By GILBERT MAKORE
Kenya recently released a new Open Government Partnership (OGP)
action plan that will run from 2018-2020. It is highly commendable that
the government has remained fully committed to this multi-stakeholder
initiative aimed at improving openness. However, a closer reading of the
new commitments brings to the fore some concerns.
In
the previous national action plan that ran from 2016-2018- the
government made a commitment to publish oil and gas contracts. It
rightly noted that this disclosure would improve natural resource
governance and ensure transparency and accountability of the extractive
sector. This important commitment was sadly not met or achieved. The
government failed to disclose oil and gas contracts over the two-year
period.
That there has been poor progress on some
commitments is acknowledged in the new action plan. However, failure to
achieve results or meet these commitments is largely due to funding and
capacity constraints. While funding is needed to convene OGP
multi-stakeholder meetings, creating a repository for petroleum
contracts and staffing the office responsible for handling enquires- the
failure to disclose contracts cannot be wholly attributed to funding
and or capacity gaps. Even with the stated funding and capacity gaps,
the government could have shown goodwill by taking initial steps to
disclose contracts through, for example, making contracts available upon
request. If the government was intent on disclosing petroleum
contracts, it would have.
Were the challenges related
to oil contracts disclosure made known to the OGP steering committee and
broader civil society or development partners between 2016 and 2018?
This could have resulted in the development of plans to mobilise
resources and or innovate for the disclosure of contractions- resource
constraints notwithstanding. Were there concerted efforts to mobilise
resources and build capacity towards meeting the commitment of oil
contracts disclosure? The answers to these questions are not in the
progress report and the new action plan.
As it stands,
citizens have the right to demand that government provide further
justification on why that commitment was not met. Addressing these
information gaps helps to ensure citizens have more confidence in the
new action plan.
The Kenya Progress Report for
2016-2018 categorically states that no progress has been made on
releasing data, contracts, or financial information. The report however,
goes on to erroneously state that during the first year of
implementation, the Petroleum Bill, which requires a framework for
reporting revenues, had been passed. This is not the case as the bill
remains just that – a bill- that is yet to be passed into law. Possibly,
the report meant that progress had been made insofar as a Petroleum
Bill was drafted. Using the phrasing ‘the petroleum bill was passed’-
creates confusion as to the actual progress made as there is no Act.
The
act of disclosing contracts is simple and requires little to no
resources and or capacity, but there is no doubt that the process of
getting all political and private sector actors on board – with respect
to such disclosure can be a process fraught with complexity and possible
gridlock.
While acknowledging the political factors
that may impede contract disclosure, the commitment towards disclosure
should not have been dropped in the new action plan. Politically
challenging and capacity demanding reforms should not be avoided but
must be persistently worked on.
The government and other stakeholders to the OGP process have a
responsibility to see commitments through to completion. The commitment
should have remained and the government should have explored ways of
achieving this ambition of publicly disclosing oil contracts.
The
failure to meet commitments and surreptitiously dropping them only
serves to undermine public confidence in the OGP. While there are some
commitments related to open contracting in the new action plan-as
currently espoused- they relate more to procurement contracts for public
services as opposed to disclosure of petroleum contracts.
It
is positive that the government has not necessarily shied away from
acknowledging failure to meet some commitments-although it must be noted
that assessments towards OGP action plan compliance are done by
independent researchers. There is an admitted realisation that some
change will be difficult to attain.
It is not all doom
and gloom. On the bright side, the government has made important
commitments to implement the open contracting standard and to disclose
beneficial ownership.
In the new action plan, there is a
commitment to publish a central public register of company beneficial
ownership information operating in Kenya.
Disclosing
beneficial owners is making public the real owners or beneficial owners
of companies. This will help ensure that these owners do not hide under a
complex web of shell company fronts and therefore contribute to the
fight against anti-corruption.
GILBERT MAKORE, Oxfam East Africa Extractive Industries Advisor.
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