In this article Mukelani Dimba shows how freedom of information legislation can be used by citizens to pursue their socio-economic rights. He argues that it creates the conditions in which government decisions about resource allocation can be effectively challenged.
The third wave of democratisation in the developing world has created opportunities for development and reconstruction in many nations brought to their knees by past regimes that were oppressive, secretive and undemocratic. This has focused not only on infrastructure and the economy but also on a rethink of the relationship between those in power and those who voted them into power. In this reconfiguration we should recall the words of the American constitutionalist, Alexander Hamilton, who once said that ‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary… A dependence on the people is no doubt the primary control on government; but experience has taught mankind the necessity of auxiliary precautions.’
These ‘auxiliary precautions’ referred to by Hamilton included not only the courts and other organs of state but also the constitutional legal framework established to support them. If men and women were angels, basic human freedoms, such as the right to vote and freedom of expression (which includes the right to seek, receive and impart information), would not need to be protected in national constitutions. Nor would there be any need for special constitutional provisions obliging governments to share the spoils of economic growth fairly among citizens by ensuring that even the most impoverished have access to the services needed to sustain life, protect dignity and enhance the prospects of future generations. Alas, men and women are not angels, and we therefore need these ‘auxiliary precautions’ to protect the democratic order for the material benefit of the poor. It is vital that national constitutions not only protect civil and political rights but also promote the realisation of social and economic rights.
By social and economic rights, I refer to what Professor Kader Asmal, the South African human rights scholar, activist and former government minister, once called ‘the red and green rights’, namely the rights to housing, health care, food, social security, social services, education, human dignity in conditions of detention, healthy environment, land and security of tenure.
The third wave of democracy has not, in most cases, led to the social and economic development of communities previously materially disadvantaged by discriminatory and undemocratic systems of government. I believe that this is largely because the focus has tended to be on the full constitutional protection of civil and political rights as the cornerstone of the democratic order, while neglecting or partially entrenching social and economic rights within the constitutional framework.
Some correctly argue that democracy is not a sufficient condition for development or for social and economic equality. Many scholars have argued ‘that democracy will remain a formality unless it also includes substantive social and economic equality’ (Jones and Stokke, 2005). Amartya Sen’s argument is that ‘democratic institutions are guarantors for public deliberation and effective responses to poverty and deprivation’ (Jones and Stoke, 2005). Sen (2000) goes on to argue that:
‘Freedoms are not only the primary ends of development, they are also among its primary means. Political freedoms (in the form of free speech and elections) help to promote economic security. Social opportunities (in the form of education and health facilities) facilitate economic participation. Economic facilities (in the form of opportunities for participation in trade and production) can help generate personal abundance as well as public resources for social facilities. Freedoms of different kinds can strengthen one another.’
Mumtaz Soysal, in his 1977 Nobel lecture, argued that:
‘When those deprived of their socio-economic rights cannot make their voices heard, they are even less likely to have their needs met. If a person is deprived of one right, his chance of securing the other rights is usually endangered. The right to education and the right to freedom of information and open debate on official policies are necessary to secure full public participation in the process of social and economic development. The freedom of the human mind and welfare of the human being are inextricably linked.’
In countries where citizens have been unjustly denied access to certain services and resources because of their race or other societal background, a constitution, as an ‘auxiliary precaution’, that protects socio-economic rights is vital to the process of redress, reconstruction and redistribution.
The protection of socio-economic rights by a country’s constitution and their progressive realisation partially justiciable by the courts is a departure from the norm, where the focus has tended to be on judicial protection of political and civil rights. Traditionally, freedom of information (FOI) has found its place among the body of these political and civil rights.
During the era when only a few Scandinavian countries and the USA had freedom of information legislation, these laws created an understanding of FOI as merely part of the right of freedom of expression, which in and of itself had come to be perceived as a right that affected only journalists and political activists. Earlier international legal instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, also enveloped FOI within the broader right to freedom of expression. The newer Declaration on Principles of Freedom of Expression by the African Commission on Human and People’s Rights follows a similar route, the major difference being its extension of FOI to privately held information.
I firmly believe that it is when freedom of information is used as a form of leverage to protect or promote other socio-economic rights that it finds its real meaning in a developing-country context. The well-known and remarkable work of the MKSS in Rajasthan in India, emulated by other organisations in South Africa and elsewhere, shows how FOI can be used to the benefit of local communities and governments by helping social organisations expose corruption that compromises the proper implementation of development projects and social security schemes. This supports the idea that one of the purposes of the tools of democracy, such as FOI, is ‘to advance poor people’s access to socio-economic resources and services’ (Barbeton, Davis and Sarkin, 2000). This is consistent with the United Nations Development Programme in its assertion that:
‘Effective anti-poverty programmes require accurate information on problems hindering development to be in the public domain. Meaningful debates also need to take place on the policies designed to tackle the problems of poverty. Information can empower poor communities to battle the circumstances in which they find themselves and help balance the unequal power dynamic that exists between people marginalised through poverty and their governments.’
In India, for example, the government runs a massive food subsidy scheme as a social security measure to promote the right to food. Food rations are in most instances distributed through shopkeepers in the private sector, called ration-dealers. A person takes their ration card and collects food parcels from their local ration-dealer. The dealer then claims payment from the government for the food he has distributed to the community. However, some ration-dealers have been reportedly manipulating the process for their own ends by telling people that they have run out of food subsidy stock, offering to sell them food from their ‘ordinary trading stock’ instead. In the ration-dealers' records these transactions are recorded as distributions related to the food subsidy scheme and money is claimed from the government. The ration-dealers therefore get paid twice, by the customer and by the government.
This practice was exposed in a number of villages in Rajasthan when these communities, assisted by the MKSS, used the state’s freedom of information law to access the claims submitted by the ration-dealers to the government. Massive discrepancies were discovered between what the ration-dealers claimed and what they had actually distributed, which was captured on individual ration cards kept by each member of the community. By accessing government documents these citizens were able to reconcile what was claimed on paper with the reality on the ground. This illustrates vividly the multi-dimensionality of freedom of information in the developing world, where it can be used as tool for accountability, to protect socio-economic rights, fight corruption and improve government efficiency.
In Thailand, children’s right to education and fair and equal treatment was protected when one parent used the country’s freedom of information law to challenge a public school’s decision denying their child’s enrolment in one of the country’s best public schools. In seeking access to the results of enrolment tests, the parent exposed the discrimination that had hitherto been part of the selection process, and which favoured children from rich and prominent families. This action prompted a countrywide overhaul of the system of selection and enrolment in public schools.
However, in countries where freedom of information legislation has not yet been passed, citizens cannot claim the protection it might provide. In an area near the Tanzanian capital of Dodoma, schools were built with donor support on condition that the donor and the government would provide match funding for the money paid by parents towards their running costs; the funds would be controlled by local authorities and school principals. However, inefficiency and some reported cases of corruption have left some of these schools in a state of disrepair. There is simply no accountability for the use of these funds. Local people have no recourse open to them, short of social mobilisation, which in itself require access to information. But Tanzania does not yet have a freedom of information law.
In neighbouring Kenya, citizens have complained about the mismanagement of constituency development funds (CDF), which are funds controlled by members of parliament to fight poverty at regional levels. CDFs are also used to run educational and bursary schemes and constitute about 7.5 per cent of the government’s revenue. However, in Kenya the CDFs are popularly called ‘corruption devolvement funds’. Kenyans have very little recourse to ensure that they receive the services to which they are entitled because Kenya does not yet have a freedom of information law.
Slightly more fortunate are a group of women in KwaZulu-Natal, one of South Africa’s poorest provinces. Villagers in the hamlet of Emkhandlwini noticed that those in neighbouring villages were receiving water from municipal tankers while they were not. Their water source was a dirty stream that they shared with their livestock. Luckily, some villagers were aware of their basic civil rights because they had had some training, but they did not know how to seek solutions to the water problem without relying on an unresponsive local government political representative who had until then failed to deal with the issue.
In 2004, and with the assistance of the Open Democracy Advice Centre, the villagers used South Africa’s freedom of information law, the Promotion of Access to Information Act, to ask for the minutes of the council meetings at which the municipality had decided on programmes of water provision. They also asked for the municipality’s integrated development plan and budget. It took a frustrating six months before the information was released, but it showed that while there were plans to provide water, no-one had thought of sharing these with the community. With these plans in hand the women started asking difficult questions of the authorities regarding the delivery of water. The media also covered the case, which may have created sufficient pressure to prompt the municipality to act. Almost a year after the initial FOI request, fixed water tanks, replenished a couple of times a week, were installed in the village and mobile water tankers began delivering water, while the municipality worked on a more permanent solution of laying down pipes.
This case demonstrates how socio-economic rights can be realised through the use of freedom of information and public pressure rather than through litigation. Public pressure to influence resource allocation can only be effectively applied if there is sufficient transparency in the process of resource allocation. Freedom of Information creates the conditions in which decisions about the allocation of resources can be challenged.
I strongly believe that in countries plagued by socio-economic imbalances inherited from undemocratic systems of government, it is crucial that the products of democratic transition, such as freedom of information legislation, must be used to address these imbalances. In the field of socio-economic rights, as the cases above show, FOI creates a basis for contestation and justification of government decisions on resource allocation. It creates a basis for a fair and reasonable manner of decision-making.
I wish to conclude this article by quoting South Africa’s leading legal academic on administrative law, the late Professor Etienne Mureinik, who once wrote:
‘If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification – a culture in which every exercise of power is expected and justified, in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.’
*Mr Dimba is the Deputy Chief Executive Officer of the Open Democracy Advice Center (ODAC), Cape Town. This essay was presented on behalf of the Open Democracy Advice Centre (ODAC) on the occasion of the international conference on Right to Public Information, organized by the Carter Centre, 26–29 February 2008, Atlanta, Georgia.
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