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