28 September is the International Right to Know Day. The right to know encompasses the rights to access to information and expression, and contributes to fostering a society and government based on the values of openness, transparency and accountability. The commemoration of this day gives us the opportunity to reflect on the important role these rights play in our societies.
Although often the loudest proponents of the right to freedom of expression are individuals seeking protection for their right to make offensive statements, the right has a far broader and more nuanced purpose. The African Commission on Human and People’s Rights has described it as “vital to an individual’s personal development and political consciousness, and participation in the conduct of the public affairs of his country.” The right has the potential to aid personal development and political consciousness simply because it belongs to those who receive information and ideas – not only to those expressing themselves. By receiving new information or ideas through other people’s expression, individuals are able to develop and enhance their own viewpoints.
However, freedom of expression also contributes to an open, transparent and accountable democracy because the ability to speak freely allows for the sharing of information about government policies and conduct. And this is where the right to know and access to information is such a vital complement to the right to freedom of expression: it is the right that facilitates the sharing of information because it allows for that information to be discovered in the first place. The right to know means that citizens have the right to seek information held by state (or, in some cases, private) bodies. The rationale behind this right is that information that is relevant to individuals should be accessible to them. This accessibility ensures transparency, and the knowledge garnered from that information helps individuals hold their governments accountable.
Without the right to access to information, governments would be able to hide the information they don’t want to be made public, and only disclose information that is in their interests which can have a detrimental impact on democracy. The South African Supreme Court of Appeal explained this link in Hoho v S, where it said that suppressing information “may lead to the wrong government being elected, the wrong policies being adopted, the wrong people being appointed, corruption, dishonesty and incompetence not being exposed, wrong investments being made and a multitude of other undesirable consequences.”
All countries in southern Africa have strong protections for the right to freedom of expression in their constitutions, but this right is often not given practical effect to. SALC is releasing a new manual, written in conjunction with the Media Legal Defence Initiative, which addresses limitations to the right to freedom of expression. Although the right to freedom of expression is not absolute, it can only be limited when it is strictly necessary, and the manual sets out the boundaries of permissible limitations. The manual seeks to be a tool for southern African lawyers litigating freedom of expression cases and provides analyses of case law and principles from Africa and the rest of the world dealing with many of the common limitations to the right. The manual will hopefully help lawyers contribute to the growing jurisprudence in southern Africa which enhances and gives scope to the rights to freedom of expression and access to information.
It is clear that the twin rights of the right to freedom of expression and access to information need to be carefully protected. This means that we must scrutinise information that governments seek to keep secret and ensure that only that information that is objectively confidential should remain so. We also need to scrutinise legal frameworks that hinder access to information and ensure that access to information laws – where they do exist – do not exempt certain types of information or adequately provide for mechanisms to monitor the implementation of the legislation. This scrutiny must also extend to other pieces of legislation which may retain barriers to access to information, so that there can be comprehensive reviews to ensure that all laws comply with the constitutional demands of access to information as a corollary of the right to freedom of expression.
We also need to recognise that a free media is imperative in ensuring that information about government officials is made public and is widely available, and that individuals must be able to freely discuss political issues. We need to create the conditions for the right to know to flourish, so that our democracies can also flourish.
**The Freedom of Expression Manual can be found here.