Focusing on Openness and Accountability
Openness and accountability are two of the founding values in s1 of our Constitution. “Open and transparent government and a free flow of information concerning the affairs of the state is the lifeblood of democracy.”[1]As Justice Sachs has explained, openness is linked to other principles of our democratic state: “An open and democratic society does not view its citizens as enemies. … Its starting-point is not repression, but the promotion of positive elements of social stability, such as food security and job security.”[2]
Accountability is similarly central to the constitutional vision. The idea that the Constitution requires a “culture of justification”[3] is based on the principle of accountability. Accountability means that the state must be held liable for its failures,[4] that private parties bear constitutional obligations when they perform state tenders,[5] and that the state must take positive measures to combat corruption.[6]
Turning our attention to civil and political rights is timely. There have been some elements of the state that appear unwilling to engage with dissenting voices. With the advent of local government elections, there is a risk that elements within sections of society may violate constitutional rights. As the events at Marikana highlighted, big business also has the capacity to threaten civil and political rights and to induce the state to commit rights violations.
The LRC is currently working on a number of matters regarding ‘openness and accountability’. While current developments have sharpened our focus on these two values, this work builds on and contributes to the work of the LRC in two ways: it will integrate many cases the LRC is already working on, and will assist our efforts in many other areas.
Some of the cases the LRC is already involved in include the following litigation:
We represent the Right2Know Campaign in its planned challenge to the Secrecy Bill which will be launched as soon as President Zuma signs the Bill.
We represent Right2Know and a range of other organisations who wish to intervene as amici curiae in an upcoming appeal in the Supreme Court of Appeal concerning access to court documents.
We represent the Social Justice Coalition in a criminal trial where they face charges of convening and attending a protest without giving notice. We intend to challenge the constitutionality of the Regulation of Gatherings Act that makes it a criminal offence to convene a gathering without notice.
We represented a group of mineworkers in Rustenburg who faced a similar charge, which was subsequently withdrawn.
We represent the M&GCentre for Investigative Journalism in an application for access to documents that have been withheld by PetroSA.
We represent Sylvia Vollenhoven in an application against the South African Broadcasting Corporation which is trying to censor a documentary they commissioned from her.
We have been deeply involved in both the Marikana and Khayelitsha Commissions of Inquiry.
We do numerous PAIA applications for our clients both within and outside the context of litigation.
Focusing on openness and accountabilitywill also be an opportunity to integrate the work that is already being done across the various offices. At the moment, our work in this area is primarily reactive; we litigate cases on an ad hoc basis in order to deal with individual problems. Establishing a focus on issues of openness and accountability will allow us to think about the problems of openness and accountability in a more proactive, systemic and strategic fashion. We want to identify the most serious challenges facing our clients and South African society generally, and devise strategies – whether through advocacy, law reform or litigation – to address those challenges.
In addition, issues of openness and accountability promote the achievement of constitutional rights and values. Socio-economic rights are easier to realize when information about the provision of water, housing, healthcare or education is available and corrupt tenders are more difficult. We can be more effective at protecting communities or the environment from exploitation by mining companies if we can access information about the company’s activities. All our work will be enhanced if those by the state or large companies feel more comfortable releasing the information that they have. All the social movements and community organisations we work with will be better able to advance their goals if they can protest more freely and without fear of police reprisals. Openness and accountability are not merely ends in themselves – they are vital for the achievement of the society founded on equality and human dignity that the Constitution envisages.
Indirectly, this work will, in the long term, make information generally more available and the police generally more accountable. That will make it easier to mobilise communities, and easier to litigate when necessary.
[1]The President of the Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA) at para 1.
[2]Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another [2008] ZACC 6; 2008 (5) SA 31 (CC); 2008 (8) BCLR 771 (CC) at para 155.
[3] E Mureinik ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 SA Journal of Human Rights 31 at 32.
[4]Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA).
[5]Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (No 2) 2014 (4) SA 179 (CC).
[6]Glenister v President of the Republic of South Africa and Others2011 (3) SA 347 (CC).