CHOOS­ING THE IN­FOR­MA­TION REG­U­LA­TOR

CityPress - - Voices - Ali­son Til­ley voices@city­press.co.za

As the bat­tles rage on in the main cham­ber, the com­mit­tees of Par­lia­ment grind on in the back­ground, slowly churn­ing out the reams of pa­per with which we build our leg­isla­tive sys­tem. In the lat­est turn of the wheel, the jus­tice and con­sti­tu­tional de­vel­op­ment port­fo­lio com­mit­tee has put for­ward the names of the pro­posed can­di­dates for the new in­for­ma­tion reg­u­la­tor.

Th­ese will be de­bated in the House over the next few days, and ap­point­ments will be the end of the be­gin­ning of cre­at­ing a new and the­o­ret­i­cally in­de­pen­dent in­sti­tu­tion of the state, which will have a par­tic­u­lar brief of driv­ing ac­cess to in­for­ma­tion and pri­vacy – two rights in the Con­sti­tu­tion that will have a new and ded­i­cated in­sti­tu­tional home.

This out­come has been a long time com­ing, and must in part be at­trib­uted to work of the late Dene Smuts, a DA MP who was a mem­ber of the jus­tice and con­sti­tu­tional de­vel­op­ment port­fo­lio com­mit­tee dur­ing the long ges­ta­tion of the Pro­tec­tion of Per­sonal In­for­ma­tion Act and its en­force­ment mech­a­nism, the in­for­ma­tion reg­u­la­tor.

She was a mem­ber of the tech­ni­cal com­mit­tee led by John Jef­fery, who was then part of the com­mit­tee and is now the deputy min­is­ter of jus­tice and con­sti­tu­tional de­vel­op­ment, and in­clud­ing the late Mario Am­brosini, an IFP MP. They worked for many months on this rather es­o­teric law. They suf­fered through the de­bates around how to ex­empt jour­nal­ists from be­ing sub­ject to in­ap­pro­pri­ate reg­u­la­tion on their pro­cess­ing of per­sonal in­for­ma­tion. They de­lib­er­ated the age at which chil­dren may hand their per­sonal in­for­ma­tion away on the in­ter­net. They con­sid­ered how to man­age data around cul­tural iden­tity, and whether there should be height­ened re­quire­ments around pro­cess­ing that data.

Fi­nally, they de­lib­er­ated over and de­cided on the struc­ture and func­tions of the in­for­ma­tion reg­u­la­tor, which will over­see both the Pro­tec­tion of Per­sonal In­for­ma­tion Act and the Pro­mo­tion of Ac­cess to In­for­ma­tion Act, which long been a thorn in the side of in­for­ma­tion ac­tivists.

The reg­u­la­tor will have or­der pow­ers for the re­lease of in­for­ma­tion, and will pave the way for the re­lease of in­for­ma­tion at all lev­els of gov­ern­ment, par­tic­u­larly in com­mu­ni­ties that are ex­cluded from in­for­ma­tion that af­fects their lives.

Smuts had re­tired by the time the process of ap­point­ments of the reg­u­la­tor were un­der way, and died at the end of last month, miss­ing by weeks the interviews for the ap­point­ments. Would she be pleased? I can­not know, but the panel of five is an eclec­tic mix.

They in­clude an aca­demic, an at­tor­ney who spe­cialises in so-called e-law, a for­mer mem­ber of the Na­tional Lot­ter­ies Board and an ad­vo­cate who has a long his­tory in the in­sur­ance in­dus­try. They also in­clude Pansy Tlakula, who is tipped to be the chair. Tlakula comes with bag­gage, thanks to find­ings by the Pub­lic Pro­tec­tor in 2014. In her re­port, Thuli Madon­sela rec­om­mended that the Speaker of Par­lia­ment con­sider what ac­tion should be taken against Tlakula for her role in the pro­cure­ment of a R320 mil­lion In­de­pen­dent Elec­toral Com­mis­sion lease agree­ment.

In a com­ment at the time, a Daily Mav­er­ick colum­nist said: “It is a tragic end to Tlakula’s pub­lic life and no per­son should cel­e­brate such an in­glo­ri­ous end to an out­stand­ing ca­reer.”

She has in­deed had an out­stand­ing ca­reer, but is there an ar­gu­ment that this “in­glo­ri­ous end” puts Tlakula for­ever be­yond pub­lic of­fice? There will be those who say yes, and they will point to a se­ries of weak ap­point­ments, es­pe­cially in the Na­tional Pros­e­cut­ing Au­thor­ity, which have gut­ted the pros­e­cut­ing ca­pac­ity of the state. Weak ap­point­ments make for bad de­ci­sions, which favour those who ap­pointed those can­di­dates.

Is this such a case? Those who have worked with Tlakula across the con­ti­nent would say no. She has been a tire­less cam­paigner for in­for­ma­tion laws in coun­tries where the go­ing has been tough. She has been open to civil so­ci­ety ex­per­tise, where it has been needed, but not al­lowed her­self to be a cat’s paw of any of the in­ter­ested par­ties. She is, like Smuts was, a hard worker who im­merses her­self in the sub­stance of the is­sues she deals with, and is no­body’s fool. She also knows how to build gov­ern­ment in­sti­tu­tions, which is a rare skill. Must we say Tlakula can never serve her coun­try again af­ter such mis­judge­ments? I would say not. This reg­u­la­tor is go­ing to be a mis­sion to set up and a mis­sion to keep run­ning in the right di­rec­tion. Bad de­ci­sions while set­ting up an in­sti­tu­tion be­come the DNA of the in­sti­tu­tion, which never quite re­cov­ers from those early mis­steps. Putting po­lit­i­cal party ap­pointees rather than a more neu­tral panel of ex­perts into the first SA Hu­man Rights Com­mis­sion led to an in­co­her­ence of mis­sion that still per­sists. We can­not af­ford that with this in­sti­tu­tion. I am sure that Smuts will, wher­ever she is, be rais­ing a glass to th­ese five men and women, and wish­ing them well in the next dif­fi­cult step on this road we all travel on for an open and demo­cratic so­ci­ety. Til­ley is the head of ad­vo­cacy at the Open Democ­racy Ad­vice Cen­tre

Pansy Tlakula

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