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| Ms Pansy Tlakula |
Former Chairperson, Electoral
Commission of South Africa, Ms Pansy Tlakula says that access to information
and freedom of expression are germane to the conduct of free, fair and credible
elections.
“The role of the right of access
to information in fostering good governance, transparency, accountability and
responsiveness cannot be overemphasised. Access to information is a cross
cutting right which underpins the enjoyment of other rights, in particular
social, economic and other political rights such as the right to vote,”
she contends.
Delivering the keynote address
at the West Africa Media Excellence Conference and Awards (WAMECA) holding in
Accra, Ghana, Tlakula, also a former chairperson, African Commission on Human
and Peoples’ Rights (ACHPR), argues that “The lack of information at all stages
of the electoral process breeds distrust and lack of confidence in the process,
which often poses a threat to peace, security and stability.”
“Elections can only be free,
fair and credible if the electorate has access to accurate, credible and
reliable information at all stages of the electoral process. Without
information on a broad range of issues prior, during and after elections, the
electorate cannot exercise their right to vote meaningfully.”
“The elements of the right of
participation in political and public affairs include the right to vote and to
be elected, the right to be consulted about public affairs and the right to be
appointed to the public service. This right can only be fully realised if it is
enjoyed with other rights such as the right of access to information, the right
to freedom of expression, the right to freedom of assembly and association, the
right to equality and equal protection of the law and the right to privacy,”
the former South African Electoral Chair says.
Attempting some historical
excursion, Tlakula who was a member of ACHPR since 2010 before being appointed
chairperson in 2015, recalls that, upon realising the absence of a regional
standard on access to information in elections in Africa, the African
Commission on Human and Peoples Rights adopted Guidelines on Access to
Information and Elections in Africa in 2017.
“These Guidelines provide
guidance on access to information in the electoral process as a means of
strengthening democratic governance in Africa. The foundational principle of
the Guidelines is that all key stakeholders involved in the electoral process
must proactively disclose election related public information they hold without
being requested to do so.
“The Guidelines require the
following key stakeholders involved in the election to proactively disclose
public information in order to enhance the credibility and transparency of the
electoral process: Authorities responsible for appointing the Election
Management Bodies, Election Management Bodies (EMBs), Political Parties and
Candidates, Law Enforcement Agencies, Election Observers and Monitors, Media
and online Media Platforms Providers, Media Regulatory Bodies and Civil Society
Organisations.
“The Guidelines on Access to
Information and Elections in Africa are the first to be developed globally and
admonish the State Parties to the African Charter to incorporate them into
their national laws,” she reveals.
According to Tlakula, who holds
a bachelors and masters degrees in Law from the University of Witswatersrand
and Harvard University respectively, “The right of participation in political
and public affairs is one of the rights entrenched in a number of international
and regional human rights instruments.”
At international level, the
right is provided for in the Universal Declaration of Human Rights (UDHR) and
the International Covenant on Civil and Political Rights (ICCPR) which also
provides for the right of participation in political and public affairs.
On the African Continent, this
right is entrenched in a number of African Union human rights instruments which
include the Constitutive Act of the African Union, African Charter on Human and
People’s Rights (African Charter), the African Charter on Democracy, Elections
and Governance. (Democracy Charter), the Protocol to the African Charter on
Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol),
the African Youth Charter and the African Convention on Preventing and
Combating Corruption (Convention on Corruption).
Also alluding to the impact of
technology on elections in Africa, Tlakula, who’s now chairperson of the
Information Regulator of South Africa, says, “The much talked about Fourth
Industrial Revolution is embedding technology in all aspects of society in a
way that has not been experienced before, including in the electoral process.”
“There is no doubt that emerging
technological innovation is beginning to make a contribution to the economies
of a number of countries on the Continent in general and is also improving the
efficiency, effectiveness and convenience of the electoral process.”
She however says, “there is a
need to reflect on the intersection between technological innovation and
participatory governance, particularly as they relate to free, fair and
credible elections.”
“In this regard, it is important
to reflect in particular, on how the use of technology in the electoral process
impacts positively or negatively on human rights such as the right to peaceful,
free, fair and credible elections, the right of access to information, the
right to peaceful assembly, the right to freedom of expression and the right to
privacy amongst others,” Tlakula posits, stressing that “the discourse on the
rights based approach to democratic elections on the African Continent has so
far not included the importance of the right to privacy, in particular data
privacy, in the electoral process. The reason for this might be the non
recognition of the right to privacy in the African Charter.”
However, data privacy is
provided for in the African Union Convention on Cyber Security and Data
Protection (Convention), which was adopted by the African Union in 2014. The
Convention recognises the interrelationship between right of access to
information and the right to privacy as it relates to the protection of
personal data. This interrelationship is aptly reflected in the preamble to the
Convention which stipulates that:
“…the protection of personal
data and private life constitutes a major challenge to the Information Society
for governments as well as other stakeholders; and that such protection
requires a balance between the use of information and communication
technologies and the protection of the privacy of citizens in their daily or
professional lives, while guaranteeing the free flow of information,” she
further explains.
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