South Africa’s history is marred by secrecy and an oppressive Apartheid government. Our transition to democracy brought with it a strong drive for progressive constitutional reform, and in many senses South Africa has led the way in advancing democracy in the region. However, recent legislative and political actions of the government have shown a worrying push toward promoting secrecy.
Well-structured legislative transparency models do exist in South Africa in which citizens can exercise their right to information. Section 32 of our Constitution explicitly guarantees the right of access to information held by the state or held by another person if it is required for the exercise or protection of any rights. The section requires the National Legislature to enact legislation to make the right effective. That right is then given effect through the Promotion of Access to Information Act 2 of 2000. There is also supporting legislation for this law seen in the Promotion of Administrative Justice Act and the protected Disclosures Act which create a strong transparency landscape. The continuing existence of the retrogressive Protection of State Information Act (and its inadequate replacement), however, continue to mar the environment.
Regardless of a relatively sound legislative foundation, implementation of our laws is the source of significant problems for access to information in South Africa. As noted, some of these implementation issues could be alleviated from legislative intervention, but there does not appear to be the political will to make such necessary alterations.
There are other laws, within the environmental paradigm, which contribute to our access to information landscape. However, PAIA means that there is not a broad selection of laws with access to information provisions, in spite of a significant number of laws which govern the environmental sector. Sectoral laws undoubtedly can be used to forward access to information aims. While the laws may generally relate to access to information laws, either promoting or negating the principle in their content, their consideration of access tends to be cursory. Few provide established procedures for accessing information, seemingly relying on the existence of PAIA to fill any gaps. This lack of procedure – enhanced by the lack of institutional structures for sectoral laws – severely diminishes their efficacy. As our citizen requester noted in his use of the laws:
“I believe most information is not accessible to average citizens after this project.”
The research has been valuable though in at least outlining laws and procedures which provide an additional avenue for access, though these avenues are not more effective than those that currently exist in South Africa.
In investigating the sectoral approaches it was clear that positive responses from government tended to be a result of political will and proactive disclosure, in a manner that was more easily accessible to the citizen than other bureaucratic processes. Proactive disclosure is not as advanced in South Africa as it should be – there is strong inconsistency and inaccuracy of the information that is provided. Only examples of each category are in fact proactively released, rather than the majority of such information types. However, it presents an interesting avenue for advocacy intervention moving forward. This is supported by the African Platform of Access to Information declaration, which states in section 6:
“Environmental Information: Governments and inter-governmental organisations should increase their efforts in implementing Principle 10 of the 1992 Rio Declaration on the Environment and Development on the right of access to information, public participation and access to justice on environmental issues. Governments should adopt appropriate legislation and regulations to promote access and proactive release of environmental information, guarantee openness, fight secrecy in institutional practices, and repeal that which hinders public availability of environmental information. Governments´ capacity to supply environmental information and civil society organisations´ demand for such information, as well as engagement in decision-making processes and the ability to hold governments and other actors accountable for actions affecting the environment should be strengthened”.
Further, weaknesses in terms of the avenues for recourse (weaknesses that were reinforced by the low scores in terms of complaints mechanism infrastructure) also support advocacy which looks at advancing access to information outside of bureaucratic structures, while at the same time advocacy should enhance implementation of laws at the same time. Open data and access to information should move hand in hand. Proactively provided open data means that the ordinary citizen does not need to struggle to access everyday pieces of environmental information and can avoid having to participate in a difficult and frustrating formal process; however, improving implementation of access to information laws will provide an avenue for accessing more controversial and discrete forms of specific information. This is particularly relevant given the future of South African legal infrastructure which will see the creation of an Information Regulator to oversee access to information laws.
These results will now inform an influence strategy to be undertaken for the real advancement of access to environmental information. These next steps have been developed with a full consideration of socio-political happenings in South Africa over the last 18 months. Originally, our hypothesis for the research envisioned a particular influence strategy. However, a number of opportunities arose during the period of the project which we then used in order to forward the outcome of an environmental portal containing environmental information for activists, and the outcome around more transparency in the area of mining and water licenses, and EIA assessments.
We then engaged with government as part of the TAI 3 Demands exercise, which we later reported on at the TAI annual meeting held in Rio in June 2012. Instead of developing a set of new demands, TAI-SA felt that the 3 Demands exercise should be designed as such that it supports current campaigns for access to information and transparency in South Africa. It was for this reason that two of the demands related to the amendment of the PAIA to provide for the establishment of the office of the information commissioner, and the other related to the amendment of the whistleblower protection legislation to provide for stronger protective measures for whistleblowers. A call was made for submission of proposals for more demands and the environmental information transparency portal emerged as a popular demand. The demand for establishment of the environmental information transparency portal was vitally included in the government’s Open Government Partnership (OGP) commitments.
However, progress on the Open Government Partnership has been incredibly slow. It is vital that South African civil society focuses significant energy on re-invigorating the OGP process in South Africa to advance the particular needs for open environmental information. Consistent communication with these research results, however, have been able to determine that the issue of the portal has been referred to the Department of Environmental Affairs, and that the State Technology Agency (SITA) has been briefed to take forward this initiative. It is clear that the portal will not be up and running in 2012. Realistically, this will only happen in 2013. The full results of this report, and its plain language version, will thus be made available for distribution in 2013.
As an assessment of potential risk factors for advocacy work, the research team has also considered how to take our research results that support open data and proactive release initiatives, even if their continues to be the low political will for good governance detailed throughout our work. We would propose as an alternative to run a hackathon, instead of meeting with government, whereby we assemble data sets that are publicly available in relation to environmental matters on a platform and then provide this prototype to facilitate the OGP commitment.
(i) By 2012 ordinary activists will be able to access easily understood web based environmental information including permitting, natural resource management and enforcement information. We will increase the capacity of activists to engage with land use issues, including land use and land management.
(ii) By 2013 the South African government and/ or private corporations (the five biggest companies) will create an easily accessible and searchable on line database of water and mining licenses held, and EIA assessments.
(iii) By 2012 we will increase publicity and use of South Africa existing ATI provisions in sectoral laws, and where these provisions are non functional as identified in this research, we will seek to introduce new transparency provisions in laws, and improve practice.
Publish edited version of research report in South Africa, and publicise results through media, and ODAC website, Twitter feed and Facebook page. The publication will take the form of a plain language guidebook for the public on access to environmental information in South Africa.
Have a first workshop with sectoral partners (NGOs, community-based organisations, unions) to discuss results of the research (full report), and consult on a way forward.
Publish edited version of research report in South Africa, and publicise results through media, and ODAC website, twitter feed and facebook page.
Follow up on current correspondence with companies, asking them to improve their transparency in relation to the mining and water licences, and publicise any good results as best practice.
Media strategy publicising failure to make the information available.
Meet with companies engaged in best practice, and explore report results, and encourage them to put the relevant information on their website.
Use Facebook and Twitter streamsfor campaign, in order to allow campaign members to stay updated on developments, and communicate their own activities.
Develop litigation strategy with partners: find case where blindingly obvious information should be released.
Develop an environmental information portal, as a civil society initiative, by running a hackathon, where environmental data sets are made part of a portal.
Hold second civil society workshop to discuss progress in campaign.
Apathy around social change – belief in civil society that advocacy is not working.
Focus on other issues – COP 17 will distract all stakeholders at the end of 2011.
Failure to participate by civil society is a risk we must consider.
DMR may not want to meet with us, and we may have to use indirect messaging.
The secrecy bill may be passed, and we will have other issues to deal with.
Centre for Environmental Rights – local environmental litigation outfit.
PAIA Civil Society Network – ATI champions in South Africa.