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ADVOCACY Powered By Docstoc
					                                                                          ADVOCACY                  4

     South Africa enjoys both a constitutional right to access to information and a gold-
     standard piece of legislation, the Promotion of Access to Information Act (PAIA), which
     gives effect to that right and is enforced by the South African Human Rights Commission
     (SAHRC). Yet although these instruments commit the government to responsive and
     participatory governance, it finds it difficult to translate its commitments into a reality,
     particularly at local government level.

     According to an ODAC/OSJI study in 2003/4, up to 64% of requests for information
     about service delivery go unanswered, while in the annual ODAC/SAHRC Golden Key
     Index for 2008, 60% of local institutions failed to respond to such requests. Systemic
     blockages of this nature have serious implications for national stability as well as the
     growth of a rights-based culture, and their gravity is underscored by other research
     undertaken into the service-delivery protests that have taken place in recent years.

     Unable to convert democratic gains into an ability to hold local government accountable
     for its successes and failures, numerous communities have expressed their frustration
     through protests instead of making use of processes that are ostensibly available to
     them. The protests are generally understood as a reaction to failures of delivery in
     particular service areas, but studies indicate that a key underlying factor is a lack
     of information about service delivery rather than the service delivery itself, a finding
     endorsed by the Public Service Commission in its 2008 report.

     Addressing problems of access to information is therefore an acute necessity, all the
     more so in the light of statistics by the monitoring agency Municipal IQ. In 2005 it
     recorded 35 protests for the year; in 2009, it advised that by the end of June there
     had already been 16 of them.

     Set against this backdrop, ODAC’s local advocacy addressed the following principal

     •   empowering communities to exercise their right to know, thereby galvanising local
         government to exercise its reciprocal obligation to service that right;

     •   ensuring appropriate implementation of RTI legislation across all levels of

     •   streamlining the litigation processes that are available as a recourse when requests
         for information are frustrated; and,

    •   campaigning for the formation of an adjudication body for resolving disputes about
        access to information.

    Empowering communities to exercise the right to know
    Our Outreach Programme into disadvantaged communities provided public training and
    education on PAIA, with the focus of the work being to enhance service delivery by
    broadening knowledge of the Act and encouraging its active use in order to make local
    structures accountable and responsive.

    Nine such programmes were conducted, and of them, five were run in partnership with
    Community Development Workers (CDWs), people intimate with the community and the
    difficulties of accessing services. The programmes confirmed that the need for awareness
    of PAIA is extensive. Most CDWs and community members had never heard of it; those
    who had did not know how to implement it.

    Given that CDWs interact daily and closely with many community members, our rationale
    in transferring this knowledge to them was to maximise the longetivity of the intervention,
    expand the reach of our message, and multiply our forces through a grapevine network
    of RTI champions. Not only do CDWs now understand the Act, but they are also able
    to assess cases themselves and advise community members on how to leverage it for
    improved access to services.

    As indicated, the Outreach Programme has a twofold focus of spreading information
    as well as encouraging use of PAIA by way of community members lodging requests for
    information about issues related to housing, water, education, health, employment or the
    environment. We generated 44 such requests for the year, thereby exceeding our internal
    target by 165%. A major task for 2010 will be an impact analysis of these requests.

    Ensuring appropriate implementation of RTI legislation
    ODAC’s fieldwork-level advocacy addresses the lack of awareness and take-up of PAIA
    that is found in poor communities. In broad terms, our parliamentary-juridical policy-level
    advocacy addresses a similar and corresponding lacuna in the public sector itself, where
    the implementation of PAIA has for various reasons been slow, uneven and frequently
    given low priority or none at all.

    Likewise, there is a pressing need for consolidated implementation by, and within, the
    state of the Protected Disclosures Act (PDA), which makes provision for procedures to
    protect employees in both the private and public sector from occupational detriment
    should they disclose unlawful or corrupt conduct by their employers. There is, in addition,
    a need for legal reform that would make the Act more comprehensive by expanding the
    scope of protection it affords to whistleblowers and focussing on vulnerable sectors such
    as less-wealthy working class employees and the unemployed.

To these ends, we continued to build and apply influence in strategic decision-making loci
in order to push and promote the RTI agenda in general and PAIA/PDA implementation
in particular. In the person of our DCEO, we maintained our representation on the SAHRC
Section 5 committee, a panel of experts that supports and advises the Commission, and
also co-convened the Information Officers Forum, a cross-sectoral body created in 2006
with our assistance to facilitate information-exchange and professional solidarity among
information officers (IOs) in the public sector.

There, we obtained a valuable concession when IOs admitted that their record of
decisions, as reviewed by the courts, is deplorable. The admission potentially clears the
way for rehabilitation and improved servicing of requests for information without the
perennial need for applicants to resort to litigation.

More widely, it means that our message is getting through and being heard. In this vein,
we made a critical advance when Trevor Manuel, the Minister in the Presidency for
Planning, recognised PAIA’s importance in the Medium Term Strategic Framework, which
prioritises “a culture of open and transparent government, particularly the requirement
for government departments to appoint Deputy Information Officers whose responsibility
would be to implement PAIA in departments”.

At a provincial and municipal level, we earned a signal success in negotiating an
agreement of co-operation between ourselves, the Province of the Western Cape and
the Municipality of Cape Town which will promote public access to information held
by these bodies as well as greater levels of transparency in official affairs. The City
gave amplification to a key tenet of ours by declaring that “transparency such as this is
essential for any healthy democracy”, and we took the opportunity of the ceremonial
and well-publicised occasion to urge other such bodies to follow this example and make
use of our technical expertise in doing so.

In relation specifically to PDA implementation, our “Drivers of Change” project cluster
seeks to improve the protection granted to whistleblowers as well as strengthen public-
and private-sector compliance with the Act. We were therefore pleased when early in
the year the South African Law Reform Commission informed us that the Final Report on
Discussion Papers on the PDA had been presented to the Ministry of Justice. However,
despite our approaches to the Department of Justice and a letter to its Minister, we were
unable to obtain news of any further developments.

Arguing for legal reform is a crucial dimension of our PDA advocacy; equally important
is our promotion of, and provision of technical assistance for, the development of
working whistleblower-policies in the public and private spheres. The Deputy DG of
the Department of Labour gave ODAC a mandate for producing such a policy. In
addition, we secured a commitment from the Office of the Public Protector in Gauteng
to strengthen its capacity on PDA implementation through PDA training, and the Health
Professions Council in Pretoria was also persuaded to express an interest in training its

    staff on the PDA.

    The success of initiatives like these depends very strongly on the relationships we are
    able to maintain with governmental partners, and in this respect 2009 was a year of
    notable, paradigmatic change that required us to make a strategic realignment in our
    PDA advocacy. Elections were held in June, and political attention shifted from substantive
    implementation to the more gripping demands of electioneering, none of which is
    surprising in itself. However, the fact that the elections were so heavily flavoured by
    issues of corruption and led to a dramatic change in political guard impacted on the
    partnerships we had previously built. Not only did we have to negotiate a new political
    clientele, we had to contend with a predicament in which a mainstay of our agenda –
    whistleblowing – was regarded as “an Opposition issue” and we ourselves treated with

    While our partnership with the Public Service Commission remained fairly secure,
    other of our relationships weakened, particularly that with the Department of Public
    Service Administration, and as a result we initially set about repurposing the “Drivers
    of Change” cluster to engage in future primarily with faith groups and the media. But
    a combination of events in the political landscape soon provided the catalyst for our
    resumed, and reinvigorated, dialogue with the Tripartite Alliance when, for the first time
    in our history, ODAC established a partnership with Cosatu (Western Cape) after holding
    meetings to discuss the PDA’s value as a vehicle for service delivery and organisational

    The significance of this partnership cannot be overstated, and we confidently expect
    it will be the impetus for many a future advocacy win in our efforts to reshape the RTI
    policy context.

    Streamlining litigation processes
    Committed and competent implementation of RTI policy is important for many reasons,
    not least of which is the fact that when requests for information are denied or ignored,
    PAIA currently leaves only one remedy available to applicants, namely litigation. The
    problem with litigation as a remedy is that its cost effectively puts it out of reach of the
    vast majority of South Africans. It is also extremely slow, which means that when results
    arrive – sometimes three years after initiation – they are often too late to make a
    difference to urgent or otherwise time-bound requests for information.

    ODAC thus works towards, on the one hand, the streamlining of current litigation
    processes, and, on the other, broad-scale reformation by means of the establishment of
    an adjudication body to resolve disputes around access to information.

    In respect of streamlining litigation processes and making them more user-friendly, ODAC
    secured a landmark advocacy victory when we won our appeal in the Constitutional
    Court against a Cape High Court judgment in Brummer v Dept of Social Development,
    a matter which we litigated on a behalf of a journalist who sought records to do with a

state tender.

The appeal resulted in a court order giving litigants in PAIA matters six times more time than
before in which to launch their court applications. Previously they had 30 days to do so;
henceforth, they have 180.

A further, and pending, policy change is also set to make it easier to obtain orders releasing
information and thus increase our litigation outputs: a jurisdictional extension allowing
Magistrate’s Courts to hear PAIA matters, subject to the condition that magistrates designated
to do so complete a training course. The Judicial Services Commission Annual Report of 2004
said that a manual has been prepared, that training courses are in place, and that “judges
and magistrates throughout the country have been trained”. While we are encouraged by the
prospect of this policy change, we remained vigilant and established that not all Magistrate’s
Courts have a trained magistrate at their disposal.

Campaigning for an adjudication body
ODAC has long held that an adjudication body in the form of an Information Commissioner would
provide a swift, cost-effective and authoritative mechanism for dealing with RTI disputes as well
as affording support to officials who are unsure of their duties or fearful of the consequences
of disclosure. Our campaign made significant headway with the tabling of the Protection of
Personal Information Bill, which was tracked as an “A” priority piece of legislation. It envisages
the creation of an Information Protection Regulator, an agency we believe could eventually
become the cheap and accessible remedy for which we have argued.

A call for public submissions was made when the Bill was tabled, and to this purpose we articu-
lated key issues the Bill needs to address, put forward alternatives, and recommended ways in
which they could be asserted to ensure Parliament effect the necessary changes. We encour-
aged other stakeholders to make parliamentary submissions on these issues, and later made
two further submissions to address our main concern that the Bill does not grant the proposed
Information Commissioner adequate powers in relation to PAIA.
In addition, we arranged a UK study trip with the new Portfolio Committee on Justice and Con-
stitutional Development in the National Assembly on an Information Commission. The venture
proved to be tactically beneficial by helping to establish cross-party partnerships (involving
the ANC, Democratic Alliance and Inkatha Freedom Party) and by building a good relationship
with the State Law Adviser from the DoJCD who is drafting the PDA amendment.

ODAC will seek to capitalise on the new laws, structures and opportunities described above
in order to crack open the hard nut of access to information. We are steadfast in our focus on
pro-poor information requests.


           Our involvement in shaping and influencing policy initiatives at regional and international
           level has cemented ODAC’s stature as the leading RTI advocacy organisation in Africa,
           where we provide not only expert input to programme and platform content but direct
           organisational leadership support as well: through our DCEO, ODAC acted as the
           figurehead of Uganda-based AFIC (African Freedom of Information Centre). By way
           of these engagements, we facilitated cross-regional and international partnerships to
           the benefit of other RTI initiatives, helped to build regional advocacy platforms, and
           ensured that the South African experience remains visible in, and vital to, both regional
           and global deliberation.

           Our notable engagements for the year included participation in:

           •   IDASA’s meeting in Nairobi with Global Transparency Initiative on the World Bank’s
               draft information disclosure policy;

           •   the internal meeting of OSI’s Law Coordinators in Budapest;

           •   the TCC-convened meeting on assessing the implementation of access-to-information

           •   preparatory discussions with the Carter Center for the Atlanta Global Meeting on
               Access to Information in 2010;

           •   the Working Group of the Access to Information Platform for the Windhoek

           •   the advocacy-implementation workshop hosted by IDASA on the “Right to Know,
               Right to Education” project and aimed at six African countries;

           •   the Transparency International (TI) conference in Prague, which resulted in the
               formation of constructive partnerships with the Council of Europe as well as leading
               NGOs in the US, UK and Eastern Europe; and,

           •   the conference, “10 Years of the UK Public Interest Disclosures Act”.

           The latter conference led to the formation of an international whistleblowing research
           network, of which we are now consequently a member. We also strengthened ties built the
           year before with TI, which shared with us its research on government hotlines. In addition,
           it sends us all completed reports, recommendations and papers on whistleblowing. In
           2009 we joined the UNCAC Civil Society Coalition and endorsed its recommendation of
           an effective and inclusive review mechanism for the UN Convention against Corruption.