Right to Information (RTI) is one of the eight basic consumer rights as per the UN guidelines on Consumer Protection. RTI is also an integral part of Nepal’s Consumer Protection Act and one of the fundamental rights guaranteed under Article 27 of the Interim Constitution. With this constitutional and legal guarantee, people enjoy the right to question the government, know about its activities and hold it to account for the resources spent in various development and welfare programs.
When people start demanding information and details on government spending, public officials will have less leeway to misallocate or misuse funds. One of the many ways to promote good governance is to create public demand for accountability and transparency. The RTI law does just that.
RTI gives people the opportunity to ensure greater oversight of government functioning and enhances transparency and accountability. It renews the ‘social contract’ between the state and citizenry by strengthening trust in government machineries. From the development sector to service delivery to aid effectiveness, RTI is the key to transparency. Given the political transition and rampant misuse of development funds locally, RTI has the potential to check this corruption. Recently, officials in the district development committee in Dhanusha misappropriated Rs 300 million. This example is only the tip of the iceberg of the corruption that has now become pervasive, as local bodies spend around Rs 45 billion annually in local development initiatives without being accountable and transparent. Billions in development grants run the risk of being misused owing to lack of elected representatives in local bodies.
Corruption risks in mobilization of development funds can be minimized if easy access to information is allowed and suo moto provisions of RTI are strictly adhered to by local bodies.
The procurement process is particularly vulnerable to corruption, with governments around the globe spending an average of over 75 percent of total budget on it. Corruption adds almost 25 percent to the cost of procurement contracts in developing and least developed countries. Thus, public procurement is one of the most contested sectors in Nepal. As cartels and collusions among the bidders are common and have led us to compromise on the quality of services and infrastructure development, people with help of RTI can easily track down how public funds are used to procure goods and services. If people start keeping close tabs on procurement documents and deals by using RTI, government agencies will have to cave in to the demand for an open and transparent regime.
We recently celebrated five years of RTI implementation in Nepal. Since the law came into effect on August 21, 2007, some enlightened citizenry and civil society organizations have been strategically using it. Whether it was a public disclosure of a list of VAT defaulting companies that cost the state treasury Rs 7 billion or the story about the misuse of hundreds of thousands of tax-payers’ money by the committee formed to investigate the killing of Kailali-based journalist J P Joshi, RTI went a long way in exposing crucial cases of state misconduct. These disclosures established that most corruption, fraud and embezzlement often get concealed in government documents which then skew bills and vouchers. Thus, having access to such crucial documents through RTI can be pivotal in improving these systemic anomalies.
Though we can take pride in these successes, the overall implementation and use of RTI law in Nepal is still poor owing to several tough challenges. They include bureaucratic reluctance, threat of arbitrary classification of information, political unwillingness and lack of sensitization campaigns among people. The culture of bureaucratic secrecy has remained one of the major bottlenecks for the right to know activists. Even after five years, our bureaucracy is still reluctant to acknowledge people’s access to information as a fundamental democratic right. The bureaucracy’s intrusive influence was explicitly felt in government efforts to classify the list of information twice in the past, which was later postponed indefinitely following criticism from all quarters.
We, as information requesters and consumers, must also understand that right to information can’t be absolute although the principle of maximum disclosure underpins all RTI laws globally. Not all information can be disclosed particularly if it relates to sensitive information falling under ‘exemption provisions’. But we also need to be mindful that the universal principle of RTI underpins public interest in disclosure that outweighs the harm to protected interests. As its true spirit lies in legal guarantee for maximum disclosure and minimum exemptions, government’s misplaced intentions in classifying information by misinterpreting ‘exemption clauses’ in days ahead may seriously jeopardize RTI rationale and people’s right to know.
Our RTI law doesn’t contain any provision for public interest override. Legally, if public interest in disclosure outweighs the harm to the protected interests, the information—even if exempt under the law—must also be disclosed to the public on request. Similarly, the law also excludes the clause for legal overriding to other secrecy laws. In absence of such legal override, inconsistent and restrictive provisions in other existing laws might impede people’s free access to information. Addressing these legal lacunae will be yet another Herculean challenge.
The tradition in which our ministers, elected representatives and bureaucrats have schooled themselves over the decades is also behind their apathy towards the RTI law. We have nurtured a tradition of administering the ‘oath of secrecy’ to the ministers and high level bureaucrats. This has systemically led to a tendency to maintain secrecy. Thus, why not initiate a debate on an ‘oath of transparency’ for ministers and civil servants. The shift from the secrecy oath will definitely unleash a momentum in RTI implementation. But, for this to happen, political will is crucial.
Political will and government pro-activeness constitutes another important imperative in promoting RTI law. Bangladesh handled over 29,000 RTI applications in just one year. In India, RTI applications being filed in public bodies have been increasing nearly 10-fold annually. Even in an advanced democratic country like Sweden, the government itself conducted an ‘open Sweden campaign’ to increase public sector transparency and people’s awareness levels. Just across the southern border, the state government of Bihar initiated a RTI call centre to provide free services to people to write RTI applications; the body transmits requests to the concerned government bodies free of cost.
The above examples show that the government, which bears the principal obligation to disclose information, must take the lead role in implementing the law. For this, it needs to take a few urgent measures to establish the necessary infrastructure. These include acceptable classification of information, designation of information officers in all offices, developing their capacity as well as that of other public officials, systematizing records management and setting up a nodal agency to monitor implementation.
But the painful silence maintained by the government over the last five years does not augur well as effective functioning of RTI depends on its right implementation. As citizens entrust their government with the power (through elections) and with resources (through payment of taxes), those entrusted have a responsibility not only to serve but also to open up its workings to the public. Our system is bedeviled by bad governance, rent-seeking culture, nepotism and corruption, and RTI is the best antidote. Thus, only when open and timely access to information is ensured by reducing corruption, improving public service quality and promoting social accountability will governance be truly participatory and transparent.