1. Introduction
The Open Democracy Bill is a central and important piece of legislation: not only must it give effect to the constitutionally entrenched right of access to information, but it also is the one piece of legislation which will give life to the aspiration of open and accountable governance. The South African Human Rights Commission welcomes the tabling of the bill, and its consideration by Parliament.
Constitutional Principle IX required provision for "freedom of information so that there can be open and accountable administration at all levels of government". Section 32 of the Bill of Rights provides for access to information and gives life to the constitutional principle.
While open and transparent government "government in the sunshine" - and the free flow of information is a noble and praiseworthy notion, the drafters of the Constitution were mindful that access to information needed to be legislatively regulated, and that such legislation could include "reasonable measures to alleviate the administrative and financial burden on the state". The final right is suspended until the legislation is passed, and parliament was given three years to generate the legislation, which is currently before parliament.
The South African Human Rights Commission ("the Commission") has two interests in the bill: on one hand it wishes to be satisfied that the bill in fact gives effect to the right; on the other, the Commission is tasked with supporting, monitoring, educating and training around the bill, and the Commission wishes to be clear on its mandate, and its ability to deliver.
The Commission is in the process of planning a conference on the issues in this bill, and the administrative justice bill, which will take place in July / August of this year, before deliberations on these bills take place. The conference would be open to all who have an interest in the bill, and would be particularly include members of this committee. The purpose of the conference would be to generate a detailed and comprehensive submission to parliament, in addition to partly fulfilling the recommendation in the bill that the Commission consult broadly on the possibility of extending the legislation to include access to privately held information (paragraph 3, Memorandum to the Bill).
The Commission understands that the bill will be subject to further discussions, and possibly further hearings, during the parliamentary session following the elections. The conference report, and any further documentation will be made available in order to assist and facilitate these deliberations. In the interim, the Commission will restrict its comments to broad areas of concern.
The broad areas of concern are as follows:
The horizontal application of the right to information
The "give effect to" clause & the timeframe
Enforcement mechanisms
Whistleblowers
Drafting style
The role of the Commission as set out in the legislation
2. The Horizontal Application Of The Right To Information
Section 32 of the Constitution provides for the right to information. There are 2 components to this right:
a) The right to any information held by the state
b) The right to any information held by private bodies / persons which is required for the protection of any right.
The Bill as it stands makes provisions for mechanisms to obtain information from the state the so-called vertical application of the right as between citizens and the State. However, the second component, the so-called horizontal application of the right is not fully provided for in the bill.
The bill does provide for access by individuals to information about themselves held by private persons, the correction of this information, and protection against the abuse of this information. However, this access is limited to information held about the requester him or herself, as opposed to any information, which is the ambit of section 32.
The drafters of the bill acknowledge that the legislation does not give full effect to section 32 (1) (b). In paragraph 3 of the Memorandum to the bill, they suggest that the Commission investigate and consult in order to make recommendations " regarding legislation which would give full effect to this right ". The conference planned by the Commission later this year will consider this aspect very closely, with a view to making workable recommendations to this committee.
3. The "give effect to" clause, and the time frame
The Commission notes that the Constitutional mandate to parliament in section 32(2), is to pass legislation which "gives effect" to the right as set out in section 32(1) of the Constitution. Section 23 of Schedule 6 of the Constitution requires that the legislation be passed before February 2000.
In the certification judgement, the Constitutional Court accepted the interim right to information as set out in section 23 of Schedule 6, on the basis that Parliament needed time to provide the necessary legislative framework for the implementation of the right. The court noted that this kind of legislation often involves detailed and complex provisions defining the nature and limits of the right, and the requisite nature for its enforcement.
It is unfortunate that Parliament has so little time to consider this legislation. In addition to the short amount of time available, this committee has the additional pressure of having to consider two other critical pieces of legislation, the Administrative Justice Bill, and the Equality Legislation. Given the time and capacity constraints, concerns have been raised about the ability of parliament to finalize the legislation before the three-year time limit expires in February 2000.
We trust the commitment and capacity of this committee, and any other committee which will take its place after the elections. However, in the event of the legislation missing the deadline, it is important that there is clarity on what the Constitutional position is, and there have been differing opinions on what this would be. Following the judgement of the Constitutional Court in the certification of the final Constitution (reference), it was stated as follows:
"... if the contemplated legislation is not enacted timeously, the transitional arrangement in Schedule 6, as well as the section 32(2), fall away and the suspended section 32(1) automatically comes into operation."
This provides clarity on the situation, although there are views that failure to pass the legislation in time will result in the version of the right set out in section 23 of Schedule 6 being made final.
It is clearly preferable for the legislation to be passed, so as to give effect to the right to information and to ensure the wider purpose of the constitutional principle of open and accountable administration at all levels of government. To have the situation where the general, but undefined right comes into being without legislation has two main pitfalls:
For the state:
The Constitution places the legislature on terms to pass the legislation within the three-year period under the sanction of unqualified implementation. The legislation, if passed timeously, may provide for "reasonable measures to alleviate the administrative and financial burden on the state". Such measures are important and desirable to make section 32 a workable right, without ambushing the ordinary functioning of government departments. Legislation passed subsequently would need to rely on the general limitation clause, should it wish to set out exemptions to the right.
For citizens:
A bald right to information, without clear mechanisms for access, principles of refusal, and dispute resolution mechanisms, is a hollow "paper" right. The details governing freedom of information belong in legislation, not in a Constitution, and without the details in an accessible legislative framework, the right will not be utilized by the public.
In addition to this issue, is the question of whether legislation which does not cater for the horizontal application of the right will amount to legislation which "gives effect" to the right, which is required by section 32(2), and the Constitutional status of legislation giving effect to only half of the right, will be questionable.
4. Enforcement mechanisms
The bill sets out internal appeal procedures. Should these be exhausted, and an aggrieved applicant (or respondent) remains dissatisfied, the bill sets out the High Court as the forum for relief. Apart from certain procedural changes, such as an automatic presumption of urgency and a greater discretion as to costs, proceedings follow standard High Court procedure.
The Commission believes that the High Court is an inappropriate forum. It is inaccessible, both geographically, and in terms of costs, and it does not present a speedy remedy. It also lacks flexibility around issues of procedure, and as a result many matters may be diverted on questions of procedure, thereby preventing a development of sound jurisprudence, particularly on the question of the exemptions. This is particularly relevant to access to information, where there is no existing precedent, and a body of jurisprudence needs to be developed from scratch.
Effective and appropriate enforcement mechanisms are crucial to the successful implementation and functioning of the bill. They play a critical role in facilitating the culture change which is necessary to move from a closed an unco-operative beaurocracy, to open and transparent governance. Following implementation of an access to information system, there is bound to be a large number of appeals owing to a limited understanding amongst information requesters and providers, and a system which relies on an inquisitorial system, rather than the adversarial system, is likely to be more effective.
There are various options which could replace the use of the High Court, and the court system at all. These include the creation of a tribunal system, or the use of an ombudsman or Information Commissioner to resolve disputes. These options need careful consideration, with emphasis on the short-term cost implications of setting up new beaurocracies, and the long term cost implications of clogging up the court system even further.
Discussions around alternative enforcement mechanisms need to take into consideration developments in other constitutional legislation, most notably the administrative justice bill, and the Equality Legislation.
5. Whistleblowers
Part 5 of the bill provides for the protection of whistleblowers. These kinds of provisions are important and necessary. However, attention needs to paid to whether these provisions are best placed in a bill of this nature. Whistleblowing and freedom of information are different issues. The former relates to anti-corruption strategies, and the latter to open government and the responsibility of government.
In addition to the context of the provisions, the four sections in the bill are too brief and much more clarification and detail is required.
6. Drafting Style
The drafting style of the bill is unnecessarily detailed and tortuous. The irony of this drafting style is that it obscures the subject matter of the bill, thereby hindering access to the information of the bill.
This is particularly so in the sections dealing with the exemptions, which is probably the most important substantive area of the bill.
It may be necessary to contract the services of a "plain language" expert to modify the drafting of the bill to make it accessible to the person on the street. This was successfully achieved in the Bill of Rights, and did not detract from the essential content of each section.
7. The role of the SAHRC
The bill provides the Commission with a wide range of functions. These may be found in sections 5, 27, 43, 63, 66, 77, 82 and 83, and can be summarised as follows:
The annual publication of a guide on how to use the act, in each official language, and disseminate the guide (section 5);
Receive reports annually from governmental bodies setting out certain statistics regarding requests for information (section 27);
Make determinations regarding provision of information already open to the public (section 43);
Receiving disclosure by whistleblowers (section 63);
Preparation of a notice setting out the procedures available to whistleblowers, for circulation in government bodies (section 66);
Litigate on behalf of illiterate of disabled individuals, where there are important matters of principle (section 77);
Additional functions set out in section 82:
- annual review of the Act
- recommend amendments to Act
- monitor the administration of the Act
- develop & conduct public education programmes
- encourage government and private bodies to develop their own programmes
- promote provision of information by government
- assist any person wishing to exercise a right in terms of the Act
The Commission is also granted the following powers:
- Making recommendations to private or public bodies regarding the administration of the Act
- Train information officers
- Consult with public and private bodies regarding problems with the Act
- Receive advice or proposals from public or private bodies
- Receive money to perform its functions
- Donate money to private bodies conducting education around the Act
- Request certain information from the Public Protector
- Inquire into any matter connected to the Act
Report annually to the parliament on the Act (section 83).
The Commission believes that it is appropriate for these functions to be allocated to the South African Human Rights Commission, as they deal with a protected right in the Bill of Rights, and many functions set out in the Bill can be synergised with existing projects. However, we are concerned that having been given the extensive mandate in the bill, that the Commission is financially enabled to deliver on that mandate.
Section 84 entitles the Commission to defray any expenses related to functions in terms of the Act. In addition, the Commission is entitled to receive money from any other source, which introduces the possibility of fundraising for specific projects. The Commission foresees that, in order to effectively deliver the mandate assigned to it in the bill, an increase in its annual budget will be required, and is in the process of developing this budget for inclusion in a further submission.
8. Conclusion
The Open Democracy is a groundbreaking and vital piece of legislation, which provides a concrete and specific realisation of a constitutionally guaranteed right.
The Commission wishes the bill speedy passage through parliament, with a view to its timely enactment.