Access to information: Lessons from South Africa

*By MANDALA MAMBULASA
President Richard Nixon once said: “When information which properly belongs to the public is systematically withheld by those in power, the people soon become ignorant of their own affairs, distrustful of those who manage them, and eventually incapable of determining their destinies.”
In Malawi, we often ask ourselves before we embark on any project; where has this or that been done before? That question may be important to the limited extent that, in this day and age, there is perhaps no need to reinvent a wheel.

The same question may not be relevant to the extent that it assumes that Malawians cannot be the first people to do something for their own good. They can and have done so in many things, which I will not go into detail right now for reasons of space.
However, in order to satisfy the curiosity of those who may be asking the same question in relation to Access To Information (ATI) legislation, this piece, looks at some countries in Africa which already have similar legislation. It also highlights some lessons that Malawi may learn from their experiences and perhaps improve or work on them.
South Africa, which is fondly called the Rainbow Nation, was the first in the African continent to have ATI legislation. It enacted its legislation in the year 2000. The piece of legislation is called Promotion of Access to Information Act, 2000.
It must be mentioned that while South Africa is celebrated for having been the first country on the continent to have ATI legislation in the year 2000, Europe had its first ATI legislation more than two centuries and a quarter earlier. That country was Sweden and it did so in 1766. It is arguable that Sweden is what it is today, partly because it embraced the ideals of accountable and transparent government long time ago.
Reverting to South Africa, there are many striking parallels with Malawi. First, Malawi provisionally adopted her Republican Constitution on 18th May 1994. The Malawi Constitution definitely came into force on 18th May 1995. South Africa adopted its Republican Constitution on 8th May 1996. The South Africa Constitution was amended on 11th October 1996 by the Constitutional Assembly.
Both the Malawi Constitution and South Africa Constitution have access to information as a right in their Bill of Rights Chapters. Section 32 of the South Africa Constitution provides as follows:
(1) Everyone has the right of access to-
(a) any information held by the State; and
(b) any information that is held by another person and that is required for the exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the State. Section 37 of the Malawi Constitution is couched in the following terms:
Every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his or her rights.
One would have assumed that since Malawi was the first country to have a liberal democratic Constitution than South Africa, it was going to be the first to enact ATI legislation to give effect to the right of access to information. That was never to be. South Africa which had its liberal democratic Constitution in 1996, took a record four years to enact ATI legislation in the year 2000 to give effect to Section 32. In Malawi, 20 years after we adopted our liberal democratic Constitution in 1995, we are still dilly-dallying to have ATI legislation. Jesus Christ must have had insight when he remarked that ‘the first shall be the last’.
Looking at Section 32(1)(a) of the South Africa Constitution, there is no need for any person who wants to have access to information held by the State to justify his or her request for the same. The justification is only required if that information is held by a private person.
In Malawi, however, any person who requires any information held by the State, according to Section 37 of the Malawi Constitution, must give a justification that the information is required for the exercise of his or her rights. The South African Constitution has expanded the reach of the right of access to information, to information held by private persons to the extent required for the exercise or protection of rights by the requester. The Malawi Constitution has not.
Initially, South Africa also had that notorious phrase, ‘in so far as such information is required for the exercise or protection of any of his or her rights’ in Section 23 of the interim Constitution on information held by the State. The said section was one of the more heavily litigated rights and a consensus later emerged that it was not necessary in a democratic State to have such a justification before one could access information held by the State. The notorious phrase was subsequently taken out from the subsection in the final Constitution.
Part of the explanation was that it was deemed that any information held by the State belongs to the people anyway and it was, therefore, unreasonable to place such a demand on the very owners of the information. Access to information held by the State now consists of an unqualified right.
There is no study or research conducted in South Africa, as far as I am aware, that shows or demonstrates that because of the removal of that notorious phrase, people in South Africa are abusing this right.
Nobody in their right frame of mind would do that anyway. So, there should be no fear if Malawi wanted to do something similar i.e. remove the qualification under Section 37 of its Constitution. I would have to be convinced that people in Malawi would be so mischievous as to spend their time in State offices demanding all sorts of information, simply because the Constitution has given them an unqualified right.
If, however, Malawi would like to maintain Section 37 of its Constitution the way it is, i.e. with that notorious phrase intact, the question would perhaps be: has it done enough to civic educate people on their rights such that at all times and in all circumstances that people would require information held by the State, they would be able to justify in relation to some right to be exercised as to why they need a particular piece of information? If the answer is in the negative, would it not be easier to go the South African route then? It is for us all to decide how we would like to proceed on this matter.
It makes sense to require justification for you to access information held by another person in the South African context in terms of Section 32(1) (b) of its Constitution.
In the first place, it may not be your information, in the sense that, this person is not the State such that he or she is holding that information on trust for you. However, in Malawi, it is only the press that enjoys the unqualified right of access to information held by the State in terms of Section 36 of the Constitution. One hopes that the experiences of South Africa shared here will inform Malawi’s own agenda for the right of access to information.

*The author is a human rights lawyer.