Access to information is the oxygen of democracy – Justice Ngcobo

April 1st, 2012

By Nomfundo Manyathi

The theme of the second annual Constitutional Conference, which recently took place in Johannesburg, was ‘Freedom of information and freedom of expression: The bedrock of democracy.’

Speakers at the conference, which was organised by Omega Investment Research, included former Chief Justice Sandile Ngcobo; Gauteng spokesperson of the Right 2 Know Campaign, Dale McKinley and attorney Dario Milo.

Common topics at the event were the rights of access to information and freedom of expression, the Protection of State Information Bill (B6 of 2010) and the role of the media in a democracy.

In the opening address, chief executive officer of Omega Investment Research Leole-Ann Tchimbioputo said that access to information was a fundamental human right comprising a number of elements. She added that freedom of information demanded that governments did not interfere with the flow of information to journalists and from journalists to the public.

In the keynote address, Justice Ngcobo spoke about the constitutional rights to freedom of expression and access to justice, and the role of the media in a democratic society.

He said that access to information was the ‘oxygen of democracy’ and, together with an independent press, was the foundation of democracy.

Justice Ngcobo said that access to information led to transparency in government, which was essential for democracy, and could combat corruption – the biggest threat to democracy. He said that secrecy provided a ‘fertile ground for corruption’ and that, in terms of the Declaration of Principles on Freedom of Expression in Africa, disclosure of information should be the rule and non-disclosure the exception.

He said that a free press was indispensable in a democracy. As a foundation of good government, it ensured transparency and accountability and the upholding of the rule of law. The media, Justice Ngcobo said, was responsible for supplying information to the public about their rights and in order for them to make decisions on important issues such as new legislation.

Justice Ngcobo added that although access to information was a fundamental human right, it was not an absolute right. He said that while he would not discuss the Protection of State Information Bill (the Bill), he noted that the draft legislation did place limitations on access to information. Justice Ngcobo added that debate on the Bill should be welcomed as public debate enhanced democracy.

The former Chief Justice said that an open and free media was necessary in order to fulfil its function as a watchdog. However, he said that the media had a responsibility to report accurately, clearly and without bias.

He added that access to information and a free press were crucial tools for democracy; however, like any other tool, they were as useful as the ability of the hands that use them.

In a discussion on secrecy as ‘a mask for power’, Mr McKinley said that secrecy was one of the most dangerous enemies of democracy and that any meaningful democracy demanded openness, transparency and accountability – the currencies of democratic freedom. Secrecy, on the other hand was the currency of authoritarianism and of social, economic and political control by those who seek power.

Mr McKinley said that there were few things that those in power feared more than for ordinary people to have access to the truth about how they spend and earn money, what they said and did behind closed doors and in public, how decisions were made and who influenced and benefited from those decisions.

He said that, despite South Africa’s history, secrecy had again emerged in the country. The Bill was, for example, ‘a hugely dangerous and draconian piece of legislation’. He stressed the point that it was not only the media that would be affected by the Bill.

‘If successful, the Bill would, among other things, cast a massive veil of secrecy across the entire public sector by giving a wide range of security officials the right to classify information as secret; criminalise those who expose and handle “secrets” in the public interest, with prison sentences of up to 25 years; [and] adopt a “fox guarding the hens” approach ….’

Mr McKinley concluded by saying that the rights and freedoms of democracy, which were not static and which needed to be fought for, were the foundation for collective security in both the present and the future.

Webber Wentzel attorney Dario Milo said that the Bill in its current form would have a ‘chilling effect’ on investigative journalism and whistle-blowing, and would not pass constitutional standards.

Mr Milo said that the Bill presented a ‘catalogue of criminal offences’, many of which provided for mandatory prison sentences without the option of a fine. He used the example of ‘secret’ items leaked to and published on whistle-blowing website WikiLeaks to illustrate the anticipated effect of the Bill. He said that if the Bill had been enacted at the time these items were released, the media organisations that republished the information originally published on the WikiLeaks website would be in breach of the legislation, even though the information was already in the public domain. He said that such a publisher would have been guilty of –

  • interception or interference with classified information, which carries a maximum prison sentence of ten years;
  • disclosure of classified information, which can result in a fine or a maximum of five years’ imprisonment; and
  • failure to report possession of classified information, which carries a sentence of a fine or a maximum of five years’ imprisonment.

Some of the other topics discussed at the conference included media regulation options and media responsibility.

Nomfundo Manyathi,

This article was first published in De Rebus in 2012 (April) DR 12.