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OGP Diplomacy and South Africa’s Secrecy Law

BY David Eaves | Wednesday, June 20 2012

Open Government Partnership member South Africa has proposed a bill that would make it illegal to publish or even possess leaked government documents, an early test of the partnership's ability to set new international norms for transparency and open government.

I’ve heard from multiple sources that several of the members – including the United States – have been encouraging South Africa to reform the proposed bill. While most of this pressure has been private there have been places where the discussion has spilled into the open. For example, several countries – both OGP members and non-OGP members – used the UN Human Rights Commission’s periodic review process to publicly raise concerns about the proposed bill. As reported by the South Africa Daily News:

Sweden and the Czech Republic called for a review of the present state information bill while, Britain, Canada, the Netherlands, Norway, Spain, Switzerland and the US raised serious concerns about the implications of the bill for freedom of speech. Germany called for the “abrogation” of the bill.

“We are concerned the bill would have a considerable dampening affect on the freedom of the press,” said the US delegation.

The bill, which has not been voted into law, at best appears to violate the spirit of the Open Government Partnership. The OGP seeks “more transparent, effective and accountable governments -- with institutions that empower citizens and are responsive to their aspirations." Making the situation even more complicated is that South Africa sits on the OGP’s steering committee and therefore occupies a leadership role within the 55 country partnership. Such a controversial step from a leading country, coming as countries like Russia come onboard, could be damage the organization's legitimacy. The South African bill also sits in stark contrast to Brazil's recent access to information law, which includes a number of provisions - including on open data - that recognize how technology is transforming the way information is increasingly being shared. Indeed, clauses 15 and 44 of the proposed bill make merely possessing a classified document a crime creating the possibility that a simple, but widely distributed email containing classified information could transform hundreds of citizens into felons with the click of a mouse.

Generally, states are careful about commenting on the internal affairs of other states. The U.N. forum — where countries air their concerns openly — is relatively rare. Part of this is because meddling can create serious backlashes; consider, for example, the U.S.’s involvement in Spain’s copyright legislation. But it can also prompt uncomfortable comparisons. The Canadian government recently experienced a catastrophic failure of its own Crime Bill, which had online monitoring provisions in it which made many in the public uncomfortable, and the United States has seen large numbers of previously public documents retroactively made secret. Asking too many questions abroad might cause ones own citizens to ask similar questions at home.

In the end, nothing can replace a vibrant domestic civil society. In South Africa, elements of civil society continue to mobilize against the bill. But it would appear that both quietly and publicly the OGP may be having a helpful impact. The OGP creates a reason to put discussions about openness and transparency on the agenda during bilateral meetings even if, ironically, we the public do not have access to those meetings. This can have a material impact on domestic politics, particularly when those bilateral meetings involve major powers. The OGP also provides domestic civil society actors with both a vehicle to draw in embarrassing international attention that can shame a government into rethinking its actions as well as practices from other countries that set an acceptable standard they can demand their government to adhere to. This too should not be shrugged at.

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