Get it into the open

For true democ­racy and the rule of law to thrive, open­ness – in­stead of trans­parency – is what SA needs

CityPress - - Voices - Thuli Madon­sela voices@city­

Dur­ing our brief but in­sight­ful chat at the end of the World Jus­tice Fo­rum V in The Hague re­cently, Wil­liam Neukom, founder of the World Jus­tice Project, shared a charm­ing anec­dote on the ge­n­e­sis of Cal­i­for­nia in the US’s open gov­er­nance or “sun­shine” laws. My di­a­logue with Bill, as he is af­fec­tion­ately known, was a fol­low-up to a chal­lenge he had thrown to me and my fel­low pan­el­list ear­lier. Dur­ing our key­note panel on pre­vent­ing in­flu­ence on the ju­di­ciary and other state in­sti­tu­tions, he had posed a chal­lenge about distin­guish­ing be­tween open­ness and trans­parency. He as­serted that, for true democ­racy and the rule of law to thrive, open­ness, not trans­parency, is key as the lat­ter can be an il­lu­sion, while spe­cial in­ter­est groups hi­jack gov­ern­ment and re­pur­pose gov­ern­ment pro­cesses, thus per­vert­ing democ­racy.

He said the his­tory of the Cal­i­for­nia sun­shine laws is in­struc­tive on open­ness and that said laws were trig­gered by a pub­lic rep­re­sen­ta­tive’s loss of his seat be­cause of his re­fusal to pro­tect the in­ter­ests of a pow­er­ful corporation that had funded his party’s cam­paign. In re­sponse, the peo­ple de­manded open­ness, in­clud­ing the re­quire­ment that meet­ings of pub­lic rep­re­sen­ta­tives be held in pub­lic. It also pro­vided for the pub­lic to have ac­cess to in­for­ma­tion and meaningful in­volve­ment in gov­ern­ment pol­i­cy­mak­ing and re­lated pro­cesses.

My fact-check­ing ex­er­cise on the story was fu­tile. How­ever, I found in­for­ma­tion on the his­tory of the Ralph M Brown Act of 1953. Named af­ter the leg­is­la­tor who is its ar­chi­tect, the Brown Act is the key sun­shine law in Cal­i­for­nia. It was en­acted in re­sponse to a 10-part se­ries of ar­ti­cles in 1952 by an in­ves­tiga­tive jour­nal­ist, Michael Har­ris, ti­tled Your Se­cret Gov­ern­ment. Har­ris’ work is said to have high­lighted and de­cried a grow­ing un­healthy relationship be­tween cer­tain pow­er­ful in­ter­est groups and pub­lic rep­re­sen­ta­tives, civil ser­vants and pub­lic func­tionar­ies in pub­lic agen­cies such as boards and com­mis­sions. This in­cluded clan­des­tine meet­ings that shaped pub­lic poli­cies in a man­ner that pro­tected the in­ter­ests of said groups at the ex­pense of pub­lic in­ter­est and com­mon good.

I found some res­o­nance with the call for open­ness in pub­lic pol­i­cy­mak­ing to pre­vent un­due in­flu­ence and a de­bate that had just en­sued in South Africa on the questionable ge­n­e­sis and pur­pose of new pro­vi­sions in the Min­ing Char­ter. One im­pugned pro­vi­sion ex­tended the com­pen­sa­tion for his­tor­i­cal dis­ad­van­tage in min­ing to black peo­ple who be­came South African cit­i­zens af­ter 1994. Or­di­nar­ily, mea­sures that seek to re­dress apartheid’s un­just ex­clu­sion of black peo­ple from the econ­omy, as well as those seek­ing to re­dress gen­der- and dis­abil­ity-based ac­cu­mu­lated so­cioe­co­nomic dis­ad­van­tage, re­strict com­pen­sa­tion to those that were cit­i­zens or en­ti­tled to cit­i­zen­ship be­fore April 27 1994.

There may be a per­fectly good rea­son for the re­word­ing. Had we had the equivalent of the Brown Act, there wouldn’t be con­fu­sion re­gard­ing why this was done, at whose in­stance and what group would ben­e­fit. There also wouldn’t be a quar­rel re­gard­ing whether there was con­sul­ta­tion. There would have been an in­dis­crim­i­nate in­vi­ta­tion to the pub­lic to the place where this would be dis­cussed, ac­com­pa­nied by an ex­pla­na­tion on the pur­pose and doc­u­ments out­lin­ing pro­pos­als to be con­sid­ered and the ori­gins of thereof. The fi­nal re­port would have out­lined who ex­actly had par­tic­i­pated, who had made what pro­pos­als and what the ra­tio­nale for adopt­ing the pre­ferred ap­proach had been.

I like the pre­am­ble to the Brown Act. In part, it states that: “The peo­ple of this state do not yield their sovereignty to the agen­cies which serve them … The peo­ple, in del­e­gat­ing author­ity, do not give their pub­lic ser­vants the right to de­cide what is good for the peo­ple to know and what is not good for them to know. The peo­ple in­sist on re­main­ing in­formed so that they may re­tain con­trol over the in­stru­ments they have cre­ated.”

You could ar­gue that we have the Pro­mo­tion of Ac­cess to In­for­ma­tion Act of 2000 (Paia). That is true. Through Paia, in­ves­tiga­tive jour­nal­ists and po­lit­i­cal par­ties and oth­ers have ex­ca­vated a trea­sure trove of in­for­ma­tion that has ex­posed gross mal­ad­min­is­tra­tion, fraud, cor­rup­tion and other im­pro­pri­eties in gov­ern­ment.

An ex­am­ple is the in­ves­tiga­tive jour­nal­ism agency amaBhun­gane and City Press, ob­tain­ing and shar­ing freely with the pub­lic thou­sands of doc­u­ments that were pro­vided, on the pain of a court or­der, fol­low­ing a Paia ap­pli­ca­tion to the de­part­ment of pub­lic works re­gard­ing al­leged ex­ces­sive and un­law­ful up­grades at Pres­i­dent Ja­cob Zuma’s pri­vate Nkandla homestead.

Another good ex­am­ple is the par­lia­men­tary process, which is an open cur­tain to the pub­lic. Lo­cal gov­ern­ment is even more open and in­clu­sive in view of the pro­vi­sions of the Mu­nic­i­pal Sys­tems Act, which com­pels pub­lic par­tic­i­pa­tion and process open­ness, par­tic­u­larly re­gard­ing the prepa­ra­tion of in­te­grated de­vel­op­ment plans, which con­sti­tute ex­pen­di­ture frame­works for mu­nic­i­pal ex­pen­di­ture, pol­icy and ser­vice de­liv­ery pro­cesses.

What we have is not enough, though. If we did, we would not have the Min­ing Char­ter de­ba­cle. We would know, among other things, what the ge­n­e­sis of the some of the im­pugned pro­vi­sions of the Min­ing Char­ter was. We would also know why chap­ter 5 of the Pro­mo­tion of Equal­ity and Preven­tion of Un­fair Dis­crim­i­na­tion Act of 2000, which was a ve­hi­cle for a sys­temic so­cial jus­tice mar­shal plan to re­dress apartheid-re­lated so­cioe­co­nomic dis­par­i­ties for all, par­tic­u­larly the grass roots, has been parked for 17 years.

In the mean­time, new con­cepts such as rad­i­cal eco­nomic trans­for­ma­tion, with a nar­rower and in­dis­tinct so­cial change agenda, sud­denly mush­room and shoot to the front row.

We would know why we need nu­clear en­ergy and we would have been part of man­dat­ing our pres­i­dent to en­ter into a con­tract with Rus­sia as the first po­ten­tial provider. We would have par­tic­i­pated in de­cid­ing that – re­gard­less of sec­tion 237 of the Con­sti­tu­tion, which puts con­sti­tu­tional re­spon­si­bil­i­ties first – we can af­ford nu­clear en­ergy while we can­not af­ford de­cent and eq­ui­table in­fra­struc­ture for so­cioe­co­nomic rights such as ac­cess to ed­u­ca­tion, health­care and eco­nomic ac­tiv­ity for many left-be­hind per­sons and com­mu­ni­ties.

We would know and have par­tic­i­pated in de­cid­ing be­tween im­punity for geno­cide – which the In­ter­na­tional Crim­i­nal Court (ICC) was es­tab­lished to curb – and African po­lit­i­cal lead­ers’ con­cerns that the ICC picks on them. We choose im­punity. Would we ap­prove the grow­ing prac­tice of of­fer­ing grotesquely op­u­lent golden hand­shakes at enor­mous tax­payer ex­pense to those who refuse to ac­qui­esce to im­proper use of pub­lic power and re­sources, while many Gogo Dlami­nis go with­out food for most days of the week?

Would we al­low ev­i­dence to die and mal­ad­min­is­tra­tion to be po­ten­tially ex­ac­er­bated by bury­ing the truth in nondis­clo­sure agree­ments in golden hand­shake horse trad­ing? Would we be hav­ing rev­e­la­tion af­ter rev­e­la­tion in the me­dia of prima fa­cie ev­i­dence of cor­rupt con­tracts and loot­ing of pub­lic funds and hi­jack­ing and re­pur­pos­ing of or­gans of state by pow­er­ful groups (state cap­ture) with­out im­me­di­ate ac­tion to test such al­le­ga­tions, and hold ac­count­able wrong­do­ers, if any, to ac­count? I don’t think so.

It is not all gloom and doom, though. Many pub­lic in­sti­tu­tions en­deav­our to op­er­ate trans­par­ently and ac­count­ably. The Gaut­eng province for ex­am­ple, has em­braced and is ex­per­i­ment­ing with the open-ten­der sys­tem. Par­lia­ment is con­sid­er­ing party-fund­ing trans­parency. The Con­sti­tu­tional Court, as ultimate guardian of democ­racy and our con­sti­tu­tional val­ues, sent back the ICC de­ci­sion to Par­lia­ment for a pub­lic-par­tic­i­pa­tion process. The courts have been par­tic­u­larly in­stru­men­tal in us­ing judg­ment as a plat­form for en­trench­ing democ­racy lit­er­acy in res­o­nance with the con­sti­tu­tional democ­racy ar­chi­tec­ture in the Con­sti­tu­tion. One such oc­ca­sion was the sem­i­nal mes­sage of the Con­sti­tu­tional Court to Par­lia­ment in the re­cent se­cret bal­lot judg­ment.

The fu­ture is preg­nant with prom­ise. But the peo­ple of South Africa could take a leaf from the au­dac­ity of the peo­ple of Cal­i­for­nia in 1953, to act de­ci­sively to as­sert their sovereignty.

Ad­vo­cate Madon­sela is founder and chief pa­tron of Thuma Foun­da­tion, a Har­vard Ad­vanced Lead­er­ship Fel­low

and for­mer pub­lic pro­tec­tor


NEW RULES A num­ber of pro­vi­sions in South Africa’s new Min­ing Char­ter have sparked de­bate Min­eral Re­sources Min­is­ter Mosebenzi Zwane

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