Free and unfettered access to information is one of the mainstays of democracy. Providing citizens with unrestricted access to government documents promotes public participation in decision-making, contributes to efficiency in serve delivery, exposes corruption, ensures that decisions are implemented responsibly and that officials are held accountable.
On 6 December 2017 the Durban Metro approved by majority vote the Rules of Order Amendment by-law, which would restrict public and media access to certain meetings and documentation.
In terms of the controversial amendment to clause 7 of the Rules of Order by-law, eThekwini Council’s meetings could be closed to the media and public, when: “There might be disclosure of confidential information regarding any person to the public. Any investigation, report or internal audit report which in the course of consideration, could be compromised by its public disclosure. There might be disclosure of any trade secrets of the municipality or financial, business, scientific or technical information other than trade secrets which are likely to cause prejudice to the business or interests of the municipality.”
Invariably, there was pubic speculation about what the Durban Metro wanted to hide from the public. A lot, it would seem. Opposition parties contended that the Durban municipality was in crisis‚ and cited “the loss of 17 senior managers in 11 months‚ the purchase of armoured vehicles to the tune of R20-million‚ R2.2-million spent on a cancelled social cohesion conference‚ R3-million spent on metro police dogs and R68-million overspent on the Essence Festival as examples”. (A counter view would be that this is a form of radical economic transformation!).
This is the type of information that the Durban municipality wants to hide from the media and public. DA leader Zwakele Mncwango maintained that there was an urgent need to “defeat the cancer of corruption (and) looting of public funds” in the municipality. He raised concerns about the arrogance of the ANC leadership who had “no respect for the public and institutions. We have audit committees who investigate these cases in the municipality, and after making recommendations to this council‚ the mayor and leadership decided to hide the reports”.
There was outrage from civil society organisations who were concerned about a culture of secrecy and lack of transparency in decision-making, and who were planning to challenge the legality of the by-law. Desmond D’sa, of the South Durban Community Environmental Alliance, argued that it would not “pass the constitutional muster”. According to Ben Madokwe of the Active Citizens Movement: “The adoption of this by-law means we as a society have regressed back to an oppressive, unconstitutional regime similar to that of the apartheid era. Furthermore, this bill is not for the benefit of the citizens of eThekwini, but to protect corrupt municipal officials.”
The Right 2 Know Campaign argued that clause 7 of the Rules of Order “places an obligation on council and its committees to be open to the public, including the media. Subsection 1 expressly prohibits the exclusion of the public, including the media from a municipal meeting except under specific circumstances.”
According to Law Professor Yousuf Vawda: “We are witnessing a very interesting climate with allegations of State Capture, while we also have allegations of mismanagement and problematic service delivery by the municipality. It suggests that something big is being hidden here. They (the municipality) are not acting in the interests of the people of this city, but rather in the interests of a small group.”
The following FB posts on Sowetan Live captured the essence of public response and concerns about the gagging by-law: “It’s an illegal ‘by-law’ that was passed because those councillors will be deciding on their livelihoods. The Municipal Systems Act 2000 provides that in all council meetings the residents of the municipality have the right to attend and hear out what their representatives are deciding on their behalf … How does a city council discuss public issues in secret! … Because they don’t want the public to know about them stealing public funds.”
In recent years, there were serious allegations of corruption in Durban, which were verified by three independent agencies – the Auditor General, Ngubane investigation and the Manase forensic audit. There was damning evidence relating to financial mismanagement, “bid rigging, the awarding of tenders to city employees and city councillors, and bypassing the tender process in favour of certain suppliers, consultants and contractors”, estimated at R3.5-billion. In short, elected custodians squandered about 12% of the city’s total budget! Astonishingly, none of the councillors or officials was charged and prosecuted in a court of law (some received a slap on the wrist in internal disciplinary action), and the outgoing mayor who was also implicated was promoted to a prestigious ambassadorial posting.
Clearly, notwithstanding placatory public platitudes, lessons were not learnt. In June 2017, the Auditor-General found that 377 tenders were awarded by the eThekwini municipality to suppliers with fraudulent documents. Auditor-General Kimi Makwetu succinctly identified the reasons for this state of affairs in Durban and other parts of the county:
“As long as the political leadership‚ senior management and officials do not make accountability for transgressions a priority, irregular, unauthorised and fruitless and wasteful expenditure as well as fraud and misconduct will continue. An environment that is weak on consequence management is prone to corruption and fraud‚ and the country cannot allow money intended to serve the people to be lost.”
A healthy democracy thrives when there is free flow of information and critical debate. Access to information is a foundation of democracy, is associated with transparency and public accountability, and contributes to socio-political stability. As Nobel laureate Amartya Kumar Sen has argued: “Political and civil rights, especially those related to the guaranteeing of open discussion, debate, criticism, and dissent, are central to the process of generating informed and considered choices.”
By adopting the regressive secrecy by-law which harks back to the dark days of apartheid, the Durban municipality’s intention is clear – to produce citizens who remain ignorant and compliant, and who would therefore not ask uncomfortable questions about corruption, looting and State Capture, or “speak truth to power”, like “clever blacks”, much derided by outgoing No 1. After all, the meek shall inherit the earth. DM