On Tuesday 17 April 2012, the South African government joined representatives of 60 countries at the annual two-day meeting of the Open Government Partnership, an international, multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. As one of eight countries on the OGP steering committee, South Africa is attending the OGP meeting in Brazil to update participating countries and civil society organisations on the government’s commitments towards greater openness.
We welcome the spirit contained in the OGP Declaration of September 2011, in that we recognise that transparency and the free flow of information are vital to building responsive and accountable democracies that can meet the basic needs of their people. As civil society organisations we rely on the mechanisms of openness to hold institutions of power to account.
However, in the wake of unprecedented opposition to the draconian clauses of the Protection of State Information Bill (the Secrecy Bill) – on sidewalks and streets and meeting halls across the country, as well as in the chambers of Parliament – there has been much opportunity to contemplate existing shortcomings and challenges in our collective efforts to build a more just and open society.
Notwithstanding that the current provisions of the Bill would be a serious backward step, we recognise that the so-called Secrecy Bill is a symptom of much broader challenges:
- In the face of persisting and even deepening inequality in our society, corruption, maladministration and secrecy continue to bedevil the public and private sectors. In 2011, South Africa’s Special Investigating Unit estimated that a quarter of state procurement is lost every year through overpayment and corruption: roughly R30-billion. In 2010/11, a third of public sector employees failed to disclose their financial interests to the Public Service Commission (PSC).
- While the Promotion of Access to Information Act (2000) is in place to protect and promote the free flow of information, up to 80% of local government bodies simply fail to comply with the law. Civil society’s efforts to use PAIA to hold the powerful to account continue to be frustrated and undermined. Lengthy and expensive court battles are often the only recourse, ensuring that only the rich and the lucky have access to justice in this regard. Its shortcomings are especially acute where privatisation has outsourced government services to private companies. Commitments to review, reform and improve PAIA in Parliament have yet to be fulfilled.
- While the Protected Disclosures Act (2000) has been instituted to promote the rights of whistle blowers, it falls short of providing comprehensive protection for those seeking to expose injustice. In both the public and the private sector, whistleblowers continue to be targeted, intimidated and silenced.
- The Constitutional Court has struck down legislation that shut down South Africa’s premier corruption-fighting unit, the Directorate of Special Operations (popularly known as the Scorpions), and stripped the country of a vital independent mechanism to tackle corruption. However, the legislation introduced to Parliament to fix these problems has still failed to provide for an independent corruption-fighting mechanism.
- Government and major political parties continue to delay on commitments to regulate political party funding, effectively denying the people of South Africa the right to know whose money is shaping our politics.
- Even where commitments have been made to investigate failures in accountability, a climate of secrecy persists. Despite the announcement of a Commission of Inquiry into possible corruption and wrongdoing surrounding South Africa’s controversial “Arms Deal”, the terms of reference ensure that the Commission may hold meetings in camera, and that the final report may be withheld from the public at the discretion of the President. These provisions invite the same element of secrecy that surrounded the 2006 Donen Commission on possible corruption surrounding the United Nations’ Food for Oil, which was released only five years after its completion, under the threat of legal action.
- Increasing politicisation of state security agencies, and rising securitisation in government generally, undermine government accountability. The security cluster continues to operate without any degree of public oversight, fuelling concerns of consolidated power within organs of state security.
These are challenges to openness that South Africans experience on a daily basis. Last week’s hastily organised consultation on the South African government’s OGP plan excluded many vital civil society voices and did little to remedy the perception that the South Africa government needs a renewed commitment to openness.
However tenuous the existing climate of openness is today, it must be recognised that the Protection of State Information Bill would undermine whatever gains have been made. The Bill’s extraordinarily harsh and broadly drafted penalties – which prohibit accessing, sharing, or publishing any information classified within its expansive provisions – would create a society of secrets in which vital democratic spaces are closed off, and those who expose injustices may be targeted. The absence of any kind of adequate protection for whistleblowers is as much a concern today as it was when the Bill was introduced to Parliament.
Furthermore, the Protection of State Information Bill directly undermines our freedom of information law, the Promotion of Access to Information Act (PAIA), allowing officials to refuse access to documents requested under PAIA merely on the basis of their status as a classified document.
Hundreds of civil society organisations have joined to oppose this legislation, believing it will continue to be a direct threat to the principles of open governance until such time as it is reformulated so that:
- Penalties hinge on the extent of demonstrable harm caused to the national security by disclosure of said information;
- The application of the possession and disclosure offences are reduced so that they apply only to current and former state employees or contractors charged with protecting information, not to journalists, activists and the general public;
- The legislation contains comprehensive protection for anyone who discloses state secrets if the public interest in that disclosure outweighs the national security imperative;
- Penalties do not apply to information that has been disclosed and can said to be in the public domain.
The Bill is scheduled to be finalised for a vote in the second house of the South African Parliament, the National Council of Provinces, by 17 May 2012. We believe that in its current form this Bill represents a regression in South Africa’s commitment to openness, and overlooks a need for global reform in such legislative practice. If passed into law without these concerns addressed, it contradicts the very spirit of the Open Government Partnership principles.
We therefore call on the OGP steering committee to:
- Ensure that the South African government reports to the OGP Steering Committee on developments regarding the re-drafting of this legislation in line with the broad range of concerns raised;
- Ensure that the South African government engages with civil society in order to develop a monitoring system for its OGP commitments.
To date this statement has been endorsed by:
Anti-Eviction Campaign, Western Cape
Centre for Environmental Rights
Democratic Governance and Rights Unit (UCT Faculty of Law)
Law, Race and Gender Research Unit (UCT Faculty of Law)
Southern African Litigation Centre
Students for Law & Social Justice