Barry Streek
Parliament has a constitutional deadline of midnight February 3 next year to pass two potentially controversial new laws entrenching the right of access to state information and ensuring administrative justice.
If the Open Democracy Bill is not enacted by February 3 2000, Section 32 of the Constitution will stand: “Everyone has the right of access to (a) any information held by the state; and (b) any information that is held by another person and that is required for the exercise or protection of any rights.” And if the Administrative Justice Bill is not enacted by then, Section 33 of the Constitution will read: “(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.”
Both sections have clauses providing for national legislation, but if it is not passed within three years after the Constitution took effect on February 4 1997, these clauses will “lapse”.
A committee headed by Professor Hugh Corder of the University of Cape Town has not yet finalised a draft of the Administrative Justice Bill, which proposes that the public will be able to demand written reasons for any administrative decision affecting them – from the issuing of parking fines to the granting of licences.
“Every single decision of every single administration at every level of government will have to comply with the rules,” said the Black Sash’s Allison Tilley at a South African Human Rights Commission workshop in Cape Town last week. “All decisions will have to be lawful, procedurally fair and reasonable. For the average person … this Bill will be as important as, if not more important than, the Constitution.”
The Open Democracy Bill will transform the state bureaucracy from secrecy and the blocking of information to openness and accountability, human rights commissioner Pansy Tlakula said at the workshop.
The battle over the Bill is far from over. There are many problems, one of the most significant being a joint submission by the Black Sash, the Environmental Justice Networking Forum, the Human Rights Committee, the Institute for Democracy in South Africa, the Legal Resources Centre, the Southern African Catholic Bishops Conference, the South African Council of Churches and the South African NGO Coalition.
The memorandum said it was imperative that the Bill give full effect to the right to information, as provided in the Constitution. It said earlier drafts of the Bill contained provisions for open meetings of government bodies. “We object strongly to the removal of [these provisions] from the tabled version of the Bill.”
The Legal Resources Centre objected to the references to “aggression against the republic” and “sabotage or terrorism aimed at the people of the republic or a strategic asset of the republic” which permits non- disclosure if disclosure would “jeopardise the effectiveness of arms”.
“These provisions are eerily reminiscent of those to be found in apartheid statutes like the Internal Security Act.”