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South Africa’s PAIA information law needs overhaul for digital age

Read time 4min 50sec

South Africa’s freedom of information law, the Promotion of Access to Information Act (PAIA) 2000, is in need of urgent reform to make it fit for purpose in the digital age.

This is according to Izak Minnaar, South African National Editors' Forum (SANEF) founding member and elections consultant as well as trainer, speaking at the Information Regulator’s webinar to commemorate International Day of Universal Access 2021 yesterday.

The webinar centred on the promotion of access to information as a human right that enables the realisation of other rights, such as the right to vote and how it facilitates the participation and inclusion of vulnerable groups in the electoral process.

Minnaar told the virtual audience the release of more information proactively strengthens the overall objective of holding free and fair elections. As a result, maximum access to information needs to become a characteristic of not only the South African election landscape but the country’s landscape as a whole.

To achieve a proactive maximum information disclosure culture, there needs to be political action to reform PAIA, he stated. At the core is making sure the Act can be easily utilised by members of the public, while remaining fit for purpose in today’s information society.

Legislative reform and access to information reform is long overdue, as the last substantial change was 21 years ago, said Minnaar. “It [PAIA] really needs to be made fit for purpose in the digital age, bringing in proactive disclosure and online access as the norm.”

As of 1 July, the Information Regulator officially took over the regulatory mandate functions of PAIA in SA. This move, said industry insiders, was a step in the right direction to giving greater impact to the law that’s been in effect since 2002.

PAIA ensures the state promotes a human rights culture and social justice. It also encourages openness and is there to establish mechanisms or procedures which give effect to the right of access to information in a speedy, inexpensive and easy manner.

Universal access

Given that most of the information people need to access is in the virtual space requires a country stance on universal access to the internet, noted advocate Nandipha Ntsaluba.

Ntsaluba, who also participated in the day’s discussion, questioned at what point South Africans will be able enjoy internet access as a basic human right, adding that COVID-19 exposed the deep-rooted digital divide that still exists in the country.

For Minnaar, one of the reforms in PAIA should be universal access to the internet, so that it’s not a policy or a statutory issue that government departments prioritise differently.

“Until it [internet access] becomes a legislative obligation, I’m not sure we will get to where we want to be,” he noted. “We need to make sure we get it in the legislation so that it becomes an obligation to do and not a nice to have, as it’s been over the past years.

“The rights to freedom of expression and access to information using the internet are central to the enjoyment of other rights and essential to bridging the digital divide.”

Information Regulator member professor Snail ka Mtuze commented: “It should not just be us in the big metros that have access to information, but it should include the poorest of the poor and those who are in distant rural communities.”

During the discussion, Minnaar referenced principle 37 of the “Declaration of Principles on Freedom of Expression and Access to Information in Africa” as particularly important within the context of SA to make PAIA relevant for the digital age.

This, he explained, means people should be able to exercise their access to information rights online. “Principle 37 says the state shall facilitate the right to freedom of expression, access to information online and the means necessary to exercise these rights. This means helping people who can’t afford it.

“The state, showing cooperation with all relevant stakeholders, shall adopt laws, policies and other measures to provide universal, equitable, affordable and meaningful access to the internet without discrimination. Providing access to the internet, the state shall take specific measures to ensure marginalised groups have effective exercise of their rights online.

“We all hope that government, with the support of organisations such as the Human Rights Commission and Information Regulator, would come up with a plan that will help us to actually achieve these aspirational clauses in the declaration.”

According to Minnaar, SANEF and Media Monitoring Africa embarked on a process to draft proposed amendments to PAIA, in an effort to ensure the Act meaningfully realises the right of access to information in a timely and effective manner.

He revealed that a team of lawyers worked for months to review the legislation, looked at all the various inputs and then drafted a PAIA Amendment Bill.

“We’re happy to announce that it [PAIA Amendment Bill] is now publicly available for comment and further consultation. Anybody can participate and send their expressions of interest to paia@mma.org.za.

“Once everyone has made their inputs, the idea is then to present it to the Information Regulator, the Human Rights Commission and the Department of Justice for consideration by the executive and Parliament.”

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