Media Monitoring Africa (MMA) is deeply concerned by reports that the African National Congress (ANC) is considering allowing crucial changes to the Protection of State Information Bill (POSIB) that will not only certainly guarantee a constitutional challenge but will also see South Africa seeking to pass legislation that is in violation of South Africa's African Union Treaty obligations as well as our own legislation.
South Africa's Promotion of Access to Information Act (PAIA) is lauded for its commitment to openness and transparency, and while sometimes challenging in its effective implementation demonstrates South Africa's commitment to open government, and is an example of best international practice. PAIA is no ordinary piece of legislation, rather it is constitutionally mandated to give effect to section 32 of the Constitution - the right of access to information. Section 32 specifically protects the right to information as well as the legitimate state interests requiring non-disclosure. Section 5 of PAIA specifically provides that PAIA applies to the exclusion of any provision of other legislation that prohibits disclosure of a record of a public body. The attempt to make the POSIB take precedence over PAIA is illogical, will lead to substantial practical challenges and confusion in the law and is, in any event, unconstitutional.
In addition, as a country that seeks to play a significant role on the continent it is critical that we lead the way in demonstrating commitment and adherence to our African obligations. Trumping PAIA would not only be a violation of South Africa's own constitution, but would also show utter disregard for our continental treaties and obligations.
Accordingly, MMA calls on the National Council of Provinces (NCOP) to ensure that South Africa meets its own constitutional and international obligations and ensures that PAIA continues to take precedence over the POSIB. "The NCOP has a clear choice, we can take the high road and live up to our obligations and our potential as a nation and ensure PAIA takes precedence over the POSIB, or we can take the low road, and not only bring on constitutional challenges but also lose our good standing globally as a nation that promotes open and accountable governance. We have to hope that the NCOP acts in the interests of our collective future," said William Bird, Director of Media Monitoring Africa.
MMA calls on the NCOP to ensure that they enable further public participation into the final version before the Bill goes to the National Assembly. Not only will this ensure greater transparency, but will also enable crucial sticking points to be debated and hopefully resolved.
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