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[1995] ZAConAsmRes 975
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Submissions Made in Respect of Theme Committees I and Iv [1995] ZAConAsmRes 975 (1 March 1995)
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1March 1995 Re SUBMISSIONS MADE IN RESPECT OF THEME COMMITTEES i AND IV (BILL OF RIGHTS
AND CHARACTER OF STATE)
(i) Referenda (Certain Issues are decided by the people through a referendum)
eg boundary disputes (recently the case Griqualand. (ii) People's Veto (People can veto laws passed by parliament) eg tax
laws (iii) Right of recall (the public has the right to recall unpopular
politicians for whatever reason) especially where the is a prima
facie prove (of
corruption or abuse of power. This is gradually becoming endemic in our
country! (iv) Initiative (the people may initiate measures and have them put to the
vote) eg Taxi Industry (bye‑laws) · CHARACTER OF STATE (ACCOUNTABILITY AND TRANSPARENCY IN
GOVERNMENT) MECHANISMS FOR ENSURING
By and large, democracy entails Inter alia, regular elections, universal
suffrage, tolerance of other people's view irrespective of
how unpalatable it
may be; protection of rights and freedoms of individuals etc. All political
parties within the body politic claims
to be “representative of the
people" Irrespective of their unpopularity. They all claim to be advocating the
best policy,
which if it could be adopted will ensure the endurance of
democracy. This is often the exception than the rule. Today, seemingly
the
conflict inherent about the Notion democracy is not about its substantive
element but rather its procedural dimensions. In a similar vein Professor Hayek, the academic guru, defines democracy
as...... a convention which enables any majority to rid to
itself of a
government it does not like..... (1) He further bolsters his argument and
opined; "The Magic Word Democracy has become
so all-powerful that all inherited
limitations on government are breaking down before it."(2) Without belabouring the point, relative to this Notion is the idea of
Constitutionalism. Constitutionalism is simply about limited
government. It may
be good to ask, but why limit powers of politicians? It is because as Lord
Acton observed centuries ago "Power
has a tendency to corrupt and absolute power
corrupt absolutely", Judge OlivER, chairman of the South African Law Commission,
commenting
about the significance of constitutionalism as a democratic device
recently remarked: "The basic reason for the emergence of the Notion of government limited by
substantive and procedural restraints must lie in Mankind's
painful experience
of Man's capacity of inhumanity towards fellow men .... Constitutionalism
signals. THE SUCCESS OF THE REVOLUTION
OF POWERLESS, THE OPPRESSED, PERSECUTED
MINORITIES AND INDIVIDUALS. Limiting powers afford one way of limiting the
potential abuse
(3) of power" (My emphasis) In essence, Constitutionalism is
about checks and balances, through a fundamental charter of rights and
freedom,
ensuring independence of the judiciary, devolution of power and making the
government transparent and accountable.
Direct democracy is about involving the governed class as final arbiters in
issues affecting them. This kind of democracy is practised
in countries such as
Switzerland and some states in USA. Direct Democracy is four-Fold viz
referendum(certain issues are decided
by the people through a referendum) ,
peoples veto (people can veto laws passed by parliament), right of recall (the
public has the
right to recall unpopular politicians and officials for whatever
reason) and the initiative (the public may initiate measures and
have them put
to the vote.(4) Two South Africans, Frances Kendall and Leon Louw, in their illuminating book
South Africa: The Solution (1986)- argues that the only
possible way towards
solving the political impasse besseting South Africa is to adopt the Swiss
cantonal Model of government. This is because according to Frances and Leon due to the heterogeneous Nature
of the Country's population, diversity of cultures and
believes; differences
across the political spectrum, and perhaps the unique South african problem of
apartheid. Switzerland has
proved to be one of the oldest and successful
democracies in the world through involving "the people" in decision making
process.
This process ensures the sovereign OF THE" people'' and not
sovereignty of " politicians" In no More Martyrs, the late Don Caldwell
while
discussing this prons and cons of participatory democracy believes that the
covert operations of the " Elite Hit Squad Units",
increased tax system, the
total ON slaught against the former apartheid government could not have resulted
if direct democracy was
in place, this is true because the apartheid government
used public funds in carrying out such diabolic operations. The experience of South Africa with a referendum is not a dynamic phenomenon.
In March 1992 the then president of South Africa, Mr
F.w. De Klerk had to
determine whether the South African whites were in favour of the transitional
process. This determination was
conducted through an exclusive white only
referendum. ithe gallop poll, fortunately indicated that most South African
whites were
infavour of negotiations. Again in 1993 when the deadlock between
the government and Cosag arose, a referendum was mentioned as
the possible
solution to " legitimise" the process critics argued that it could have delayed
the elections and might have widened
the differences between the government and
the ANC on the one hand and the defunct Cosag on the other and hence a risky
option". Despite the scepticism harboured by these critics there are pressing issues
today which suggests that a referendum will always be
an imperative device, for
example, there is a dispute between the provinces of Eastern Cape and North West
over an area known as
Kuruman which was formally part of the erstwhile
Bophuthatswana. Residents of the area are divided on whether they should be
part
of the Eastern Cape or the North West province, the latter which they think
is more prosperous than the other.
3.1 DEFINITION OF KEY CONCEPTS Democracy is anchored on two levels-accountability and transparency. the two
are relative concepts. It is not regular elections,
but accountability and
transparency which make democracy workable. What is accountability ? What is transparency ? Accountability connotes
responsibility and responsiveness towards public demands.
Crudely put,
politicians are answerable to those who put them in office. To me,
accountability implies that: (i) Those holding public office are called upon to show those they are
serving what they are doing. (ii) Office bearer must take up responsibility for their actions i.e.
failures and success. (iii) Guarantee that negative tendencies are not allowed to manifest
themselves e.g. using public funds for personal purposes. On the other hand, transparency means openness, and candidacy. Literaly, it
means “what can be easily seen through." Essentially
it means that those
entrusted with public office must despite problems confronting them ensure that
what they are engaged in is known
or accessible to the people. From the
foregoing definitions it could be said that any public office bearer acting
ultra vires his
powers will be exposed and may face serious consequences e.g.
loose public office or sanctioned in many ways for example, that the
likelihood
of assuming a similar position in future are doomed. The purpose behind the whole enterprise, it seems, is to guarantee that, the
government is corruption-free; to have an all effective
civil service which
above all is non partisan based while executing its functions. Concomitant to this is the freedom of information act or access legislation.
the latter is a statutory act enacted in most countries
around the world which
empowers citizens, to have access to information at the disposa of government.
Citizens are entitled to know
what and how policies of the government are made.
In this way the government becomes accountable to what it is doing in the name
of "The people. " As Thomas Reicey(6) correctly put it" it is the free flow OF
information without undue government restrictions"
and the... "right of the
public to be informed without being referred by regulations which in any way
restrict the right". Antonio Sanchez de Lozada(7) captures the essence of accountability as
“an element of the democratic process which obliges those
persons
entrusted directly through elections and appointed by the authority initiating
from the elected mandate, to respond via various
channels to society as to what
they did, how they did it and the benefits generated for the
community" He continues by saying: “ without accountability, no one in the public sector has to assume
responsibility, intimately, voters cannot properly judge
the preference of
public officials. furthermore, accountability places restrain an the abuse of
power and its undue concentration".(8) In appraising Antonio’s argument accountability and transparency are
raison d‘etre for good government.
The second aspects falling within the domain of our discussion is the issue
of freedom of information Act or Access Legislation.
Despite the terminology
employed the net purpose of such legislation is to guarantee that the government
is open, accountable and
transparent in its policy decision making process.
This could be achieved through making the government's official records, third
parties, business organisations accessible. This information is mostly used by
journalists, researchers and other professionals,
this is possible through a
statutory enactment empowering the requester of the information thereto. In
most cases such legislation
makes provisions for the right of appeal through
ccourts of law or other administrative tribunals by an aggrieved party. In this leg of our discussion a truncated account of the position obtaining
in countries such as Sweden, Canada, USA and India is
addressed, that is how the
request of information is made and furnished, different forms of appeals;
limitations on access or right
to information and the procedure followed by the
aggrieved party in requesting information kept by state agencies. Access OR freedom of information Legislation is not wide open or absolute in
nature. There are limitations even though they differ
from one country to
another, the modus operandi (method of operandi is the same). These limitations
include Inter-alia, that the
information under extremely exceptional
circumstances may not be released because: (i) Maintenance of National Security e.g.(Defence Act,Police Act) . (ii) Commercial information / Trade Secrets (iii) Adherence tomonstitutional conventions e.g. Ministerial
Responsibility (iv) Information is privileged i.e. Attorney / Client
Relationship (v) Releasing the information might temper with investigation
still under way. (vi) Economic/Monetary interests (vii) National intelligence Service Another fundamental principle which seems to have a general application is
that the information is obtainable through the use of electronic
systems,
computers, verbal communication OR telecommunication system.
5.1 SWEDEN Sweden and the United States were the first democracies to adopt a law
creating the publics right to government information. for more
than two hundred
years, the Swedish constitution has provided for open access for official
document and full information to any
citizen about administrative matters.
This provision was establish in 1776 in Sweden's old Freedom oF the Press Act
(9). Sweden is known for being the pioneer of the institution of the ombudsman in
1809 which its function was and is still to investigate
complains from the
public about government agencies. In 1966 Tanzania became the first African
country to emulate the Swedish by
having a similar institution. South Africa
had the office of the Advocate-General which was never worth what is was suppose
to be.
In terms of the new constitution (Act 200 of 1993) a similar institution
is provided for but under the banner of the public protector. The 1974 Swedish constitution consists mainly of four documents
namely:
4. Act of Succession 5.2 CANADA Generally the requester of the information is allowed to pay for certain
services such as searching of documents. The amount charged
is, however,
substantially less. The official requested to furnish the information is
required to do so within thirty working days
(30), failing which appropriate
actions can be instituted by the claimant. He/she has the right to appeal to an
independent body.
Different forms of appeal differ from one state to another
and even at the federal level. In terms of the federal access to information
act, the federal court of Canada is the court of final instance on matters of
appeals. On the other hand, in federal states such as Ontario and Quebec an appeal is
allowed if there is an error of fact not an error of
law. After a heated debate at the federal level parliament finally decided that
the information commissioner be appointed who Is task is
to decide cases brought
before him whether the information requested should be released or not. If in
his opinion the information
should not be released, the complaint is free to
take the matter further by launching an appeal to the f ederal court in
Canada. 5.3 UNITED STATES OF AMERICA (USA) In 1966 “the family of the land of progress" commonly known as the USA
passed its Freedom of information Act. The Act is
founded upon the premise
that citizens are entitled, at all level of government to exercise their right
of being informed about the
affairs of their country. In its nature the Act is two -fold. Firstly it requires all American
agencies i.e. businesses to publish their policy positions,
functions and rules.
Secondly, these agencies must make information available to all those requesting
it except when there are exceptions
protecting the disclosure of such
information. The US information Act has been extremely useful and beneficial to its
citizens on issues such as health hazards. This enabled Americans
to lobby
their government to change fits policy on such issues they considered of
imponderable importance. It was through the Information
Act that the well-known
watergate scandal which led to the impeachment of President Nixon came to be
known. Unfettered discretion of withholding information in the possession of the
government is not allowed. An agency’s refusal to
release information is
subjected to a strict and Independent Judicial Review. The Act also presumes
that the public is entitled
to access of information. The burden of proof lies
with the government to assert that on the basis of certain circumstances the
information cannot be divulged e.g. National Security, Commercial Secrecy etc.
Courts have the power to ascertain whether the refusal
falls within the
parameters of exceptions provided for by the Act. The Act also allows members
of the public to have access to
information which they might be
requesting. Despite being such a useful public instrument the Act, according to most
commentators has its shortcomings, one being exorbitant fees
charged by agencies
when information is requested. Critics argue that this has made the accessibility of information
difficult.
In 1994, after 45 years of independence, India repealed its official secrets
act of 1923 and passed the Freedom on information Act.
Some of its purpose, is
amongst other, to have records of public bodies; decisions to withhold
information subjected to independent
review. The Act requires that the public be assisted while requesting the necessary
information. The request must be made in a written form
and the body requested
to furnish the information is expected in terms of the act to respond within the
time frames of the Act.
Where time lapses the body will be presumed to have
refused to supply the information requested unreasonably. the information can
be
provided through different forms of communications, for example, computer or
electronic systems or written transcripts etc. Nofees
may be charged by a
public agency for giving access to records in its possession. The requester is
also entitled to seek information
about himself. Categories of exempt information include cabinet confidences, defence,
security, international relations, disclosure harmful to law
enforcement,
personal privacy, economic and commercial affairs, commercial secrets of third
parties. Similar to the Canadian Information
Act the new Indian information Act
requires that there must be third party notification in case the request of
information is between
party to party per se. (i) CONTROL OF ACCESS TO INFORMATION COUNCIL The functions of the council are to ensure that access to public records are
respected; no request are wrongly denied; records are
reliable and authentic;
right to correct one's records etc. (ii) INFORMATION COMMISSIONER The IC is appointed by the general assembly. The IC will then appoint his assistant to deputise him together with other officials. The commissioner's main function is to
disseminate information to the general public about the
Act and give advice to
those in need of his assistance. In case he intends carrying out any
investigation the public must be notified
accordingly about a complaint
concerning refusal resulting from access to information. The commissioner has
the power to order the
minister and government officials to provide information
if in his opinion the refusal was unjustifiable. In such a case, the
commissioner
will then order that the information be provide within a certain
period of time. Where the complainant suffered nominal damages
he/she will be
compensated. (iii) STATE TRIBUNAL The state tribunal is be headed by a Chief Justice of the High Court and its
function will be to adjudicate over information disputes
at states level. The
tribunals Modus Operandi is similar to that of a court of law, thus it may set
aside the commission's decision. (iv) CENTRAL NATIONAL TRIBUNAL The tribunal is headed by a judge of the Supreme Court and other members of
high integrity and
this country. Draconian Apartheid Laws have been instrumental in infringing
rights and freedoms of many South Africans e.g, The Harmful
Business Practice
Act which amongst others empowered the minister and the Competition Board the
right to close business if " in his
opinion or that of the Board" the said
business is against normal business practices. The anomally is that neither the Minister nor the Board is required to
furnish reasons for their actions. The aggrieved party is
not granted to the
opportunity mitigate his circumstances. Today, South Africa has a new constitution with a bill of Fundamental Rights
which its raison d’etre is to protect rights of
ordinary citizens from
being trampled over by those wielding power. This can only be achieved if the
new Government of National
Unity (GNU) is open, participatory and
transparent. Section 24 (1) (2) of the New Interim Constitution Act of 200 of 1993 provides for administrative justice. The clause further stipulate that an administrative body taking a decision likely to affect the rights and privileges of aggrieved parties must furnish reasons in support of such a decision. the clause gives a right to procedural fairness in administrative actions where one's right or legitimate expectation is affected or threatened. Section 23 gives the right to access of information, however, these rights and freedoms are not absolute, as there are limitations. thus section 33(1)(2) provides that these rights are limited by
law of general application if the limitation is reasonable
and justiciable in an
open and democratic society based on freedom and equality . If South Africa is to have access of information law it must be qualified, in
the sense that it should be known what type of information
the public is
accessible to. what is enshrined in the interim constitution and even in the
final constitution must be buttressed
by a Freedom of information Act. Without
digressing it is important to mention several cases indicative of the fact that
in our
final constitution Freedom of information Act must be seriously
considered by those entrusted with the task of drafting the final
constitution
for South Africa- These instances are: (i) Acting Judge Cameron of the Cameron Commission of enquiry presently
investigating the illegality of armscor's military transactions
with countries
of the world was prevented from releasing names of such countries by the Defence
Minister, Mr Joe Modise. (ii) Again, Minister Joe Modise obtained a writ preventing the newspaper,
Weekly Mail from divulging information about ANC members
who were double agents
during the halycon days of apartheid. This was also criticised by some members
within the ANC camp. (iii) Another newspaper, Sowetan was also prevented from publishing
information concerning the third force activities by the Attorney/General
of
Gauteng Province. (iv) The Judicial Service Commission responsible for appointing judges of the
newly established constitutional court refused to disclosed
the Criteria used in
appointing judges of the court. The Commission also refused to release a list of all candidates
who were shortlisted for appointment. the candidates
were not rigorously
questioned. (v) The appointment of Mr Kotane as Director General of the earthwhile
Bophuthatswana Broadcasting Corporation (BBC) was critised
because in the first
place, the position was never advertised. Reasons given by the North West
Government was vague and embarrassing,
namely, that there was a conflict
existing in the corporation which was not true. (iv) The truth Commission is expected to investigate all atrocities of the
apartheid era. There are two schools of thought on the
matter. Firstly, those
who believe that the hearing should be in camera, an attempt to encourage those
responsible to bring the
information forward. Secondly, those who believe that
the hearing be made public. The afore-going cases cited provides a meat for thought to those who value
the significance of access legislation in S.A. be that
as it may having a new
interim constitution is merely a cast in stone. Seeing that it is imperative to
have the Freedom of Information
act, a task team has been appointed led by the
second deputy president, Mr Thabo Mbeki Is legal advisor Advocate Mojanku Gumbi
and
other five members to facilitate the birth of the Freedom of Information Act
in the final constitution of this country. The envisaged
Act will be couched as
the "Open Democracy Act."
On the bases of the experience of countries spotlighted in our discussion the
following recommendations finds more relevance to those
entrusted with the
august responsibility of ensuring a durable constitutional settlement. This
points are made seriatim as follows:- (i) The envisaged legislation must a "waiver free. clause" catering ordinary
people to be exempted from fees when requesting information.
Professionals
such researchers and journalists could be charged a substantially- fair amount
of money for requesting information.
Each case should be judged on its
merit. (i i) The burden of proof must lie with the agency/party refusing access to
official records. (iii) A clause making provisions for limitations should be consonant with international practice e.g. National Security. (iv) The appointment of Freedom of Information Commissioner who preferably
should be a judge of the Supreme Court. All complaints should be forwarded to him. The Constitutional court should
be a court of final instance in disputes on Freedom of
Information Act and its
decision should be final and binding (Res judicata) (See appendix
1). I REST MY SUBMISSIONS PHENYO RAKATE VOLUNTEER RESEARCHER 19 JANUARY
1995
2. I Bid
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