Practical challenges facing National Human Rights Institutions (NHRIs) in Southern Africa: A case of South Africa and Zimbabwe
Posted: 28 October, 2024 Filed under: Namatirayi Ngwasha, Zororai Nkomo | Tags: constitutionalism, corruption scandal, democracy, financial constraints, human rights, jurisprudence, Lancaster House Constitution, Lawrence Mushwana, National Human Rights Institutions, Nkadla debacle, Oilgate Scandal, Paris Principles, political interference, South Africa, Zimbabwe, Zimbabwe Human Rights Commission, Zimbabwe Human Rights Commission Report Leave a comment
Author: Zororai Nkomo
Centre for Human Rights, University of Pretoria
Introduction
The world over, states have the primary responsibility of ensuring that human rights are respected, protected and fulfilled. As entities who negotiate and ratify international human rights instruments, and they must create safeguard mechanisms for people to enjoy these rights.[1] States often establish national human rights institutions in line with the Paris Principles as part of the institutional architecture for the fulfilment of their international human rights obligations. In this regard in 2014, the South African Human Rights Commission Act 40 of 2013 was enacted to replace the Human Rights Commission Act 54 of 1994.[2] The coming into force of this new Act witnessed the expansion of the powers of the commission in line with the Paris Principles.
Testing the Waters of Transparency: The Impact of Namibia’s Access to Information Act on Constitutionalism
Posted: 18 June, 2024 Filed under: Dunia P. Zongwe | Tags: Access to Information Act, accountability, ‘Fishrot’ Files, constitutionalism, corruption scandal, Gondwana case, Haufiku case, human rights, international standards, Namibia, national security, RAI, right to access information, rule of law, secrecy, secret information Leave a comment
Author: Dunia P. Zongwe
Associate Professor, Alliance School of Law, India; and Adjunct Associate Professor, Walter Sisulu University, South Africa
Abstract
This paper decodes the right to access information (RAI) in the newly enacted Access to Information Act in Namibia. Passed by Parliament in 2022, this Act came on the heels of the infamous ‘Fishrot’ Files, the country’s ugliest corruption scandal, uncovered through massive information leaks. This paper evaluates the efficacy of the Act in advancing the goals of constitutionalism by enabling individuals to access information robustly and transparently, thereby holding the ruling elite accountable to the public.
This paper unfolds in four steps. It begins by describing the loopholes that existed in the law before 2022, pondering what these lacunae imply for constitutionalism. Next, the paper dissects the RAI in theory, doctrine, and as presented in the Access to Information Act 8 of 2022. It then examines the Act’s provisions on RAI against the provisions laid out in the 2013 Model Law on Access to Information for Africa, highlighting key parallels. Lastly, drawing on those parallels, the paper assesses whether the RAI, as consecrated in the 2022 Act, advances the goals of constitutionalism. The paper argues that, by excluding from its scope Cabinet deliberations, the Act watered down the presumption of disclosure, and, in that sense, it failed to close the last loopholes that allowed the executive branch to evade accountability. This paper adds to the relevant literature by revealing that implementing the RAI and the disclosure presumption may constrain the executive more effectively than the other organs of the state.
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