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Remarkable change in SA’s civil society

Something is going on. Something potentially very remarkable, and very significant, is happening to civil society in South Africa.

Not only are new organisations emerging, and the sector re-calibrating itself after the docility and confounding ambiguity of the Mbeki years, but it is also re-prioritising.

The Right2Know (R2K) campaign is a good example of this.

Who would have thought that such a large and, more importantly, diverse number of individuals and organisations would have signed up for the fight against what it calls the ‘secrecy bill’ — the Protection of Information Bill (POIB)?

This draft law is not to be confused with the proposed media tribunal, which is still just an apple in the eye of some elements within the ANC, and one which I still doubt will ever see the light of legislative day.

Cross that bridge if and when it needs to be crossed; there are bigger fish to fry in the meantime. The POIB is a clear and present danger, even though in its current form it is unlikely to pass constitutional muster.

The provision defining ‘national interest’ does so in such cavalier fashion, and so vaguely and broadly, that it drives a coach and horses through section 32 of the Constitution — the right of access to information.

Bets are in place
My UCT colleague, Professor Pierre De Vos, has staked the whole of his 20 11 salary on this, offering in his blog to pay it to Enver Daniels, the senior state law advisor, if Daniels’ assertion that the Bill is constitutional is proved in court.

While De Vos’ salary is, admittedly, a rather meagre affair given what University professors are paid these days, it is nonetheless a grand if not entirely unreckless gesture.

After all, the ‘new’ Constitutional Court is still something of an unknown quantity and we have not seen enough of the jurisprudential philosophy of the four judges who were appointed almost a year ago to know how they would approach such a matter.

There is still concern that on certain issues that court may take a lurch towards a less progressive, more socially conservative, stance.

POIB’s attempt to encompass privately held information (that is, corporate, commercial information) within its absurdly wide definition of “national interest” is as revealing as it is constitutionally, and in terms of public policy principles, unwholesome.

It shows the real intent behind the Bill: to cover up rotten procurement processes and to cloak the malevolent in their nefarious practices when tendering for government contracts.

This goes to the very heart of the current political economy of who gets what, when and how. This is where the real action is. It where the real fight for power and for resources lies. And it is why, therefore, the R2K campaign is right on the money.

Secrecy is bad
That it should have persuaded so many people and organisations, many of them community-based, to accept the proposition that secrecy is bad for socio-economic justice as well as for good, accountable development policy and practice, is to the very great credit of the campaign’s leadership.

It also represents a significant shift in the debate. No longer can conservative forces inside the ANC and the government assume that it can plunder with impunity. Organised civil society, along with Cosatu, has finally now woken up to the dangers of conflicts of interest in the relationship between those holding public office and those in corporate sector who wish to do business with government.

Whereas 10 years ago Idasa beat virtually a lone drum in respect of these matters, and especially in relation to the harm that secret funding of political parties could do to the body politic and the public interest, now a broader coalition of interests is waking up to the threat to the progressive vision of the Constitution.

What is no less encouraging is that the ANC appears to be ready to listen. Perhaps today, if not then next week or very soon, I am reliably told a new version of POIB will be presented to Parliament. Happily, the timing of the ruling party’s national general council meant that the ANC was able to give proper consideration to the objections raised — especially to the inclusion of privately held information — and adjust accordingly.

ANC taken by surprise
On both this, and the proposed media tribunal, the ANC has been taken by surprise at the weight of the objections, both local and international — though the international signatories and letters of objection have caused much irritation, provoking the minister of international relations to berate European diplomats recently with a long monologue against foreign support for the campaign.

But while the battle may be won — or at least partly won — the war is far from over.

Government is dragging its feet on matters of transparency. For example, its attitude to the right of access to information enshrined in section 32 is scandalous. For years it has been treated it as a ‘luxury right’, of little consequence to matters of development, such as water, housing and health care, with unacceptably poor levels of compliance across all parts of government.

Since Tseliso Thipanyane, the former CEO of the Human Rights Commission, left his post to accompany his wife to the USA, it is impossible to find any high-level champion for the right of access to information anywhere among state bodies, let alone the Cabinet.

The government whinges bitterly about the quality of media coverage, but will not take the necessary steps to proactively disclose information about what it is doing and why, which would help over-stretched reporters do their jobs more easily.

And, as a huge body of data and analysis from the around the world now shows, access to information is essential to good development; it allows the real beneficiaries to find out what is going on and to “engage meaningfully” with government — the doctrine that the Constitutional Court has developed as a part of its jurisprudence on socio-economic rights.

The stubborn refusal to provide this information is just plain silly, and inevitably triggers all manner of suspicions.

The short-sighted decision of the parliamentary committee overseeing the shenanigans at the SABC a couple of months back to hold its meeting in secret led to four members of the new board — good people, committed to good corporate governance — to resign because they felt there side of the story had not been heard by the public.

The lurch towards secrecy must be arrested. Very rapidly, South Africa is slipping from being a leader to a laggard. This is as inexcusable as it is shameful. This week’s week of action is a marker in the sand; people will no longer stand for illegitimate secrecy, because they know where it leads — a place we really do not want to be.

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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