Right2Know: South Africa, State of Secrets

How easy is it for South Africans to get their hands on information?

Not very easy at all, R2K says. To view documents relating to housing allocation, for instance, it is often necessary to fill out a PAIA application: drawing on the Promotion of Access to Information Act. In theory, PAIA is supposed to allow ordinary citizens to request records from public bodies and be granted a response within 30 days. The reality is very different.

“PAIA doesn’t result in access to information,” Hunter says bluntly. Some evidence for this is found in the experience of the PAIA Civil Society Network, a group of civil society organisations, including R2K, which frequently submit PAIA applications.

Of the PAIA requests launched by the network between August 2012 and July 2013, only 16% succeeded. 54% of first requests simply received no response at all within the allocated 30 days. PAIA applications which do succeed can sometimes have a turnaround time of a year.

A further worrying aspect is that the records kept by the PAIA Civil Society Network suggest that it is getting more difficult, rather than less, to have PAIA requests honoured as the law requires. Over 2008/2009, 35% of the network’s PAIA application succeeded. That dropped to 22% for the following year, and the latest figure of 16% is lower still.

Another problem is the type of information which individuals or groups sometimes have to resort to PAIA applications to get their hands on. R2K’s Secrecy Report 2014 lists as examples the Integrated Development Plans of local government, and Service Level Agreements between local governments and the companies contracted to deliver public services.

You shouldn’t have to submit a PAIA application to see these kinds of documents in the first place, R2K argues. It is the type of information “that should already be available online and in every municipal office”.

And it’s not just the public sector that is reticent about releasing information. “[Anecdotal evidence suggests] that private sector compliance seems to be even worse,” Hunter says. Licenses granted to mining operations, and environmental impact reports, are often very difficult for concerned groups to get hold of.

The community of Silobela in Mpumalanga, for instance, has had to go to court (alongside a public body called the Inkomati Catchment Management Agency) to compel the Northern Coal mining company to publically release information  about the effects of acid mine drainage on Silobela’s drinking water. Northern Coal wants to prevent the release of the information on the grounds that it could damage the company’s reputation.

“Too often, communities or civic organisations get drawn into long and exhausting battles for basic information which would help to identify wrongdoing and allow citizens to begin to enforce their rights,” R2K states. “When it comes to environmental safety and pollution risks, the delayed accountability created by such secrecy may literally cost lives.”

The business of secrecy, in other words, is by no means restricted to the South African government.

But when it comes to the government specifically, there are a number of perplexing aspects to do with their approach to upholding national security. Hunter points out, for instance, that every government department was asked in a parliamentary question last year how many documents they classified as secret. While many of these documents were doubtless legitimately classified, questions remain about why certain departments would need to keep information secret at all.

Take the Ministry of Higher Education, Hunter suggested, which had a number of documents classified as secret. “What are they working on that relates to national security?” he asks.

Eight different ministries refused to tell parliament how many documents they had classified at all, saying that this was in itself a secret. A total of 14 departments said they didn’t know how many had been classified.

What this points to, Hunter contends, is “the wide over-classification of documents across government”.

The number of “National Key Points” – a phrase which popped into the public consciousness when the Department of Public Works said that Nkandla was a National Key Point – also continues to increase, despite the fact that there is still no clarity around the list of National Key Points. Because SAPS has refused to release a list of them to R2K, the group is heading for court in November this year to try to compel the release of the information.

R2K says this is important because the National Key Points Act has been used to ban protests at National Key Points, even though a police advisory committee ruled this to be unlawful. In June of this year, for instance, Tshwane metro police told R2K protesters that the venue in which the Seriti Commission on the Arms Deal was being held was a National Key Point.

R2K has also voiced concern over signs pointing towards an increasing “criminalisation of protest”. Rhetoric from government and SAPS of late has focused on a hard-line attitude towards violence from service delivery protesters. (We reported last week on the briefing to Parliament’s police committee by SAPS top brass, in which more money was requested to drastically beef up both weaponry and surveillance equipment to shut down protests when unrest threatens.)

“This emphasis on protester violence is misplaced,” Hunter says, pointing to the increase in the number of people killed during protests by police. In 2014 so far, seven people have been killed in this context.

“The new policy of policing protests has been framed as ‘demilitarisation’, but it will emphasise information-gathering and surveillance,” Hunter says, which may have a chilling effect on the right to protest and freedom of expression. Hunter says it is “widely reported” by community leaders and activists that surveillance has already been stepped up.

In order for security officials to monitor communications, RICA (the Regulation of Interception of Communications and Provision of Communication-Related Information Act) requires a warrant from a judge. R2K notes that the number of warrants issued by a judge fell drastically between 2010 and 2013, but stresses that this is not necessarily an indication that less monitoring of communications is happening. “It may mean that some interception is happening without the RICA judge’s authorisation”, the Secrecy Report suggests.

In order for authorities to gain access to someone’s metadata – which might include their location, who they call and text, and when – it is also not necessary for them to get authorisation from the RICA judge. Any magistrate can provide such a warrant, and it isn’t measured how often that is happening.

In general, R2K says, “[w]e simply don’t have enough information about how often the authorities intercept civilians’ communications directly, and why”.

As much as the Secrecy Report aims to shine a light on the obstacles faced by South Africans hoping to access their “right to know”, R2K national organiser Siviwe Mdoda stresses that it has an additional purpose.

“This publication is a call to arms to other organisations and activists to make similar contributions,” Mdoda told journalists.

The cause, they say, is not trivial.

“These policies are being driven by a climate of insecurity,” Hunter says. “But the point we need to make is that these policies actually create instability, conflict and a sense of national insecurity.” DM

Read more:

• The R2K 2014 Secrecy Report