44897 The World Bank JUNE PREMnotes 2008 N U M B E R 118 PUBLIC SECTOR GOVERNANCE Let the Sunshine In: The Making of the Transparency and Access to Information Law in Honduras Ana Bellver, Marcos Mendiburu, and Maria Poli On November 27, 2006, the Honduran Con- goal of safeguarding the right to freedom of gress approved the Transparency and Access to expression in Honduras under mounting pres- Information (ATI) Law. As an active participant sure from the public and private sectors against in the G-161 and pro-tempore chair of its Trans- an independent media. During its first two parency Roundtable during the time the bill was years, with funding from the Ebert Foundation, under discussion, the World Bank (WB) con- UNDP, and the Danish cooperation, C-Libre’s tributed in different ways to facilitate an open members visited the Organization of Ameri- and quality policy debate. This note recounts can States (OAS) rapporteur on Freedom of this process to illustrate how the WB can act as Expression, and learned about other countries a catalyst in the context of a domestically driven experiences in this area. At the end of 2002, agenda, as envisioned by the Governance and C-Libre organized the first National Dialogue Anticorruption (GAC) strategy. on the Right to Information and Freedom of The first part explains how the right of Expression, during which it commissioned access to information emerged into the public Leo Valladares, a well-respected law professor agenda initially pushed by a civil society orga- and former human rights commissioner, to nization (CSO), and gradually turned into a elaborate a draft bill on the right of access to movement supported by a widespread coalition. information. In 2003, after a visit of the the The second part describes the ups and downs of OAS Freedom of Expression rapporteur,2 the the policy-making process surrounding the ATI draft bill was officially presented at the Second bill, the champions that emerged in the process, National Dialogue. and the resistance from vested interests. The A twofold strategy ensued: first, C-Libre third part analyses the role of the international initiated a grassroots mobilization through donor community in general, and the WB in local roundtables throughout the country to particular, which has been praised by civil soci- raise awareness about the right to informa- ety, Congress, and government representatives tion beyond the capital city. Second, C-Libre as being supportive and positive. While it is still circulated the proposal among policy makers early to assess its impact, the passing of the law and members of the donor community, and offers an excellent entry point for advancing secured support from a variety of stakeholders, further public sector reforms and strengthening including the National Anticorruption Council accountability of public institutions. (CNA) and continued strengthening its ties with the ATI international movement. Visits to Mexico and Panama were organized as well as A process set in motion visits from international experts to Honduras, from the bottom up with support from the donor transparency In 2001, a group of journalists founded C-Libre roundtable. (Freedom of Expression Committee) with the FROM THE POVERTY REDUCTION AND ECONOMIC MANAGEMENT NETWORK Taking the battle to the mobilize popular support for the approval of political arena: confronting the ATI bill and counteract the resistance of vested interests by adding up new supporters, vested interests’ influence resorting to alternative communication chan- By 2004, the Honduran ATI movement had nels,5 and keeping the debate afloat. Regional been able to build a widespread coalition. The dialogues6 and national workshops were or- regional consultations, coupled with discussions ganized with assistance of WBI and PREM to held with international experts from other gather support from the two main veto groups, countries, contributed to sustaining the issue i.e., private sector and media groups.7 in the public agenda. The Maduro administration (January 2002–January 2006) reacted by trying to intro- Shaping political incentives: duce its own bill in Congress. But civil society’s the emergence of champions proposal had gained enough legitimacy to force within the Executive and the Executive representatives to concede that the Legislative Branches “the proposal promoted by the citizenry and The timing of the political process offered new social organizations not only had popular and opportunities for the movement. The popular international support, but also had legal and mobilization initiated two years earlier was pay- substantive coherence.”3 After several meetings ing off. Public demand for greater transparency with the president of Congress and with leaders was a central issue in the political campaign and of all the parties, the proposal was turned into candidates from different parties, including a bill backed by the five parties represented in presidential candidate Manuel Zelaya Rosales, Congress. The bill was then referred to a House promised to get the ATI bill passed if they won legislative committee. the elections. The events that unfolded throughout True to his promise, the bill was placed for 2005 highlighted the interests at stake. The floor action after Zelaya’s victory in November legislative committee delayed its discussion 2005. The new president and his legal advisor, and finally, due to pressures from influential Enrique Flores Lanza, with past ties to the non- sectors, declared that the bill was an “extremely profit sector, became champions of the reform sensitive legal instrument.”4 Opposition to the from within the Executive branch. However, the bill came from the Honduran Private Sector process was far from over, and the influence of Council, the Association of Media Owners, vested interests found its way to the debate in and the Journalists’ Association. The joint op- Congress. At the last minute legislators from position of business and media groups, which Zelaya’s Liberal Party as well as from other par- may be attributable to the concentration of ties backed off and refused to discuss the bill. media ownership and the nature of business After intense lobbying, Alianza 72 managed to conglomerates, owed mainly to concerns about convince a small party, Unificación Democráti- the disclosure of contracts with the government. ca, to table the bill for discussion.8 During the While in other countries the media have pro- 11 months that ensued until approval of the bill vided critical support for the adoption of ATI at the end of 2006, the process underwent vari- laws, in Honduras mainstream media rallied ous advances and setbacks, in a difficult battle against its approval in an attempt to preserve between pro-reform and status-quo groups. its monopoly over public information. . Four versions of the bill were circulated, and A counter-reaction by civil society followed. the original legislative committee was replaced In mid-2005, a formal alliance was established by a new one, made up of 17 legislators, the under the name of Alianza 72 in reference to the largest number of committee members ever in Honduran Constitution’s article 72 on freedom the history of the Honduran Congress. of expression. Based on the efforts initiated two Illustrating the resistance that the law years earlier, backed by 22 organizations—with encountered from different groups, below are a leadership role played by C-Libre—and with some of the restrictions to the right to infor- financial support from the OAS Trust of the mation that surfaced in some of the earlier Americas Foundation, Alianza 72 set out to versions: 2 PREMNOTE JUNE 2008 • Definition of “public official”: earlier ver- had not been successful in enabling the sions of the law included only low-ranking implementation of other reforms in the public officials, leaving top officials and past, such as the civil service reform. management out. • Examples of classified information: “adver- Still, even after the draft tabled for discus- tising contracts of public institutions,” “sub- sion had gained the backing of key actors, the sidies received by congressmen,” “salaries law was approved with major flaws. The final and wages,” “international negotiations,” version published in the official gazette on “information provided by citizens to the December 30, 2006 (Decree number 170-2006) State under confidentiality.” contained critical deviations from the draft that • Obliged compliance from only public sec- was approved on the floor. The law was finally tor institutions. Private sector organizations amended on July 17th 2007 (Decree 64-2007) were excluded even in cases in which they after intense lobbying from Alianza 72 with administer public funds. Congress was only support from the G-16. obliged to publish draft and enacted legis- lation. Municipalities were only obliged to G-16 and the role of the World publish pending legal actions against them and resolutions. Bank: Lessons learned By 2006, several donors had agreed that the • Media groups had the power to classify law was a priority in the reform agenda and information. the Transparency Roundtable was established • Only citizens with no outstanding tax obliga- as the main donor coordination mechanism in tions could submit information requests. this area. The international cooperation played • In earlier versions, the law was not retroac- different roles throughout the process by: tive. • providing seed money for jumpstarting the Two factors were key at that stage for bring- awareness-raising process on the ground, ing the policy-making process to a satisfactory and facilitating the exchange of informa- conclusion, i.e., the passing of a law that met tion between Honduran and international international standards:9 actors; • using its convening power to facilitate a i) A new champion emerged within Congress: dialogue among Congress, the Executive Mary Elizabeth Flores Flake, the first vice branch, and civil society around technical president, became an undisputed ally of issues and international best practices; the ATI movement. Daughter of former • encouraging CSOs to act collectively and President Flores, a journalist herself and overcome the distrust among the different educated in the U.S., Vice President Flores organizations that had limited their ability embodied the new generation of Honduran to work together in the past; politicians. Her personal charisma coupled • conveying a unified message on the impor- with her access to the senior generation of tance of governance and transparency for lawmakers was central in gathering support the international community (G-16, IFIs, from pro-status quo actors.10 and bilateral agencies), using different ii) The influence of the international commu- instruments (budget support conditional- nity at a time when various donor initiatives ity, program requirements, project compo- were being discussed:11 organized around nents); and the G-16, the donor community issued • sustaining the support during the law’s various statements and met with Congress implementation phase. and the Executive branch at critical stages of the policy-making process to emphasize the As an active participant in the G-16 and importance of passing a law that accorded pro-tempore chair of its Transparency Round- with international standards. While this table during the time the bill was under discus- influence was undoubtedly important by sion, the WB contributed in different ways to itself, pressure from the donor community JUNE 2008 PREMNOTE 3 facilitate an open and quality policy debate. were different actors that emerged at particular This was the result of a combination of several points and were driven by different incentives. factors: The bottom-up process was key in placing the issue at the top of the political agenda and 1. Envisioning access to information as an op- shaping the incentives of politicians compet- erationally relevant issue in Honduras. The ing for popular support. Recognition from Governance Strategy Note12 identifies trans- the international ATI movement and support parency and accountability as crosscutting from the international community were also issues across the portfolio. It was understood instrumental in providing personal incen- that if approved, the law could serve as an tives for champions seeking to leave a legacy entry point for enhancing the accountability behind. The positive incentives offered by of public institutions, and advancing other different donor instruments helped increase PSM reforms; and it was placed at the top the rewards for reform vis-a-vis the political of the country dialogue agenda. risk of confronting powerful vested interests. 2. Assistance to stakeholder and policy dialogue. Strategic interventions at different moments in The WB provided assistance to civil society the process were also key to unblocking policy actors as well as to lawmakers on techni- discussions, overcoming resistance from veto cal issues and international best practices, players, and generating a positive dynamic facilitating access to international networks among actors. and unblocking dialogue with veto players This need for negotiation has not disap- at critical stages of the process. peared during the implementation phase. 3. Sustained support during the pre-approval and The regulatory body, the Access to Public implementation phases through a combination of Information Institute (IAIP), was established instruments: Regional dialogues and national in September 2007 (through Decree 81-2007) workshops; policy dialogue around the pro- and the law entered into force in January 2008. posed Poverty Reduction Support Credit II; Congress’ appointment of the ATI Commis- IDF grant for the IAIP; study tours to IFAI sioners was also polemic and the result of a Mexico; social monitoring;13 and design of political compromise. transparency indicators funded through A major challenge, as in other countries, various grants.14 has been drafting the implementing regula- 4. Close collaboration among field-based staff, tions, a process that lasted for most of 2007 and PREM, and WBI. While technical missions was seen as the real test to assess government from PREM and WBI defined the agenda and IAIP’s commitment to its implementa- and the WB’s position on the legislation, tion. By then, a new landscape had emerged. dialogue with stakeholders was sustained The worsening of corruption indicators, the by staff in the field mission, who led many publication of reports about the quality of pov- of the discussions with Congress and the erty spending, and the cancellation of budget Executive branch. support operations by some donors, including the WB, put pressure on government to show some progress in the governance arena at the The road ahead: seizing the time when negotiations of external assistance momentum and building a programs were taking place. The president, fac- pro-transparency coalition ing the end of his term and without possibility As this case illustrates, the policy-making pro- of reelection, sees the law as one of his main cess is a dynamic process that involves multiple accomplishments. Meanwhile, IAIP commis- actors at different stages. The interaction and sioners are growing in their role and civil society political negotiation between the actors during has redefined its new role around the effective policy discussion, approval, and implementa- implementation of the law, paving the ground tion shapes the outcomes at each stage of the for the emergence of an IAIP-CNA-civil society process. More than a clear champion that sus- coalition. As a result of this new dynamic, ATI- tained the momentum throughout the process, implementing regulations, published on March in the case of the ATI law in Honduras, there 6, 2008, have been considered as in line with 4 PREMNOTE JUNE 2008 international standards, and progress regarding Mesa de Transparencia G-16 (2007). “Informe implementation also seems satisfactory.15 The Mesa de Transparencia sobre Ley de Trans- main challenge ahead is to seize the momentum parencia y Acceso a la Información Pública,” and consolidate the reform process before the internal discusión document, mimeo. 2009 election reshapes the political context. RETHO y CNA (2008). “Informe Línea de For the WB, the challenge ahead is to Base, Monitoreo de la Ley de Transparencia keep using every possible instrument to sup- y Acceso a la Información Pública,” Teguci- port ATI implementation and leverage on it to galpa, Febrruary. strengthen the accountability of public institu- tions and advance other public sector reforms.16 Other documents It is encouraging to see that the two investment Interviews with key actors envolved in the operations prepared after the approval of the policymaking process of the Transparency law17 include institutional components to sup- law in Honduras. Tegucigalpa, 26–30 de port its implementation in the respective Line noviembre de 2007. Ministry and improve public management Ley de Transparencia y Acceso a la Informa- systems as a result. ción Pública, Decree No. 170-2006, 30 de diciembre de 2006. About the Note Posiciones Contrarias—Posición de COHEP, This note was written by Ana Bellver, public sec- available at www.clibre.info/ley/posicion_ tor governance specialist (abellver@worldbank. cohep.html. org); Marcos Mendiburu, social development Proyecto de Dictámenes y Proyecto de Ley– specialist (mmendiburu@worldbank.org), and Dictamen Septiembre 2006, available at Maria Poli, access to information and account- www.clibre.info/ley/bitacora1.html. ability specialist, (mpoli@worldbank.org). List of acronyms References ATI Access to Information C-Libre (2008a). “Ley de Transparencia y Ac- BNPP The Bank Netherlands Partnership ceso a la Información Pública: Una llave que Program dejo cerradas algunas puertas del secreto C-Libre Comité por la Libre Expresión (Free- público,” mimeo. dom of Expression Committee) C-Libre (2008b). “Publicación, vigencia y re- CNA Consejo Nacional Anticorrupción forma de la Ley de Transparencia y Acceso (National Anticorruption Council) a la Información Pública 01 de Enero al 15 CSO Civil society organization de Noviembre 2007,” mimeo. DFID Department for International Cuellar Cruz, Rigoberto (2007). “La Ley de Development Acceso a la Información Pública: Una Inicia- IAIP Instituto de Acceso a la Información tiva Ciudadana a favor de la transparencia Pública (Access to Public Informa- en Honduras,” Federación de Organiza- tion Institute) ciones para el Desarrollo de Honduras IDF Institutional Development Fund (FOPRIDEH), mimeo. IFAI Instituto Federal de Acceso a la Infor- Ferrera, Juan (2007). “El rol del CNA en la vigi- mación (Federal Instituto of Access lancia de la ley de transparencia y acceso a to Information) la información pública en Honduras,” Head IFI International Financial Institutions of the National Anticorruption Commis- MCC Millennium Challenge Corporation sion (CNA), Tegucigalpa, 14 de noviembre OAS Organization of American States de 2007. PSM Public Sector Management Mejia, Thelma (2007). “Situación del Derecho a UNDP United Nations Development la Información en Honduras,” en Colección Programme Ética e Integridad para el Desarrollo, No WBI World Bank Institute 11, National Anticorruption Commission (CNA, Tegucigalpa. JUNE 2008 PREMNOTE 5 Endnotes 10. Her reasons for betting so high on the 1. Honduras international cooperation working cause were both personal (her experience as a group includes the major multilateral (WB, IMF, journalism student in the U.S. and as a former UNDP, IDB, CABEI) and bilateral agencies (Ger- journalist who had suffered first-hand from the many, Canada, U.S., Spain, France, Netherlands, lack of information influenced her views on the Italy, Japan, Sweden, Switzerland, and European issue) and political, deemed by many as undoubt- Commission) active in the country. edly in line for a presidential career. Interview with 2. Press releases provided by the former vice president of Congress, Honduras, November special rapporteur for Freedom of Expression, 30, 2007. Inter-American Commission on Human Rights, 11. Budget support program of the WB and Organization of American States (OAS) interview, other donors, the MCC program, and the IMF December 2007. PRGF program. 3. Mejía (2007). 12. Prepared as part of the Honduras CAS 4. Ibid. 2006–10. 5. More than 100 alerts, as well as interviews, 13. A small technical group under the name of articles, and editorials with updates on the pro- RETHO (Network for Transparency in Honduras) cess were published using the Internet, national emerged within Alianza 72 and CNA. newspapers, radio programs, and e-mail. 14. Norwegian, DFID, and BNPP Trust 6. I Regional Dialogue on Access to Informa- Funds. tion, Transparency, and Good Governance in 15. Sixty-five percent of the institutions under Bolivia, Honduras, and Nicaragua, February–May the Executive branch have established ATI offices 2005. II Regional Dialogue ATI, Transparency, and 85 percent of them have appointed ATI of- and Good Governance in Dominican Republic, ficials. RETHO and CNA (2008). Honduras, Nicaragua, Bolivia, and Guatemala, 16. Among other information, the law requires March 2006–April 2006. public institutions to publish procurement docu- 7. Workshop on Access to Information Legis- ments, financial statements, budget liquidations, lation as a Key Tool for Good Governance and and audit reports. Together with the results-based Economic Development (“Ley de Transparencia management system, the law is contributing to y Acceso a la Información. Una herramienta clave create a culture of accountability in the country para la gobernabilidad y desarrollo económico”), and is putting pressure on institutions to use the Tegucigalpa, May 31–June 1, 2006). procurement country system (Honducompras), 8. This interpretation of the events that ended update their financial documents using the fi- up in the avoidance of the discussion by legislators nancial information management system (SIAFI), one day before Zelaya took office was gathered clarify their organic structure and responsibility through interviews and was also documented in lines, improve their management information the media. systems, etc. 9. PREM Note, Legislation on freedom of 17. Honduras Education Quality, Governance information: trends and standards, No. 93, Oc- and Institutional Strengthening loan (approved tober 2004. on Jan 24, 2008), and Honduras Roads Recon- struction and Improvement II Project (under preparation). This note series is intended to summarize good practices and key policy findings on PREM-related topics. The views expressed in the notes are those of the authors and do not necessarily reflect those of the World Bank. PREMnotes are widely distributed to Bank staff and are also available on the PREM Web site (http://www.worldbank.org/prem). If you are interested in writing a PREMnote, email your idea to Madjiguene Seck at mseck@worldbank.org. For additional copies of this PREMnote please contact the PREM Advisory Service at x87736. PREMnotes are edited and laid out by Grammarians, Inc. Prepared for World Bank staff