Opinions

Archives and the “Clouds”: Legacy, Accountability and Structure

  • Posted on October 25, 2013

INTRODUCTION:

Let us begin by asking the fundamental question: Why are archives and records keeping important? There are multiple answers to this, but I am going to answer the question with another question: How many of you have been affected by having to care for elderly relatives suffering from Alzheimers or other forms of memory loss? It is tragic, debilitating and destroys the sufferer’s personality and ability to function. Often those afflicted are less, or not at all, aware of the condition than those around them and the burden falls on the carers and family to deal with the consequences of memory loss. Imagine this, then, in a wider institutional or state context and you have an idea of the critical importance of archives and records keeping.  Archives contain the institutional and social memory of the state and are as important to the functioning of the state as human memory is to the functioning of a person. Without archives a state suffers from amnesia, what ever about bureaucratic dementia.

The purpose of this paper is to examine the state of the archives system in South Africa in terms of its constitutional, legal and administrative mandates, present and future (although the historical context will also be examined). Constitutionally, there is the dis-juncture between the way state information (records) is generated and managed and the constitutional requirement that archives other than National Archives are “an exclusive provincial legislative competence”.  The legal mandate derives from the National Archives and Records of South Africa Act (No 43 of 1996, referred to hereafter as the “Act”)  and such provincial legislation as exists – which generally mirrors the national act. The Act pre-dates the adoption of the Constitution as well as the explosion of information technology and e-government imperatives. Administratively, the National Archives needs to be positioned within the structure of the state bureaucracy, of which it is an integral and indivisible part, in such a way as to provide it with sufficient independence and authority to oversee state record-keeping and also preserve the Nation’s documentary legacy, which is critical to the constitutional and human rights of access to information and just administrative action.

There is an exciting (at times depressing) debate on the state of South African archives under way at the moment and this paper follows up on two new papers by Keith Breckenridge whose blend of analysis, historical contextualisation and drilling down on the purposes and paralysis of the South African Archives system make a refreshing contribution.  Another new contributor, Masimba Yuba, has just completed his masters thesis and Brown Maaba has just completed his PhD both on archival topics. These new voices are in addition to those of veteran contributors such as Verne Harris and bode well for the profession and for the future of debates on The Archival Platform website.  For these reasons I am going to limit my discussion to the archival governance sphere.

I am not an impartial observer: I have spent more than ten years as the National Archivist being intensely involved in the policies, processes, successes and failures of the institution, so mine is a participant’s and a practitioner’s view. My current circumstances and my legal challenges against the Department of Arts and Culture (DAC), (under which the National Archives is placed) was scheduled for hearing in the Labour Court on 14th June 2013, but a Settlement was reached, literally in the corridors of the Court, which was made an Order of Court by the judge. In terms of the Order of Court the DAC is required to make good my two year loss of salary, pay out my leave, reinstate my medical cover and purchase a further five years pensionable service for me at its expense. The DAC is also required to issue a certificate of Good Service and expunge all references to their allegations of misconduct and my dismissal from the official record. On completion of these processes I will retire. They have not yet met all these requirements.

Nor was I the only archivist/professional to suffer such wanton prejudice at the Department.  However, I want to dedicate this paper to two former members of staff of the National Archives whose careers and lives have been wrecked in similar circumstances to my own and who I, as National Archivist, was totally unable to protect. They should remain anonymous for the moment, but one was a senior messenger and the other was a young gardener. Their fate is an example of bureaucratic dysfunctionality, the abuse of disciplinary procedures and how a good idea can go badly wrong. It is, also, an apposite example of the limitations imposed on the National Archivist by a dysfunctional departmental bureaucracy, despite the extensive functional authority conferred on the National Archivist by Act of Parliament.

I intend to use the case of the gardener and the messenger as one of the arguments for the critical need for the repositioning of the National Archives within state structures, (but ring-fenced to protect its budget and independence), and for the development of an entirely new approach to its management and functioning so as to sweep away the clouds of inertia masking incompetence, dysfunctionality and confusion. 

Inextricably tied up with the need to administratively reposition the National Archives is the need to entirely re-engineer its modus operandi so as to better enable it to operate in the world of cloud-computing and e-governance, worlds which did not exist when the Act was passed in 1996.

LEGACY: ARCHIVAL GOVERNANCE

An archival system is almost always a reflection of the broader governmental system and while South Africa has a world-admired constitution, its administration creaks and groans and is beset with inefficiencies and allegations of corruption, which I referred to earlier as a “cloud of inertia”. The constraints that the national and provincial archives services operate under reflect these overall realities. What is the administrative legacy of the National Archives?

Under the Union of South Africa there were four provinces each with a provincial archives repository, but the entire, rather rudimentary, archives system was controlled by the central government. In the 1960s one professionally advanced step took place: the State Archives Service was given the authority to determine filing systems and retention and disposal guidelines for government departments and full authority over the destruction of records. However, despite this rather over-ambitious policy, the State Archives Service remained cautious and introverted and under-resourced as Harris has indicated.

The Union Archives were originally part of the Department of the Interior (Home Affairs) which was a catch-all department out of which many other departments grew as the bureaucracy grew more complex and sophisticated. The Archives were then moved to the Department of Education, Arts and Science and when the tri-cameral constitution took effect in the 1980s, the State Archives stayed with the “general affairs” National Education Department.

The State Archives was vaguely monitored by a small committee of history professors known as the Archives Commission. Its powers were steadily whittled away until it was abolished by the Archives Amendment Act of 1979. It originally approved disposal authorities, but this was impractical and the power was then vested in the Director of Archives. For the last years of its existence, the Commission vetted theses and dissertations for publication in the Archives Yearbook. It was not a success and neither has the 1996 – 2001 commission been any more successful.

Albert Grundlingh has discussed the development of archives in apartheid South Africa within the context of the hegemonic Afrikaner Nationalist historical consciousness and culture. The publications of the State Archives, the Archives Yearbook of South African History and the various re-publications of source documents focused on those records that validated white rule and history in general and Afrikaner rule in particular and on the publication of history dissertations and theses which echoed the same themes.

The same ethos underpinned the approach to the appraisal and retention of more modern records. Everything pre-Union was kept. South Africa, as with most modernising and industrialising countries, experienced a vast expansion in the generation of paper-based records after the Second World War. The appraisal policies for dealing with this problem were often simplistic. For instance, all lower (magistrate’s) court case records were destroyed and only the court registers were kept. All superior court (Supreme and Appeal Court) records were kept.

The implications of this for the recording of the impact of apartheid on society are severe. The bulk of cases affecting the poor (usually black people) were heard by magistrates or “Native/Bantu” Commissioners. These cases related not only to petty crimes, but to restrictions on movement (Pass Laws), infringement of curfews leading to sentences to prison farms. The record has not survived. Only the major criminal cases (sometimes involving the death penalty) made it to the Supreme Court where the records have been kept.

LEGACY: ARCHIVES AND TRANSITION:

The ANC developed an archives policy during the years of transition and linked it firmly to the other democratic initiatives that were transforming the country . Policy is often idealistic, but it almost always becomes a victim of reality and competing priorities. The development of archival policy did not take place in a vacuum, it fits within this paradigm.

In the first place the ANC itself had an internal culture of secrecy directly attributable to its history as an underground resistance organisation. For decades the police and security apparatus of the apartheid state had seized records, therefore, for activists to commit information to paper was to place individuals and the operations of the movement at severe risk.  Yet this movement was at the forefront of the drive for Freedom of Information in the 1990s as part of its broader democratic and transformatory agenda.

The first practical influence on the post-1994 archives system was the need to trace records for the TRC. There was also the moratorium on the destruction of state records imposed by the Mandela-led Government of National Unity – prompted by the destruction ordered by his predecessor.  This was quickly whittled down to a moratorium on the destruction of security records which is still in place (of which more in due course).

The current Act was passed in 1996, shortly before the final constitution was adopted. This has led to problems because the act does not mesh entirely effectively with provisions of the Constitution. One of the greatest problems, as stated earlier, is the fact that archives, “other than national”, are part of the exclusive legislative competence of the provinces. The National Archives struggles for resources, but the provinces struggle even more. Whereas before there were four provinces, in 1996 there were nine and only three have inherited staff and infrastructure from the National Archives!

ACCOUNTABILITY: FUNCTIONS AND MANDATES

The Act outlines the following Objects and functions of National Archives:

• preserve public and non-public records with enduring value for use by the public and the State;
• make such records accessible and promote their use by the public;
• ensure the proper management and care of all public records;
• collect non-public records with enduring value of national significance which cannot be more appropriately preserved by another institution, with due regard to the need to document aspects of the nation’s experience neglected by archives repositories in the past;
• maintain a national automated archival information retrieval system, in which all provincial archives services shall participate;
• maintain national registers of non-public records with enduring value, and promote co-operation and co-ordination between institutions having custody of such records;
• assist, support, set standards for and provide professional guidelines to provincial archives services;
• enpromote an awareness of archives and records management, and courage archival and records management activities;
• generally promote the preservation and use of a national archival heritage.

So the National Archives has dual responsibilities: the first is to the public and the nation’s citizens. Although the Archives Act slightly pre-dates the Constitution, it is clearly placed in the context of the right to access state information (the Section 32 right). The second responsibility is to the State in regard to the wide mandate to “ensure the proper management and care of all public records”.

The Act also creates the post of National Archivist and sets out the mandates for the post:

(1)    The National Archivist shall-

(a) take such measures as are necessary to arrange, describe and retrieve records;
(b) provide information, consultation, research and other services related to records;
(c) with special emphasis on activities designed to reach out to less records by means such as publications, exhibitions and the lending of records;
(d) require of a person who has made use of records in the custody of the National Archives while researching a publication or dissertation to furnish a copy of the publication or dissertation to the National Archives;
(e) generally, take such other steps and perform such other acts as may be necessary for or conducive to the achievement of the objects of the National Archives.

(2) The National Archivist may-

(a) provide training in archival techniques and the management of records;
(b) co-operate with organisations interested in archival matters or the management of records;
(c) provide professional and technical support in aid of archival activities and the archival community;
(d) on the advice of the Council and with the concurrence of the Minister exempt a governmental body from any provision of this Act.
(e) publish the appraisal policy and lists of records that may be destroyed.

Among the other provisions are the routine-looking statements that the National Archives and Records Service is a “branch” of the Public Service and that the National Archivist shall be “suitably qualified” and appointed by the Minister in consultation with the Public Service Commission. The “officers and employees” shall be members of the Public Service.

These public service-focused provisions are essential because the National Archives has the responsibility for the “care and management” of public records and therefore the National Archives must be centrally placed in the public service to be able to carry out this mandate. However, many of the other provisions stress the importance of the duties of the National Archives towards the public and this accounts for the references to the independence of the National Archives.

The Constitution also provides for the basic values and principles governing public administration.  The following are relevant to both the national and provincial archives:

• Public administration must be accountable
• Transparency must be fostered by providing the public with timely, accessible and accurate information

The National Archives is among the institutions that are key to the exercise of fundamental rights both in relation to providing the people with information that is of long-term value and in terms of holding public administration accountable through its records management oversight role.

ACCOUNTABILITY: FOCUS AND PERFORMANCE

Let us examine where the archives function has been located in relation to the centres of state power. We will also need to look at infrastructure and capacity.

In 1994 the democratic government created a Department of Arts, Culture, Science and Technology (DACST) and the soon-to-be National Archives was placed in and remained with this department for nine years. DACST was broken into two departments;  Arts & Culture and Science & Technology in 2003 and each obtained its own minister after the 2004 election.

There were brief moments when the potential ideals of the Act seemed to be realisable, the work of the National Archives with the TRC was a moment of glory for the institution. The positioning of the National Archives in DACST had potential because the department was reasonably sized and could punch above its weight in the rough-house of inter-departmental and inter-governmental liaison. DACST was also responsible for governance and oversight of major research-focused institutions such as the HSRC, the CSIR and the NRF. There was a spirit of innovation and a determined effort to explore inter-connectivity and the National Archives was seen as part of a broader “high-end” governance and knowledge management network.

With the split of the departments, the atmosphere changed. Although the first Minister of Arts and Culture, Dr Pallo Jordan, was more interested in and knowledgeable about the National Archives than his predecessors or successors, the new DAC was quickly dubbed the “banqueting arm” of government and this did immense harm to the National Archives. DAC had no institutional responsibility for the research institutions and being a very small department it was virtually marginalised in government.

Whereas the National Archivist was part of DACST delegations in FOSAD cluster committees that focused on Governance and Administration ; the DAC was not involved in these committees. This meant that the records management messages sent out by circular and memoranda could not be reinforced by engagement at the highest level.

Furthermore the leadership of the new department was focused on the artistic and cultural activities of the department and its stakeholders. There was little appreciation of the systemic and long-standing requirements of an institution such as an archives. This is despite some high profile achievements, such as the driving of the Timbuktu manuscripts project by the archives.

Is this when the “fog of administrative neglect” descended over “national record-keeping” as Andrew MacDonald has suggested?  It is what I refer to as the ‘cloud of inertia”. Breckenridge refers to the National Archives having fallen on “absurdly hard times” and being afflicted by paralysis.  The declining capacity of the National Archives has also been publicly commented on by Shula Marks and Chris Saunders among others.

Why did this happen? I am focusing on systemic and structural issues as I hope to suggest a solution that addresses both. I will deal with the vivid example of the gardener and the messenger later. I have alluded to the marginalisation of DAC within government as compared to the old DACST, but the National Archives has also been marginalised within DAC.

DAC as a new department was engaged in perpetual restructuring and with new top leadership coming in from outside, their perspective was that the most important posts were those around the Director General or servicing the Minister. Posts at professional and operational level were frozen while the focus, attention and appetite remained on top level positions. This had a crippling effect on the National Archives over a period of several years.

Although the Act describes the National Archives as a “branch” of the public service; within DAC, it has been a chief directorate under the Heritage Branch and also included responsibilities for libraries and heraldry. This has meant two contradictory things: The National Archivist, a Chief Director, does not have sufficient status and authority in financial and management terms to actually implement the statutory responsibilities as required by the Act.  Secondly, the National Archivist has also had to devote much time to library policies and programmes, such as the Transformation Charter and the R1 billion conditional grant.

The DAC remained focused on the ultra-top management structures and did not address real stresses that this situation was creating for the National Archives as an institution. With dwindling human and professional resources the National Archives has been fading away. As a Chief Directorate, without a functioning National Archives Advisory Council to raise the alarm, it has been below the Parliamentary and political radar and, therefore, not properly accountable to the oversight bodies as legally required.

One of the key issues has been infrastructure and storage space. The Union Buildings were designed to house the new country’s archives in its basements, but by the 1960s this space was already full. A new building only eventuated in the late 1980s when PW Botha required more space in the buildings for his expanding army of securocrats. It then moved to its new headquarters behind the Union Buildings, to a “solemn, squat building” according to Macdonald , but because of shortages of funds, this building was built to the 1960s design so it was obsolete when it was completed and full by the mid-1990s. To date, despite intense efforts, little progress has been made on securing a new building, except for the acquisition of the inadequate old National Library Building in the Pretoria inner city as temporary accommodation.
Another issue is that the huge structural changes in government post-1994 had a concomitant effect on records keeping. Firstly, the provincial archives are constitutionally responsible for municipal archives and records-keeping and not one out of nine, has the ability or capacity to deal with the enormous changes wrought by the Municipal Systems and Municipal Structures Acts and the concommitant amalgamation of municipalities . The National Archives Records Management section continues to give a waning service to municipalities that make enquiries, but this is no way to carry out a transformatory strategy.

Resources were also a major challenge and the budget rapidly diminished. Despite efforts to get the funding for a new building through a PPP arrangement, the backing of top DAC management was lacking. The need to renew and re-engineer the records management capacity of the National Archives was not prioritised. The access of the National Archives to the sections of the bureaucracy where such matters were prioritised was severely limited by the peripheral position in government of the DAC.

ACCOUNTABILITY AND STRUCTURE: THE OTHER “CLOUD”

There is also the existential switch in the type of records being generated and created. Here Breckenridge has highlighted an interesting precursor of the massive change from registers to databases – viz. the type of records generated in paper form by the Native/Bantu Administration records which evolved from administrative/political records to quantitative records.  Today, the greatest records keeping resources in government focus on databases: spatial and geographical – with their own legislation; “human status” records and financial records. What is committed to “paper” is increasingly anodyne and “PowerPoint” orientated. There is hardly an archives service in the world currently capable of mastering these challenges, but the SA National Archives has been losing capacity, rather than playing catch-up like its international colleagues.

The US National Archives wailed to Congress, shortly after President Obama was first elected, that it did not have the capacity to deal with the electronic records of the Presidency and it is not alone. However, the International Council of Archives (ICA) is making serious catch-up efforts and most international archives conferences and think tanks are focusing on data storage in the “cloud” or in related media and formats.

There are two main issues in the digital archives debate. The first is the digitisation of paper-based archives and the intellectual property issues surrounding the digital images. The DAC has taken some initiatives in this regard and over the past three or four years had a policy drafted.  Essentially for archives the issues are what is to be done with the original paper-based records; how long will the digitised images last and is the meta-data around the images reliable and valid?

The second issue is the long-term accessibility and preservation of “born digital” records and databases. International best practice is probably embodied in the policies issued by the Danish National Archives.  This document outlines the preservation issues, the two broad strategies and their archival advantages and disadvantages and makes the point that digital archiving in this context means archiving the program within which the data has been created. This program is needed to supply the authenticity and context for the digital records.

These issues are alien to the DAC and yet they are crucial to the National Archives and for the future of our recorded heritage. It is unlikely that the National Archives will be able to re-engineer itself to address
these problems, if it remains positioned where it is at present.

POSITION AND POWERLESSNESS:

Let me go to the example of the gardener and the messenger. The Department of Public Service and Administration ordered that all departments should audit the validity of the qualifications of the public servants they employed. An admirable objective and an important priority. However, due to the “hollowing out” of the government referred to by Breckenridge, the DAC called in consultants to do the work. Their modus operandi was to require all officials to submit their certificates and then to sign declarations that they had matric and state where they got it. In this way the consultants put the onus on the officials to prove their qualifications.

The staff of the National Archives were called together and the forms were handed out and the staff told to sign them. The forms were only in English and no explanation was given regarding the purpose of the forms, so it is more than possible that not all the staff understood what they were signing. However, once they had signed, if the consultants could not trace their qualifications, the staff members were charged with and found guilty of fraud!

The gardener and the messenger were fired for fraud as they signed forms declaring that they had matric certificates. The jobs that they were doing did not require matric and they were both excellent workers who made important contributions to the maintenance of the services of the archives. All this happened without any consultation between the Human Resources section of the DAC and the National Archivist.  The messenger was a middle-aged man who had started as a boy and worked his way up. Despite not having a matric, Unisa had accepted him as a mature student for the National Archives Diploma – in other words, he had no need to lie about his qualification. The disciplinary hearing, in his case, appeared flawed and incoherent, but, never-the-less, the finding was guilty and the sanction was dismissal.

The gardener, a young man, was luckier, the presiding officer at his disciplinary hearing could write a coherent finding and found that he had erred by signing the forms, but saw the illogicality of firing somebody in a post that did not require a matric, for not having a matric. She recommended a lesser sanction: a fine rather than dismissal.

The National Archivist urged leniency, not only because of the exemplary record of the two officials, but also because they provided valuable services (the messenger was a critical part of the institutional memory) and the disciplinary process seemed to be skewed and flawed. However, despite the recommendations of the person with statutory responsibility for the National Archives, the Human Resource officials in the bowels of the department, recommended that they both be dismissed for reasons of “consistency”. The Minister, Ms Lulu Xingwana, endorsed the recommendation and two careers were ruined and the capacity of the National Archives took a severe knock. Despite all the legal powers of the National Archivist, nothing he said or wrote influenced the fate of two of the staff of the National Archives in any way.

Under circumstances such as these with no control over the budget or the staff and without unimpeded access to the other organs of government with which the National Archives must work closely; the National Archivist cannot take the measures necessary to achieve the objectives of the Act. This is, indeed, one of “clouds” hovering over the archives.

One more major issue that the National Archives finds difficult to address as part of DAC, is its relationship with the security entities. The Protection of State Information Bill is an object lesson. A presentation was done to the National Assembly in 2010, but the latest information is that the Bill impinges on constitutional prerogatives of provinces in relation to provincial archives.  There is much in the Bill concerning archives, but there is no evidence in the public domain that the National Archives continued engaging with the Bill after 2010. There is also no evidence that the DAC has any appreciation of the issues inherent in the bill (after all it is way outside a cultural comfort zone).

An issue such as this should have been tabled for analysis and comment with the National Archives Advisory Council which has the statutory responsibility to advise the Minister and the National Archivist on the operations of the National Archives. The council, unlike the previous National Archives Commission, includes provincial representatives and, therefore, would have been the ideal forum in which the archival issues of the bill should have been interrogated. Regrettably the processes of appointing a new Archives Council which had begun in 2009, had not been completed by 2012, although apparently a truncated version is now operating.

RESTRUCTURING AND REPOSITIONING:

How do we address this? There is little chance that brighter more bushy-tailed leadership of the Department of Arts and Culture could actually address the state of the archives until the fundamental and systemic issues are addressed.

In summary, the current position of the National Archives as a part of a branch in one of the smallest departments of government, which sees its mandate in broad-brush terms and has an agenda at variance with the objectives of the Act, is not encouraging progress, to put it mildly. However, there is an existing mechanism mandated by the Public Service and Public Finance Management Acts called a “Government Component” which, if implemented, should address the structural issues faced by the National Archives.

A “Government Component” is a specialised delivery unit that is a part of the public service. It is attached to a department for budgetary and reporting purposes, but its budget is ring-fenced. Its head is an accounting officer in terms of the PFMA, so the post has the necessary financial authority and standing in relation to other departments and oversight bodies to achieve its objectives. There can also be an advisory council for the component and it can be established after a feasibility study, by agreement between the relevant minister and the Minister of Finance.

The National Archives already has a separate institutional status in law so it would not be difficult to turn it into a Government Component and the National Archives Advisory Council also has legal status. The potential is there, but is the willpower?

Such a structure would ensure that the National Archives remains within the public service, but is raised to an independent status where it could interact on an equal footing with other departments and be accountable to the public and Parliament. Its budget would be secure and it could begin the necessary planning and capacity building to receive, manage and preserve digital archives and datasets.
Furthermore, it would not be subjected to the whims of junior officials in a dysfunctional department. The whims of ministers are another matter!

Graham Dominy is retiring as National Archivist, a post he assumed in 2001. He is assuming a position as an Associate of the Public Affairs Research Institute and presented a version of this paper at a seminar at PARI in May 2013. The paper contains his personal reflections and does not necessarily reflect the views of PARI.

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