Gaye Davis
GOVERNMENT employees who blow the whistle on corruption or maladministration will be protected from reprisals in terms of ground-breaking legislation currently being
The proposed Open Democracy Act contains a “whistleblower” clause, protecting government employees who reveal wrongdoing.
The draft legislation — currently in its 10th version — marks a complete break with the past secrecy which shrouded government. It aims at making government more accountable by guaranteeing people access to information and the proceedings of government bodies, and by setting up machinery to achieve these aims.
State law advisor Empie van Schoor, a member of the task group drafting the new law, said meetings would be held next week with Minister of Safety and Security Sydney Mufamadi, Minister of General Services Chris Fismer, Minister of Water Affairs and Forestry Kader Asmal, Minister of Justice Dullah Omar and Deputy Minister of Finance Alec Erwin, all of whom had raised concerns about the legislation.
Van Schoor said while there appeared to be general support for the principles underpinning the draft legislation, the ministers wanted to raise practical issues. Omar, for example, wanted to discuss the draft’s application to the judiciary, while the fact that no cost had been estimated for setting up machinery to enforce the new law was another issue.
In essence, the bill aims at granting any person the right to information held by government; regulating the use of information held about individuals without their knowledge by government or by private agencies such as credit bureaux; requiring that meetings of governing bodies be open to the public and advertised; and protecting whistleblowers.
Information can be denied in certain cases, for example, when it could jeopardise the country’s defence or security. It is not a blanket exemption: the draft spells out where records could be denied (or their existence denied), such as details of arms, communication systems and codes. Reasons must be given for refusing to release or confirm the existence of
Information likely to harm foreign relations can also be refused, but not if the record is more than 15 years old. Access to trade information, whether private or state, is generally protected where disclosure would harm financial interests.
Information which affects individual privacy can be denied and frivolous requests can also be refused. Where it is claimed a record cannot be found, a requester must be given details of efforts made to uncover it.
To enforce the act’s aims, a variety of mechanisms, including information officers whose task it will be to deal with requests for information, are proposed. They include specialised Information Courts, presided over by a Supreme Court judge, which will settle cases where there is a dispute.
An Open Democracy Commission would oversee the law’s implementation. Chief of its tasks would be compiling a guide on using the new law, to be published, complete with contact numbers, in telephone directories. The commission would also review the act annually, receive annual reports from government bodies, and run education programmes.
Work on the act started in October 1994 when deputy president Thabo Mbeki set up a task group headed by his legal adviser, Mojanku Gumbi, to draft the Bill. Task group members include law Professor Mandla Mchunu of the University of Natal, Durban; Professor Etienne Mureinik of the Wits Law School; advocate Vincent Maleka of the Johannesburg Bar and Van Schoor, a state law advisor in the Department of Justice.
The Open Democracy Advisory Forum (ODAF), which represents 62 organisations including organised labour, business, the media, religious, education and human rights groups, and libraries and information services, is analysing the draft legislation and identifying possible problems.
The Bill is now more than 140 pages long and growing. Mbeki wanted it before the legislature this year, but this possibility now seems remote.