The South African Human Rights Commission discussed the proposed relocation of certain powers from itself (as provided for in the Promotion of Access to Information Act) to the new Information Regulator envisaged in the Protection of Personal Information Bill. The Commission said that compliance with legislation such as the Promotion of Access to Information Act came down to political will, culture and the psychology of a nation and all of its sectors. The Promotion of Access to Information Act was not an ordinary piece of legislation. It was a law that had to be embraced and interconnected to all the other laws in the country. The South African Human Rights Commission had the requisite expertise in terms of its history with this legislation. The Commission had experience in working with all the rights in the Constitution and it was an expert body. If the Promotion of Access to Information Act were moved in a knee-jerk manner to another body then that wealth of expertise and wisdom would be absent. The Information Protection Regulator under the Protection of Personal Information Bill would be consumed with applications from corporate giants and various industries. resources. The Commission found it difficult to envisage how legislation such as the Promotion of Access to Information Act would compete with such demand for operational resources.
The Commission believed it should be given the power to issue binding orders and enforce such orders. Research showed that most human rights institutions were governed by the Paris Principles. Research had shown that in smaller states where resources were scarce, human rights institutions had been given the power to issue binding orders. Through the South African Human Rights Commission Act, the SAHRC had quasi-judicial powers. The Commissioners were of the view that nothing should limit the body from being able to issue binding orders. The SAHRC had called for a review of the Promotion of Access to Information Act, which should be cautious, detailed and very comprehensive in nature. Section 32 in particular should be reviewed because of the high levels of non-compliance. Section 14 should also be reviewed thoroughly and amended to permit the electronic submission of manuals. The SAHRC urged the Committee to do a full review of Promotion of Access to Information Act.
The Committee was troubled that the SAHRC was of the view that the transfer of the Promotion of Access to Information Act functions were a ‘knee-jerk movement’. The Committee described the presentation by the SAHRC as “digging in” as it differed from the submission in 2009 where it had three different options which were: option one was to no longer have the powers and functions of Promotion of Access to Information Act under the Commission, option two was for the South African Human Rights Commission to have the Information Regulator fall under it and option three was to have Promotion of Access to Information Act under the SAHRC or for an interim period. The Committee fully agreed that there was a need for a review of the Promotion of Access to Information Act. The Committee felt that the role of the SAHRC was institutional as it dealt with public bodies and not primarily private citizens, which were mostly assisted by the Public Protector. This was a clinching argument, to vest the enforcement powers of the Promotion of Access to Information Act with an Information Regulator and not the SAHRC, which was not statutorily vested with the primary function of assisting applicants for access to information. The Committee was divided as to whether Section 32 should remain with the South African Human Rights Commission.
The Committee undertook to consider the report of the SAHRC on the non-compliance of PAIA and take the necessary oversight steps. It would also start to consider the enforcement powers and structure of the Information Regulator
South African Human Rights Commission (SAHRC) Presentation
Ms Pregs Govender, SAHRC Deputy Chairperson, said that access to information would remain within the Commission’s mandate regardless of what the Committee’s decision would be on whether or not to give the new Information Regulator in the Protection of Personal Information Bill certain functions in the Promotion of Access to Information Act (PAIA). The SAHRC had responded well to its constitutional and legislative mandate despite resource constraints.
Ms Chantal Kissoon, Deputy Director of the Access to Information Programme: SAHRC, said that the SAHRC had conducted a comparative study on compliance using the Public Finance Management Act (PFMA) and it found that compliance levels with the PFMA were far higher. Compliance came down to political will, culture and the psychology of a nation and all of its sectors. It was this “psychology” that the SAHRC had not adequately communicated; PAIA was not an ordinary piece of legislation. It was a law that had to be embraced and interconnected to all the other laws in the country. The SAHRC had the requisite expertise in terms of its history with PAIA. The SAHRC had experience in working with all the rights in the Constitution and it was thus an expert body. If PAIA were moved in a knee-jerk manner to another body then that wealth of expertise and wisdom would be absent. The Information Protection Regulator would be disadvantaged in this way, especially as this was a right that was very difficult to embed already.
The Information Protection Regulator would be dedicated and consumed with applications with a competing interest for resources. The Regulator would be consumed by demands from corporate giants and various industries. The SAHRC found it difficult to envisage how legislation like PAIA would compete with such demand for operational resources. If PAIA were to be put into this kind of competitive structure it would suffer the worst. The SAHRC, Open Democracy Advice Centre (ODAC) and other non-government organisations (NGOs) had made repeated calls for the establishment of an Information Commissioner. This call was justified on the basis that in its current framework, PAIA obliged ordinary people to assert their access to information rights via the courts which was time consuming, costly and sometimes posed a cultural inhibition for people who were disinclined to use its traditional domestic mechanisms to assert their rights. The SAHRC was concerned with the lumping of PAIA with the Protection of Personal Information Bill. The SAHRC had never been given any enforcement rights. This was also one of the reasons why there was a call for an Information Commissioner. The SAHRC welcomed the Committee’s view that there was a need for an Information Commissioner.
There were still concerns that there would be competition for resources and that if PAIA were dumped with information protection, it would suffer the worst. A pressing question was whether a Commission could be given the power to issue binding orders and enforce such orders. The reason behind this question was that most human rights institutions were governed by the Paris Principles. The Paris Principles were normative in nature and they came about via a consensus of state parties. The Paris Principles did not expressly state that human rights institutions could not issue binding orders however they recommend that these institutions should operate in a way that did not disempower domestic machinery. Research had shown that in smaller states where resources were scarce, human rights institutions had been given the power to issue binding orders. Through the South African Human Rights Commission Act, the SAHRC had quasi-judicial powers. The Commissioners within the SAHRC were of the view that nothing should limit the body from being able to issue binding orders. It was the case that many human rights institutions that were state bound had the power to issue binding orders in relation to equality issues. The SAHRC had called for a review of PAIA, which would be cautious, detailed and very comprehensive in nature. Section 32 in particular should be reviewed because of the high levels of non-compliance. Section 14 should also be reviewed thoroughly and amended to permit the electronic submission of manuals. The SAHRC urged the Committee for a full review of PAIA.
Ms Govender added that it was important to ensure that the bodies tasked with constitutional mandates were properly funded, resourced and capacitated. This had been raised before, for example, the decrease in the number of commissioners, the decrease in the SAHRC budget in real terms over the years and the question of what happened to the SAHRC annual reports on PAIA. These reports were submitted to Parliament every year and the Justice Portfolio Committee had not named nor shamed nor held to account departments that were offenders. The role of the SAHRC was to monitor compliance and report on that. The role of the Committee was to act as a critical oversight body to ensure compliance. The country came out of a culture of secrecy in 1994 and this was hard to break. What went with a culture of secrecy was a culture of non-accountability to ordinary people, particularly those that were poor. The issues concerning PAIA were in relation to access to information concerning basic rights, socio-economic rights (which affected the rights of ordinary people every day). The issue of access to information within a culture of secrecy, embedded throughout government and the country as a whole, was not ideal.
Mr J Jeffery (ANC) said that the Technical Committee had wanted further input from the SAHRC on the Bill’s provision for relocating PAIA functions from the SAHRC to the new Information Regulator. This had been in the Bill and it was nothing new, it was troubling to hear that the SAHRC had said that the transfer of the PAIA functions was a ‘knee-jerk movement’. The SAHRC had made a submission before in 2009; it was disappointing that the presentation made it seem like the Commission was “digging in”. In the 2009 submission, the SAHRC had proposed three options: option one was to no longer have the powers and functions of PAIA under the Commission, option two was for the SAHRC to have the Information Regulator fall under it and option three was to have PAIA under the SAHRC or for an interim period. The Commission had been much more constructive to the move back then but now it was digging in and saying that it did not want it to go, this was problematic and was not a constructive engagement. A letter had been sent to the SAHRC requesting them to provide a submission on these issues by no later than 10 September 2010. There was an informal request for an extension and a submission was only provided on the 29 November 2010. The submission itself was not complete. The argument that the SAHRC was experienced in dealing with PAIA was not substantial. A lot had been made about PAIA being about access to information and the Regulator was about privacy. However if these rights were properly considered, it became clear that one always had to balance the right of access to information against the right to privacy.
The submission was disappointing and not as constructive as the earlier 2009 submission although the input for a PAIA review was agreeable. This was an issue of a body not wanting to surrender its functions. The Committee had stated that it would go through the Commission’s PAIA report and it would do so. The Department of Justice and Constitutional Development (DOJ&CD) had presented last week that one of its Key Performance Indicators (KPI) was the promotion of PAIA and other rights. Had the SAHRC been in communication with the Minister of Justice to ensure that there was no duplication? The advantage of the Public Finance Management Act (PFMA) was that there was an Auditor-General who audited state books and ensured compliance with the PFMA.
Ms D Smuts (DA) said that the Technical Committee was of the view that there was a real need for enforcement of PAIA. One would agree with Mr Jeffery that the response from the SAHRC did not take the issue of the transfer of PAIA functions much further. What the Committee had to do now was to draft laws that would grant effect to the right to information through institutions. If one considered the provisions of PAIA, the role of the SAHRC was institutional and focused on public bodies. The function of the SAHRC was not in fact geared towards persons seeking access to information. It was only Section 83(3)(c) that provided for the assistance of citizens if reasonably possible. It was in fact the Public Protector who took on complaints. This was a clinching argument, to vest the enforcement powers of PAIA with an Information Regulator and not the SAHRC, which was not statutorily vested with the primary function of assisting applicants for access to information. A Regulator was different from a Paris Principle Commission; it was a rule setting, investigative and educatory body. This was what the Committee was constructing and enforcement functionality would logically have to be vested there. The Regulator would also be dealing with the big banks, marketers and insurance companies. The Regulator would be enforcing the right to privacy. There was a need for the enforcement of PAIA given what the Chairperson revealed last week that all Directors General had been issued an instruction to have all requests for information refused. This was a clear denial of a right and it was defiance of a law. There was no need to amend PAIA, in light of Section 83, all that had to be done was to review and modernize the legislation. In light of Section 14 of PAIA, paper manuals had to be dispensed with and electronic copies had to be uploaded and made available. This function would remain with the SAHRC. The duty of promoting Section 32 could remain with the SAHRC; it should simply communicate its activities to the Regulator in this regard. The Committee would have to start thinking about the architecture of the Regulator and also which body within the Regulator would listen to PAIA appeals.
Adv S Swart (ACDP) said that the Committee was in agreement for a review of PAIA. Perhaps one could consider that the Regulator may assist the SAHRC in doing some of its other work.
Mr Jeffery referred to Section 10(3) of PAIA, which read as follows “The Human Rights Commission must, if necessary, update and publish the guide at intervals of not more than two years.”, this has not been done. The proposal from Ms Smuts on Section 32 was not agreeable as the question would be how would monitoring be conducted in order to ensure compliance. Whether Section 32 could remain with the SAHRC could be debated further. The Open Democracy Advice Centre (ODAC) stated that compliance with PAIA had gone down. The annual report of the SAHRC did not indicate this, so the Committee had relied on an NGO on this issue.
Ms Smuts asked if the SAHRC could give a response to the issue of Section 32, as there was a clear argument to have it shifted to the Regulator. The recommendation of the SAHRC that Section 15 of PAIA should be deleted was agreeable. Section 14(g) could also be deleted, as it was really utopia.
Ms Govender replied that the Commission was not digging its heels and the submission was on its constitutional mandate.
Ms Kissoon added that the Commission had not changed its position; it had submitted recommendations in its 2009 submission. These recommendations were in the current submission before the Committee and apologies for their not being articulated well enough. The current submission was highlighting the dangers that were in inherent in splitting the mandate prescribed by PAIA. The concerns of the SAHRC were in the best interests of the right to access. The Public Protector’s role may be that of handling systemic complaints. It had been noted by the SAHRC that there had been non-compliance in terms of Section 10(3) of PAIA. The first guide that was produced by the SAHRC cost between R2 and R5 million. Requests for further funding to update this have been made to Parliament to no avail and no comment either. The PAIA budget that was introduced before the Committee and Treasury was not made available in a similar fashion. The promotion aspect of PAIA had not been done thoroughly because of budget constraints.
The Human Rights Development report did have aspects of monitoring the compliance of Departments in relation to PAIA. There was an increase of compliance at National level but there were marginal differences at local government level. Section 32 had weaknesses including that it did not allow the Commission to test the veracity of statistics. The Commission also could not determine if a request had been made for personal reasons or for other reasons. This Section did not allow for the Commission to know if disciplinary action was taken against individuals for non-compliance with PAIA within government departments. There was no identified unit in most public bodies dealing with PAIA. Most departments struggled to even have a Deputy Information Officer, they tended to handle PAIA on an ad hoc basis. There were small changes in compliance due to the Auditor General and Committee. One should be cautious before putting together legislation, mandates and obligations on bodies simply because the laws or Acts dealt with information. This may lead to the adjudication of state information as well as electronic communication; this was not the SAHRC being territorial. It was merely flagging issues that may be problematic.
Mr Jeffery responded and referred to the 2009 annual report of the SAHRC, which had a compliance graph for PAIA amongst public bodies. It was omitted in the 2010 report, which was a bit disappointing because it assisted the Committee in knowing what was happening. The SAHRC had powers to subpoena, if there was a problem with Section 32, why were they not used? The Committee did not know that the guide cost so much. The Committee seemed to be the ones saying that there should be a review of PAIA and that it should be amended. More could have been done in the last ten years from the Commission regarding improving PAIA. The 2009 submission was straightforward and it had three options, not recommendations. The current presentation was much stronger against the re-allocation of PAIA.
Ms Govender said that it was pointless to go backwards and forwards on the 2009 and 2010 submissions, the intentions of the SAHRC have been made clear. Each year the Commission presented to the Committee on the poor non-compliance levels of government departments. Has this Committee undertaken any steps for the naming and shaming of these departments or taking any action?
Mr Jeffery said that the Committee had not done anything and that was a problem. The Committee undertook to go through the PAIA report and map a way forward with the Commission at the meeting in October 2010 where the annual report was tabled.
Ms Govender thanked Mr Jeffery for the assurance that the Committee would take this forward.
The Chairperson said that the Committee would go through the report and if necessary name and shame departments but the matter should not be pre-empted at this stage. It was uncomfortable to know that the Committee had not done what it was supposed to but it would do so now. The next key matter would be providing enforcement powers to the new Regulator.
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