A bookshop’s windows are boarded up. You can’t see inside. Then, happily, the shutters are removed and suddenly you can see through the windows. The bookshop is now transparent. But is it open?
The word “transparency” has been bothering me for a number of years. Overused and oversold, with a nagging endurance I sensed that something was not quite right about it.
Was it my discomfort at the gluttony of Transparency International’s biannual International Anti-Corruption Conference — embossed-enveloped invitations, mayoral greetings, hundreds of grey-suited men — to which I have been drawn like a fly to a cake four times in a row (this year’s a fortnight ago in Seoul)? Not to mention the dangerous inadequacy of Transparency International’s annual Corruption Perceptions Index.
Or was my disquiet knowledge of the word’s World Bank genesis, at least in its contemporary “governance-speak” usage?
Everywhere you go, people who work in and around politics pontificate on the importance of transparency, as if it was self-evidently a panacea to everything that is wrong with the world. Motherhood and apple pie and, yes, transparency. You can’t be anything other than for it.
Well I’ve decided that I’m against it. Transparency opens things up, but it does not go far enough. Arguably, it makes things worse, at least as far as my metaphor goes: you can see the books now the shutters are down, but all you can do is press your nose against the glass — you can not touch or read the books inside.
It was a rather obvious epiphany, but an epiphany nonetheless.
The right to access information goes so much further. The abiding characteristic of human rights is the notion of equality that runs through each. Everyone has an equal right to vote, an equal right to clean water and an equal right to access to information.
Properly implemented, an access to information law gives effect to the right and permits you to grasp the information and with it the power to transform your life. But this is an important proviso. Although the number of countries that have such laws has more than quadrupled in the past decade, from only 10 in 1990 to about 46 now, it is impossible to say that there is a greater equality of access to information.
Passing the law really is the easy bit. Many of these laws are now foundering on the rock of inadequate implementation, often because they were passed merely to serve an ulterior motive — a World Bank requirement, an International Monetary Fund loan. Having a “transparency law” plays well with such entities.
South Africa, along with a handful of other countries that includes India, Mexico and Bulgaria, is different. When the Constitution was drafted, there was a recognition that access to information is one of the factors that divides the weak from the powerful. When we, as middle-class people, face a problem we find out what has happened and then we take action to defend our interests. We may not always prevail, but we can garner the knowledge to galvanise our activism.
Thus, granting a right to information was a key part of societal transformation. South Africa then passed the Promotion of Access to Information Act 2000 to give effect to the right. Two years after it came into operation, the government’s compliance with the Act is poor, sometimes bordering on the pathetic.
Government agencies are supposed to produce manuals that enable people to see what information is held and by which bit of government: otherwise, where on earth do you start to look?
A recent snap study conducted by the Open Democracy Advice Centre (Odac) and presented three weeks ago to a South African Human Rights Commission indaba on the Act, found that only 1% of 76 agencies had an internal implementation plan for the Act and almost two-thirds had failed to respond to the request for their manual after two months. Many agencies have still not appointed deputy information officers to service requests and oversee the procedures established by the Act.
Representing the Khulumani Support Group for victims of apartheid, Odac’s request for the policy on reparations was met with silence — from the implementing department: justice. The time limits imposed by the Act were ignored and no exemption was claimed, compelling a high court suit.
If the government’s record is patchy, the private sector’s is even worse; few companies realise the obligations they are under. Sadly, unless they are challenged, they may continue to operate in blissful ignorance.
That the South African right to information extends to private information where access is necessary to protect or exercise another right, is both far-reaching and unique.
Quite a few of the newer right to information laws around the world cover private companies that have a public function, reflecting the new reality that has followed structural adjustments in the state, but none do so in the same comprehensive fashion as the prescient South African law.
To shed light on corruption in the acquisition of fishing quotas on the West Coast, this “horizontal” reach of the law has enabled Odac to use the Act to acquire company records that reveal the exploitation of fisherfolk by unscrupulous companies.
Recently, Richard Young, the businessman whose company C2I2 failed to get a government subcontract because, he claims, of corruption in the arms-deal process, won an important access to information judgement that required the auditor general to disclose documents, including the draft investigation reports that were amended after consultations with the Cabinet.
Although the Act was not invented for people like Young, and rather for the fishermen and women of Imizamoyethu, the case shows the value of the law. Until the government and the private sector take the Act more seriously, and the mindset of bureaucrats changes, it can expect to face many more court defeats.
Political will is the essential ingredient and champions within the public service are vital. Enforcing this law is likely to prove the most efficient route to compliance, unless there is a dramatic shift in attitudes towards its implementation.
As Andrew Puddephatt, the executive director of Article 19, an organisation that is leading the global campaign for the right to know, said at Odac’s open democracy review last year, “South Africa’s right to information sets a ‘gold standard’ of great interest around the world. It must not falter because of poor implementation of the law.” Having taken down the shutters, the question for those in power is: do we dare let the people in?
Archive: Previous columns by Richard Calland