Monitoring & the Law
IS THERE A LEGAL BASIS FOR COMMUNITY-BASED MONITORING?
There are different domestic and international laws that defend your right to monitor. According to Afghanistan’s constitution, one of the government’s duties is the “maintenance of public law and order and elimination of administrative corruption.” If the government is unable of doing so or betrays its duties and commitments to curbing corruption, as a citizen, you have the right and even duty to monitor the corruption and hold government authorities accountable.
In order to fight corruption, you need access to information since corruption often takes place in secrecy. Article 50 of the constitution also guarantees the right of citizens to access information: “The citizens of Afghanistan have the right of access to the information from the government offices in accordance with the provisions of law.”
In addition to the constitution, international human rights conventions also acknowledge the right of citizens to participate in development programs and make member states directly include citizens in development projects and in anti-corruption efforts. The following is a list of international treaties that Afghanistan has ratified, which protect citizen participation in development and anti-corruption programs. Though the term or mechanism of “monitoring” is not explicitly used, it is implied in phrases like “active, free and meaningful participation in development.”
IS THERE A RIGHT TO ASSOCIATION?
Freedom of association is a fundamental right of every human being. Afghanistan’s constitution acknowledges this right in Article 35: “The citizens of Afghanistan have the right to form social organizations for the purpose of securing material or spiritual aims in accordance with the provisions of the law.” Freedom of association is vital to monitoring because fighting for accountability requires collective action. For example, you may need to form a social organization to monitor corruption in copper mining in Afghanistan. Social organizations “are the voluntary unity of internal real person and body corporate organized for ensuring the social, cultural, educational, legal, artistic and vocational activities.” (Article 1, Social Organization Law)
IS THERE A RIGHT TO EXPRESSION?
If you do start an organization to monitor corruption in the copper mining sector, then you will also need to publish your findings, express your opinions through policy papers and newspaper articles. This is not possible without the freedom of expression, which is also guaranteed by the constitution.
Freedom of expression is inviolable.
Every Afghan has the right to express his thought through speech, writing, or illustration or other means, by observing the provisions stated in this Constitution.
Every Afghan has the right to print or publish topics without prior submission to the state authorities in accordance with the law.
Directives related to printing house, radio, television, press, and other mass media, will be regulated by the law.
1. Every person has the right to freedom of thought and speech, which includes the right to seek, obtain and disseminate information and views within the limit of law without any interference, restriction and threat by the government or officials. The right also includes free activity of means of publication, distribution, and reception of information.
2. Government shall support, strengthen, and guarantee the freedom of mass media. Except as authorized under this law, no real or legal person including government and government offices may ban, prohibit, censor or limit the informational activities of mass media or otherwise interfere in their affairs.
Every person has the right to request and receive information from the state. Government shall provide the information sought by the citizens, unless the information sought is confidential and its disclosure endangers the security, national interests and territorial integrity of the country, or damages the rights of other people.
IS THERE A RIGHT TO PROTEST?
Yes. It is guaranteed by the freedom to assembly. Freedom of assembly is the right to come together and show support or opposition to a certain idea, policy and so on. It is important because protesting is a powerful tool to demand transparency and hold corrupt officials accountable. Article 36 of the constitution guarantees this freedom: “The citizens of Afghanistan have the right to un-armed demonstrations, for legitimate peaceful purposes.” The emphasis on “un-armed” is very important. If you carry guns or other weapons to a protest, you are committing a crime. Additionally, there are some restrictions on the freedom of assembly. According to the Afghanistan Demonstration law, the state has an obligation of providing security to any demonstration. However, before you lead a demonstration, you must follow these rules:
1. Give 24 hours advance Written Notice to the local police department;
2. Explain the objective, time, location and the route of the demonstration;
3. Respect the constitution’s principles and other laws;
4. Respect Islam and the religious, national and historic culture of the country;
5. Avoid insulting, threatening and frightening people and committing any action against social norms and social order;
6. Avoid any violence, destruction and armed struggling;
Furthermore, demonstrations are not allowed in the following places and times:
1. Close to military bases;
2. Near an explosive stockpile and places that are prone to fire;
3. Near a hospital, inside a kindergarten or other similar places;
4. After sunset;
5. 48 hours before election (presidential, parliamentary, Loya Jirga, and referendum).
Further information can be found in the demonstration law. It is high advisable to read this law before organizing protests.
WHAT IS A RIGHT TO INFORMATION LAW?
A Right to Information (RTI) law is a specific law that guarantees that each citizen can get access to information from the government. It is essential to define what kinds of information is accessible and what are the mechanisms citizens can use to access that information. The law will also generally include some exceptions regarding national security documents or other sensitive materials. Under such a law, the citizen has to formally request the documents from the government office that can provide the information and wait for a set period of time (depends on the law 14-21 days usually) to receive the information. If the government office does not provide the information, the official can be fined or penalized. If the information is denied on a legal basis, the government office has to justify why the information was denied.
WHY IS IT NEEDED?
Every country should have a right to information law because it guarantees transparency of government activities and helps citizens hold their governments accountable, which increases the overall trust between citizen and the state. The Indian Right to Information Act of 2005 states that the law is needed because:
…democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed.
WHY DO WE NEED THIS LAW IN AFGHANISTAN?
In the decade following the 2001 US-led military operation, there is a massive donor presence in the country. Because donors have been funding almost the entire Afghan government budget, the government has focused its energies on developing an accountability system towards the countries that provide aid. But, the state has not focused the same attentions toward the needs, demands and questions of Afghan citizens.
Common public perception of the public sector is that it is filled with corruption, nepotism and greed. Although the public’s lack of trust in the government may be justified, the gap between citizens and the state keeps growing when citizens cannot see, read or hear what their government is doing. In order to stop this mistrust between the citizens and state, citizens need a space to asq questions, access information and hold those that govern their lives accountable. Without accountability, there are more opportunities for those in power to abuse their position and resources for private gain.
A common excuse given for limiting access to information is that the majority of people are illiterate, uneducated and cannot particpate in the complicated matters of politics, government and development. When our local monitors try to monitor infrastructure projects, government engineers or construction company engineers also tell them that they don’t have the necessary “technical knowledge” to understand the “complicated” road, school or canal projects. But, intelligence and literacy are two very different things. Most community members understand what the difference between good and bad cement is, or how without compaction, the DBST road will completely erode away within a year. But, those in power use a web of complex procedures, terminology and English-language documents to make citizens feel that government is a remote and inaccessible thing.
BARRIERS TO ACCESS
Even with a right to information law, there can be many other barriers to accessing information. Language, location, privacy and censorship are common ways the government can limit access. For example, in Afghanistan, most government documents-especially those related to development projects-are written in English. Despite protests by civil society groups, government officials, companies and private citizens, after 11 years of development, the documents are NOT usually translated into the two primary languages Dari and Pashto. Language is a massive barrier for most citizens in accessing information. Even English-speaking Afghans may prefer reading documents in their native language(s).
The other issue is the location of these documents in a centralized government archive or office in Kabul. Most Afghans cannot travel to Kabul to request a document even if there is a formal access to information law in place. A highly centralized government, which does not delegate much power, funds or decision-making to the provincial and district levels, can also prevent citizens in the provinces from fully participating in governance issues.
There are also cases where the government has to balance the right to information with a private citizen’s right to privacy. For example, it is acceptable to request a government official’s official tax records, personal assets declaration or education credentials. It is however, generally unacceptable to inquire regarding their private matters, such as medical records. The rules for protecting privacy vary between elected and non-elected officials, or between high-level and low-level officials.
The third barrier to access is censorship of documents or exceptions to the right to information law. In the case of India, the RTI law explicitly states that the act “extends to the whole of India except the State of Jammu and Kashmir.” This is a highly controversial limitation. It is acceptable for a state to limit access to national security documents, which is common in almost every country all over the world. But, if an Indian citizen would like information on governmental activities regarding education in Jammu and Kashmir from the 1950s, they would not be able to do so. This is an unacceptable limitation of a right that should extend to all Indian citizens. Moreover, even though RTI is enjoying growing popularity in India and is getting used by citizens to hold the public sector accountable, there are instances when RTI has been denied in controversial cases.
The Batla House incident, when two university students were killed by Delhi police in a hunt for terrorist cells responsible for the 13 September 2008 bombings, is a famous example of how RTI requests can be denied in highly controversial cases, especially those that involve minority groups or policy activity. When a journalism student requested access to the post mortem reports of the deceased, the New Delhi police denied the request citing passages of the RTI act. But in fact, the cited sections 8 1(b) and 8 1(h) were not directly applicable to the case.
The difficult truth of access to information laws is that often when these laws are most needed, when cases are filled with mistruths, controversy and violence, the government can still find a way to deny the citizen’s right to information. That is why citizens have to be persistent in the use of these rights to push past all barriers-language, location and censorship-to get access to the information they need.
IS THERE A SPECIFIC ACCESS TO INFORMATION LAW?
Depending on which country you are working in, you should research whether you have a right/access to information law. As mentioned earlier, this law will help you get access to documents that you will need in order to monitor. But don’t be discouraged if there is no law.
We have worked on our community-based monitoring program over the past several years WITHOUT an Access to Information law that makes it difficult for local community monitors to get access to the project contract, bill of quantity and drawings. Read below for alternative strategies.
IF THERE IS A LAW,
If there is a law, you need to research the specific procedures to lodge a formal access to information request at the relevant ministry who has the documents. For example, if you are interested in monitoring the construction of a clinic, you would go to the Ministry of Health or the provincial Department of Health. If you are interested in monitoring the procedures of a copper mine, then you should make the request with the Ministry of Mines.
You can also directly demand the documents from the company or contractor in charge of the project. In the best case scenario, they will decide to cooperate and give you the documents themselves. In the worst case, they will refer you to the relevant department or ministry.
IF THERE IS NO LAW,
You can still try to get access to documents, just as we have done with our community based monitoring program. We directly contact the relevant ministry, department, construction company or donor to provide us with the contract documents (e.g. proposal, bill of quantity, drawings). It can also be helpful to sign a Memorandum of Understanding (MoU) between your group and the donor or ministry whose work you are monitoring. Though this is not an easy task, if you can successfully sign a MoU, it will give your monitoring work a lot of legitimacy and make it easier to get access to the necessary documents.
Sending formal letters is the best way to make a request, in addition to using phone calls or meetings, because it creates a written record of your requests. If you have requesting the contract for a road from the Ministry of Public Works 5 times, and all 5 times your requests have been denied or ignored, then you can file a formal complaint, report this behavior to the donor working with the Ministry of Public Works, or even go to the media with your story. But without a written record of your attempts, it is hard to make a good and compelling case to get access.
There are also informal ways to get access to contract documents. In our experience, sometimes a construction company engineer or government official will informally share some contract documents. In these cases, often they do not provide a copy of the contract, but rather just give it to you to read on site. In other cases, you can request to make a copy of the materials. Without an access to information law or formal cooperation, sometimes it is necessary to rely on informal ways or even using your personal contacts to get access to key information. One disadvantage to this approach is that it is hard to use documents received through informal means in formal reports or legal cases. You have to judge what methods you want to use to get the necessary information, and the costs and benefits of each method.