#SONA2105 and form over substance

Posted in Blog

- By Gabriella Razzano

How quick social media began to broadcast the siren weeping of the pallbearers bearing the coffin of democracy last night. On Facebook and Twitter we wept about the deconsecrating of Parliament by the EFF protest at the 2015 State of the Nation address. Spending 3 years in law school does seem to drill in to it you an almost irrational love of institutions of democracy (who hasn’t done a Parliament selfie?), but our knee jerk emotional response needs to be ignored while we try and examine the changing face of South African politics.

At the heart, I do believe it is a tragic day when Parliament becomes a playground rather than a hallowed ground of a democratic state – but yesterday was not the day it happened. Yesterday, when the President took the podium to begin SONA, he did so making a great deal of effort to look unaffected. Perhaps he was. I described it to one friend as “trying to look like a lion swatting its tail at flies”. He seemed not to recognise, of course, that he had lost. Well, at least Parliament had. Calling in SAPS again made a tragically obvious show of the fact that the South African Parliament is the house of the President, rather than a check against total Presidential power. Of course it was the State of the Nation address, but let us not forget it is the same house that has failed to call the President to account for gross abuse of state funds.

And there in lies the rub – when did calls for decorum become more important the calls for fundamental justice and fairness? When did the substance behind our democratic institutions become less important than the prettiness of their face? Very quickly one man’s call for rules can become another man’s shackles.

I would suggest that the reason why the behaviour of the EFF in Parliament continues to garner support is because people see no need to keep sacred an institution that doesn’t serve them. Of course, for the people it does serve it is a different story. But the ANC should be cautious of treating Parliament, as it’s Mount Olympus.

Why is Parliament important? It is the source of the laws that express our rule of law. It is also vital as a check and balance for political power. And that is so obviously where it fails. It is not the house the President built – it is the house the Constitution built. And it when it refuses to contain Presidential abuse of the state through corruption, it fails to live up to its constitutional roots. It has ignored the needs of the South African public. It is unsurprising then that the public may not then want to rise up in honour of maintaining the dignity it has already shed itself.

So, not unusually, democratic concepts begin to be abused by those in power to maintain power like a deranged and clingy Gollum. And the way this is done is through focusing on the form of democracy, rather than its substance. I want to see a Parliament that upholds democracy. We need to explore post critically how Parliament can begin to redeem its own sanctity. We need to fight for the substance of that Parliament. The Constitution created it within a vision of what democracy should be.

Democracy might not be dead, but she is a little bruised. And calls by those in power to leave her alone seem a little bit misplaced when they are the one’s who tripped her down the stairs.

A first step to getting a grip on the internet and human rights

Posted in Blog

By Gabriella Razzano

On the 12th of August ODAC joined the Association of Progressive Communications and others to discuss access to content and connectivity in Africa.

This followed from the detailed submissions ODAC had made in response to an early draft of the African Declaration on Internet Freedom of Rights. And those discussions were strongly influenced by Frank La Rue’s seminal report delivered to the Human Rights Council in 2011 that explored in some detail the different valuable influences the internet has in the promotion of the right to freedom of expression and access to information. When the piece came out, it sparked a great debate on “internet as a human right”.

And that debate continued when we met in Johannesburg. And I think it is vital we continue to explore it; not just to be pedantic about how we talk about rights – but because I do not think the human rights sector is being rigorous enough when we consider the internet as some form of an alien realm.

In his piece La Rue stated:

“…the framework of international human rights law remains relevant today and equally applicable to new communication technologies such as the Internet.”

While I have a lot of strong feelings on the topic, the main thing I want to discuss in brief here is why we shouldn’t talk about the internet as some form of ‘new problem’ that may need a ‘new right’; at least not today. My concerns here are practical, rather than theoretical.

 1.    It’s already here; we need to deal with it.

We have comprehensive doctrine on the application of human rights. And the internet is here to stay. We need to deal with it in courtrooms; and trying to reinvent rights discourse – instead of relying on established principles – will only confuse things.

And outside of courtrooms, what do we gain by trying to confuse our tried and tested language? Access to information activists should speak about the internet for their work. So should housing activists. So should gender activists. We may as well use the language we already know how to use; and at the same time acknowledge, vitally, that it is a conversation we should all be having.

2.    It’s not just about access.

Equal access to internet is obviously a concern. But when the internet has been embodied in a specific constitutional instrument, such as in France, Costa Rica or Estonia, it is done so only in consideration of access to infrastructure.

La Rue noted that the internet also concerns the right of access to content. Once we are online, how we are online becomes a matter worthy of protection too. How can we exercise free expression when given restricted access to Twitter, for example? Even this is a limited understanding of the importance of the internet for human rights – and that’s because rights documents are instruments largely of vertical application. Decisions, for example, that relate to the civil relationship on copyright and intellectual property may also be hugely impactful on actual rights online – how would a standalone right fully appreciate this?

3.    Rights discourse has moved on – and we’ve run out of flag colours.

Rights discourse initially followed an historical progression through first, second and third generation rights. Karel Vasak linked these rights (civil political, socio-economic and collective, respectively) to the French revolutionary principles of liberty, equality and fraternity. But while these forms of jurisprudential insights into rights may still help in academic environments, the recognition of the interdependence of all rights has long moved us on from a linear understanding.

This is practical, but it is also an acknowledgement of not prioritising rights in any order, which may not allow for considered application in different country contexts. We shouldn’t be working in ‘rights’ silos – not just because it is ineffective, but because threats to the internet may come from areas and perspectives we are not focused on. Regulations relating to telecommunications, mass surveillance, court judgments on hosts and search engine responsibilities; these are potential threats not only to the internet, and the internet as a space, but a host of other fundamental human rights we should be speaking to.

In the end though, I agree that the internet is special. I believe it should be warranted a special degree of freedom that is also difficult to articulate within standard rights discourses. But I am not trying to resolve how to deal with that now. Instead, I want to note that the internet has become integrated into our way of life. It is not an alien that needs to be seen as separate; it instead is embedded into how we live and needs to be talked about in a language that we all understand. It has advantages and disadvantages, but it is always worth remembering that the disadvantages mimic those we see already: preferential and unequal access, abuse by the powerful, and a lack of full empathy for the vulnerable.

Let’s start leveraging the internet for the advancement of all human rights, and guarding its sanctity as zealously as we would guard any fundamental human right; even if we don’t call it one.

OGP to take a stronger African focus

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By Mukelani Dimba, Executive Director

African governance issues are set to enjoy more attention and spotlight with more African government and civil society representatives set to assume leadership positions in the Open Government Partnership (OGP). The government of South Africa will be confirmed as one of the co-chairs of the OGP when heads of state meet in New York on 23 September 2014 on the margins on the United National General Assembly. South Africa will become a lead co-chair of the OGP in 2016. On the civil society side two civil society leaders from Africa have been selected to join the steering committee. They are Alvin Mosioma from the Tax Justice Network Africa from Kenya and Mukelani Dimba from the Open Democracy Advice Centre in South Africa. Mosioma and Dimba join Tanzania’s Rakesh Rajani of Twaweza who has been a member of the steering committee since inception in 2011 and is the current OGP co-chair for civil society.

The OGP is a voluntary initiative aimed at enhancing open governance in the countries that are taking part in it. Countries qualify to join OGP on the basis their current performance in terms of access to information and asset disclosure laws, budget transparency and civic engagement processes. Once countries have joined OGP they have to commit to making specific improvements in terms of any of the OGP’s grand challenges which are; improving public services, increasing public integrity, more effectively managing public resources, creating safer communities, increasing corporate accountability.

Since its inception in 2011, only seven African countries have joined the OGP, namely; South Africa, Kenya, Tanzania, Ghana, Liberia, Sierra Leone and Malawi. We hope that many other African countries will join this initiative but, even more importantly, we hope that those countries that have joined will implement their national action plans sincerely and meaningfully in a manner that creates real change in the lives of many that depend on the state for honest delivery of public service.

Whistleblowing: no easy time

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 By Alison Tilley

Whistleblowers have never had an easy time of it.  Back in the day, Plutarch, tells us that a messenger reported bad news to an Armenian general. He said  that a Roman general (plus army) was on his way to attack the Armenian general: the messenger had his head cut off for his pains. “[The Armenian general] sat while war was already blazing around him, with no one daring to bring him further information. He was without any intelligence at all, giving ear only to those who flattered him.” The Armenian guy lost.

So since 60AD until 2014AD, we have sat with the same problem – the temptation to shoot the messenger. And the risk we run is still the same: we will lose the war, against corruption, environmental degradation, bullying, and so on. So, how to win the war?

Listen to your messengers sounds easy enough. We don’t – we fire them, demote them, and even shoot them. Our Protected Disclosures Act doesn’t go far enough to protect whistleblowers. New amendments, partly introduced because of ODAC’s extensive advocacy on this issue, will go some way to extend the reach of the law.

But the new amendments don’t provide a safe alternative to silence for the general public or so called “citizen whistleblowers”[1].

The ISS National Victims of Crime Survey found that an unacceptably high number of the most vulnerable members of society are victims of corruption within both the public and private sectors. The survey found that many people, when applying for basic services like their grants, identity documents and pensions, and when applying for employment, often are subjected to corrupt conduct, bribery being at the forefront. The same study found that there was a dominant culture of silence amongst these people.

The majority (98%) did not blow the whistle on the corruption experienced by them or their family members. The three main reasons for their reluctance to blow the whistle were because 21 % did not know to whom to blow the whistle, 46% of respondents did not blow the whistle because they did not think it would change anything and as many as 27% said they did not do so for fear of reprisals.

Since 2007[2] internal tip offs as a source of detecting crime dropped from 22% to 9%. Reports using formal whistleblowing systems have also dropped in effectiveness off a high of 21% in 2009 to 6%. In ODAC’s surveys, we have noted a decline in the number of people who describe themselves as whistleblowers.  25.3% of respondents said that they had blown the whistle in 2007, which had dropped to 18.4% in 2011.

What would happen if we gave whistleblowers a different kind of protection? In The Whistleblower Act, 2006, which is the equivalent Ghanaian law, section 24 simply states that:

 24. A whistleblower whose disclosure results in the recovery of an amount of money shall be rewarded from the fund with

 (a) ten percent of the amount of money recovered; or

 (b) the amount of money that the Attorney-General shall, in consultation with the Inspector General of Police, determine.

Money might go some way to buy the physical security whistleblowers need, and not provided for by police, the NPA or anyone else. As we have said, the percentage of people who self identify as prepared to blow the whistle has dropped by 7% over the last 7 years. This is probably as a result of ongoing attacks on whistleblowers. Recent deaths include the murder of Johan Ndlovu, chief whip of the Ehlanzeni district municipality killed in January 2011, Sammy Mpatlanyane, director of communication at the provincial department of arts and culture killed in January 2010 and Jimmy Mohlala who was murdered outside his home in January 2009. Police records show that since 1998 at least 14 government officials or politicians have been killed.

 We need to do more to protect whistleblowers. This review of the Protected Disclosures Act is only a beginning.

 


[1] We use the term while noting that the meaning of ‘citizen’ here is a person concerned with wrongdoing, as in ‘concerned citizen’, not an actual citizen as in their residency status.
[2] PwC Global Economic Crime Survey 2014: page 18

Mozambican RTI activists show staying power

Posted in Blog

By Mukelani Dimba, Executive Director

 

It is often said that a week is a long time in politics but in right-to-information law advocacy we do not plan in weeks but plan in decades. A decade is just about the right time for the development and passage of an access to information law. Not that there is a rule that you need 10 years to develop a law and have it passed by a legislative body, in fact you do not; with so many resources now available this should be a fairly simple, quick and easy effort, but it appears that that, on average, 10 years is how long most African states take to develop and establish consensus on these laws. Mozambique is one such example.

On 21 August 2014, the Mozambican parliament adopted the Right to Information (RTI) Draft Law, marking a major milestone in a process that began over ten years ago with the introduction of civil society’s proposed draft for an access to information law. This process was initiated by the Mozambican chapter of the Media Institute of Southern Africa (MISA). A couple of years later the MISA effort was supported the by Open Democracy Advice Centre and the British Council when a number of events and seminars were organized under the rubric of the First Open Democracy Week in Mozambique exactly 10 years ago in August 2004.

Colin Darch, a University of Cape Town historian and academic, is correct in noting that the Right to Information is a subversive right, subversive because if applied correctly it changes the traditional understanding of the state vis-à-vis the people. At the core of the right is the rebalancing of power dynamics wherein authority derived from democratic process or access to resources is checked by the people’s strengthened position to seek explanations for the actions underlying the exercise of public power and authority. It is probably for this reason that enactment of RTI law is so attractive to opposition parties and not an easy sell to ruling party officials. It is also for this reason that the process of deliberation on the contours of an RTI law often takes long. Civil society often plays a critical role in helping various stakeholders in reaching consensus on the scope and limitations of such a law. It is therefore critical that civil society stays invested in the process. This is a lesson that we can all learn from Mozambican activists and organisations such as Alfredo Libombo, Ericino Salema, MISA Mozambique and the Access to Information Programme, that have initiated this process, stuck with it and seen it to its finalization. We congratulate them on this achievement and hope that the draft law will proceed smoothly through the second reading but we also warn them that this milestone, significant as it is, is really the easy part, the difficult part is ensuring that the law, once in force, lives up to the aspirations of the drafters and becomes a critical tool for the betterment of circumstances of ordinary Mozambicans.