To mark the International Day for Universal Access to Information, ODAC's interns (Samantha Paisley and Elizabeth Matulis) have consolidated a snapshot review of access to information and Internet from across the continent this year. And the message is clear: we should be doing a lot better. #IDUAI2016 is an opportunity to reflect on the African experience on access to information, and greater progress has to be made.
- By Gabriella Razzano
Today, 28 September, we celebrate worldwide the International Day for Universal Access to Information (#IDUAI2016). The Day was adopted after intense lobbying by ODAC and the rest of the African Platform on Access to Information Working Group. The Day is vital for spreading the word about the importance of access to information, and in South Africa provides a vital opportunity for a rallying call on the new role of the Information Regulator.
Very recently, the National Parliament recommended Adv. Pansy Tlakula for the role. This was not met with uniform support by all circles but – in acknowledgment of the importance of ATI that today highlights – ODAC feels it is vital to consider why the role is so important, and so urgently needed. The Regulator will have jurisdiction and enforcement powers over both the Promotion of Access to Information Act (PAIA) and the Protection of Personal Information Act (POPI), and will serve as an important mechanism for protection of privacy rights as well as access to information rights. But why does this matter?
The right to access information expressed in section 32 of the Constitution has been given effect to through PAIA. Yet, as the primary instrument for promoting access to information and a fuller realisation of all rights, there are issues in implementation of the PAIA that ODAC has consistently been witness to over the years.
Through our own research, and research done in partnership with other groups, we have discovered that:
- Awareness of the Promotion of Access to Information Act is associated to social and educational status;
- In turn, there is indication that ‘legalistic’ requests that are submitted are more likely to be responded to that ‘normal’ ones, which does not bode well for the average user of the Act;
- A comparison between the statistics of a student requester compared to the statistics of a coalition of non-governmental organisations that work on PAIA demonstrate that a novice requester will receive far more refusals (86% refused versus 56.5% refused);
- Regardless of the type of requester, it is clear that non-responses or refusals to access remain significantly high; yet
- Litigating on PAIA is made difficult due to significant costs and delays, and remains largely within the purview of non-governmental organisations as a method of recourse.
It is within this problematic human rights context that the Protection of Personal Information Act 2015 created an Information Regulator as a form of ombudsman mechanism, which will try and provide fast, efficient and considered recourse for all South Africans. The need for the Office is patently urgent. ODAC calls on all involved, to mark the special occasion of #IDUAI2016, to do everything we can to make sure the formal establishment of this Regulator is made a priority.
 Razzano, G (2015) Accessing Information? What we Know from User Experiences, available at http://opendemocracy.org.za/index.php/what-we-do/access-to-information/odac-paia-users, p 5.
 Van Der Mey, S & Eyal, K (2014) The Impact of Emotional ‘Affect’ on Municipal Budget Transparency in South Africa: A randomized control trial using PAIA requests, accessed 15 March 2015, available at https://open.uct.ac.za/bitstream/item/10148/Stephanie%20van%20der%20Mey%20Transparency%20in%20Municipal%20Budgets%20PAIA%20Final%20Version.pdf?sequence=1.
 PAIA Civil Society Network (2015) PAIA Civil Society Network Shadow Report 2014 (South Africa: SAHA), p.13. This was vitally confirmed by Kader Asmal, who noted that benefits of PAIA fell beyond the reach of the majority of South Africans because of the absence of a free and easily accessible mechanism for redress on access to information disputes. See Ad Hoc Committee on the Review of Chapter 9 Institutions (2007) Report of the Ad Hoc Committee on the Review of Chapter 9 Institutions: A report to the National Assembly of Parliament (Parliament: South Africa), available at http://www.sahrc.org.za/home/21/files/Reports/Report%20of%20the%20Ad%20Hoc%20Committee%20of%20chapter%209.%202007.pdf.
- By Gabriella Razzano
ODAC will be presenting our submission before Parliament tomorrow on the new Amendments proposed to the Protected Disclosures Act (09:05 am in Room E249). In many senses, these Amendments are a culmination of about 14 years of diligent advocacy by ODAC to improve the legislative protections available to whistleblowers in South Africa.
There are several important changes, ranging from the extension of protections to workers and temporary workers, to the extension of the protections themselves to exclude civil and criminal liability in certain circumstances. And while you can read a full consideration of the Amendments as we proposed from here, the most important issue to flag is this: citizens have the right to blow the whistle, and there are still shortcomings in the law, which mean that whistleblowers remain vulnerable in spite of their "right doing".
ODAC will continue to push the envelope on behalf of whistleblowers, whether its documenting their stories or creating forward-thinking resources that help both employers and employees understand and implement whistleblowing in the workplace. You can follow us in this journey at #newpda.
By Levi Kabwato
The enactment of Access to Information (ATI) legislation in Kenya and Tanzania marks an important milestone in the evolution of transparency and accountability across Africa. As key political and economic players on the continent, these developments are a step in the right direction and signal progress from both countries.
In practice, Kenya’s attitude towards Open Data has already shown what possibilities can exist if information is central to developmental aspirations. Hence, the existence, now, of an enabling legal environment will broaden access to information in Kenya and allow for more transparency and accountability work to be carried out.
Tanzania, too, is likely accelerate its development as more and more information becomes publicly available. Under president Magufuli, who has demonstrated commitment to public accountability, the country has the right political will to turn ATI into a critical tool for holding power to account as well as uplifting many people out of poverty.
It remains to be seen, however, to what extent the ATI laws in both countries will be implemented. Some concerns raise about both laws have not been decisively dealt with.
In Tanzania, for example, information requests will take long periods of time to process. This might disenfranchise citizens and defeat the spirit and essence of the law itself. In the Kenya law, the loose definition of national security and provisions that cabinet deliberations and records are exempt from the law set a worrying tone regarding the president’s commitment towards openness, transparency and accountability.
The fact that more countries in Africa are passing ATI laws is positively significant. It remains critical that the development phase of ATI laws be as open and comprehensive as possible so as to decidedly account for concerns that might arise.
For countries that already have laws, implementation remains a critical challenge. ATI is not about only ticking the right boxes. It is a fundamental right that must be guaranteed in a democracy. Hence, monitoring the implementation of ATI laws should be able to inform adherence to legal obligations.
07 September 2016
The Open Democracy Advice Centre (ODAC) welcomes parliament’s adoption of resolutions recommending the appointment of Advocate Busisiwe Mkhwebane as the new public protector and the appointment of members of the newly formed information regulator, with Advocate Pansy Tlakula as its chairperson. The office of the public protector and the information regulator are critical public institutions for fostering accountability and transparency in the usage and management of public resources and in promoting corporate accountability.
Mukelani Dimba, ODAC’s executive director said, “Adv. Mkhwebane was selected through a process that was more open than any we have seen before. Yes there were concerns with the shortlisting at the beginning of the process, but Dr. Makhosi Khoza, the chairperson of the ad hoc committee on the Public Protector appointment, and her colleagues in the committee, deserve praise for the precedent-setting transparency of the selection process”.
We hope that Adv. Mkhwebane will build on the great work done by Adv. Thuli Madonsela to keep the office of the public protector an iron shield against abuse of public resources and maladministration.
Another appointment recommendation today to an important institution supporting democracy is the recommendation on persons to be appointed as members of the information regulator.The information regulator has the potential to change the information access landscape in South Africa. With jurisdiction and enforcement powers over both the Promotion of Access to Information Act (PAIA) and the Protection of Personal Information Act (POPI), it will serve as an important mechanism for protection of privacy rights as well as access to information rights. Close to ten years ago the late Professor Kader Asmal concluded in his assessment of state institutions supporting democracy that the benefits of PAIA fell beyond the reach of the majority of South Africans because of the absence of a free and easily accessible mechanism for redress on access to information disputes. The information regulator is that mechanism that Professor Asmal called for. We support the recommendation that the information regulator be chaired by Adv. Tlakula.
Tlakula has impressive legal qualifications and has vast experience in establishing critical constitutional and statutory bodies that promote human rights and democracy, having helped establish the Human Rights Commission and the National Credit Regulator. She is also the leading African authority and champion on the continent on a major subject of the work of the information regulator; access to information law. Before she became the African Commission on Human & Peoples’ Rights special rapporteur on freedom of expression and access to information only five African countries had access to information laws, during her tenure that number rose to twenty-one, through her efforts. “The information regulator is going to be the public protector on information and privacy rights. In South Africa today, there is nobody better qualified and more experienced than Adv. Tlakula to lead this institution. The information regulator will be in good hands under Adv. Tlakula”, Dimba said.
Mukelani Dimba, Executive Director: ODAC (082 699 6586)
Alison Tilley, Head of Advocacy: ODAC (071 671 8654)