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The right to demand answers

Lynley Donnelly

Communities speak out against state secrecy about matters that directly affect their lives, writes Lynley Donnelly.

Despite a biting wind and a grey, sodden sky, the Mowbray town hall in Cape Town is overflowing. The audience—from gogos to grandchildren—fills the seats in the large room below the main stage decked out in maroon and dusty pink curtaining.

They have come to hear the testimony of individuals and organisations who have struggled to get information out of the state: the history of their ailing housing project, a nuclear safety plan for the public, or rape statistics.

The meeting has been organised by the Right2Know (R2K) campaign—the civil society group determined to see that the Protection of Information Bill, also known as “the Secrecy Bill”, that is before Parliament undergoes drastic revision.

R2K believes that if the Bill is passed in its current form ordinary people will have to battle even harder to get answers. I find one of the few chairs remaining towards the back of the hall. A row away a young woman bounces a toddler on her knee. Gary Pienaar, of the Institute for Democracy in Africa (Idasa) is explaining the controversial deal between Eskom and Hitachi Power Systems Africa, the empowerment partners of which include ANC-linked company Chancellor House.

Pienaar questions the role of Valli Moosa, Eskom chairperson at the time, who was also on the ANC’s fundraising committee when the tender was awarded to Hitachi for R40-billion.

“These are examples of what can happen, where we wonder whether people that we’ve put into authority are doing the best for us or for themselves,” he says. An unmistakable rumble of “for themselves” swells through the audience. “The thing is, we’ll just never know if this Bill comes into force,” says Pienaar.

Next up is Gary Hartzenberg, of the Newfields Village community representative committee. Newfields is a housing project in Hanover Park where residents have battled for more than a decade to get answers to why the houses they moved into—on a rent-to-buy basis—began falling apart from day one.

Not only were homes riddled with defects, says Hartzenberg, but a new township register was never opened for the project. This meant that residents could not get Telkom lines or receive title deeds and some erf numbers appear to be the same as those of other properties in Cape Town.

Forensic audit
Last year the auditor general conducted a forensic audit of the project. Hartzenberg says the report is with Minister of Human Settlements Tokyo Sexwale’s office.

Tired of appealing to political parties and government officials, residents have aligned themselves with the Anti-eviction Campaign and the Abahlali baseMjondolo shack-dwellers’ movement. They have launched an application under the Promotion of Access to Information Act (Paia) for answers “as to where it all started and where it all went wrong”. Hartzenberg ends with the resounding call: “No land, no house, no job, no vote.”

The audience joins in and breaks into cheers. The Koeberg Alert Alliance is next on stage. With the Koeberg power station just 28km from Cape Town, the group has applied to Eskom, also through Paia, to see the Koeberg Emergency Response Plan.

Alliance chairperson Peter Becker says access was refused, in part because disclosing the plan could jeopardise its effectiveness.

He argues that the recent Japanese nuclear disaster makes understanding the implications of a failure at Koeberg even more crucial. “It’s quite likely that a large densely populated area will have to be evacuated. How will that work?” he asks. How will people be moved on congested roads; who will supply anti-radiation iodine tablets; will farmers and landowners be compensated for loss of livestock or food contamination?

Becker emphasises that the alliance does not want information about Koeberg’s security measures, just what steps will be taken to protect the public. The Women’s Legal Centre is last up, talking of its vain quest for accurate official rape statistics. “Our experience shows that the criminal justice system is failing women—very few cases that are reported result in successful convictions,” says centre director Jennifer Williams.

“The official statistics on sexual offences lack detail,” she says. “For example, the justice department refers to the conviction rate in the sexual offences courts, but not the conviction rates of sexual offences in the other courts—which are probably lower. There are no official or public statistics on the stage at which cases are closed or withdrawn, and the reasons.”

Williams warns that the state could use the Secrecy Bill to block information relating to police negligence and abuse of sex workers. This would seriously hamper law reform and litigation aimed at holding the state accountable, she says.

Amended Bill promotes a ‘culture of opacity’
The Protection of Information Bill has been softened by Parliament, but key features seen as obscuring transparent government, and which may even be unconstitutional, have been retained.

Important concessions include the removal of the term “national interest” and references to commercial information as grounds that can be used to justify secrecy. But critics say the Bill still offers no public interest defence in cases of disclosure of classified information and provides severe penalties for those found leaking such information.

In a submission earlier this month to Parliament’s ad hoc committee on the Bill, the Centre for Constitutional Rights argued that the “over-broad reach of the Bill has been largely overlooked” and could result in it failing to pass constitutional muster.

Nichola de Havilland, the centre’s director, argued in the submission that transparency is the “cornerstone of our new democratic order” and a “leitmotif of the Bill of Rights, since an individual cannot exercise a right — unless there is transparent governance”. While two working versions of the Bill are before the committee De Havilland notes that both have the same scope.

“It applies to all organs of state and bodies authorised to exercise intelligence oversight,” she says. “It thus includes such diverse bodies as municipal tourism offices, universities, Chapter Nine institutions, the Truth and Reconciliation Commission, public amenities such as the Johannesburg Zoo and theatres, and professional oversight bodies such as the Law Society and the Estate Agency Affairs Board.

“In its present form, each organ will have the power to restrict access to information. In so doing, the Bill facilitates a culture of opacity and its corollary, the abuse of power.” The committee must complete its work before June 24.

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