#HeroesUnderFire

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 ODAC is proud to announce the launch of our latest piece of extensive research on the lived experience of South African whistleblowers, "Heroes Under Fire".

Whistleblowers in South Africa are under threat as never before. A deepening culture of impunity and lack of accountability is making it harder for them to expose wrongdoing. When we consider the actual experiences of citizens who blow the whistle in South Africa, it becomes clear that the ambitious constitutional principles that promote transparency are not enough to create a safe environment that can fully foster corruption fighting. Whistleblowers in South Africa make decisions to blow the whistle based on their strong desire for justice, but because of these acts become isolated and vulnerable. While their stories should be read and considered as a way of acknowledging these often silenced voices, as an organisation, the Open Democracy Advice Centre has also been able to use these narratives to identify the key policy and legislative changes necessary to make the environment better for them.
Because of these stories ODAC is calling for dramatic and innovative changes to the legislative environment to encourage whistleblowers, and protect them more effectively. These recommendations come at an important time, as proposed amendments to the Protected Disclosures Act will be presented to Parliament during 2015.

Download a pdf version of the research here or contact ODAC about access to a hard copy version.

Minister of State Security's statement on cellular phone signal jamming in parliament

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MEDIA RELEASE BY THE MINISTER OF STATE SECURITY, MR. DAVID  MAHLOBO, MP, ON THE SIGNAL DISRUPTION IN PARLIAMENT ON THE OCCASION OF THE STATE OF THE NATION ADDRESS

18 FEBRUARY 2015

1. We wish to state that there was no executive or political decision to interfere with the free flow of information and constitutional obligations on transparency and openness during the State of the Address (SONA). The Minister responsible for State Security was also taken aback.

2. The mandate of the Security Cluster for the State of the Nation Address is to ensure the proper coordination of security planning of the event. This work is done through an operational structure called the National Joint Operational and Intelligence Structure (NATJOINTS) as a standard protocol for any major event in the Republic of South Africa. The NATJOINTS consist of Security Cluster Departments (who are permanent members) and other relevant Departments participate on an ad hoc basis depending on the nature of the event.

3.The security details and preparations are informed by the level of the security risk and threat assessment. The SONA event was rated major based on intelligence reported prior to the event which was unprecedented. Furthermore, given the magnitude of the event and the fact that all spheres of government, the three arms of the State, international invited guests, two former Heads of State and the general public were present, maximum security had to be effected.  

4. The State Security Agency (SSA) was responsible for the threat and risk assessment and supporting the SANDF efforts to enforce the airspace security.   The airspace security plan was also properly approved to supply security measures against low speed, low energy threats as well as the drones with minimal disruption to commercial aviation and related aspects.

5. Restricted Airspace around Parliament has been promulgated. An advisory notice to airmen (NOTAM A0445/15 & NOTAM C0331/15) was promulgated as well as temporary restricted airspace (AIRAC AIP Supplement S008/15).

6. The NATJOINTS Media Statement of the 11 February 2015 clearly indicated that “currently there is no fly zone over parliament and the areas surrounding it and this restriction will apply on the day of the event”.  “All aircrafts, aerodrones and unmanned aerial vehicles (UAVS) will not be allowed in this restricted airspace.”

7. This airspace security plan was executed with precision especially when the Deputy President and President were in transit until the time of taking of salute at the doorsteps of the parliament, estimated between 18:35-19:00.  However the application of this counter threat measure was prolonged beyond the normal operational requirements.

8. The signal disruption was caused by an operational error by the member on duty.  The operator failed to properly terminate the device and this impacted on proper access to some users of mobile phones. A departmental investigation is currently underway with a possibility of disciplinary action for those responsible for this operational failure.

9. The Department of State Security regrets the unintentional disruption of signal in certain parts of the parliamentary chambers.

10. It is within the mandate of the SSA to deploy these measures at various major events, rallies, occasions and events where the President who is the Head of State and Government including the Deputy President are in attendance and where threats and risk assessments justify such measures.

11. The deployment of these counter intelligence measures where the Head of State and Government attends is in line with international risks assessment and crisis management procedures.

12. In future the Department of State Security will ensure that its members in discharging their operational tasks handle their operations more diligently.

13. This operation was never intended to frustrate the parliamentarians, the media and anyone who attended parliament and the result of it not being switched off properly is highly regretted.

ENDS 

Media Enquiries: Mr. Brian Dube-0824183398

#SONA2105 and form over substance

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- By Gabriella Razzano

How quick social media began to broadcast the siren weeping of the pallbearers bearing the coffin of democracy last night. On Facebook and Twitter we wept about the deconsecrating of Parliament by the EFF protest at the 2015 State of the Nation address. Spending 3 years in law school does seem to drill in to it you an almost irrational love of institutions of democracy (who hasn’t done a Parliament selfie?), but our knee jerk emotional response needs to be ignored while we try and examine the changing face of South African politics.

At the heart, I do believe it is a tragic day when Parliament becomes a playground rather than a hallowed ground of a democratic state – but yesterday was not the day it happened. Yesterday, when the President took the podium to begin SONA, he did so making a great deal of effort to look unaffected. Perhaps he was. I described it to one friend as “trying to look like a lion swatting its tail at flies”. He seemed not to recognise, of course, that he had lost. Well, at least Parliament had. Calling in SAPS again made a tragically obvious show of the fact that the South African Parliament is the house of the President, rather than a check against total Presidential power. Of course it was the State of the Nation address, but let us not forget it is the same house that has failed to call the President to account for gross abuse of state funds.

And there in lies the rub – when did calls for decorum become more important the calls for fundamental justice and fairness? When did the substance behind our democratic institutions become less important than the prettiness of their face? Very quickly one man’s call for rules can become another man’s shackles.

I would suggest that the reason why the behaviour of the EFF in Parliament continues to garner support is because people see no need to keep sacred an institution that doesn’t serve them. Of course, for the people it does serve it is a different story. But the ANC should be cautious of treating Parliament, as it’s Mount Olympus.

Why is Parliament important? It is the source of the laws that express our rule of law. It is also vital as a check and balance for political power. And that is so obviously where it fails. It is not the house the President built – it is the house the Constitution built. And it when it refuses to contain Presidential abuse of the state through corruption, it fails to live up to its constitutional roots. It has ignored the needs of the South African public. It is unsurprising then that the public may not then want to rise up in honour of maintaining the dignity it has already shed itself.

So, not unusually, democratic concepts begin to be abused by those in power to maintain power like a deranged and clingy Gollum. And the way this is done is through focusing on the form of democracy, rather than its substance. I want to see a Parliament that upholds democracy. We need to explore post critically how Parliament can begin to redeem its own sanctity. We need to fight for the substance of that Parliament. The Constitution created it within a vision of what democracy should be.

Democracy might not be dead, but she is a little bruised. And calls by those in power to leave her alone seem a little bit misplaced when they are the one’s who tripped her down the stairs.

A first step to getting a grip on the internet and human rights

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By Gabriella Razzano

On the 12th of August ODAC joined the Association of Progressive Communications and others to discuss access to content and connectivity in Africa.

This followed from the detailed submissions ODAC had made in response to an early draft of the African Declaration on Internet Freedom of Rights. And those discussions were strongly influenced by Frank La Rue’s seminal report delivered to the Human Rights Council in 2011 that explored in some detail the different valuable influences the internet has in the promotion of the right to freedom of expression and access to information. When the piece came out, it sparked a great debate on “internet as a human right”.

And that debate continued when we met in Johannesburg. And I think it is vital we continue to explore it; not just to be pedantic about how we talk about rights – but because I do not think the human rights sector is being rigorous enough when we consider the internet as some form of an alien realm.

In his piece La Rue stated:

“…the framework of international human rights law remains relevant today and equally applicable to new communication technologies such as the Internet.”

While I have a lot of strong feelings on the topic, the main thing I want to discuss in brief here is why we shouldn’t talk about the internet as some form of ‘new problem’ that may need a ‘new right’; at least not today. My concerns here are practical, rather than theoretical.

 1.    It’s already here; we need to deal with it.

We have comprehensive doctrine on the application of human rights. And the internet is here to stay. We need to deal with it in courtrooms; and trying to reinvent rights discourse – instead of relying on established principles – will only confuse things.

And outside of courtrooms, what do we gain by trying to confuse our tried and tested language? Access to information activists should speak about the internet for their work. So should housing activists. So should gender activists. We may as well use the language we already know how to use; and at the same time acknowledge, vitally, that it is a conversation we should all be having.

2.    It’s not just about access.

Equal access to internet is obviously a concern. But when the internet has been embodied in a specific constitutional instrument, such as in France, Costa Rica or Estonia, it is done so only in consideration of access to infrastructure.

La Rue noted that the internet also concerns the right of access to content. Once we are online, how we are online becomes a matter worthy of protection too. How can we exercise free expression when given restricted access to Twitter, for example? Even this is a limited understanding of the importance of the internet for human rights – and that’s because rights documents are instruments largely of vertical application. Decisions, for example, that relate to the civil relationship on copyright and intellectual property may also be hugely impactful on actual rights online – how would a standalone right fully appreciate this?

3.    Rights discourse has moved on – and we’ve run out of flag colours.

Rights discourse initially followed an historical progression through first, second and third generation rights. Karel Vasak linked these rights (civil political, socio-economic and collective, respectively) to the French revolutionary principles of liberty, equality and fraternity. But while these forms of jurisprudential insights into rights may still help in academic environments, the recognition of the interdependence of all rights has long moved us on from a linear understanding.

This is practical, but it is also an acknowledgement of not prioritising rights in any order, which may not allow for considered application in different country contexts. We shouldn’t be working in ‘rights’ silos – not just because it is ineffective, but because threats to the internet may come from areas and perspectives we are not focused on. Regulations relating to telecommunications, mass surveillance, court judgments on hosts and search engine responsibilities; these are potential threats not only to the internet, and the internet as a space, but a host of other fundamental human rights we should be speaking to.

In the end though, I agree that the internet is special. I believe it should be warranted a special degree of freedom that is also difficult to articulate within standard rights discourses. But I am not trying to resolve how to deal with that now. Instead, I want to note that the internet has become integrated into our way of life. It is not an alien that needs to be seen as separate; it instead is embedded into how we live and needs to be talked about in a language that we all understand. It has advantages and disadvantages, but it is always worth remembering that the disadvantages mimic those we see already: preferential and unequal access, abuse by the powerful, and a lack of full empathy for the vulnerable.

Let’s start leveraging the internet for the advancement of all human rights, and guarding its sanctity as zealously as we would guard any fundamental human right; even if we don’t call it one.

OGP to take a stronger African focus

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By Mukelani Dimba, Executive Director

African governance issues are set to enjoy more attention and spotlight with more African government and civil society representatives set to assume leadership positions in the Open Government Partnership (OGP). The government of South Africa will be confirmed as one of the co-chairs of the OGP when heads of state meet in New York on 23 September 2014 on the margins on the United National General Assembly. South Africa will become a lead co-chair of the OGP in 2016. On the civil society side two civil society leaders from Africa have been selected to join the steering committee. They are Alvin Mosioma from the Tax Justice Network Africa from Kenya and Mukelani Dimba from the Open Democracy Advice Centre in South Africa. Mosioma and Dimba join Tanzania’s Rakesh Rajani of Twaweza who has been a member of the steering committee since inception in 2011 and is the current OGP co-chair for civil society.

The OGP is a voluntary initiative aimed at enhancing open governance in the countries that are taking part in it. Countries qualify to join OGP on the basis their current performance in terms of access to information and asset disclosure laws, budget transparency and civic engagement processes. Once countries have joined OGP they have to commit to making specific improvements in terms of any of the OGP’s grand challenges which are; improving public services, increasing public integrity, more effectively managing public resources, creating safer communities, increasing corporate accountability.

Since its inception in 2011, only seven African countries have joined the OGP, namely; South Africa, Kenya, Tanzania, Ghana, Liberia, Sierra Leone and Malawi. We hope that many other African countries will join this initiative but, even more importantly, we hope that those countries that have joined will implement their national action plans sincerely and meaningfully in a manner that creates real change in the lives of many that depend on the state for honest delivery of public service.