What the South African Secrecy Bill Means for the Open Government Partnership02/12/2011
Source: Global Integrity
Author: Nathaniel Heller
Date: 29th November 2011
As South Africa took up its chairmanship of the UN COP17 in Durban this week, committing the country to play a role in saving our planet, a less than healthy environment has been created at home for other basic rights such as freedom of information.
Last week, the South African parliament passed legislation overhauling the country’s apartheid-era secrecy law. The new secrecy bill, formally called the Protection of State Information Bill (POSIB), defines how the government can classify and withhold sensitive information from the public, including exempting the disclosure of such information from freedom of information requests. It was met with protests and criticism from civil society and other non-governmental quarters. The debate over the bill has actually been a long-brewing argument going back years despite the international media picking up on the issue only recently.
Many critics of the bill in its current form have been accused of being unpatriotic and “foreign spies.” The broad-based Right2Know campaign, theNelson Mandela Foundation, and the Anglican Archbishop have all expressed serious concerns over the bill’s lack of a “public interest” exemption, which would reduce the risk that the government abuse the new law in order to avoid disclosing politically sensitive information, including information related to cases of government corruption.
Here at Global Integrity, we have been similarly concerned with the government’s insistence at pushing through the legislation in the face of concerted and specific criticism from respected South African stakeholders. But our immediate reaction upon hearing the news was: what does this mean for the Open Government Partnership?
As readers of this blog may remember, Global Integrity helps to facilitate theOGP’s Networking Mechanism, which seeks to connect aspiring OGP governments to open government experts from the public sector, the private sector, and civil society. So we are not unbiased observers to the initiative. But we do have some thoughts and concerns about what the new South African secrecy bill means for OGP.
South Africa is a founding steering committee government of the OGP, an opt-in multilateral initiative designed to inspire and support open government reforms around the world. Those reforms can range from government “open data” initiatives to more traditional reforms around transparent budgeting, procurement, and access to information processes.
South African President Jacob Zuma announced the country’s OGP commitments with a straight face at the September 2011 launch of the OGP in New York City alongside nearly 40 other heads of state. (Interestingly, the passage of the secrecy bill had been scheduled for the day that Zuma was in New York attending the OGP event, but was then curiously postponed.) As Zuma was speaking in New York, the Twittersphere of South African bloggers was agog at the President’s professed consultations with civil society around the government’s OGP commitments. You can review South Africa’s OGP commitments here.
We (and many others) view the new South African secrecy bill as anathema to everything OGP stands for. Should it become law – it still has to be reviewed by the upper house (the National Council of Provinces) and faces an inevitable constitutional court challenge – it represents a major pothole for transparency and accountability in the country.
Shortly after the bill passed the legislature, an email debate erupted in open government/transparency quarters as to whether South Africa should possibly be booted from OGP. We don’t think that’s necessarily the best approach. But we do think that the OGP needs to take a firm and clear position on the issue. This is going to happen again in the future with another country, and there will need to be consistency in terms of the response.
First, if the South African government continues to back the legislation in its current form, serious consideration should be made to removing South Africa from the OGP steering committee. It seems inappropriate for a government that is actively taking steps backwards on openness and transparency to play a governance role in OGP.
Second, decisions around the future composition OGP steering committee need to be accelerated. An important planning meeting in London last month discussed various options, including whether and when governments should step down from the steering committee, and what role the broader “plenary” of new OGP governments should play in nominating and endorsing the steering committee. In the wake of events in South Africa, decisions need to be taken quickly that provide clear guidance moving forward on OGP’s future operation.
Third, the nine civil society organizations that serve on the OGP steering committee need to take a public position on the secrecy bill. We know that the controversy will be on the agenda for the steering committee’s meeting in Brasilia next week. That is good. But the CSOs serving on the steering committee risk a major reputational hit if they remain silent on the matter, at least publicly. CSO acquiescence in the face of the South African controversy can only undermine OGP’s unique approach of having CSOs and governments serve side by side as equal partners in a governance role
Finally, and perhaps most obviously, civil society groups in South Africa and around the world should use South Africa’s role on the OGP steering committee as leverage to continue pushing for amendments to the secrecy bill. (The Open Democracy Advice Center has hinted at this in a recent article on its website). OGP’s greatest contribution to the secrecy bill debate could be its ability to provide a face-saving way for the South African government to reframe possible amendments to the bill.
New international initiatives such as OGP need to have their mettle tested early to confirm their relevance and bolster their champions. The South African secrecy bill provides an opportunity for the OGP to draw a line in the sand and say, “Here but no further.”
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