Who will guard the guardians?

When I did my LLB degree many years ago, we still had to study Latin, which, alas, was not my strong point. Why we had to study Latin (and Roman Law, for that matter), I could never understand. As I pointed out at the time, some of the texts with which we uncritically had to engage were extremely problematic as they referred to slaves – who were usually pouring wine for their masters or stealing the master’s property (talk about cruel stereotyping).

I mean, really, how shockingly bizarre that no lecturer ever pointed out that slavery was evil and why no one thought that we should rather discuss the fact that today a person who practiced slavery would be hauled before the International Criminal Court (which admittedly had not existed back then) for crimes against humanity.

Nevertheless, I did learn a few Latin phrases to impress the boys and to demonstrate to my parents that I was a “real” law student who could invoke obscure Latin phrases when needed. One of these phrases, which came to me as I was reading the judgment of the Eastern Cape High Court in the case of Centre for Social Accountability v The Secretary of Parliament and Others, is: “Quis custodiet ipsos custodes?” This phrase, Wikipedia now reminds me, is traditionally attributed to the Roman poet Juvenal and comes from his Satires and is literally translated as “Who will guard the guards themselves?”

In our constitutional democracy with its model of separation of powers, we vote for a political party (not for any individual) and members of Parliament are therefore not directly accountable to the voters. Although members of the executive are accountable to Parliament and must give account of themselves to Parliament, our constitution does not provide for a direct way to hold Parliamentarians accountable. They are only accountable indirectly, first to their parties and second to the public at large via the media.

But for this indirect accountability to work, political parties must fear the wrath of the electorate and must act decisively against members of their own party in Parliament when those members break the rules, engage in criminal activity or otherwise dishonour the institution of Parliament. Parliament must also operate in an open and transparent manner so that the media can keep the electorate informed about what members of Parliament get up to – reporting, of course, on both the positive and the negative aspects of the work of members of Parliament.

So, one should laud the Centre for Social Accountability and its lawyers for approaching, first, Parliament and then the court to gain access to further information regarding the so called Travelgate scandal. The Centre specifically sought to gain access to records of Bathong Travel, which later went into liquidation. The liquidators of Bathong instituted action during 2007 against a number (it is not disclosed how many) of members of parliament to recover monies owing by them to the company.

The reason for the Centre’s interest in these records is that it was alleged that the liquidators of Bathong Travel had recovered some R4.79 million from members of Parliament in relation to Bathong. Parliaments’ own “Briefing Document/Fact Sheet” stated that approximately 70 members of Parliament utilized the services of this agency and that there were evidence of complicity by certain members in possible fraudulent acts.

As the judgment wryly observes, there was “a distinctive lack of enthusiasm on the part of parliament to pursue the claims of the liquidators of Bathong against its members”. The court also pointed out that there was “a strong desire, for reasons not known but giving rise to wide speculation, on the part of parliament to prevent those claims from being pursued. It was particularly anxious to protect those claims from public scrutiny in a court of law”.

The Centre invoked the Promotion of Access to Information Act (PAIA) to try and obtain these records which Parliament was so anxious to hide from the public. The Grahamstown Division of the Eastern Cape High Court, in a judgment written by Alkema J, provided a ringing endorsement of openeness and transparency and reminded us that we – the public – are the one’s who should ultimately hold parliamentarians accountable, stating:

The escape from a secretive and closed system of government and the quest for an open, accountable and transparent system of government find expression in inter alia, the right of access to “any” information held by the State. It is now trite that such right must be interpreted to give effect to the new constitutional order of openness, accountability and transparency.

The Court then quoted from two Constitutional Court judgments, first, that of Shabalala and Others v Attorney-General, Transvaal and Another, where Mahomed DP said:

There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is ‘justifiable in an open and democratic society based on freedom and equality’. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.

The second is Brűmmer v Minister for Social Development and Others where Chief Justice Ngcobo held:

The importance of this right … in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information.

The salient legal question was, given this constitutional commitment to openness and transparency, whether Parliament was entitled by PAIA to withhold the records because these records contained “personal information” about members of Parliament. Section 34(1) prevents the unreasonable disclosure of personal information.  

In a judgment which, although not directly applicable also has resonance for the argument made by Julius Malema that he is a private person and that it is none of our business whether he is corrupt or not, the court noted that it is generally recognized that every person has an untouchable inner sphere of personal life where he or she has the sole autonomy to decide how and where to live his/her life, and where his/her decisions do not adversely affect other people. No interference by law is tolerated with conduct within this sphere, either by the state or by other individuals or institutions. At the heart of this right is the freedom of identity of each individual, enclosed in an area of private intimacy.

However, private information can be revealed where this informationd does not relate to the absolute inner core of a person’s identity. Relying on the pragmatic Constitutional Court jurisprudence on this issue, the High Court noted that there was a two stage test to decide when this could be done. The first part is that the person trying to keep information secret must establish a subjective expectation of privacy. This means that the person must first establish that the nature of the information is covered by the freedom of identity principle – in other words that subjectively viewed it is part of the inner sanctum of the private and personal life of the individual. The second part is that, objectively assessed, society must recognize such expectation as reasonable.

The Court then continued:

The personal life of a member of parliament, his or her personal preferences and beliefs, how he or she choose to live his or her personal life, what they do on vacation in the privacy of their holiday home – even if they travel there on state expense – how they spend their money and how much money they have to spend, all of this is no concern to the state. It is their business; not that of the state. Such information is covered by the principle of freedom of identity. But how they execute their duties as members of parliament; under what circumstances they claim payment in respect of travel vouchers; and whether or not they obey the rules of parliament and act in accordance with the code of conduct which society expects from its members of parliament, all of this is the business of the state.

The state has the right to know, and through the state, the members of society who have elected the members of parliament in an open and democratic society. The information sought is in relation to claims in respect of travel vouchers issued to members of parliament in their official capacities as members of a public body. Such information does not concern their private lives…

The Court therefore ordered the handing over of the requested information within 10 days as it was not reasonable to expect that Parliament could keep secret information that possibly showed malfeasance or even criminal activity on the part of our public representatives. 

One assumes that Parliament will appeal this judgment, which is a good thing as this will give the Constitutional Court another opportunity to confirm that the right to privacy cannot be abused by public representatives or politicians  to try and escape accountability.

In the end, if members of Parliament are allowed to plead privacy every time we wish to know how they have been spending our money and what they have been up to, we as members of the voting public will not be able to hold these members of Parliament and the parties they belong to properly accountable at the ballot box. And even members of Parliament – our supposed guardians – need to be guarded against with the power of our vote for which so many people have sacrificed.

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