The State of Information in Africa #IRTKDAY2105

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To commemorate International Right to Information Day 2015 (#IRTKDAY2015), the Africa Freedom of Information Centre - alongside partner contributors like ODAC - has launched a report looking at the connection between access to information and the fight against corruption in Africa.

As Adv. Pansy Tlakula notes in her foreward:

“It is an established fact that lack of transparency facilitates and acerbates corruption in all aspects of public life whether it is public contracting, legislating on high interest issues or delivering basic services to ordinary people. Indeed, in some African countries, the quality and quantity of public services have not improved despite increase of public expenditure to deliver those services. This has undermined the realisation of human rights, in particular, economic and social rights of millions of people in some parts of the continent”.

The gist

Most importantly perhaps, the report contains recommendations for how the battle against corruption, and the promotion of access to information, might be improved in each country. For instance in Zimbabwe, while acknowledging that it "is indisputable is that information is central in empowering citizens to demand accountability", it is recommended that the legislative mechanisms in place are made consistent and more readily engaged with by citizens. And unsurprising to many information activists, in Malawi the recommendation for a dedicated Access to Information Law to be passed stands as a strong call!

Important repeated themes in the report include the call for better records management across the continent, as well as a considered exploration of the potential of the Open Government Partnership to forward ATI on the continent.

The report covers South Africa, but also Algeria, Nigeria, Ghana, Liberia, Ethiopia, Kenya, Kenya, Rwanda, South Sudan, Tanzania, Uganda, Botswana, Malawi, Mozambique, Zambia and Zimbabwe.

South Africa

The full coverage of South Africa, written by ODAC's Head of Legal Research Gabriella Razzano, is contained from pages 81-86. However, the most important recommendations are that:

  1. In furtherance of Article 9 of the AU Convention, the Information Commission should be established independently and adequately funded post–haste to give full expression to the South African Promotion of Access to Information Act.
  2. In furtherance of Article 5(3) the independence of corruption fighting must be strengthened, and the current consistent pattern of political interference halted with immediate effect.
  3. In furtherance of Article 9, 5(3) and others, South Africa should fully implement the transparency commitments it has made in terms of both National Action Plans it has tabled before the Open Government Partnership.
  4. In furtherance of Article 7(4) of the AU Declaration, the Chief Procurement Office should fully implement their e–Tender portal and capacitate SME’s for its full utilisation to be ensured.

Download the full report here.

A Worrying Tale: Information access in South Africa

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By Gabriella Razzano

On 28 September 2015, the world will be celebrating Right to Information Day. As transparency evangelists, ODAC will be trumpeting the horn of excitement for the day. However, as we count down, we though it would be a good time to reflect on the 3 key takeaways as details from our recent report on how the everyday person might experience trying to access information in South Africa:

1. People may know about PAIA, but they don't use it

81% of those questioned in the research knew about the Promotion of Access to Information Act (PAIA), but only 24% have made requests. This is in some sense a result of our audience, but also speaks to how intimidating processes involving "legalease", and direct engagement with government, can be.

2. Peoples perceptions of accessing information aren't positive

Popular negative perceptions about trying to get information from government included: a belief they would not get a response, and potential delays. An interesting complaint from one particular subsection of the group was that they weren't sure what to ask! In some sense, this is a failure of information activists. The message of how information can be used to solve your problem should be one we preach loudly and clearly. 

3. The glimmer of hope: once you use it, you're hooked!

Interestingly, those who do eventually use PAIA to access information use it frequently, in that 39% of users have made three or more requests. This is positive - but not a surprise when you consider the amazing ability access to information has to empower people. Its about enhancing dignity - if people know what to ask, and how to ask it, they become actors in their governing! We should be remembering this as we seek to spread the word on the power of information and transparency.

Download the report here

Download a simple infographic on how to use PAIA here

 

Pratley "stick with" our whistleblower!

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In a moving, and unusual, occurrence Pratley Engineering South Africa have issued a letter of congratulation to our whistleblowing client Mr Motingoe ahead of the court hearing this Friday 7 August at the Labour Court. The hearing will hopefully confirm that the MEC and HOD of Public Works in the Northern Cape have continually and maliciously been in contempt of court by failing to reinstate him after his brave act of whistleblowing. The private sector have often been silent on the importance of whistleblowing - in spite of the obvious benefits it poses for curbing corruption and risk management, which makes the letter highly unusual. More important, and as our research has comprehensively demonstrated, whistleblowers often travel a lonely and dangerous path while doing the right thing - we welcome all the support we can get for Mr Motingoe along this difficult, but just path!

 

Contempt of Court Order Granted for Harassment of ODAC Whistleblower

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Background

Mr. Motingoe was employed as the head of Legal Services at the Department of Infrastructure and Public Works in the Northern Cape.

He was originally suspended by the MEC on 22 November 2013. In 2013 Mr Motingoe made a protected disclosure regarding alleged irregularities of the HOD with the tender process of a civil construction work/project at the Theekloof-pass. Instead of receiving support for his disclosure, he was exposed to occupational detriment. He challenged this suspension as an unfair labour practice in the bargaining council. This was the subject of the arbitration award. The main part of the order of relevance to was:

The Respondents is hereby ordered to uplift the Applicant’s suspension with immediate effect (within seven (7) days) after receiving a copy of this award, and to reinstate the Applicant to his position as Director:  Legal Services and/or to a suitable alternative position under the supervision of the Chief Director:  Corporate Services.  The Applicant to report directly to the Chief Director:  Corporate Services pending the adjudication of the dispute referred to the Labour Court under case C373-14/judgement and/or pending the finalization of the disciplinary hearing.

The award clearly ordered the employer to uplift the suspension. This did not happen. Running concurrently with the arbitration process was the Labour Court process in which the client challenged both the suspension and the disciplinary inquiry as occupational detriments.

On 6 January 2015 the employer’s lawyers served with an application for leave to appeal against the labour court judgment. The next day (7 January) Mr. Motingoe was served with another suspension letter dated 12 January 2015, worded in virtually identical terms as the first. This time the suspension was signed by the head of department and no explanation was offered for this. Factually, instead of uplifting the suspension as ordered by both the arbitrator and the court, the employer issued another suspension without first annulling the first suspension on exactly the same terms (serious misconduct for the release of confidential information in contradiction of 2.7(2)(a) of the SMS Public Service Handbook).

The Department was not been granted leave to appeal.

What happened today

An urgent ex parte application for contempt of court was brought today in the Labour Court in Cape Town by ODAC on behalf of our clienf, Mr. Motingoe, for the gross contempt of court demonstrated by the re-institution of his suspension.  The order (see attached order) was granted by Judge Rabkin-Naicker, and a return date of 7 August has been set down when the HOD and MEC of Public Works in the Northern Cape must explain why they are not in contempt of court.

What this means
While the MEC and HOD will now have an opportunity to file reasons as to why the contempt of court order should not be granted, today was an important victory for the whistleblower - Mr. Motingoe. Our research has repeatedly demonstrated that whistleblowers are vulnerable to a variety of threats and harassment. The decision to continue the suspension of Mr. Motingoe by the Department of Public Works in the Northern Cape not only demonstrated a gross contempt for the court that gave the order, but also perpetuated the indefensible abuse of legitimate whistleblowers who seek to make disclosures (such as that made by Mr. Motingoe) for the furtherance of the public good.