South Africa launched its latest Open Government Partnership (OGP) action plan, covering the period 1 July 2016 – 30 June 2018, on 6 May 2016. This was the country’s third national action plan since joining the OGP programme, which provides a platform for governments and civil society to work together to develop and implement ambitious government reforms.
Earlier this year the OGP released its progress report on this action plan. The report was prepared by South African researcher and Wits law professor Tracy-Lynn Humby and released by the OGP’s Independent Reporting Mechanism (IRM), which carries out an annual review of the activities of each country that participates in OGP.
Humby summarises her findings thus:
“South Africa’s third national action plan addressed a range of issues including public service delivery, budget transparency and access to government data. While most commitments were substantially completed, civil society expressed concerns about the overall lack of ambition and the recent transition of OGP leadership. Moving forward, the government needs to clarify the mandate and structure of the national OGP coordinator, engage civil society in a more inclusive way and enhance openness in high risk areas, such as budget spending and public procurement.”
The change in OGP leadership referred to, is the transition of OGP responsibility from the Department of Public Service and Administration (DPSA) to the Department of International Relations and Cooperation (DIRCO). DPSA oversaw the implementation of the third national action plan until July 2017, when former president Jacob Zuma transferred this responsibility to DIRCO.
However, notes Humby, the executive leadership of OGP in South Africa is currently unclear because DIRCO had not responded to the DPSA’s request for a formal handover at the time of writing.
Civil society participation ultimately overlooked
Through the setting up of community-based meetings and online channels, the DPSA facilitated consultation on the third national action plan. Civil society stakeholders participated as well, but their contributions “generally did not inform or influence decision-making on action plan themes and commitments”, Humby notes.
Furthermore, various civil society concerns regarding the incoherent and unambitious nature of the plan overall were not addressed.
Finally, there is no agreement between government and civil society on the criteria for selection of proposed commitments for inclusion in the national action plan.
Translating commitments into action
OGP countries are guided by a series of two-year national action plans, which centre on commitments that push governments to advance one or more of the OGP principles of transparency, accountability, participation, and technology and innovation. This is achieved through various initiatives and projects.
- Strengthening citizen-based monitoring;
- Open budgeting;
- Back to basics programme (B2B);
- Integrated environmental management information portal;
- Institutionalisation of community advice offices;
- Development of pilot open data portal;
- Roll-out open government awareness raising campaign;
- Implement action plan on G20 high level principles on beneficial ownership.
Only commitments 1, 2, 6 and 8 have been completed thus far.
The last commitment is of particular significance to Corruption Watch and Transparency International (TI), who have been campaigning for greater transparency in beneficial ownership, particularly through the latter’s Unmask the Corrupt campaign which kicked off in 2014. This campaign targeted grand corruption and resulted in a policy brief calling for publicly accessible registries of beneficial ownership information, in order to identify who controls a company and its profits.
South Africa endorsed the G20 high-level principles on beneficial ownership transparency in October 2015.
In its third action plan the country committed to taking “concrete action and to share in writing by means of developing, publishing and reporting regular progress on a Country Implementation Plan regarding the various steps to be taken to implement these principles and improve the effectiveness of their legal, regulatory and institutional frameworks with respect to beneficial ownership transparency”.
However, a 2015 TI report on national arrangements to implement G20 beneficial ownership commitments found that the ability of competent authorities in South Africa to assess beneficial ownership information was severely restricted, because there was no legal definition of beneficial ownership, or requirements for the collection and maintenance of information on the natural persons who ultimately own legal companies. It is crucially important to have an accurate and comprehensive definition in order to establish a strong beneficial ownership regulatory framework, TI noted.
Corruption Watch was one of several consulting civil society organisations (CSOs) that participated in the development of the draft of South Africa’s commitment 8. The CSOs were informed that the development of a beneficial ownership register fell under the mandate of the Companies and Intellectual Property Commission (CIPC) under the Department of Trade and Industry (DTI) – which did not respond to requests to be part of the OGP.
South Africa did complete this commitment, and milestones include the establishment of an inter-departmental committee responsible for developing, implementing and reporting on the country implementation/action plan, as well as the development of the country implementation plan.
The inter-departmental committee was established in October 2015 before the public launch of the third national action plan. It meets quarterly and includes representation of 20 key state departments and private sector institutions, such as the National Treasury, the Financial Intelligence Centre, CIPC and DTI.
Civil society is not represented on the committee, Humby notes. Furthermore, the minutes of committee meetings are not published online or shared with CSOs. This means that the OGP values of access to information and technology and innovation for openness and accountability, are not encompassed in commitment 8.
By failing to guarantee open access to information and making the information only available to certain authorities, the project excludes an essential aspect of the OGP values. It also contravenes its own commitment to “share in writing by means of developing, publishing and reporting regular progress on a Country Implementation Plan”.
Former president Jacob Zuma signed the FIC Amendment Act, 2017 into law on 26 April 2017 – this amendment inserts a definition of ‘beneficial owner’ into the FIC Act as follows:
“beneficial owner” in respect of a legal person, means a natural person who, independently or together with another person, directly or indirectly, (a) owns the legal person; or (b) exercises effective control of the legal person.
CSOs not part of the OGP process for beneficial ownership
The government entities have not been forthcoming with CSOs on the matter, writes Humby, and the lack of communication and engagement on the work of the committee is a concern. Since a civil society meeting convened by Making All Voices Count in May 2016, said Corruption Watch’s head of legal and investigations Leanne Govindsamy, there has been no civil society engagement on commitment 8.
However, Humby points out, the current action plan lacks specific commitments targeting greater transparency to address the current issues around state capture, which are a source of concern among CSOs. Such information would cover published information related to awarded government contracts or sharing details about businesses that receive government funding, for instance.
With the fifth OGP Global Summit having just concluded in Tbilisi, Georgia, many countries’ efforts to end corruption are little more than lip service to the idea of public integrity, wrote TI’s Aly Marczynski in a blog post on Voices for Transparency.
“Clearly countries must go beyond talking about fighting corruption and work towards implementing anti-corruption reforms,” Marczynski noted. “Civil society participation in co-creating ambitious anti-corruption commitments and supporting their implementation can help, and the OGP is the place to do it.”