SOUTH AFRICAN CATHOLIC'S BISHOPS' CONFERENCE (SACBC)
SUBMISSION TO THE PORTFOLIO COMMITTEE ON JUSTICE ON THE OPEN DEMOCRACY BILL (B67-98)


23rd March 1999

1. The words open and democracy appear in various places in the Constitution of the Republic of South Africa (Act 108 of 1996). Often, they accompany each other; sometimes they are found alongside such concepts as human dignity, equality and freedom. Taken together, these profound notions underpin the Constitution, expressing the desire of the nation to move away from the secrecies and oppressions, the indignities and constraints of the past, towards a freer, more humane and more just future.

2. Given this, a statute with the title 'Open Democracy Bill' might be expected to achieve something more than simply effecting the right of access to state-held information. Regrettably, though, with the sole exception of the provisions relating to whistleblowers, the Bill fails to go beyond this point, as if an open and democratic society could be brought about simply by ensuring that citizens have access to state-held information. If the Bill is going to limit itself to dealing with freedom of state-held information then we suggest that the title 'Open Democracy' be put aside and that a title be found which more accurately reflects its limited scope.

3. That the present Bill is but a shadow of its former self is demonstrated by the fact that earlier drafts contained far-reaching provisions relating to open meetings of governmental bodies. Someone somewhere evidently took seriously the notion of an open democracy, realising that it consists of something more than the freedom to read minutes and reports after the fact. Unfortunately, the executive - under pressure from the administration, we may surmise - took fright at the thought of members of the public hanging around the corridors of power and having the temerity to want to be present while officials - paid by them and acting on their behalf - go about their business. So the open meetings clauses have been struck out, and with them much of the promise of this legislation.

4. This tendency to narrow the idea of open democracy can be seen as well in the absence of proper provision for access to privately-held information. Whereas the Constitution establishes that anyone, on their own behalf, or that of others or of the public in general, may seek to enforce a right (s38 of the Constitution), this Bill once again opts for the restrictive path, limiting access to privately-held information to those instances where the information sought is personal to the applicant. The Bill therefore not only fails to do justice to s32(1)(b) of the Constitution (which speaks of 'any rights', rather than personal rights), it once again shows itself to favour limitation and restriction, rather than openness.

5. The omission of the 'necessity of harm' exemption override is likewise indicative of the restrictive mindset that appears to have been responsible for the present draft. Previously, the assumption was one of openness: information should be given, even where it fell into one of the exempted categories, unless actual harm could reasonably be expected to follow. Now, these categories stand as legalistic obstacles to the flow of information, operative regardless of the unlikelihood of any harm actually resulting from the provision of information. The new assumption is thus one of closure. The only way remaining to prise open these categories is in terms of the public interest override (clause 44).

6. Concerning the matter of enforcement, it is hard to imagine how anyone could envisage the High Court as the appropriate forum for the adjudication of disputes around freedom of information. Surely the aim must be to encourage and facilitate maximum participation of people in the exchange of information, and to make it as easy as possible for them to have their disputes settled. The High Court - prohibitively expensive, time-consuming, formal - is a closed avenue for 99 out of 100 citizens. So, once again, whether by design or by oversight, a statute which is supposed to enhance openness instead perpetuates exclusion. Other possibilities exist, some of which have been mentioned in other submissions; these promote openness and accessibility and should be included in the Bill.

7. Apart from the content of the Bill, there is also serious concern about the process, specifically the fact that it has taken so long to be introduced. This Bill, along with the Administrative Justice Bill (so far only in draft) and the non-discrimination statute required by s9(4) of the Constitution (so far only in incomplete draft) has to be passed by 4th February 2000. In essence this means by the time Parliament rises at the end of this year, probably in November. Between now and then we have an election. New committees will be formed, and amidst the usual teething problems and logistical challenges the Justice Committee is going to have to attend to these three Bills, each of which is vital to the consolidation of our democracy, and each of which deserves maximum public participation. That these bills are inevitably going to be rushed through is cause for much regret, and the Committee would be performing a service if it could find out from the executive precisely why there have been such long delays when the deadline of February 2000 has been known for over two years.

8. The Bill is by no means a positively bad statute, or one with which we have principled problems. It makes a serious and largely successful attempt to provide for freedom of access to state-held information (although there is undoubtedly room for improvement). The problem lies more in what the Bill claims to do but in fact doesn't do. It doesn't satisfy the letter of the Constitution relating to privately-held information (s32(1)(b)); it certainly doesn't meet the spirit of the Constitution in engendering openness and transparency in government - on the contrary, it adopts a restrictive and exclusive approach to public participation; and, finally, by taking the impressive-sounding title 'Open Democracy Bill' it pretends to be something it isn't. The task of the Committee is to put back onto the skeleton that remains some of the flesh that the executive has stripped off over the last couple of years.

Mike Pothier
Research Officer.
March 1999