The Power of Access to Information: How Involving Civil Society in Afghanistan Could Support Sustainable Transparency and Accountability to Fight Corruption

Author:Zabihullah Obaidy
Pages:317-360
SUMMARY

In 2015, the Afghan Government adopted the Afghan Law of Access to Information as a part of its anti-corruption efforts to increase transparency and accountability of government. Though this law signals progress and a measure of political will to fight corruption, it falls short of the requirements under international best practices regarding “Processes to Facilitate Access to Information.” To... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2017 e Institute for Migrant Rights Press
e author would like to thank Professor Anita Ramasastry for her guidance as an
academic supervisor of the original LL.M paper that consequently published as this
article. He would also like to thank LESPA directors and sta at the University of
Washington School of Law and Kabul for their support and encouragement in the
publication of this article, and in particular, Elizabeth Baldwin for her comments
through the process.
THE POWER OF ACCESS TO INFORMATION
HOW INVOLVING CIVIL SOCIETY IN AFGHANISTAN
COULD SUPPORT SUSTAINABLE TRANSPARENCY AND
ACCOUNTABILITY TO FIGHT CORRUPTION
Zabihullah Obaidy
Jawzjan University School of Law, Afghanistan
zabi.obaidee@gmail.com
In 2015, the Afghan Government adopted the Afghan Law of Access to Information as a
part of its anti-corruption eorts to increase transparency and accountability of govern-
ment. ough this law signals progress and a measure of political will to ght corruption,
it falls short of the requirements under international best practices regarding “Processes
to Facilitate Access to Information.” To begin to remedy this problem and work toward
compliance, this paper recommends that Afghanistan strengthen the processes that facil-
itate access to information. To this end, it suggests ideas for legislative reform, adapted
from successful laws of other nations such as India, Slovenia, and Serbia. Furthermore,
facilitate implementation of the law, and ultimately, facilitate access to information and
increase transparency, civil society organizations can and should be engaged in training
information ocers, educating people, and monitoring the implementation of this law.
To support this claim, this paper begins with a general overview of lack of transparency
and accountability in Afghanistan, illustrating the importance of information to eorts
at combatting corruption. Next, it explains Afghanistans obligation under international
law to provide access to information, and it examines the approaches used in India, Ser-
bia, and Slovenia. Finally, based on this analysis, it proposes amending the Afghan Law
on Access to Information and engaging Civil Society Organizations to establish processes
that facilitate access to information.
Keywords: Law and Development, Freedom of Information, Comparative Law, Hu-
man Rights, State-Building.
IV Indonesian Journal of International & Comparative Law 317-60 (April 2017)
318
Obaidy
I. INTRODUCTION
Corruption has been an ongoing challenge to governance and rule of
law eorts in Afghanistan. ese eorts have been consistently sabo-
taged by a lack of systems that ensure transparency and accountability,
important tools for exposing and preventing corruption. Until recently,
Afghanistan has had no law guaranteeing citizen access to information.
And while in 2015, Afghanistan adopted the Law on Access to Infor-
mation, a step in the right direction, it has not been strong enough to
give citizens sucient access to hold their government accountable. In
addition, the law falls short of the requirements under international
standards calling for “Processes to Facilitate Access to Information.”
To begin to remedy this problem and work toward compliance,
this paper recommends that Afghanistan amend legislation and
programming that enhances transparency and establishes an open
environment (open government) through public participation. To
eect this change, Afghanistan will need to conduct a deep review
of its Access to Information Law and design amendments to satisfy
international standards. is article aims to provide a starting place for
this review, oering discussion of dierent working models of access
to information law and making concrete observations about how the
Afghan law could be improved.
As part of this same reform eort, this article recommends involving
civil society organizations to train information ocers, educate and
help public to exercise their rights, and monitor the implementation of
Access to Information Law. Organized Civil Society Organizations had
always been a voice and advocate of people and a successful mediator
between individuals and states. What makes the involvement of Civil
Society Organizations (CSOs) so crucial in this context, is that they
emerged separately from government. CSOs emerged independently
by people who have common needs and operates self-reliantly.
is paper begins with a general overview of the current lack of
transparency and accountability in Afghanistan, emphasizing the
relationship between a lack of access to information and Afghanistans
enduring problem with corruption. Next, it discusses Afghanistan’s
obligation under both international law and national law, particularly
with respect to the issue of access to information. en it proceeds by
319
e Power of Access to Information
Obaidy
exposing the limitations of Afghanistans current Access to Information
Law, comparing it with best international practices of “Processes to
Facilitate Access” and the access laws of other nations, including India,
Slovenia, and Serbia. Next it explains the importance of the role of
civil society organizations for training information ocers, educating
people to exercise their rights, and monitoring the implementation
of the Access to Information Law. Finally, it recommends specic
steps that Afghanistan can take to amend its law, shi its approach to
training and enforcement, and fulll its obligations under international
law and policy and, ultimately, to facilitate the processes of access to
information for the Afghan people.
II. LACK OF TRANSPARENCY AND
ACCOUNTABILITY IN AFGHANISTAN
For over 10 years, corruption has been a focus of reform eorts in Af-
ghanistan. Consistent with this focus, ghting corruption was a key
issue for both President Ghani’s and Chief Executive Abdullah’s elec-
tion campaigns.1 Nevertheless, corruption remains one of the main
challenges for the Afghan National Unity Government. Notably, Af-
ghanistan ranked 166 of 168 countries on Transparency International
Corruption Perception Index 2015, making it the third most corrupt
country in the world.2 As Mary Beth Goodman and Trevor Sutton ob-
serve, corruption is not only part of the system in Afghanistan—it is
the system.3
Afghan citizens are accustomed to a certain amount of corruption
1. Ejad taharuk dar mubarza ba sad idaari dar Afghanistan [Accelerat ing An-
ti-Corruption Eorts in Afghanistan], DW., http://www.dw.com/fa-af/
--------/a-18019599 (last
visited Jan. 27, 2017).
2. Corruption by Country/Territory : Afghanistan, T I’, http://
www.transparency.org/country/#AFG (last visited June. 2, 2016).
3. Mary Beth Goodman & Trevor Sutton, Tackling Corruption In Afghanistan: It’s
Now or Never, C F A. P 3 (Mar. 17, 2015), https://cdn.amer-
icanprogress.org/wp-content/uploads/2015/03/AfghanistanCorruption-FI-
NAL.pdf.

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