is interesting is that one of the leading departments in terms of implementation of this Act is the police. In 2003-04, the Department of Police Services received 14,000 requests, of which 11,000 requests were granted in full. We have a proactive disclosure clause that makes it compulsory for the government to put out a list of information that is freely available. People fear this legislation, so they put out lists of the information available. This is one way of making the right to information practicable and avoiding the process of applications requesting information.