TNRC Guide Open Governance

Corruption is one of the most significant obstacles to the sustainable conservation and management of nature. Commonly defined as “abuse of public office for private gain” or “abuse of entrusted power for private gain,” corruption is a key facilitator of environmental crime. It is rooted, however, in broader issues, such as who exercises power over natural resources, who is excluded, and how informal practices and relationships compete and interact with formal institutions. Corruption thrives in an environment of secrecy, opaque government processes, and unaccountability in the use of public resources.

Closed governance creates the conditions for corruption to thrive in conservation and resource sectors in many ways. Some examples:

• Concession and natural resource contract negotiations are often lengthy and highly technical, and they frequently occur behind closed doors due to invocations of “confidentiality.”
• Natural resource extraction operations often occur in remote settings with weak institutions, limited infrastructure, a lack of policy or enforcement, and extreme geological and ecological conditions. These factors all make the chain of decisions more challenging to monitor and provide opportunities for corruption and a screen for poor management.
• In most countries, natural resources are owned by the state, and governments regulate the acquisition of rights for exploitation. This implies frequent contact and interactions between the private sector and public officials for concessions, licenses, and approvals for resource exploration, development, operation, and management.

Transparency, inclusiveness, participation, and accountability in natural resource governance all contribute to reducing opportunities for corrupt activities and empowering citizens to demand better processes, performance, protections, and outcomes from their governments. Strengthening these elements of “open governance” is a fundamental, necessary means of addressing natural resource corruption. This guide provides an overview of the evidence and lessons learned from TNRC’s work relevant to open governance approaches for reducing corruption in natural resources.

There are three main “open government values”: transparency, accountability, and participation. Open governance as a means of addressing corruption involves not only the disclosure and availability of data to the public (information transparency) but also the active use of that information by citizens or civil society groups (participation) to hold duty bearers accountable for effective use of their power to deliver services and benefits appropriately (accountability). In addition, these three values help create, but also rely on, an enabling environment for openness.

This section defines each of these values and illustrates how they contribute to good, sustainable governance of natural resources.

2.1 Transparency

Transparency is the “flow of timely and reliable…information, accessible to all relevant stakeholders.” It is a two-way, accurate, comprehensive communication between governments and stakeholders. Conservation and natural resource management activities can leverage transparency to reduce corruption risks in several ways:

• Conservation efforts that rely on distributing funds to stakeholders, such as Payments for Forest Environmental Services (PFES) or other forms of sustainable livelihood interventions, have a higher risk of corruption if fund flows and uses are opaque.
• Government decisions, like contracts, permits, and licenses, large-scale infrastructure projects, and access agreements, all require transparency so that officials and private sector actors cannot easily collude or avoid social and environmental protections.
• Although not necessarily transparency on their own, e-government or other efforts to streamline public services like land titling can sometimes close corruption opportunities while improving convenience and efficiency.
• Beneficial ownership transparency (BOT) helps prevent the abuse of legal structures for criminal purposes, such as hiding the true owner of a fisheries company in order to avoid accountability for illegal fishing.[1]
• Traceability systems monitor the flow of natural resource materials through supply chains and deter the laundering of illegal products by flagging possible lawbreaking and corruption. Like other market-based incentives for sustainability, they are most effective when they are also transparent to stakeholders beyond the government or private sector.
  

• Since much of this environmental information is complex, civil society organizations (CSOs) can be important intermediaries who help translate and disseminate it to stakeholders.

However, transparency approaches alone will not entirely solve corruption issues that affect conservation and NRM outcomes. Instead, a mix of anti-corruption measures are needed, combining transparency with accountability, participation, and an enabling legal and institutional context.

2.2 Accountability

Accountability is a broad term with political, social, corporate, and legal elements. Generally, accountability refers to the responsibility and duty of governments, public institutions and officials, the private sector, duty bearers, and decision-makers to provide transparent information about their actions, activities, and performance; to respond to appropriate expectations and demands from constituents; and to answer for any abuses of power, improper actions, or failures to perform. Sustainable natural resource management depends on powerful actors being accountable for the social and environmental outcomes of their decision-making.

Social accountability strategies specifically emphasize transparency and voice in citizen-based approaches (see next section) to holding authorities accountable. Examples of social accountability approaches to address corruption that affects conservation objectives include systems for submitting complaints about environmental violations, public tracking or auditing of natural resource revenue and expenditure, and collective community monitoring of projects with environmental impacts.

Court monitoring is another promising area in combating environmental crimes and prompting accountability in conservation and NRM. The approach, which includes training prosecutors, conducting essential surveys in courts to find errors, and monitoring ongoing cases to evaluate progress, “can improve the effectiveness and fair administration of justice, and reduce the likelihood of corruption undermining a case.”

Finally, some types of safeguard standards can act as a cornerstone of accountability. Whether implemented by governments, international institutions or NGOs, adequate safeguards, checks, and quality controls with oversight mechanisms such as audits, parliamentary oversight, civil society, media monitoring, and corporate transparency and monitoring can guard against conflicts of interest and undue discretion. A critical challenge that affects the effective implementation of safeguard standards includes inadequate political will and weak regulatory regimes.

2.3 Participation

Participation is the formal or informal interaction among government, citizens and other residents, civil society organizations (CSOs) and the private sector, designed to influence a particular policy outcome to ensure informed decision-making and avoid political capture. Participation is a structured approach of information, consultation, and engagement.

Promoting citizen engagement is at the heart of open government, and local community participation in natural resource management can be critical to conservation success. Participation with accountability can guide the actions of those in power toward more socially and environmentally sustainable outcomes. For example, effective free, prior, informed consent (FPIC) mechanisms help ensure that the voices of citizens and potentially affected people are included in decision-making processes around natural resource projects. Mobilizing communities and civil society organizations around infrastructure projects and reviewing data about the consultation and design process can uncover red flags of potential corruption and other signs that such projects are not in the public interest. Especially for complex decisions related to community-owned or -managed natural resources, participatory processes for sustained public deliberation and monitoring are crucial.

However, the impacts of people-centered participation, social accountability, and other anti-corruption mechanisms depend on the capacity and will of public authorities to respond effectively to people’s demands and sanction any malfeasance identified. Institutional capture, weak enforcement of laws or compliance with participatory requirements, and power differentials influencing who participates and how effectively can all limit participation’s effectiveness. Engaging actors with high social trust in their communities, linking citizen voices to other anti-corruption initiatives, conducting participatory situation analysis, and directly addressing identified challenges to citizen empowerment, trust, and motivation can all help overcome these limitations.

As noted in previous sections, the impact of specific open governance reforms depends on other enabling factors, at the same time that such reforms can themselves help improve the enabling environment. Key contextual factors include an enabling legal and institutional framework, the rule of law, a robust civil society (including free and independent media), and strong positive political leadership.

An adequate legal and institutional framework that is effectively implemented and enforced provides the foundation for transparency, accountability, and stakeholder participation in a given context. Supportive laws and regulations include whistleblower protection systems and other channels for independent reporting; constitutional guarantees for fundamental freedoms of speech, expression, association, assembly, and press; and specific Freedom of Information (FoI) laws that allow stakeholders to access and demand information.

Similarly, successful open government reforms require a robust civil society, with dialogue, engagement, and a minimum of civic space. Reducing corruption cannot be boiled down to “adding citizens and stir,” however, especially in conflict contexts or in transitions from extractive, rent-based economies. As a result, measures to strengthen the capacity of CSOs and the media should therefore also include clear steps to facilitate the registration and functioning of civil society.

International frameworks can contribute to national enabling environments. Global human right agreements, for example, “provide a range of entry points…to advance a rights-based approach to corruption-related environmental crimes.” The Escazú Agreement, a regional agreement in Latin America and the Caribbean, requires signatory governments to provide access to environmental information, enable participation on environmental topics, and guarantee environmental justice. Escazú, if fully implemented in national contexts, sets a high bar for enabling open environmental governance.

Despite some successes (e.g., in fostering a culture of transparency, improvements to public services, broader and deeper public participation, and budgetary savings including reductions in corruption), many open governance efforts still lack credibility and can even be counterproductive. Overly focusing on the central executive body can exclude the legislative and judicial branches and local levels of government. Initiatives do not always have explicit theories of change, creating conceptual ambiguities that make it hard to demonstrate impact and generating a false sense that all stakeholders are pulling together in one common, unproblematic endeavor.

In recognition of these limitations, and like any conservation project, open governance interventions must include adequate safeguards for participants. Open governance approaches may not be appropriate in all contexts, especially if those contexts lack the enabling factors listed above. Key questions to consider as part of an open governance in conservation safeguards [2] process include:

• Transparency: Can the targeted information be shared without violating citizens’ right to privacy? Does it include identifiable information that could cause someone harm?
• Accountability: Do desired open governance mechanisms protect the identities of people who make a complaint or submit a grievance? Can reprisals be prevented?
• Participation: Will participating in this initiative subject participants to risks, like targeting from powerful actors? Are we compensating people for their time, and ensuring that we do not unfairly burden certain populations with unpaid “civic” labor?

The need to open the governance of natural resources has become an essential part of the global governance agenda. Many organizations exist that can provide technical support, research, and policy guidance for conservationists seeking to leverage open governance approaches. One leader is the Open Government Partnership (OGP), a global collaboration between governments and CSOs to promote country-specific transparency, participation, and accountability reforms. This TNRC guide provides concrete examples for leveraging OGP to reduce deforestation, improve the integrity of wildlife law enforcement, and protect marine protected areas.

OGP also provides lists of partner organizations, organized by theme. Additional potential support organizations include:

• Fisheries Transparency Initiative (FiTI)
• Open Contracting Partnership
• Natural Resource Governance Institute
• National Whistleblower Center
• Transparency International
• Extractive Industry Transparency Initiative (EITI)

[1] Interest in beneficial ownership transparency has surged as witnessed by efforts like the EU Directive on Anti-Money Laundering and Counter-terrorist Financing, the G20 High-Level Principles of Beneficial Ownership Transparency, The Financial Action Task Force (FATF), Open Ownership, and the Financial Accountability and Corporate Transparency (FACT) Coalition.

[2] Some of the safeguard mechanisms of influential NGOs and international bodies include the WWF Environment and Social Safeguards Integrated Policies and Procedures, the World Bank Environmental and Social Framework, and the IUCN Environmental and Social Management System (ESMS).