Social Wrapper for the Law: an introduction

14 December 2011 · AfricanLII

On 22 November, 2011, the South African parliament passed the Protection of State Information Bill. The bill is now commonly referred to in the media as the Secrecy Bill and there has been widespread condemnation in the liberal press for the bill which it is feared will become a shield behind which corrupt government officials will be able to hide their activities under the guise of “national interest”.

Civil Society Organizations, academics, the media have been lobbying against this bill since it was first introduced in 2008. And yet here we are.

It feels that we are not being heard. That there is no way to harness the power that popular resistance could potentially hold to sway parliament.

I believe that the law should reflect a social contract between the individual and the state. Through the laws of the country in which we live, we can create a society in which we wish to live. I accept that the premise on which the notion of the social contract is built may be flawed (after all it is premised on behaviours of flawed creatures) but it is a helpful starting point. And one that requires that we are able to contribute meaningfully to the way that the laws are being formed.

I have an important disclosure to make: I am not a lawyer. I am an IT geek who has a problem dealing with injustice real or perceived. I don't think it is right that we are passive recipients of the law. I wish to participate actively in the legal process and I wish to make it possible for others to do so as well. And I want the results of our participation to be taken seriously.

I have been working with my colleagues Mariya Badeva-Bright and Tererai Mafukidze since 2006 when we started out at the Constitutional Court Trust, building up the Southern African Legal Information Institute (SAFLII). We began collecting case law and legislation from across Southern Africa for free online access. In 2010, we began the African Legal Information Institute (AfricanLII) as a project of the Southern Africa Litigation Centre (SALC) with the idea of building capacity for national institutions across Africa to publish their legislation and case law for free online access.

Now there are free online access publishers of law in South Africa, Botswana, Kenya, Liberia, Niger, Malawi, Mozambique, Swaziland, Sierra Leone, Seychelles and Uganda. This is not an exhaustive list nor do I intend to imply that all of these are as a result of AfricanLII's work. The point is that the legal information which describes our societies across Africa is increasingly there and available.

With the availability of this information comes a cognitive shift: from access to engagement. If the laws are there, then how do we facilitate the engagement of our society with these laws so as to move beyond passive observer status.

I will be inviting a few experts to help me put together a specification for a web based system that would allow users to engage with some of the websites I have listed above to contribute feedback. My initial sense is that we a) need to allow users to contribute feedback on all aspects of the case law and legislation available; b) allow the user to select how structured or unstructured that feedback should be; c) identify who our users might be; d) have a mechanism for collating the resulting feedback in a format which an academic researcher would be able to tailor into a format which can be presented to governing bodies; e) expand our network so we have the right people presenting the information to the right governing bodies.

There is already work being done in this area. Mertixell Fernandes has an excellent post on Legal Prosumers: How Can Government Leverage User-Generated Content. She references initiatives in the US, in Morocco and in Egypt that are fostering crowd-sourcing for constitutional reform. PopVox allows users to choose to support or oppose new bills and share the information with congress. I would like to invite you the reader to contribute links to any other such initiatives of which you know.

Through my colleague, Mariya, I was introduced to Lorna Seitz and Laura Lucas from the International Consortium for Law and Development (ICLAD). They have developed a legislative assessment methodology to assist legislators, their aides and parliamentary staff on how to read and to assess a draft law in terms of public interest. They are interested in extrapolating this methodology to a broader market including legal practitioners, regulated parties, academics and the general public to provide feedback on how the laws are working.

Andrew Rens has been a guiding force in getting this project off the ground and I hope to hear much more from him as a free thinking techno-legal mind with little regard for archaic practices.

And so, to work ...

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