Open Government Partnership means being pro-civil society
Seven countries voted against the civil society space resolution at the recent session of the United Nation’s Human Rights Council. These countries are China, Congo, Cuba, Nigeria, Russia, South Africa and Venezuela. The nine countries that abstained are Bolivia, Burundi, Ethiopia, Kenya, Kyrgyzstan, Qatar, Saudi Arabia, United Arab Emirates and Vietnam.
The resolution 32/31 on civil society space (A/HRC/32/L.29) is intended to ensure access to justice, and accountability, and to end impunity for human rights violations and abuses against civil society actors. It also seeks to encourage member states to create and maintain, in law and in practice, a safe and enabling environment in which civil society can operate free from hindrance and insecurity and ensuring that civil society actors can seek, secure and use resources need for their social justice agendas. The resolution also calls for maintenance of accessible domestic procedures for the establishment or registration of organizations and for participation of civil society in development of legislation when it is being developed, debated, implemented or reviewed. Lastly, the resolution promotes the adoption of laws and policies providing for effective disclosure of information.
It is disappointing that the list of those countries that either voted against or abstained from voting on this resolution includes key African democracies and OGP member states such as Kenya, Nigeria and South Africa. In a way this is not surprising given the pronouncements made and legislative actions that have been taken by government officials in both Kenya and South Africa. Civil society organisations in Kenya have been putting up a spirited fights against government attempts at weakening a strong Public Benefit Organisations Act of 2013, which though it was passed in 2013 it has never been implemented and yet there are attempts to amend it. In South Africa a senior government official in the international relations department was recently reported as saying, “We are going to clampdown on civil society. You cannot have all of these NGOs running around using international platforms to embarrass government”. To make matters worse, this statement was made at a meeting where the Open Government Partnership was being discussed.
These anti-NGO sentiments are not unique to African OGP countries. Indeed, across the world there has been a flurry of legislative action aimed at regulation of operations of NGOs. A lot of this activity has unfortunately been triggered by the Financial Action Task Force’s recommendation number 8 on regulation of funding of civil society organisations as a measure to combat terrorism. The recommendation calls on countries to “review the adequacy of law and regulations that relate to non-profit organisations which the country has identified as being vulnerable to terrorist financing abuse”. It is clear that despite the interpretive notes on the recommendations a number of countries interpret the recommendation in an expansive manner as means to justify enactment of laws and regulations that limit civic space generally and the operations of all civil society organisations specifically.
Recently, Israel’s Knesset passed the NGO transparency law that will regulate the funding of human rights NGOs in Israel. The law has been criticized for being targeted at groups critical of Israel’s domestic policies. In a statement, the European Union criticized the passage of the law that provides for “reporting requirements imposed by the new law [that] go beyond the legitimate need for transparency and seem aimed at constraining the activities of these civil society organizations working in Israel”. Israel is also an OGP member state.
Before this, the OGP’s steering committee voted in May 2016 to place the state of Azerbaijan in “inactive status”, basically meaning the country is temporarily suspended, after a review found that the government of Azerbaijan violated the OGP declaration and articles of governance through suppression of civil by arresting activists, closing down back accounts of NGOs and cutting off sources of funding.
The examples listed above show that civic space is not guaranteed by countries merely joining initiatives such as the OGP. It is a dilemma because government-civil society partnership is the bedrock of the OGP project.
The conduct of some OGP governments towards civil society reveals an inconvenient truth about the OGP; that despite all the talk about partnership, the relationship between government and civil society is, by design, an unequal one. The sheer force of government’s policy formulation and legislative capacity means government is not only a player but also a referee and creator of the rules of the game. Though not stated expressly, the OGP hopes that countries overcome the Hamiltonian challenge where “you first enable the government to control the governed, and in the next place oblige it to control itself.” It is essentially an expectation that government will play nicely and rein itself from using its political, economic and legislative clout to hinder civil society from openly participating in the OGP processes.
The OGP declaration and the articles of governance require OGP member states to create partnerships between governments and civil society through consultation, co-creation and participation in the development and implementation of national action plans to advance openness and accountability in the conduct of public affairs and management of public resources. Such partnerships are impossible in contexts where civic space is being reduced, where NGOs are daily condemned as being foreign agents, enemies of the state or agents of regime change.
OGP countries cannot join OGP and continue with business as usual. OGP requires a change of tongue, to borrow a phrase by a South African author, Antjie Krog. It requires a change of perspective and a change of practice. Seeing civil society as enemy agents is a clear sign that perhaps such a country is not ready to embark on this transformative journey to openness.