Why is openness proving so hard? We know institutions that hold power dislike openness and transparency. It’s one of the reasons politicians like access to information rights when they are in opposition, but less so when they are in government. But we seem to have seen an unusually high number of challenges to openness over the last year, from some unexpected quarters, and some push back from the usual, and unusual, suspects.
The courts this week again turned to the question of what is and isn’t ‘unparliamentary’ language. A two judge bench in the Western Cape Division of the High Court ruled the decision of Acting Speaker Thandi Modise to request and order Economic Freedom Fighters leader Julius Malema to withdraw his statements that “ANC government had massacred mineworkers in Marikana in that the police who killed them represented the ANC government” be set aside. Wim Trengove SC, impressed the court with his pithy take on what unparliamentary language really is – “don’t get personal”. The court dismissed as impossible the idea that a separate motion be tabled for a joint sitting every time a comment is made about the state, or the ruling party, which might reflect badly on an individual.
A few weeks ago the Supreme Court of Appeal smacked down a judgment from the Western Cape High Court which in a highly convoluted way, decided that although there was no reason not to disclose the South African National Road Agency Ltd (Sanral) documents on e–tolls, the documents could not be released because court files are not in fact public documents. The court starts its judgment with a truly terrible joke about for whom the bells tolls; of course it tolls for thee. However, after the bad puns, the judgment picks up, with a climactic ringing sentence (ok, one more bad pun), “All court records are, by default, public documents that are open to public scrutiny at all times.”
In the week to come the broadcast signal case will come again to the Western Cape Division of the High Court. You may recall the original order sought by the R2K campaign, Open Democracy Advice Centre (Odac), Primedia and News24 was that no signal jamming be allowed, and that the broadcast feed not be focused only on the Speaker’s hat, no matter how charming, when there is a disturbance in Parliament. Signal jamming turned out to be a non-issue – everyone conceded it was a bad idea, if it was ever an idea in the first place. It was, perhaps a mistake, or overzealous underlings taking their mandate too far. No order need be sought on that, and in the first round the court said it could not grant an urgent order on the parliamentary broadcasting order, given that is was of long standing. The parties are back in court on Monday, and will be focusing on what the parliamentary broadcast feed should and should not do. The relief that is being sought is that a wide angle shot be the default – a focus on the whole House. The Speaker says not.
Now these are all interesting cases, and for those of us who like a nice judgment, and read them for entertainment, it’s all quite fun. But for those of us in the transparency field, not so much. It’s a concern. Our institutions – Parliament, the Courts, our parastatals – they are demonstrably retreating into closing down debate, shutting down access, restricting documents. And we who need transparency are perforce going to the courts, ironically in this one instance, to get back to the default position in the Constitution, which is openness.
Is this another case of the judicialisation of politics? Should we be asking our judges to make these decisions? Well, yes, of course we can and should, where politics fail. But why are our politics failing us? Secrecy is no panacea to trouble and conflict. It is rather the source of speculation, rumour and outright lies. We cannot change the truth by averting our eyes. Making Parliament a space where people can hear the worst that is to be said about someone is not demeaning the dignity of Parliament. It will reinforce the idea that we can speak, and say the worst, and be heard, and rub along anyway. Anger doesn’t go away because we ignore it. E-tolls do not get better or worse because the court file is closed. And the pain of Marikana will not be eased by one Parliamentarian saying of it what is said on the streets anyway. The opposite of open is not closed – it is rage without outlet. DM
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