Corporate Governance and Social Responsibility: input from Open Democracy Advice Centre

JOINT AD HOC COMMITTEE ON CORPORATE GOVERNANCE
6 December 2005
ACCESS TO INFORMATION AND WHISTLEBLOWING: BRIEFING BY OPEN DEMOCRACY ADVICE CENTRE (ODAC)

Document handed out:
Open Democracy Advice Centre (ODAC) presentation (email info@pmg.org.za for document)

SUMMARY
The Open Democracy Advice Centre said that South Africa was the only country that had tackled the issue of access to information in the private sector because power was not only held by the State. This right was contained in the constitution and legislation, but the question was if it was being used at a national level. They had just released the results of a survey it had undertaken on the access to information. What they learned about South Africa that was very frustrating, was that many people only received silence after asking for information despite the constitutional and legislative structures in place that gave a right to information. They found that Government structures and their internal processes had become unjustified limitations to people’s access to information. From about 120 requests for information, about 62% were ignored and about 3% were rejected.

Another area of concern was that the Access to Information Act compelled companies to have Access to Information Manuals. The ODAC had been inundated with calls from concerned business owners as they simply did not have the capacity to draw up their own manuals by the deadline in August. Section 79 of the Access to Information Act compelled the Rules Board to formulate a set of rules for courts to follow on matters concerning the access to information but since the Act came into force in 1991, these rules have not been drawn up. The Protected Disclosures Act was brought into operation in 2001 and there had had been a lot of work done by the Public Service Commission and the Department of Public Service and Administration to familiarise people with its provisions. But there were many case studies were people were dismissed, suspended or had criminal charges brought against them.

MINUTES
Ms A Tilley, ODAC's Chief Operating Officer, said that there were two aspects of the Peer Review Mechanism that they wanted to draw to the attention of the Committee. The opening process of the Peer Review was the questionnaire. The questionnaire itself was a matter of discussion as it was not a ‘one-size fits all’ solution as individual countries had their own issues to deal with. The ODAC had initiated a process where they assessed the questionnaire to see if it covered the areas it should especially in the areas of access to information and protected disclosures.

Access to information had become an increasingly important governance issue in Africa in places such as Malawi and Nigeria, as well as being a constitutionally right in South Africa. The right to access to information in Africa was less about being the right of the media as in the United States, but was a leverage right, part of an individual’s development. In South Africa, this right applies when people go to their municipalities and ask about plans that affect them and why certain decisions were made for example.

In Article 33 of the United Nations Convention Against Corruption, the right to protection for ‘whistle-blowers’ is enshrined. States must legislate protective laws to guard potential ‘whistle-blowers’ to reduce corruption. South Africa was slightly ahead in this area and had such a law already. The ODAC said that corporate governance was not isolated from these issues. The important issue was that these areas had to go beyond merely legislated for. There had to be policy statements and decisions made to ingrain them all the way down to local government level. South Africa was the only country that had tackled the issue of access to information in the private sector because power was not only held by the State. This right was contained in the constitution and legislation, but the question was if it was being used at a national level. A new question that had to be introduced was to what extent people were protected when they raised concerns internally within a company or to regulators.

The ODAC had just released the results of a survey it had undertaken on the access to information as part of 14 country study including South Africa. What they learned about South Africa that was very frustrating, was that many people only received silence after asking for information despite the constitutional and legislative structures in place that gave a right to information. Mr M Dimba, a Training Consultant, said that the main finding from the study was that older, illiterate, African women did not receive any of the information they wanted after making about 20 requests. They found that Government structures and their internal processes had become unjustified limitations to people’s access to information. From about 120 requests for information, about 62% were ignored and about 3% were rejected. There was a lack of clear guidelines for Government officials and the problem lay in the implementation of the laws.

Ms Tilley said that the South African Human Rights Commission (SAHRC) received all the reports from Government Departments about how they handled requests for access to information and they had difficulties receiving these reports. The Commission had to resort to writing to the Speaker of Parliament to compel some of the Departments to submit their reports. Year-on-year performance on reporting was getting worse even though there were more requests for information being made. The ODAC suggested that a dedicated agency located inside or outside the SAHRC be established to resolve disputes about the access to information as going to court to address the issue of silence was not desirable. The ODAC had also approached the Public Protector for assistance, but the Public Protector said that this was outside the scope of his office and referred them back to the SAHRC. There had been attempts to train some Government officials by the SAHRC, but the success of this was not visible yet.

Ms Tilley said that another area of concern was that the Access to Information Act compelled companies to have Access to Information Manuals. The ODAC had been inundated with calls from concerned business owners as they simply did not have the capacity to draw up their own manuals by the deadline in August. The ODAC alerted the Ministry of Justice about this. A manual should not be necessary for small businesses. The intention of the Act was to deal with larger companies that employed a lot of people and that engaged in practices that were potentially dangerous to the community or environment. The Ministry of Justice then passed a temporary exemption for small businesses, but this was passed a few hours before the deadline and so did not really help. The experience was very frustrating. The exemption had to be made permanent. The Ministry had made a favourable change in the fees for requests of information which was welcomed.

Section 79 of the Access to Information Act compelled the Rules Board to formulate a set of rules for courts to follow on matters concerning the access to information but since the Act came into force in 1991, these rules have not been drawn up. More guidance was needed on the disclosure of information in different categories. There was information that could be asked for simply by requesting it, and there was other information that required an application through the Access to Information Act. However, Departments did not have any guidelines about how to process both requests in terms of ensuring consistency. The ODAC had had encouraging discussions with the SAHRC about the creation of the Deputy Information Officers Forum which would be another way around the problems of inconsistencies in the processing of requests.

She said that the Protected Disclosures Act was brought into operation in 2001 and there had had been a lot of work done by the Public Service Commission and the Department of Public Service and Administration to familiarise people with its provisions. But there were many case studies were people were dismissed, suspended or had criminal charges brought against them. The Act may help to keep ‘whistle-blowers’ in their positions but the problem was in the institutions. They did not seem to understand the point of the legislation. The Law Reform Commission was looking at its provisions as there were issues with the amount of damages that could be awarded for ‘whistle-blowing.’ There had to be more protection. It was a law that required leadership in its implementation and importance as ‘whistle-blowing’ could involve complex legal and societal issues.

Discussion
Mr L Laubschangne (DA) asked if there was a weakness in the legislative process since they did not require an impact assessment study before each law is passed. This led to unintended consequences such as small companies having to conform to provisions not really meant for them.

Ms Tilley said that if there was a detailed analysis of what each law involved, the courage to pass these laws may have been lacking. The problems arose because people did not pay enough attention at the implementation of the laws. Sometimes there was too much attention paid to Regulations for instance. This also showed how important the oversight role of Parliament was and their ability to have wide-ranging enquiries about implementation.

The meeting was adjourned.