Statement: Mining Lekgotla Fails to Acknowledge and Address Key Challenges in South Africa’s Extractive Sector, say Rights Groups

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Cape Town - The Centre for Environmental Rights (CER), Centre for Applied Legal Studies (CALS) and the Open Democracy Advice Centre (ODAC) express their disappointment with the outcomes of the 2014 Mining Lekgotla in Johannesburg this week.

The mining sector remains one of the most fractured industries in South Africa and those with the power and capacity to bridge gaps continue to fail to do so. The conversation around mining remains polarised in content and in participation. Fora such as the Mining Lekgotla and Cape Town’s annual Mining Indaba continually fail to advance transparency on the part of government and mining companies and the inclusive participation of mining affected communities, workers and civil society.

Dubbed a “celebration of democracy and transformation” and the mining sector’s contributions thereto the Legkotla has failed to acknowledge, let alone address, key challenges plaguing the sector. These are not one sided concerns; they are issues which continue to exacerbate persistent sectoral volatility, a lack of transparency and accountability and stifled transformation.

Taking place on the eve of the two-year anniversary of Marikana, it is discouraging and deeply ironic that conversations around the future of mining in South Africa either deliberately exclude or cannot be accessed by all affected stakeholders. It is simply too expensive for anyone other than financiers, government officials and mine management and representatives of the Chamber of Mines to attend.

Affected communities, miners, public interest groups and lawyers, academics and development experts are all pivotal to a robust and profitable mining sector but their insights do not feature on the agendas of industry gatherings. The message is clear: the expertise and perspectives of anyone other than capital is not relevant. The pretense that these events include all stakeholders must cease.

Bonita Meyersfeld, Director of the Centre for Applied Legal Studies notes that “as South Africa remembers those who lost their lives at Marikana and following a wave of strike action and unrest in the industry, organisers and participants of events such as the Lekgotla and the Mining Indaba appear to be in denial by not recognising the need for inclusive and accessible discussions.” This is not only a principle of transparency and inclusivity but it is also a principle of sound financial investment. The financiers who invest in mining operations can no longer claim that their investments are attenuating poverty. Investment funds are flowing directly into practices that exacerbate rather than alleviate human rights violations.

In a constitutional democracy where the Bill of Rights is of horizontal application, there is a grave failure of transparency and genuine commitment to change on the part of mining houses and their financiers, and an equally devastating failure on the part of government to hold those responsible for these failures to account.

The Lekgotla has also failed to address the need to foster greater transparency and disclosure of information in relation to mining and the environment.

“Accessing basic information such as mining licenses, social and labour plans, water use licenses and environmental management programmes - documents that are readily and publicly available in other countries - is a constant battle. Government and several industry players actively seek to prevent disclosure and government often refrains from exercising its regulatory oversight adequately. This frustrates the realisation of constitutional rights that depend on the ability of individuals, communities, civil society organisations, companies and decision-makers to access this information”, said Melissa Fourie, Executive Director of the CER.

The lack of transparency makes it difficult to determine whether the sector is being administered properly and raises questions about whether vested interests of the political elite are unduly influencing the sector’s administration.

Gabriella Razzano, Head of Research at ODAC notes that proactive disclosure of mining licenses, authorisations and related information “is in the public interest given South Africa’s constitutional commitment to accountable and transparent governance and recognition that South Africa’s natural resources must be governed in a manner that ensures all South Africans benefit. South Africans have a right to know.”

It is hoped that the organisers of the 2015 Cape Town Mining Indaba, government, and industry leaders will take stock of these concerns and engage with all relevant stakeholders going forward. Inclusive, realistic and honest conversations about mining in forums such as these are long overdue, and there is broadening recognition that without this inclusivity the promises of transformation made at these events will remain empty.

For more information please contact:

Bonita Meyersfeld/Lisa Chamberlain, Centre for Applied Legal Studies: 011 717 8600

Melissa Fourie, Centre for Environmental Rights: 021 447 1647

Gabriella Razzano, Open Democracy Advice Centre: 021 447 1191

Better implementation for OGP in South Africa, call from civil society at US Africa Summit

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The Open Democracy Advice Centre (ODAC) is one of a few African non-governmental organisations that will be participating in the USA-African Leadership Summit taking place in Washington, DC, this week.  The summit will be hosted by the USA’s President Barack Obama and about 50 African heads of state have confirmed their attendance. ODAC intends to use this occasion to call for more resourcing of the Open Government Partnership (OGP) processes in South Africa. President Jacob Zuma is expected to speak at the Group Consultation on OGP.

ODAC’s Executive Director, Mukelani Dimba, said; “We are looking forward to engaging at the Civil Society Forum on issues around transparency, and in particular the Open Government Partnership. We want to ask for more concrete progress around that agenda” said Mukelani Dimba.

“We need to see a better resourced OGP process, that really engages with civil society, and drives a real transparency agenda” said Damaris Kiewits, SANGOCO WC.

40 African Heads of State will gather in DC to discuss trade and investment, peace and security, and good governance. The summit has been billed as an opportunity for the US to build a strategy together with Africa, which would include trade and governance issues. Civil Society Forum has been convened on the sidelines of the Leadership Summit. This will be convened on the morning of August 4 by Secretary of State Kerry and will bring together U.S. and African government leaders, members of African and U.S. civil society and the diaspora, and private sector leaders.

 For more call Alison Tilley 071 671 8654

#africasummit

@ODAC_SA

 

In memoriam: Nadine Gordimer (1923-2014)

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Nadine Gordimer

The Nobel Laureate and Booker Prize winner Nadine Gordimer (1923-2014) was an outspoken critic of the system of Apartheid. In her lifetime she devoted herself to using the written word to raise consciousness about South Africa's system of racial segregation and oppression. For her the freedom to express herself was both a shield and a spear that she wielded against the abuse of public power in whatever form it takes. It is not surprising, therefore, that when a democratically elected government introduced in 2010 a law that many feared would limit freedom of expression and the right of access to information, she would be counted among millions of voices that spoke out against this law, South Africa's the Protection of State Information Bill.

We publish below the full article where she warned against the dangers of such a piece of legislation. The article, titled "South Africa: The New Threat to Freedom" was first published in The New York Review of Books on 24 April 2012:

South Africa: The New Threat to Freedom

Nadine Gordimer

(Source: The New York Review of Books - http://www.nybooks.com/articles/archives/2012/may/24/south-africa-new-threat-freedom/ )

The regime of racism in South Africa was maintained not only by brutality—guns, violence, restrictive laws. It was upheld by elaborately extensive silencing of freedom of expression. The Suppression of Communism Act of 1950 had definitions of communism that were vastly inclusive. What was forbidden included advocacy of industrial, political, economic, and social change.

In 1982 an updated version of the Suppression of Communism Act, the Internal Security Act, was passed, which banned the African National Congress and the Pan African Congress along with the South African Communist Party. It retained almost all of the previous definitions of what was forbidden.

The Publications and Entertainments Act of the apartheid regime banned thousands of newspapers and books in South Africa from 1950 to 1990. The works of world-famous writers, including D.H. Lawrence, Richard Wright, Henry Miller, and Vladimir Nabokov, were prohibited along with the novels and nonfiction works of South African writers, including Todd Matshikiza, Bloke Modisane, Ezekiel Mphahlele, Lewis Nkosi, André Brink, Can Themba, and three of my own novels. Among the taboo subjects of everyday life was sexual relations between white and black. In the 1970s the films Jesus Christ Superstar, A Clockwork Orange, and The Canterbury Tales were prohibited.

In the new South Africa that was reborn in the early 1990s, with its freedom hard-won from apartheid, we now have the imminent threat of updated versions of the suppression of freedom of expression that gagged us under apartheid. The right to know must continue to accompany the right to vote that black, white, and any other color of our South African population could all experience for the first time in 1994. But since 2010 there have been two parliamentary bills introduced that seek to deny that right: the Protection of State Information Bill and the Media Tribunal.

The Media Tribunal is intended to apply to members of the press, both journalists and newspaper owners. It questions the powers of the press’s existing ombudsman and the Press Code (both of which can already be used to challenge whether an article should be published). If established, the tribunal will require journalists to submit to it the subjects they intend to investigate or have investigated and will write about. They must inform the tribunal of these subjects so it can decide whether they pose a threat to state security.

The subjects they must submit to the tribunal are not confined to obvious matters such as defense; military information is already protected by the Constitution from disclosure. Under the new tribunal, any government official, of whatever rank, may charge that the gathering of information pertaining to his or her activity should be an offense.

Moreover, there is an additional gag that can be used to shut any citizen’s mouth, as well as that of the press. This gag is made possible by the wide and detailed definition of security in the Protection of State Information Bill. The bill was passed in the National Assembly last November despite eighteen months of public protest against it by journalists and organizations of civil society. The Secrecy Bill, as it is known, specifies prison sentences for whistle-blowers who expose the rampant corruption by individuals in government, industry, and finance. Recent losses to the state through corruption are more than 30 billion rand a year. The protests against the Secrecy Bill will continue during this year. Civil society organizations, the media—and significantly, the Congress of South African Trade Unions (COSATU)—plan to jointly convene a summit meeting against it.

The government is now using various tactics to “accommodate” wide protest against the bill. Public hearings have been held. Separate submissions of dissent were made by eighteen different organizations including COSATU, the Nelson Mandela Foundation, the Legal Resources Centre, the Open Democratic Advice Centre, and the S.A. National Editors Forum. All were addressed to the National Council of Provinces multiparty committee to which the bill had been sidelined after it was passed by the National Assembly in November of last year. The day it was passed was dubbed Black Tuesday in public protests.

The Secrecy Bill has been and continues to be seen as an obvious means of concealing the corruption that has become a way of South African life for many, from high-placed members of the government down to menial officials. The tender—or bid to carry out government enterprises—has become the currency of much of this corruption. After the government calls for bids on projects from submarines to public buildings, the successful bid gets approved in return for bank deposits that end up in the back pocket of the official who has the power to award the deal. Sometimes the deposit is made to a firm where the wife of the awarding official is a partner. Some nosy person may subsequently reveal that the official himself benefited.

COSATU, which along with the South African Communist Party and the Democratic Alliance is a member of the parliamentary opposition to the ANC majority, gave what a newspaper called a pummeling to the bill in Parliament. The “Corruption Watch” launched by COSATU described in detail how the bill would undermine the fight against corruption. COSATU’s director of alternative information and development said that the government’s response to “deepening poverty and inequality, faltering social cohesion” was

rolling back human rights…. The Secrecy Bill is merely one of a much bigger and problematic effort to centralize power in the security cluster of government.

 

He was interrupted by MPs objecting to “political and offensive remarks”—one of them saying, “I am not prepared to listen any further to what he has to say if this is his line.” The advocate George Bizos, who defended Nelson Mandela during his apartheid treason trial in 1963, predicted that “if this bill is passed in its present form there will be a long queue of advocates to take the president and minister of state security to court. And it will be a never-ending queue.”

In the past the Constitutional Court has referred laws back to legislators because they had not been subject to sufficient consideration. The government arranged a series of open public hearings on the bill to meet this democratic requirement. But the showcase of hosting the hearings has been used to allow MPs to express vociferous animosity toward the representatives of national protest organizations attending them. One of these organizations, the Right2Know, has gathered statements from members of the public that they were obstructed and harassed when they spoke up at a public hearing. The Right2Know group also has asked for clarification about whether Parliament paid for public transport so that selected people could swell the ranks favoring compliance.

Two South African attorneys, Daria Milo and Avami Singh, remind us of an example familiar to Americans. Top-secret Pentagon Papers released to The New York Times and The Washington Post in 1971 revealed the deliberate expansion of attacks by the US in Vietnam and the systematic lies that four presidential administrations had fed to the public and Congress regarding the war. If the Protection of State Information Bill had been in force in the US, the attorneys said, it “would be a brave editor who would have risked publication.”

The bill calls for the following prison sentences:

Minimum 15–25 years for offense of espionage by a person who knows or ought reasonably to have known [the person’s actions] would directly benefit a foreign state.

Maximum 25 years for receiving information that one knows or ought reasonably to have known would directly or indirectly benefit a foreign state.

Maximum 10 years for harboring or concealing a person such as a confidential source.

Maximum of 5 years or a fine for disclosing classified information.

Maximum 5 years or a fine for failing to report possession of classified information (even if acquired before the bill comes into force).

 

The first item on the list, espionage, would be an offense in any country. As for the second, however, there are international trade agreements that surely will benefit both a foreign country and the home country, and otherwise would not have been made. Yet receiving information about such agreements is now a major crime.

The right to know would beyond question be virtually gagged for the people of South Africa by the bill’s censorship strictures on the press, both newsprint and other media. But the Secrecy Act also applies anywhere, and by any means, where human concerns and convictions are expressed; it can be used to stifle moral debates about our culture, our complex history, and our present situation. It is appalling to think of the opinions and actions that inevitably will be seen as transgressions of the deafening silence imposed by the bill. Decisions of the government could be hidden from the public under the bill’s parliamentary edict of secrecy. The bill, for example, could stifle the right to explore in public the effects of the new regime of secrecy itself, whether by characters in the theater, or in reflections on our society expressed by characters in novels and stories.

Some serious pragmatists are for accepting the bill but only if issues in which the “public interest” is recognized as legitimate can be excluded from it.

President Jacob Zuma has his own manipulative tactics to ensure that the bill gains legal acceptance. Now he intends to seek changes to the Constitution—recognized internationally as one of the world’s best—on the grounds that what he’s christened the “Second Transition” of the country requires new protection of the state. The first was transition from apartheid; now, he claims, a second is needed for realization of the “Better Life,” in freedom. As if to respond to recent publications emphasizing the supremacy of the Constitution, the need for judicial independence, and the separation of powers between the state and the courts, President Zuma has come out with: “We don’t want to review the Constitutional Court, we want to review its powers.” A few months earlier he complained that the powers of the courts cannot be superior to the powers of Parliament because political opponents should not be able to subvert the popularly elected government by using the courts to “co-govern the country.”

Concerning the powers Zuma now wants, we have the statement of Raymond Louw, the president of the South African National Editors Forum. He has quoted Pritzman Mabunda, president of the Black Lawyers’ Association, who said that Zuma’s “only way is to divorce the current constitutional democracy and remarry parliamentary sovereignty.” Louw explained that

this means parliament would be the ultimate arbiter of judicial decisions…the majority party in parliament would have the power to decide on jurisprudence on political grounds rather than the rule of law….

 

But I don’t see Zuma climbing down. He cannot interfere with the powers of the judiciary directly because he does not have the required two-thirds majority in parliament to bring this about by constitutional change. That means he has to turn elsewhere. The most obvious move is to look to the…Judicial Service Commission, the body that nominates judges which Zuma appoints…. It [is] estimate[d] that the [ANC] has 14 potential votes among the 23 members composed of judges, advocates, attorneys, members of Parliament and National Council of Provinces…. The Constitutional Court is the last line of defence to preserve press freedom—indeed all our freedoms.

 

This is the cliff-hanger in which, as I write, we South Africans are now opposing the Protection of State Information Bill and its ancillaries. The final hearing on the bill, which will decide whether or not it becomes law under which we must exist, is set for May 17. Meanwhile there’s a twist of irony in President Zuma’s latest political showmanship. He has set up an inquiry into the corruption blatant among us, while his own long and repeatedly delayed case, in which he is charged with corruption, is about to be heard despite inspired legal dodges to get it dismissed yet again.

I actively supported the African National Congress during the liberation struggle against apartheid; I continue to support the ideals on which the ANC was founded.

I am among the South Africans who believe that the bill must be rejected in its entirety.

If it is passed into law, it is the intention of the Democratic Alliance, the Congress of South African Trade Unions, and the South African National Editors Forum to bring a case against it in the Constitutional Court.

The airing of ideas releases pressures which otherwise might become destructive…. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart.

—Justice William O. Douglas (dissent in Dennis v. United States, 1951)

 

 

—April 24, 2012

 

 

 

Open Data and the City

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Open data is becoming a very popular discussion point for government and citizens. As a method for advancing transparency, this is definitely a positive sign. At the Code for South Africa Open Data Unconference hosted on 30 June 2014, Tim Harris of the City of Cape Town used the event as platform to introduce the City’s draft open data policy as a step toward making the discussion a reality in practice. Sadly, this draft policy represents in truth the problem of political actions failing to address real needs.

ODAC made a submission on the very day Harris spoke detailing several serious problems with the policy. While the full submission is a somewhat detailed examination of potential shortcomings, there are a few key points the are worth highlighting – the main being the establishment of an entity that would vet data data sets for release, and thus in practice create a major funnel through which little data would flow.

The drafters would have been well placed to begin the drafting process by first resolving two fundamental questions: what is the point of developing a policy, and what is the point of open data? Without these answers at the forefront, what has been created is a strange mishmash of concerns that seems to be doing the direct opposite of its original good intentions.

To address the first question, a good policy capacitates administrative actors to fulfill their roles efficiently and guide their actions rationally. In the context of open data, this means capacitating officials to identify open data in a principled manner, and release that information in a way which is useful to citizens – all while being guided by the constitutional advancement of access to information enshrined in section 32.

Yet the policy fails to provide real guidance, and in fact omits to define ‘open data’ at all. Principles of openness and transparency from a rights perspective barely feature, and practical guidance as how best to make data open i.e. how to make it useable, shareable and distributable, is just totally omitted.

In the same breath, it removes the power to release open data from the administrators who would be best placed to do it. Those in control of the data are forced to relinquish the power to make it open to an Open Data Steering Committee that only meets once a quarter. And the original data sets identified for release are by no means ambitious.

Yet they have done one fundamental thing right: and that is by beginning to take action on popularly spoken words. It is a step toward actualising open data, though perhaps not a big step. Or even an effective step. At least though there is a policy that can get us talking about the realities of how to make data open and useful to the public, instead of repeating the same tired words about how it might be a good idea, some time later.

Download the City's Draft Policy.

Download ODAC's submission.

By Gabriella Razzano, Head of Research at ODAC

BREAKING: Support fund for Alide Dasnois litigation

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Former Cape Times editor Alide Dasnois has now been dismissed as an employee of Independent Newspapers.

“We believe that the dismissal of Dasnois, who has worked on five of the Group's publications, on three of them as editor, and who was awarded the 2014 Nat Nakasa award for courage and  integrity in journalism, has created a chilling effect among the editors and journalists in the Independent Group.” said Alison Tilley, of ODAC.

In December 2013 Alide Dasnois was removed from her post as editor of the Cape Times and  offered a position  as the editor of a different publication within the Group. 

The Group then took steps to terminate her employment relationship with it by instituting a disciplinary hearing which took place in May.  She was charged withmultiple charges, the most  significant being the decision to run a story about a Public Protector report on Sekunjalo – the new owners of the Independent Group and therefore the Cape Times - as a front page lead on the morning after  the death of Nelson Mandela. The Public Protector found, among other things, that Sekunjalo had benefitted from an R800 million a year government tender which was improperly awarded. She has now formally been dismissed.

Independent Newspapers says on its web site that it publishes more than 30 daily and weekly newspapers in the country’s three major metropolitan areas, claiming aggregate weekly sales of 2.8 million  copies and  48% of the total advertising spend in the paid newspaper market (more than twice that of any other newspaper group). 

In deciding to dismiss Dasnois the chairperson of the hearing, Independent Newspapers director Takudzwa Hove, made this finding: 

 “lt has also been demonstrated that the decision not to lead editorially with Mandela's death was most probably influenced by personal feelings against her new employer hence the publication of the Public Protector's report as a lead story on the day. lt's been demonstrated in testimony that there was a deliberate attempt to tarnish Sekunjalo and your actions plus those of other senior members and reporters ...brings to question your integrity and that that of some senior members of the Cape Times newsroom. This demonstrates lack of professional judgement and integrity in that you failed put aside personal feelings ahead of the interests of the readers of the newspapers by not running the most newsworthy story of the day.”

 The Cape Times published a special four page "Mandela" edition on that morning, containing news about his death, photographs and tributes. The front page of this Mandela edition was described by Time Magazine to be one of the best "Mandela" front pages in the world.

Dasnois's litigation has initially been supported by attorneys and counsel acting pro bono.  Some funding will be provided by the Media Legal Defence Initiative, but more will be needed to successfully litigate the matter. 

 "We believe this case is important in establishing the rights of editors and journalists to publish what is in the public's right to know. It will be an important test case around the balancing of the rights of media owners, and media workers. If we can find 100 people who can each give the Dasnois fund R1000, we can seek matching and other funds from donors, and have good prospects of running a solid case." said Tilley. “ODAC, a registered non profit, will facilitate collecting funds for the litigation. ODAC works in the areas of access to information and whistle-blowing, and believes that the right to freedom of expression in the workplace is key to transparency and accountability, in government and in business. ”

 Dasnois has instituted legal proceedings and will be referring a case to the Labour Court regarding what she will allege is Independent Newspapers' discriminatory conduct and violation of her right to free speech and editorial independence. She has been advised by her lawyers not to talk directly to the media at this stage of proceedings.

Bank account details:

Open Democracy Advice Centre

Reference Dasnois

Standard Bank

Acc no: 274 464 160

For more information call Alison Tilley from ODAC, 071 671 8654. We are a registered non-profit organisation.