Political language and political action: an OGP lesson for South Africa

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-By Gabriella Razzano

At ODAC, we believe in reflecting and learning – not just in relation to the broader environment, but also in relation to our own work. And following on from the eventful SONA2017, and continuing domestic and international discussions on “political truth”, now is an apt time to reflect on one of our most recent (and simple) learning’s in relation to our Making All Voices Count project on the Open Government Partnership (OGP): South African politics in this year of internal electioneering will mean civil society should rethink its approach to participating in the OGP.

The current broader political climate does not of course detract from how vital the fight for transparency and good governance is. ODAC believes that the OGP is still a vital platform for leveraging these goals in South Africa. What we are reconsidering, however, is how we approach it. ODAC have championed the OGP since its inception in 2011. But difficulties we experienced in implementing a Making All Voices Count project on the issue last year has very real lessons for us all.

The idea behind the project was fairly simple: the OGP can help civil society forward their existing work on transparency, therefore getting civil society engaged on the OGP will lead to better collaboration with government, and better transparency outcomes. In our monitoring and evaluation framework though, we noted that a fundamental assumption was that OGP was not just a “talk shop”. Yet, we have struggled to maintain interest in the OGP from a broader group. As a colleague from civil society of mine poignantly pointed out when we were discussing how to get civil society more involved in the OGP in South Africa:

Civil society cannot maintain enthusiasm in a process when it appears there is all talk, and no action. The political talk around the OGP, while always positive in tone from government, does not seem to be accompanied by strong action and outcomes. Civil society partners then can’t bring themselves to commit to a process that won’t take forward the core of their work. One is reminded of George Orwell’s words on political language: “Political language is designed to make lies sound truthful and murder respectable and to give an appearance of solidarity to pure wind”.

But the truth is that there have definitely been examples of collaborations between civil society and government on specific OGP commitments in South Africa that can be viewed as successful (the partnership between Code for South Africa and National Treasury on “Municipal Money” project comes to mind).

So we know broader civil society are not getting invested because political language clouds inaction. Yet, some groups are seeing collaboration on OGP working – what’s the difference? Our research on government coordination on OGP (again a result of support from Making All Voices Count and the Institute of Development Studies) holds a very succinct answer: coordination will only happen when there is a direct benefit to both parties to coordinate, or otherwise its just extra work.

Government and civil society will coordinate on OGP projects, when those projects are not just a talking opportunity, but they instead take forward real transparency agendas for all those concerned. We should not be distracted by empty political rhetoric, but instead seek out the many partners within government taking action on transparency, in alignment with the OGP, in very real ways. We just need to rethink our approach. After all, another very quotable thinker Plato noted it best: “One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors”.

A Snapshot of ATI in Africa

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To mark the International Day for Universal Access to Information, ODAC's interns (Samantha Paisley and Elizabeth Matulis) have consolidated a snapshot review of access to information and Internet from across the continent this year. And the message is clear: we should be doing a lot better. #IDUAI2016 is an opportunity to reflect on the African experience on access to information, and greater progress has to be made.

You can download your own copy of the report here.

The Information Regulator on #IDUAI2016

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- By Gabriella Razzano

Today, 28 September, we celebrate worldwide the International Day for Universal Access to Information (#IDUAI2016). The Day was adopted after intense lobbying by ODAC and the rest of the African Platform on Access to Information Working Group. The Day is vital for spreading the word about the importance of access to information, and in South Africa provides a vital opportunity for a rallying call on the new role of the Information Regulator.

Very recently, the National Parliament recommended Adv. Pansy Tlakula for the role. This was not met with uniform support by all circles but – in acknowledgment of the importance of ATI that today highlights – ODAC feels it is vital to consider why the role is so important, and so urgently needed.  The Regulator will have jurisdiction and enforcement powers over both the Promotion of Access to Information Act (PAIA) and the Protection of Personal Information Act (POPI), and will serve as an important mechanism for protection of privacy rights as well as access to information rights. But why does this matter?

The right to access information expressed in section 32 of the Constitution has been given effect to through PAIA. Yet, as the primary instrument for promoting access to information and a fuller realisation of all rights, there are issues in implementation of the PAIA that ODAC has consistently been witness to over the years.

Through our own research, and research done in partnership with other groups, we have discovered that:

  1. Awareness of the Promotion of Access to Information Act is associated to social and educational status;[1]
  2. In turn, there is indication that ‘legalistic’ requests that are submitted are more likely to be responded to that ‘normal’ ones, which does not bode well for the average user of the Act;[2]
  3. A comparison between the statistics of a student requester compared to the statistics of a coalition of non-governmental organisations that work on PAIA demonstrate that a novice requester will receive far more refusals (86% refused versus 56.5% refused);[3]
  4. Regardless of the type of requester, it is clear that non-responses or refusals to access remain significantly high; yet
  5. Litigating on PAIA is made difficult due to significant costs and delays, and remains largely within the purview of non-governmental organisations as a method of recourse.[4]

It is within this problematic human rights context that the Protection of Personal Information Act 2015 created an Information Regulator as a form of ombudsman mechanism, which will try and provide fast, efficient and considered recourse for all South Africans. The need for the Office is patently urgent. ODAC calls on all involved, to mark the special occasion of #IDUAI2016, to do everything we can to make sure the formal establishment of this Regulator is made a priority. 

[1] Razzano, G (2015) Accessing Information? What we Know from User Experiences, available at http://opendemocracy.org.za/index.php/what-we-do/access-to-information/odac-paia-users, p 5.

[2] Van Der Mey, S & Eyal, K (2014) The Impact of Emotional ‘Affect’ on Municipal Budget Transparency in South Africa: A randomized control trial using PAIA requests, accessed 15 March 2015, available at https://open.uct.ac.za/bitstream/item/10148/Stephanie%20van%20der%20Mey%20Transparency%20in%20Municipal%20Budgets%20PAIA%20Final%20Version.pdf?sequence=1.

[3] Ibid.

[4] PAIA Civil Society Network (2015) PAIA Civil Society Network Shadow Report 2014 (South Africa: SAHA), p.13. This was vitally confirmed by Kader Asmal, who noted that benefits of PAIA fell beyond the reach of the majority of South Africans because of the absence of a free and easily accessible mechanism for redress on access to information disputes. See Ad Hoc Committee on the Review of Chapter 9 Institutions (2007) Report of the Ad Hoc Committee on the Review of Chapter 9 Institutions: A report to the National Assembly of Parliament (Parliament: South Africa), available at http://www.sahrc.org.za/home/21/files/Reports/Report%20of%20the%20Ad%20Hoc%20Committee%20of%20chapter%209.%202007.pdf.

Protected Disclosures Act Amendments

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- By Gabriella Razzano

ODAC will be presenting our submission before Parliament tomorrow on the new Amendments proposed to the Protected Disclosures Act (09:05 am in Room E249). In many senses, these Amendments are a culmination of about 14 years of diligent advocacy by ODAC to improve the legislative protections available to whistleblowers in South Africa. 

There are several important changes, ranging from the extension of protections to workers and temporary workers, to the extension of the protections themselves to exclude civil and criminal liability in certain circumstances. And while you can read a full consideration of the Amendments as we proposed from here, the most important issue to flag is this: citizens have the right to blow the whistle, and there are still shortcomings in the law, which mean that whistleblowers remain vulnerable in spite of their "right doing".

ODAC will continue to push the envelope on behalf of whistleblowers, whether its documenting their stories or creating forward-thinking resources that help both employers and employees understand and implement whistleblowing in the workplace. You can follow us in this journey at #newpda.

ATI developments in Africa signal progress

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By Levi Kabwato

The enactment of Access to Information (ATI) legislation in Kenya and Tanzania marks an important milestone in the evolution of transparency and accountability across Africa. As key political and economic players on the continent, these developments are a step in the right direction and signal progress from both countries.

In practice, Kenya’s attitude towards Open Data has already shown what possibilities can exist if information is central to developmental aspirations. Hence, the existence, now, of an enabling legal environment will broaden access to information in Kenya and allow for more transparency and accountability work to be carried out.

Tanzania, too, is likely accelerate its development as more and more information becomes publicly available. Under president Magufuli, who has demonstrated commitment to public accountability, the country has the right political will to turn ATI into a critical tool for holding power to account as well as uplifting many people out of poverty.

It remains to be seen, however, to what extent the ATI laws in both countries will be implemented. Some concerns raise about both laws have not been decisively dealt with.

In Tanzania, for example, information requests will take long periods of time to process. This might disenfranchise citizens and defeat the spirit and essence of the law itself. In the Kenya law, the loose definition of national security and provisions that cabinet deliberations and records are exempt from the law set a worrying tone regarding the president’s commitment towards openness, transparency and accountability.

The fact that more countries in Africa are passing ATI laws is positively significant. It remains critical that the development phase of ATI laws be as open and comprehensive as possible so as to decidedly account for concerns that might arise.

For countries that already have laws, implementation remains a critical challenge. ATI is not about only ticking the right boxes. It is a fundamental right that must be guaranteed in a democracy. Hence, monitoring the implementation of ATI laws should be able to inform adherence to legal obligations.