EITI, OGP Face Challenges Handling Civic Space Issues

6 November 2014

By Toby McIntosh

New mechanisms by two multilateral organizations, designed to protect the rights of civil society activists, will soon be tested.

The Extractive Industries Transparency Initiative is examining whether Azerbaijan should lose its membership for stifling dissent, using a policy intended to prevent such behavior that was substantially mimicked by the Open Government Partnership.

The two organizations, which both aim to expand government transparency, are engaged in balancing acts.

On the one hand, they want to attract and keep members in a club whose members voluntarily pledge to make positive reforms, and carry them out. On the other hand, neither  wants to harbor governments that can enjoy the public relations value of membership, but act contrary to the organizations’ core principles and human rights standards.

The EITI rules are limited to actions that interfere specifically with the EITI processes. The OGP rule apples to a broader range of restraints on civic space.

Both policies, however, are designed as much to encourage good behavior as to hasten the application of sanctions.

Azerbaijan Behavior a Test

Azerbaijan is a member of both groups and has run into trouble in both places.

In August, the OGP chastised Azerbaijan for being late in submitting a self-assessment report. (See previous FreedomInfo.org report.)  Two warnings would trigger a discussion about continued OGP membership. (See previous FreedomInfo.org report.)

More importantly, a critical report by the OGP independent reviewer said the government had “limited the involvement of civil society.”

No specific complaint has been brought to the OGP that would trigger a formal investigation.

Complaints about Hungary and Azerbaijan are anticipated.

The EITI is now investigating Azerbaijan formally, following up on an internal report done earlier this year.

Balancing Act on High Bar

Disciplining members is not seen as the preferable approach by either organization.

A loss of engagement reduces the opportunity to encourage change, it is felt. But turning a blind eye to practices that run contrary to core values of open government is seen as both immoral and damaging to the organizations’ reputation.

Supporters of the groups’ civic space policies hope the threat of adverse publicity and sanctions will be enough to deter civil society repression.

Both EITI and the OGP have set fairly high bars for suspending members.

At the EITI, it must be “manifestly clear” that “a significant aspect” of the organization’s principles and requirements are not being adhered to. The allegations must concern EITI functions, not just be general complaints about limitations on freedom of assembly or freedom of speech.

EITI is an international standard that seeks to improve natural resource revenue transparency, based on the premise that making information on extractive revenues publicly available will allow citizens to hold decision-makers accountable for the proper management of natural resources.

With a broader, open government mission, the OGP policy says that countries should not “significantly reduce” civic space.

Both organizations have been fairly proscriptive about what steps governments must take to consult with and engage the public.

In both organizations, suspension or low of membership is the ultimate sanction, but only after a prescribed process. The preference is to bring members into compliance.

EITI Examining Azerbaijan

At the EITI, the governing board Oct. 15 said it would take a closer look at charges that Azerbaijan is creating a hostile environment for civil society and nongovernmental organizations (CSOs and NGOs).

Azerbaijan has drawn criticism for imprisoning more than 100 activists, freezing the bank accounts of civil society organizations, attacking journalists and creating a hostile atmosphere for civil society.

The EITI board earlier this year commissioned a study of the Azerbaijan situation. The study was prepared for the group’s annual meeting, held in Mynamar. The report will not be released, an EITI spokesperson told FreedomInfo.org.

The discussion of how to handle the Azerbaijani situation took place over several days at the annual meeting, which is closed. A compromise was reached, according to very limited information released about the outcome.

The EITI decided to conduct a periodic review, six month earlier than scheduled, into whether Azerbaijan is meeting the EITI’s membership criteria. This is referred to as “early validation.” Validations are done on a schedule by an impartial, external third party selected by the EITI.

The expectation is that the validation will be completed in advance of the next EITI Board meeting, likely to be held in early March 2015.

NGOs Disappointed

“Better than nothing,” commented Rachel Dember of Human Rights Watch in New York, a group very critical of developments in Azerbaijan.

“The shortcomings on civic space alone were egregious and are so profoundly contrary to the spirit and letter of the EITI, that to our mind suspension was an open and shut case,” Dember said.

A Human Right Watch report in September of 2013 said: “The Azerbaijani government is engaged in a deliberate, abusive strategy to limit dissent. The strategy is designed to curtail opposition political activity, limit public criticism of the government, and exercise greater control over nongovernmental organizations.”

The Natural Resource Governance Institute, which often advises the EITI and prepares country-by-country ratings, gave Azerbaijan a “weak” score of 48, ranking 28th out of 58 countries. A “failing” score in the “Enabling Environment” category undermined the country’s “partial” performance on other components.

In an Oct. 16 blog post about the EITI Board action, the NRGI (formerly Revenue Watch Institute), commented: “Azerbaijan would need to make significant improvements with respect to civil society space, such as ensuring the ability of civil society to access funding, organize events, and speak freely about the EITI process and natural resource governance concerns without fear or threat of harassment.”

The situation is raising larger doubts. “Elsewhere, the broader EITI project faces some tough challenges. A series of crises in EITI countries like Ethiopia, Niger and Azerbaijan has triggered doubts about whether the scheme is really helping citizens groups there hold their governments to account,” wrote Brendan O’Donnell is Oil Campaign Leader at Global Witness. He is alternate board representative on both the UK EITI multi-stakeholder group and the International EITI Board.

Test for Organizations Seen

At an Open Society Foundations panel Oct. 27 in Washington, Gerald Knaus, chairman of the Berlin-based European Stability Initiative, said Azerbaijan civil society is living in “the middle of a dictator’s dream.”

The Azerbaijan government actively manipulates public opinion to deny repression, he said, in part through its chairmanship of the Council of Europe, where among other things Azerbaijan got support for a resolution saying it held no political prisoners.

“The real critical issue is what to do,” Knaus said, commenting, “It’s a stress test that our institutions have not passed.”

Knaus was skeptical EITI action would occur, wondering if potentially vulnerable members would want to set a precedent.

EITI Move Seen as Logical, Limited

An academician who has followed the EITI, Hannes Meissner of the University of Applied Sciences BFI Vienna, said, “The EITI decision on Azerbaijan is a logical step by the board, to preserve its creditability.”

The EITI has sought through its institutional framework to require cooperation between the three stakeholder groups: civil society, extracting companies and the government, he said, with the indirect goal of strengthening civil society and creating a critical public, thus enhancing transparency and efficiency.

This “bottom-up” approach has had “very limited success in Azerbaijan,” Meissner said. He told FreedomInfo.org:

While the EITI is limited to transparency in the field of revenues, the ruling elite can persist with its corruption and rent-seeking practices in the field of expenditures. This has already led to a lot of disappointment among Azerbaijani NGOs. Against the backdrop of this, EITI’s legitimacy is more than ever dependent on its success in strengthening civil society. As the civil society of Azerbaijan is under growing pressure by the government, EITI has come under pressure to take actions in turn.

The current situation, he said, “is a major opportunity of EITI to guarantee a cooperation framework.” Civil society has limited leverage, but “EITI is definitely in a better position than other initiatives, as it offers opportunities for countries to prove that they are transparent.”

The EITI has always drawn attention to the potential economic advantages of creating an “improved investment climate” through transparency. “However, the Azerbaijani government has always gone one step further and misused the initiative to boost its own image both at the international and the national level, to cover up their corruption practices and to legitimize/strengthen their power,” Meissner said.

EITI Looks to Modify Standard

The EITI is proposing to slightly revise its “Civil Society Protocol” to make it more specific.

The changes appear to make it even clearer that evaluations must be EITI specific. This so-called “linkage” in the policy is seen in the specifics of the Principles in the EITI Standard. For example, in 1.3, which begins:

The government is required to commit to work with civil society and companies, and establish a multi-stakeholder group to oversee the implementation of the EITI.

The protocol does not call for an overall assessment of the national climate for civil society.

An EITI spokesman told Freedominfo.org:

The objective of the revision is to provide further clarity of the EITI’s requirements. The revised protocol is shorter, and provides more concrete guidance to stakeholders and validators about how the EITI’s requirements will be assessed, ensuring greater consistency.

Similar linkage is seen in the definition of “civil society representative,” where the draft revision. Civil society representatives are those “who are substantively involved in the EITI process.”

Another example:

Expression: Civil society representatives are able to engage in public debate related to the EITI process and express opinions about the EITI process without restraint, coercion or reprisal.

The other standards — on “operation,” association, engagement, and access to pubic decision-making — are all expressed in relationship to the EITI process.

“Ad hoc allegations” about restrictions on civil society are to be discussed and addressed “in the first instance” by the multi-stakeholder group, which includes government members.

The proposed new protocol was put out for comment on Oct. 21, with comments due Nov. 14.

The EITI now operates under a more general civil society protocol published in July of 2103 as part of the “EITI Standard.” In July of 2014 it was decided to revise the Standard.

Potential Sanctions

The potential sanctions are spelled out in Principle 1.7, which states in part:

Where it is manifestly clear that a significant aspect of the EITI Principles and Requirements are not adhered to by an implementing country, the EITI Board will suspend or delist that country.

It continues:

In accordance with Requirement 1.6, this includes cases where a country has not met the requirements for timely EITI reporting, publication of annual activity reports and/or achieving compliance with the EITI Requirements by the deadlines established by the EITI Board. Where the EITI Board is concerned that adherence to the EITI Principles and Requirements is compromised, it may task the International Secretariat with gathering information about the situation and submitting a report to the EITI Board.

Suspension of an implementing country is a temporary mechanism. The EITI Board shall set a time limit of twelve months for the implementing country to address breaches of the EITI Standard. If the matter has not been resolved to the satisfaction of the EITI Board by the deadline, the EITI Board will delist the country. Where suspension follows a second Validation that did not result in compliance, the EITI Board may consider extending the suspension for an additional six months, i.e. until the total maximum candidature period of five years. The EITI Board will only consider extending the suspension in cases where there has been continuous progress and the outstanding remedial actions are minor and can be quickly undertaken.

EITI Takes Cautious Approach

The 48-member organization has dealt with charges against members and potential members before, in different contexts and with some reluctance.

EITI chairwoman, former British Foreign Secretary Clare Short, in March of 2014 issued a letter regarding similar issues concerning Ethiopia’s membership application in which she stressed that EITI “is not a human rights standard.”

Regarding Azerbaijan, Short in October issued a two-paragraph statement:

The situation facing civil society in Azerbaijan is clearly problematic. The Board discussed the findings of the fact-finding mission and expressed deep concern. The Board hopes that Azerbaijan will open up more space for civil society to make its essential contribution to the EITI as laid down in our Standard.

The Board agreed that an early validation to begin in January should take place according to the EITI Standard, which was agreed by all members including Azerbaijan. I very much hope that progress can be made and that Azerbaijan will remain a member of the EITI family.

FreedomInfo.org was told by an EITI official that the Board has considered these matters in “many cases.” These include the evaluation of government candidacies to join and when an implementing country undertakes validation. “In both cases, the Board seeks comments from local CSOs engaged in the EITI process.”

“There have been several cases in recent years where the Board has examined CSO participation and engagement. This can relate to the security situation (e.g., in Myanmar, Iraq and Afghanistan), questions relating to CSOs ability to access funding (e.g., Ethiopia), or other aspects relating to whether CSO engagement is adequate. There have also been cases where the Board has responded to specific incidents of alleged harassment of CSO representatives. The Board has also moved to suspend countries in some cases. For example, the Central African Republic was ‘suspended’ following coup d’état.” See announcement.

When the EITI Board accepted Ethiopia’s application for EITI candidature in March of 2014, it stressed that “Candidature is not a recognition of a country’s levels of transparency or accountability.”

Part of Short’s statement at the time said, “Membership of the EITI will mean that all stakeholders, including civil society, will have a better platform to hold the government and the companies to account and ensure the better management of the burgeoning sector.”

Tolesa Shagi, Ethiopian Minister of Mines, wrote to the Board to assure them that “the Ethiopian Government is highly committed to work with Civil Societies to ensure their engagement in the Ethiopian EITI”.

OGP Awaiting Complaints

The OGP also has a policy to support civil society, and while there are no pending complaints, there already has been an OGP report critical of the Azerbaijan government.

The assessment is contained in a report by an independent reviewer, Kenan Aslanli, who assessed Azerbaijan’s performance on developing and implementing its national plan. The OGP process requires governments to follow a set of guidelines around consulting with civil society, including in-person consultations, wide outreach and documenting input received.

This did not occur sufficiently in Azerbaijan, according to the reviewer.

He wrote:

Generally, a lack of a platform to discuss open government and the action plan, as well as the low level of public awareness, limited the involvement of civil society. Not all stakeholders perceived the consultations as a very substantial element of policy-­?making and decision making on open government. Civil society groups that participated in the consultations were provided with only limited information about the government’s plans and timelines. Consultations were concentrated mostly in the capital city of Baku, and they only covered a few segments of the wide range of civil society organisations in the country. Private sector representatives were not included in the official consultation process. Furthermore, a summary of public consultations was not made available online, and there was no official press release about the results of the consultations.

Some civil society organisations conducted their own outreach on the national action plan. The National Budget Group organised a public hearing on open government issues and sent a representative to the global summit in Brazil. At the same time, with the support of the Council of State Support to NGOs, two civil society coalitions—the “Youth Coalition” and the Coalition for Promotion of Open Government—actively operated in regions to increase citizens’ involvement and public awareness to improve the implementation of the national action plan.

OGP Issues Call for Research

The OGP has issued a call for proposals for “a research assignment to answer the question: “Describe how governments in OGP participating countries have interacted with civil society on OGP and analyse if factors be distilled that are crucial for success or failure?”

The reflective preamble says engagement is improving, but could be better, saying “on the whole governments seem to be slightly and slowly getting better at designing and implementing consultation processes.”

It continues: “For example, quite a few of the current 65 member countries have established a forum for regular dialogue by now. On the other hand, in-depth in person consultation with a wide range of stakeholders is still more exception than rule.”

The description notes that the OGP Civil Society Engagement team is currently running a pilot project in which civil society organizations evaluate assess these same aspects more in-depth from a civil society perspective.

A recent report saidthe OGP should consider formulating guidelines on involving CSOs in the development and implementation of National Action Plans.”

The report was done by Al Kags, the founder of the Open Institute, a “think-do tank” that collaborates with governments and civil society groups on open government issues, in partnership with the US group, Open The Government. The full report is available here.

Civic Space Policy Established

A recent OGP blog post describes its new civic space policy this way:

“It sends a message that while OGP is voluntary and tailored to each national context, there are critical freedoms and issues of enabling environment for civil society that cannot be ignored if the OGP process is to work in the 65 participating countries.”

The policy was finalized in September after about 10 months of development and consideration the Steering Committee. (See previous FreedomInfo.org reports.)

While broader in scope than the EITI policy, the OGP version is designed to encourage members to come into compliance. The policy envisions a process of investigating complaints and working with governments to remedy problems, with the possible sanction of naming a government an “inactive” member.

The process has many steps and the standard of judgment, while untested, appears fairly high. Officials say it will take time to see how the Steering Committee and a key subcommittee will interpret the standard.

The policy was modified during nine months of behind-the-scenes deliberations. The changes in the final version appeared to slightly reduce the likelihood of governments being called to task.

The policy applies if a government “significantly” reduces civic space in four specific areas. In the prior version, the word “significant” was used to describe what causes a problem, not the magnitude of the result:  “Introduction of new/revised policies or significant incidents that reduce the space for non-governmental organizations to work independently, voice critique, and/or receive funding (e.g. new NGO laws).”

The second draft also dropped one the six original justifications for an OGP review: “Harassment and intimidation of civil society.”

The five remaining criteria are:

  • Introduction of new/revised policies or actions that significantly reduce access to information for citizens and civil society.
  • Introduction of new/revised policies or actions that significantly reduce the space for non-governmental organizations to work independently, voice critiques, and/or receive funding from domestic or international sources (e.g. new NGO laws).
  • Manipulation of the OGP process by governments in terms of civil society participation (e.g. only inviting GONGOs to participate in consultations).
  • Introduction of new/revised policies, laws, or practices, or actions, that significantly reduce enjoyment of fundamental freedoms, notably freedoms of expression and peaceful assembly, and freedom to associate.
  • Introduction of new/revised policies or actions that significantly reduce online or offline media freedom, or threaten media ownership and independence.

Stage of Review Established

The OGP’s planned process includes two major “stages” to handle what have been renamed from “complaints” to “concerns.”

These concerns can be brought to the OGP by organizations, including civil society groups and, added in the latest draft, a “media organization.”

In the first stage the validity of the concern is assessed. The six-member Criteria and Standards Subcommittee decides whether the concern is merited, by a two-thirds vote if no consensus is reached. The Steering Committee would not review the decision.

The draft policy says, “All the response policy steps are to be carried out in accordance with OGP’s disclosure policy.” This would appear to make materials related to response policy action subject to disclosure upon request, subject to exemptions. Subcommittee minutes, however, are not disclosed under the policy.

Variety of Possible Actions

Once the subcommittee certifies the concern as valid, the OGP could take a variety of actions:

– Engage in or broker diplomatic outreach to the government concerned at the official and/or political level, including from the co-chairs.

– Write an official letter from the Support Unit to the OGP point of contact in the country informing them that the Criteria and Standards subcommittee adopted the report on the concern (the point of contact should already have been informed by the Support Unit that a concern was being investigated).

– Offer to broker technical assistance to work on the issues raised in the concern.

– Contact multilateral partners active in the country to help address the issues raised in the concern.

– Invite the OGP point of contact in the country to work with the Criteria and Standards subcommittee in establishing a work plan and a timeline for the country to address the situation, where applicable.

Three Months to Improve

The second draft sets a three-month deadline for improvement. No deadline was specified in the first draft. It says:

If the stage 1 interventions fail to have the desired impact, or the situation does not improve within three months (even after the establishment of a work plan and a timeline where applicable), the Criteria and Standards subcommittee is to recommend to the full OGP Steering Committee that one of the following stage 2 actions take place:

Recommend that the OGP co-chairs invite the government principal to attend a special session of the Steering Committee to discuss the situation and consequences for the country’s participation in OGP.

Recommend the OGP co-chairs author a letter to the country informing them they are to be temporarily listed as inactive in OGP until the concern is resolved.

Interim Policy, Comment Period

“There is to be an initial pilot phase of one year, after which the Criteria and Standards subcommittee plans to submit a review on its implementation to the full Steering Committee,” according to the draft proposal.

It says further:

Public comments are also to be considered. This review is to include recommendations for any suggested changes to the policy and is to focus on two objectives:

– Assisting the country in question to overcome difficulties and to help re-establish an environment for government and civil society collaboration, and

– Safeguarding the Open Government Declaration and mitigating reputational risks to OGP

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