Protected Disclosures Act Amendments

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- 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.

ATI developments in Africa signal progress

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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.

Appointment of the new Public Protector and Information Regulator

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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. 

Enquiries:        

Mukelani Dimba, Executive Director: ODAC (082 699 6586)

Alison Tilley, Head of Advocacy: ODAC (071 671 8654)

Driving Open Data to foster Accountability at Highway Africa

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As information becomes rapidly available, how can civil society make sense of it all? More importantly, how can civil society use the information to gain power and begin to hold those in positions of authority accountable?

This was the focus of a workshop run by the Open Democracy Advice Centre (ODAC) and Media Monitoring Africa (MMA) during the Highway Africa conference, held in Grahamstown recently. Highway Africa is an amazing event, which - while focusing on vital themes such as media freedom and Information and Communication technologies - has become the largest annual gathering of African journalists in the world.

Various technology tools have been built to not only enhance access to information but to also make it easier for users to interpret that information. During the workshop, two tools were showcased – WaziMap and Agenda Setter. The goal was not just to introduce new tools, but to showcase how technology and accountability fit together, and the active role civil society can play in ensuring a positive relationship between the two. So, what are they?:

“Wazimap, from the Xhosa word ulwazi for knowledge, is a joint project by Media Monitoring Africa and Code for South Africa that provides easy access to South African census and elections data.”

Agenda Setter is part of an “open source, easy-to-use toolkit of analytical software for African journalism observatories to keep media institutions honest, help improve media professionalism and promote quality journalism.” It helps users to track what journalists and politicians are tweeting about and compare gauge who between the two is setting the news agenda.

Attended by journalists and activists, the interactive workshop was divided into two segments – discussion and practical, with the former focusing on ATI and Open Data trends across Africa. The latter part was devoted to practicals - and practical skills learning kept the participants excited and invested:

 

This workshop is part of a broad series of activities ODAC will be undertaking over the next few months to contextualise the role of open data for accountability in the age of the Open Government Partnership. We will be completing this work with the assistance of Making All Voices Count and a variety of civil society partners.

Wellington Radu (MMA) and Levi Kabwato (ODAC) ran the workshop.

To track this specific workshop discussion, please see: #MMAODAC

SAA, whistleblowers and systems

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ODAC is pleased to note that Cynthia Stimpel, SAA’s group treasurer, who blew the whistle on financial irregularities at SAA, will be allowed to challenge her disciplinary hearing before an impartial arbitrator at the CCMA.

The experience of Stimpel in trying to blow the whistle replicates the difficulties experienced by many South African whistleblowers; she spent many months attempting to raise her concerns internally, with no resolution, before she was able to find external support. It was only through a systemised programme from the Organisation for Undoing Tax Abuse (Outa) that her disclosure became protected in practice.

Effective whistleblowing mechanisms are a key part of good governance.  A healthy open culture is one where people are encouraged to speak out, confident that they can do so without adverse repercussions, confident that they will be listened to, and confident that appropriate action will be taken.  For this reason ODAC has drafted a Code of Good Practice on Whistleblowing which in the form of questions and answers sets out the principles and practices of effective whistleblowing.  This Code will assist employees to raise concerns safely and responsibly  and assist employers to provide effective whistleblowing mechanisms. Clear and simple systems are a key step to providing an enabling environment in which whistleblowers can flourish, informed and protected.

Hopefully in the near future employees like Stimpel will have access to simple whistleblowing procedures and mechanisms provided for by their employers. It is vital for an open and accountable society that acts of accountability such as her disclosure are lauded, and see resolution, rather than be met with the contempt she originally experienced.

Download a copy of the Code here.