MTN and Vodacom battle over the right to communicate.

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Cellphone giants MTN and Vodacom are taking Icasa to court over the communication regulator's plans to slash mobile termination rates.

The two companies approached the Johannesburg high court on an urgent basis to stop the Independent Communications Authority of South Africa (Icasa) from implementing a regulation on mobile termination rates. They have complained about the process followed, and how the proposed rates have been decided.

As yet, no one appears to have asked questions about how this complaint is consistent with a rights framework, and what the implications of the constitution are.  Is there a right to communicate? And if there is, what are the implications of the refusal to lower the costs of communication?

The original basis for a human right to communicate derives from the Universal Declaration of Human Rights (United Nations, 1993), adopted in 1948. The centerpiece of the declaration with regard to communication is Article 19, which states:

"Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." (United Nations, 1997)

Article 19 is buttressed by two other articles. Article 27 section 1 states:

"Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." (United Nations, 1997)

The right to communicate can be seen a basic universal human right. Rights are basic "only if enjoyment of them is essential to the enjoyment of all other rights" . The exercise of other rights is not possible if it compromises a basic right; indeed, other rights may have to be sacrificed to preserve a basic right.

However, recognition of communication as a universal basic right has only been seriously discussed in the context of significant technological innovation.

The rights to information and freedom of expression are not just for rich people. Amnesty International in its latest report put it this way:

 

We can demand that states ensure that all the people they govern have meaningful access to the digital world – preferably through high-speed and truly affordable internet access whether via a portable hand-held devise such as a mobile phone, or a desktop computer. In doing so they would be fulfilling one of the principles of human rights as articulated in Article 15 of the International Covenant on Economic, Social and Cultural Rights: “To enjoy the benefits of scientific progress and its applications.” And Article 27  of the Universal Declaration of Human Rights says: “Everyone has the right freely  to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”

 

How does this relate to the case in hand? The two companies are basically litigating to keep a regulated cost higher. The regulator wants the cost to be lower. A lower cost is a more reasonable and justifiable limitation on the right to communicate, if we agree it exists. The question of dignity is always central in our constitution. It seems to us that the ability to connect with other people in order to live in the world we find ourselves is becoming more and more fundamental. Will the court, and the parties, consider this in this case?

Implications of Nkandla Report for the Secrecy Bill

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The Public Protector’s investigation took approximately two years, which exceeds the one year target the Public Protector South Africa team has set for complex investigations. Why?

 One issue delaying the report was identified by the Public Protector as access to classified information;

 

 Some of the information obtained during the investigation was classified as “Top Secret”. In terms of the provisions of the Minimum Information Security Standards policy, this means that the information is regarded as being of such a nature that its unauthorized disclosure/exposure can be used by malicious/opposing/hostile elements to neutralize the objectives and functions of institutions and/or the state.

 

This is the cabinet policy that government has conceded in Parliament as being unconstitutional, and ultra vires. Despite this, the PP was denied information declared to be classified. For example, the PP says in relation to the Task Team report: 

Despite my several requests, I was not furnished with a copy, but only allowed to peruse the contents thereof, after which it had to be returned to the officials of the Ministry of Public Works and the Department of State Security, due to the fact that it was classified.

 

  Madonsela says that she can’t be denied access because of classification.

 

  “It was noted during my investigation to date that reference is often made to the fact that the information that I requested is classified or ‘Top Secret’ and could therefore not be provided to me. However, I could find no indication in the National Key Points Act, 1980, the said Cabinet Policy, the Protection of Information Act, 1982 or the Minimum Information Security Standards that  could be interpreted as prohibiting the Public Protector from having access to any information that relates to state affairs, which, I must point out, would be a contradiction of section 7(4) of the Public Protector Act.

 

The concern that classification would be used to hide corruption and maladministration was repeatedly raised in the Secrecy Bill hearings, and repeatedly denied by government. These concerns were directly raised by the Public Protector herself before parliament. Concerns that "national security" was being used as a diversion from an intent to draft a law to hide wrongdoing were dismissed. We again raise our concerns about the lack of a public interest clause in the Protection of State Information Act.

 

Working Group of the African Platform on Access to Information (APAI) at the end of its Meeting held in Johannesburg, South Africa, on March 5 & 6, 2014

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Statement

 

Issued by the Working Group of the African Platform on Access

to Information (APAI) at the end of its Meeting held in Johannesburg,

South Africa, on March 5 & 6, 2014

 

The Working Group of the African Platform on Access to Information (APAI) met in Johannesburg, South Africa, on Wednesday, March 5 and Thursday, March 6, 2014.  

 

At the end of its meeting, the Working Group unanimously adopted and issued this Statement:

 

  1. The Working Group calls on the African Union (AU) to give effect to Resolution 222, adopted in Banjul, The Gambia, by the African Commission on Human and Peoples’ Rights at the end of its 50th Ordinary Session on May 2, 2012, wherein the Commission requested the AU toconsider proclaiming 28 September as International Right to Information Day in Africa, as proposed in the APAI Declaration, adopted in Cape Town, South Africa, on September 19, 2011.
  2. The Working Group acknowledges the increasing number of national legislation on access to information that have been passed by African countries in the last few years and calls for greater commitmenttowards more effective implementation of such laws to enable them realize their full potential.
  3. The Working Group calls on other African countries that have not yet passed national access to information laws to take urgent steps to do so, using as a standard, the Model Law on Access to Information, developed by the Special Rapporteur on Freedom of Expression and Access to Information in Africa and adopted by the African Commission, so as to guarantee for their citizens a right to information in accordance with international law.
  4. The Working Group calls on the United Nations to endorse the APAI Declaration and proclaim September 28 of every year International Right to Information Day, as a date to raise awareness about the importance of the right of access to information throughout the world.
  5. The Working Group notes important right to information commitments in Open Government Partnership (OGP) Country Actionplans of South Africa, Kenya, Tanzania, Liberia and Ghana. Calls upon theseGovernments to fully implement these commitments. The Working Group also calls upon the Governments of Malawi and Sierra Leone to do the same inclusion of adoption of the access to information law and strong implementation of FOI law in respective OGP country action plans in the case of Malawi and Sierra Leone respectively.
  6. The Working Group unanimously elects Edetaen Ojo, Executive Director of Media Rights Agenda in Nigeria, as its Chair for the next one year.  He succeeds the erstwhile Chair, Mr. Gilbert Sendugwa, Executive Director of the Africa Freedom of Information Centre (AFIC) in Uganda. 

 

Adopted in Johannesburg, South Africa, this Thursday, the 6th day of March 2014.

 

 

About the APAI Working Group

The Working Group of the African Platform on Access to Information (APAI) is a network of civil society organisations that are working on the promotion of access to information in Africa. The APAI Declaration sets outprinciples of access to information, that are key for the full realisation of the right of access to information and was adopted by stakeholders present at the first Pan African Conference on Access to Information (PACAI) held on 19 September 2011 in Cape Town, South Africa. Members of the Working Group include:

  • Africa Freedom of Information Centre (AFIC)
  • Article 19
  • Federation of African Journalists (FAJ)
  • Highway Africa
  • Media Foundation for West Africa (MFWA)
  • Media Institute of Southern Africa (MISA)
  • Media Rights Agenda (MRA)
  • Open Democracy Advice Centre (ODAC)
  • The African Editors’ Forum (TAEF)

 

For enquiries, please contact:   APAISecretariat

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

Our IDP Project and the Open Data Community

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The 22nd of March was International Open Data Day. Its therefore a rather appropriate time for ODAC to reflect on an interesting revelation we came to in undertaking our Integrated Development Planning Project, a project supported by the Foundation for Human Rights. It is a discovery that, while perhaps intuitive for some, should cause us to all stop and reflect on how we take our human rights through technology projects forward in the upcoming years.

The project itself began through a fairly straightforward project idea – if information on integrated development planning is being consolidated at one point (namely the Integrated Development Planning Nerve Centre hosted by the Department of Cooperative Governance), can we make that Nerve Centre open to the public? Like most projects, this simple aim was not as simple as we had presumed. Partially, the problem was political in the sense that government collaboration on the project was hard to entrench. But perhaps most interestingly for us, there were major issues in relation to some of the presumptions we had made.

As we move into spaces that utilise technology, we should be learning the most important lesson that technology development processes have to teach us: focus on the needs of your user. Presume nothing. And then tailor your solutions to meet those needs as directly as possible. This means being less quick to assume needs when drafting a proposal, and allowing more opportunity for direction to come directly from community engagements.

In our case, this meant re-packaging integrated development planning (IDP) information into something beyond just planning. Our community engagement confirmed that people want to be able to take action on information. Simply providing information is not useful enough. We accordingly re-focused heavily on our advocacy components, and assisted in creating social audit processes possible through a clear and consolidated explanation of big projects that had been planned as part of the IDP’s.

Our second important lesson: information is most useful when it is hyper-local. Providing people with information about the broader city plan isn’t as useful as information specific to a person’s ward. This links quite simply to the point above - for any kind of advocacy to be effective, the object of the advocacy should be specific. Hyper-local information is more actionable than its generalised cousin.

The most interesting thing we unpacked however, which brings us back to Open Data Day, is that the technologists we work with should constitute a community themselves. Engagement with this group is as necessary a step in the successful implementation of a technology solution, as the engagements you undertake with the communities you are hoping to help. This is for a few simple reasons:

  1. It develops an open data community who are more invested in the product they are working on, as they are brought into the social justice cause;
  2. It strengthens your connections to that community for future engagements, at the same time as it stimulates connections between the individuals themselves which makes that community sustainable; and
  3. It creates a forum for open discussion of innovations outside of those proposed, fed by the feedback provided on community needs (i.e. we can more easily ascertain what is possible, as opposed to merely reflecting on what we want).

At the same time as non-governmental organisations are presuming needs, we are also presuming solutions. Engaging more openly and directly with the open data community itself helps to create a more sustainable and effective innovation – and this will help us move more actively toward the social change we hope to inspire in the future.

To find out more about our IDP/FHR project see here.

Corruption and whistleblowing in South Africa, following the PWC report

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 By Alison Tilley, 20 February 2014

The latest PWC Global Economic Crime Survey for South Africa, released yesterday,  identifies a trend in the effectiveness of whistleblowers in reporting crime. Not surprisingly the trend is downwards – in 2007, 16% of crime was detected through  whistleblowing, and now that has dropped to 6% in 2013. The writers of the survey seem a bit puzzled about why this is, given that so many companies do actually have whistleblowing policies in place.

 We would suggest the answer lies in the legislative and other shortcomings in protecting whistleblowers South Africa.

 There are implementation gaps and deficiencies in the use and application of the existing laws which undermine the safety of whistleblowers. Those laws are themselves ineffective. This contributes to the lack of confidence in the ability of the law to protect people – ultimately contributing to the declining rates of whistleblowing in South Africa. Only 3 out of 10 South Africans believe that the law does effectively protect whistleblowers.

 There has been a steady decline in the number of people who describe themselves as blowing the whistle.

 In 2011, 18.4% of respondents said that they had blown the whistle. This is down from 25.3% in 2007. We believe these drops in numbers of people blowing the whistle can be directly related to the perception that the law does not effectively protect whistleblower.

 We need better protection for whistleblowers.