Oupa Bodibe
One of apartheid’s many enduring legacies is the culture of secrecy that pervades public and private sector institutions.
Our Constitution recognises a right of access to information, and Parliament has to enact legislation by February 2000 to give full effect to this right. This week, the portfolio committee on justice held hearings on the Open Democracy Bill that aims to fulfil the constitutional mandate and to cultivate a new culture of transparency.
The Bill would require government agencies to designate information officers, publish descriptions of the records they maintain and respond promptly to inquiries. It also establishes procedures for accessing government records and permits officials to withhold certain categories of information.
It enables individuals to correct information about themselves held by public or private bodies; obliges public officials to reveal information concerning a threat to public safety, while protecting those who “blow the whistle” on the misuse of public funds.
The Congress of South African Trade Unions (Cosatu)joined church and human rights groups in welcoming the Open Democracy Bill as an important initiative to strengthen open and accountable government. We support the Bill’s many positive aspects. However, after more than three years of refinement, the Bill is still bedevilled by flaws and omissions that undermine its capacity to achieve its objectives.
One missed opportunity is the Bill’s failure to incorporate a “right-to-know” approach. It provides access to information largely on request, a method that favours the rich and powerful who are better equipped to file and pursue requests. A right-to-know model, on the other hand, requires the routine publication of certain categories of information.
The Pollution Release and Transfer Registries recently established in Canada, England, Wales, the Netherlands, and the United States illustrate the successful application of the right-to-know model. These countries require polluters to disclose emissions data on a regular basis. This information is compiled and distributed, often via the Internet. The system ensures public access to environmental information with a minimum of bureaucracy. It has also helped companies to recognise inefficient production practices, thereby promoting industrial efficiency while reducing emissions.
The Open Democracy Bill makes tentative moves toward a right-to-know model. It requires the disclosure of government records that expose threats to public safety or the environment. It also obliges departments to disseminate certain basic information about their functions. These steps are laudable, but insufficient.
There is a need for more proactive disclosure by both the public and private sectors. A comprehensive right-to-know approach would require the government to identify and prioritise the categories of records to be released on a department-by-department basis. It would also oblige private bodies, especially corporations, to be more forthcoming – for example, through more informative labels on consumer goods.
Systematic application of the right-to-know principle would facilitate transparency by shifting the onus of justification from those seeking the release of information to those seeking to withhold information.
A second major shortcoming of the Bill is its failure to give full effect to the right of access to privately held information. The memo accompanying the Bill suggests that this issue could be dealt with by subsequent legislation. However, a Bill which only gives partial effect to the right of access to information is likely to invite considerable confusion, unnecessary litigation and challenges to the legislation’s constitutionality.
Private bodies, especially corporations, exert enormous social power. They routinely make decisions that have a profound impact on people’s lives. The current trend toward privatisation and subcontracting of state services means that private bodies increasingly exercise what is, for all practical purposes, public powers in fields such as health care, transport and policing. It is imperative that these institutions be held accountable for their actions.
Prices for essential products and services are often increased without prior notification or adequate justification. Limited information often prevents consumers from determining whether these increases are fair. This, in turn, severely constrains dialogue between service providers and the communities they serve.
Disclosure of information is essential to enable consumers to protect and exercise their rights, make informed choices and build relations between companies and their customers. Workers also require information to safeguard their right to fair labour practices, combat discrimination in hiring, promotions and salaries, and promote democratisation of the workplace.
Although the Bill should give full effect to the right of access to information contained in Section 32 of the Constitution, privately held information must be handled differently from government information.
First, the right to private information is more limited, affecting only information required to protect or exercise a right. An applicant may therefore be required to identify the relevant right and indicate why the requested information is needed to protect or exercise that right.
Second, the rules governing the submission and fulfilment of requests must take into account the varying capacities of different private bodies. It may, for instance, be inappropriate to impose identical duties on large corporations, small businesses, community organisations and private individuals.
The current Bill provides for disputes over the disclosure of records to be reviewed by the high court if they cannot be resolved within the relevant department. This is a formal, adversarial and costly mechanism which the average person is unlikely to be in a position to use.
Cosatu has proposed the establishment of an Open Democracy Appeals Board, modelled on the Water Tribunal created in terms of the National Water Act, to serve as an intermediary review body. The board would employ an informal and inquisitorial approach and attempt to resolve disputes through conciliation and mediation in order to minimise the need to appeal to a high court.
These are just three of Cosatu’s major concerns about the Open Democracy Bill. Given the significance of this Bill, it is vital for all South Africans to become more actively involved in discussing its provisions and implications.
Oupa Bodibe works in Cosatu’s parliamentary office