Working the Information Act
Mail and Guardian
The village of Emkhandlwini sits high up in the rolling hills of KwaZulu-Natal, 50km away from its municipal offices. The roads are bad, with no significant public transport. So it comes as no surprise that access to information and services for the people is an uphill battle.
What is surprising is that these villagers comprise one of the few groups who are successfully realising their constitutional right to access to information, and doing so to help protect other fundamental rights.
What is tragic is that what they want is what most South Africans consider a basic need: clean water, on tap. The further tragedy is that they have been waiting so long for it.
At a workshop in 2004, an angry representative of the Emkhandlwini community met Melvis Pieterson, the field worker for the Open Democracy Advice Centre (Odac), an NGO designed to help people use the Promotion of Access to Information Act (Paia) - the five-year-old law that gives effect tot the constitutional right.
Peterson was told by the village representative how, every week, the villagers watched government water tankers trundle past their homes to deliver water to other communities further down the road. The other villages had big green tanks of their own to receive the clean water. but somehow, week after week, Emkhandlwini was overlooked. Pieterson started to ask questions, but battled to get the necessary documents out of Ntambanana Municipality that would unlock the mystery of water provision in that area.
"There was nothing wrong with the water plan for Ntambanana," says Alison Tilley, the chief operating officer of Odac. "But the municipality hummed and hawed about giving information for about six months because they were worried about whether they would get into trouble."
For Tilley and Pieterson, the culture of secrecy that appears entrenched in many municipalities, dating in some instances back to the apartheid era, poses a real challenge to the implementation of Paia.
Using the Act, Pieterson finally received the right documents and discovered effective plans to deliver water to households in that region. The only problem was that the plan was not working as well it should. So now the challenge was to take that information tot he people who could do something about it.
In April this year, Pieterson went to the village and the council. At the municipal offices he was introduced to a young engineering technician in charge of water provision. He had been in the job for ea mere two months. Among the many complaints he had received about water delivery, he had not yet heard about the plight of Emkhnadlwini. But he explained to Pieterson that he had heard rumours that a few of the drivers of the tankers appeared more likely to drop water off at villages where they had friends or girlfriends. He contacted the private company supplying the water tanker service to the municipality and promised to put the matter on the council's next agenda.
When the council leaders met last week, they discovered that Emkhnadlwini was not the only village that had been overlooked. Many had been left off the route of the tanker drivers in the original service agreement.
The municipality has decided to do an audit of the area and revise the service agreement to ensure the tankers go to all the villages that need water. It also decided to get green tanks for those who lack them and, in the interim, ask the tankers to stop off at Emkhandlwini so the villagers could at least fill up their buckets as they passed.
Tilley says Emkhandlwini's story shows how critical the law is in helping people access basic services. "Using the law is about making people's rights real. The law helps the villagers of Emkhandlwini understand their rights so that they can engage with government."
Paia flows directly from the right to information enshrined in the Bill of Rights in the Constitution. When it was enforced as a law in 2001, there was little fanfare from the government and, since then, no state campaigns to promote it. A recent study monitoring freedom of information legislation in 14 countries rated South Africa's use of its freedom to information Act poorly.
As a result, very little is said about Paia in the media. None of Pieterson's pioneering work with far-flung municipalities has made it to the headlines. The Act has only come to prominence when used in politicised, controversial cases of wealthy entrepreneur Richard Young. He disputed contracts within the government's multi-billion arms acquisition deal of 1999. He has used the Act to seek government information successfully to strengthen his hand in a court suit against the state.
"We have seen highlighted the big stories, which are about wealthy individuals and organisations pursuing information," says Tilley. "These high-profile cases can be good to publicize the law, but only if it doesn't lead people to think that the only way to use the Act is with a wagon-load of lawyers. That will militate against ordinary people using it."
The media, for the most part, have been slow to use the Act. The time lag between demanding information and receiving it too long to make it practical. The whole process of inquiry for Emkhandlwini has taken almost a year and a half.
"We find that three to six months is the average time to wait for answers. It's taking too long," says Tilley.
Pieterson and Tilley have found that there simply is not enough campaigning around the law to ensure that government officials are aware of their constitutional obligation to release information.
"I think the message has to come from the senior political leadership," says Tilley. "When there is a clear signal that there is nothing extraordinary about releasing information, that is when officials at local government will be able to see that it can be done, that it is helpful and that it increases the quality of the communication between officials and citizens."
With acknowledgement to Marion Edmunds and Mail & Guardian.*1 Not quite - I might have been wealthy if I had spent six or seven million Rands on legal fees since 1999.