Citizens Have a Right To Information – SJC, NU

This article by Zackie Achmat and Fritz Jooste appeared in the Cape Times on 1 November 2011

The lived experience of people in informal settlements is a dehumanising defiance of the constitutional and moral obligations that require the state to treat every person as having equal dignity and rights. Uncollected rubbish, floating faeces and the ever-present threat of crime are constants in the lives of people such as Nomlungisi Qezo and her family, residing in Khayelitsha’s informal settlements. Low wages from the service industry in Cape Town keeps her family impoverished. Her demands are simple – clean and safe sanitation, regular refuse collection, and tarred roads with electricity.

Over almost three years Mam’uQezo has been active in the safe and clean sanitation campaign of the Social Justice Coalition (SJC). Now, for the first time since she joined the campaign, she and her comrades across Khayelitsha have received a firm indication that safe and clean toilets, as well as solid waste removal, will be at the top of the Mayor’s agenda.

In Patricia de Lille, Cape Town now has a Mayor who is committed to open, accountable and responsive government.

The City of Cape Town’s administration is also often lauded by the DA as the most open, efficient and effective – its audits are clean and in 2010 it won an award from the South African Human Rights Commission and the Open Democracy Advice Centre for openness and access to information.

However, in our experience, the municipal administration inherited by Mayor De Lille – the public servants whose decisions affect the lives of literally millions of people in our City – conduct their work under a shroud of secrecy. Yes, this secrecy, rather than openness, characterises municipalities across the country; but their poor example should not be the benchmark by which we evaluate our own City’s administration.

Tender secrecy

The experiences of the SJC and Ndifuna Ukwazi in engaging with the City’s administration have demonstrated the nature of its secretive bureaucracy. Our organisations have struggled for more than three months to access information about basic services – services involving billions of rands being paid by the City to private entities because basic services are outsourced.

One such company, Tedcor, serves about 600 000 people in 20 municipalities across the country. In 2010 its local subsidiary, Tedcor Women in Waste, won a three-year tender worth R54.4 million from the City of Cape Town to remove and dispose of refuse collected in informal settlements. Information about the service that Tedcor is contracted to provide is not easily accessible, with no specific details about the tender available on their website or that of the City. One of the only ways to attain such information is to consult the advertised specifications and service delivery agreements between the City and Tedcor.

Between 12 July and 19 October 2011, the SJC and Ndifuna Ukwazi has requested the tender specifications and service delivery agreements between the City and all private companies responsible for solid waste and sanitation services in informal settlements. A service delivery agreement (SDA) is a legal document that includes the specific operational duties of companies that are contracted through tenders by a municipality. SDAs are a requirement of the Local Government Municipal Systems Act.

Despite numerous requests submitted to the City’s Supply Chain Management (SCM) office, it was only through the direct intervention of Mayor de Lille that on 20 October 2011 we received much (but not all) of the information we sought.

The many delays and obstacles we faced in gaining access to some of these documents violates Section 84 of the Local Government Municipal Systems Act (MSA) which states that “when a municipality has entered into a service delivery agreement it must make copies of the agreement available at its offices for public inspection during office hours”. The Act goes one step further, making it compulsory for municipalities to also “give notice” in the media of service delivery agreements, the details of the company and their availability for inspection.

This legal requirement, seemingly disregarded by City officials, exists for several reasons – it promotes openness and accountability, it is intended to ensure the honesty and integrity of public officials and private service providers, it allows the community to participate in local government affairs and have knowledge of it, and it encourages effective and efficient delivery.

The SJC and Ndifuna Ukwazi’s attempts to gain access to the tender documents are part of an on-going effort to allow residents of informal settlements, particularly of Khayelitsha, to work with the City to access and monitor the delivery of basic services, and, to improve them over time.

Participatory democracy and governance

How can oversight of government bureaucracies be achieved? The Municipal Systems Act requires the City to develop “a culture of municipal governance that complements formal representative government with a system of participatory governance”. The Constitution also enshrines participatory democracy and governance as a fundamental political right. In the Doctors for Life judgment, former Chief Justice Sandile Ncgobo wrote the following on behalf of a unanimous Constitutional Court:

The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.

We believe that we do not have a country-wide public service that encourages participatory government. At every level of the state (local, provincial and national) a closed, unaccountable bureaucracy exists, a thing of monstrous power wielded over tens of millions. While elected officials are regularly held accountable through elections, implementation of the law and policy that they make is left solely in the hands of administrators. Bureaucracies, whether in the national, provincial or local governments or departments, do not experience the same level of scrutiny as elected officials. For this reason, an active and activist citizenry is essential to assist elected officials in the oversight of bureaucracies and administrators.

Members of the SJC such as Mam‘uQezo and thousands of people like her want to participate in the governance of their communities.  Access to information is indispensable to a participatory democracy.

The Right to Know (R2K) campaign (to which our organisations are affiliated) has been conducting a valiant struggle against what communities call the “Secrecy Bill”.  The circumvention of disclosure laws by local government officials impacts negatively on service delivery and on the ability to hold private contractors accountable. Similarly, the struggle against the Secrecy Bill is also a struggle for open and accountable government at all levels.

Secrecy the rule not the exception

Attempts to access service delivery agreements with private contractors have not been the only negative experience of the SJC with the City of Cape Town. Local government officials in Cape Town, even elected ones, have withheld information and told the SJC ‘it is not in the public interest to disclose the report’ and were only forced to release the report because of demonstrations and threats of Court action. In 2010, the SJC battled to access the City’s internal report on the Makhaza toilet struggle and earlier this year, the City’s Chief Health Officer refused access to environmental health reports on the state of toilets in informal settlements in Khayelitsha. This time, service delivery agreements were only made available after the direct intervention of Mayor De Lille.

Access to information from any local government should not require appeals to the Mayor and/or the courts. Local government secrecy is unlawful because it is dangerous to democracy; it can allow influence peddling by the wealthy and connected, and often harms the health and wellbeing of working-class and poor communities.

All municipalities must make full service delivery agreements public

All contracts and complete Service Delivery Agreements for the provision of basic services by private providers must be made public. They should be easily accessible and available including on the websites of the City and the contractors. Disclosure of these agreements is an urgent matter and a legal requirement.

Public money is used to pay for the outsourcing of these basic services. Without the agreements it is difficult to assist or hold local government accountable when the companies it gives tenders to fail to discharge their contractual obligations.

The City of Cape Town and municipalities across the country must surely see the SJC and Ndifuna Ukwazi’s demand for access to SDAs as a precondition for the delivery of basic services.

Zackie Achmat is a co-director of Ndifuna Ukwazi and a member of the SJC secretariat. Fritz Jooste is a researcher with Ndifuna Ukwazi.

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