Gaps in World Bank’s Access to Information approach are failing Nepali communities and perpetuating violence

132 kV Bhulbhule Mid-Marsyangdi transmission line, part of many planned and implemented transmission lines in the Western District of Nepal.

The World Bank’s lackadaisical approach towards freedom of information and citizen engagement is perpetuating violent conflicts between Nepal’s hydropower sector and its affected communities in two ways. Firstly, the bank is funding hydropower sector projects that forcibly displace Indigenous Peoples, and other marginalized groups, without providing project information and opportunities for consultation. Secondly, the bank is refusing to share important conflict mitigation information with the communities.

As public international financiers are advancing energy and other infrastructure projects around the world, this International Day for Universal Access to Information marks an appropriate time to call into question: whether the World Bank’s Access to Information Policy satisfactorily enables transparency; whether the policy is being implemented appropriately; and how the current system impacts the way communities can — or cannot — interact with their governments and the World Bank.

Lack of information triggering conflicts in Nepal’s energy sector

Communities affected by World Bank funded Khimti Dhalkebar transmission line demanding Free, Prior and Informed Consent.

Securing land for transmission lines (which are required to transport electricity) has been a particularly contentious issue in Nepal. Many local communities — who have been left in the dark about the health, safety, economic and environmental impacts of transmission lines — have been reluctant to host such projects. They have raised concerns with their government, project implementers, and international financiers about the lack of information, consultation and compensation accompanying these projects; and have been asking for meaningful dialogue and participation in the planning and implementation of Nepal’s energy future. Unfortunately, rather than engage with communities’ concerns, Nepalese authorities have at times responded with force, escalating the disputes. Additionally, international financiers, like the World Bank, have done little publicly to stop such escalation of disputes. This violence, and associated human rights abuses, has also led to project delays.

Khimti Dhalkebar experience belies bank’s commitment to transparency and citizen engagement

Women and children peacefully protesting the World Bank funded Khimti Dhalkebar transmission line

For example, in the World Bank-funded Khimti Dhalkebar transmission line, there were repeated instances of violence, coercion and intimidation of local communities. The project was completed under the presence of the paramilitary Armed Police Force. It took over a decade to complete, several years off-schedule. The bank’s independent complaint office, the Inspection Panel, found that misinformation had resulted in violence on the ground and delayed project construction. In response to the Panel’s investigation report, the World Bank hired dispute resolution experts at the Consensus Building Institute to develop a report providing recommendations for conflict prevention and management for future transmission lines and other energy projects in Nepal. This was a positive move, and potentially a way for the bank and government to learn lessons and prevent further harm.

As advocates for communities harmed by the Khimti Dhalkebar project, our organizations were with project-affected communities in Nepal, at their request, when CBI’s team came to meet them. Several community members took time away from their daily activities to be interviewed by CBI for the report, and to show the CBI team the project construction site. This raised expectations that CBI’s findings would be shared with the communities. In private conversations, it was repeatedly indicated the report was drafted with the intention that it would be a public document. More broadly, Nepali communities and civil society had understood from the Bank’s Access to Information Handbook that the CBI report would be publicly released like other analytical and advisory reports of the bank, which are routinely disclosed once completed.

CBI completed its report in September 2016, reportedly identifying “significant opportunities for strengthening dialogue on the distribution of benefits and costs associated with energy development”, and vindicating communities’ demands for participation and engagement. However, to date, the CBI report has not been released, even though affected communities and their advocates have been repeatedly asking for it, including through the bank’s formal Access to Information request process, and its two levels of appeals.

Non-disclosure of the CBI report belies the public importance the bank is giving to transparency and citizen engagement. Publicly and on paper, the World Bank has broad access to information and citizen engagement goals of ensuring that communities have access to information sufficient to engage with their governments and the bank, including about projects affecting them. In practice, it appears the bank is withholding crucial engagement and conflict management information, and prioritizing pushing through projects, even where a client government uses violence.

Bank’s information request process rife with delays and no results

Police use force to disperse community members peacefully protesting Khimti Dhalkerbar transmission line (Photo Credit: ABCTV Live)

When the affected communities did not initially receive the CBI report, they and their supporting organisations started asking the bank’s project team for it directly. Some bank staff indicated in face-to-face meetings they could likely provide the report, but never followed through.

After a year of continued requests to bank management, in August 2017, the communities filed a formal Access to Information request under the bank’s Access to Information Policy. Even though the bank’s policy points to a response time of 20 working days, the bank’s Access to Information team took over 75 working days (nearly four calendar months) to respond. The Access to Information team rejected the request with little explanation other than indicating that the CBI report was “deliberative” in nature and thus exempt from disclosure.

The World Bank’s Access to Information Policy allows access to any information in its possession that is not on a list of exceptions, with “deliberative” information being one. The policy indicates that deliberative information is protected to provide the bank and its clients “space to consider and debate, away from public scrutiny.” Typically, deliberative information refers to internal communications or communications with external parties (like e-mails, notes, letters, or memoranda), draft reports, or in limited cases statistics prepared or analysis done “solely” to inform the bank’s internal decision-making process. But there is no evidence to suggest that the CBI report is deliberative , and indeed the nature of the document points to the contrary.

As a result, the communities and their advocates filed an appeal to the Bank’s Access to Information Committee explaining that the document was not “deliberative” as defined in the policy. The communities also highlighted that there are strong public interest reasons to disclose CBI’s report. Unfortunately, with little regard for the urgent need for disclosure of the CBI report, the Bank’s Access to Information Committee blew past the 45 working day timeline set out in its policy, and eventually rejected the communities’ request. The committee contended that the bank did not need to disclose the CBI report because since the bank is using the document, it is a “deliberative” document. However, this is circular. The bank is likely to use all documents it creates — otherwise, why would it create them? Thus, the bank has created an exception that allows it to avoid any transparency whatsoever.

Admittedly, a narrow exception may be reasonable under certain circumstances to safeguard the bank’s deliberative process, but it is difficult to see how the CBI report (in its final form) fits the description of deliberative. Once a report is final, it must be disclosed to uphold transparency, as any internal deliberations about the issues in the report are over. If a public institution like the World Bank can escape disclosure merely by saying it is relying on a document and therefor classifying it as deliberative, this renders the Access to Information Policy meaningless, and undermines the bank’s commitments to transparency and citizen engagement.

The Access to Information Committee also found that public interest reasons to help prevent future conflicts in Nepal’s energy sector was not a compelling enough reason to disclose the CBI’s report. In fact, the committee failed to provide any reasons for its rejection of the community’s public interest arguments. Here, the fact that that the bank’s policy precludes further appeals for rejection of public interest cases appears to have allowed the committee to reject the communities’ public interest arguments without any reasoned explanation.

Eager to have information that could help resolve conflicts in Nepal’s energy sector, communities and supporting organizations filed a second-level appeal to the World Bank’s independent Access to Information Appeals Board, appealing only the interpretation of the deliberative exception. Despite the limited scope of the appeal, nearly four months have passed, and the communities are still waiting for a decision. Indeed, the Access to Information Policy provides no indication of how long the Appeals Board process typically takes. And despite repeated follow up, the Appeals Board secretariat has provided no indication of how long a response will take.

What the World Bank should do to demonstrate its commitment to transparency

World Bank’s independent complaint office documenting lack of information in Khimti Dhalkebar project

Communities experience requesting the CBI report suggests that important changes are necessary to the World Bank’s Access to Information Policy and process. First, timelines set out in the policy must be followed diligently. Second, the definition of what falls within the deliberative exception must be clarified and interpreted narrowly in order to avoid actual or perceived abuse of such exceptions. Third, the Appeals Board should be given jurisdiction over public interest requests. And fourth, there should be greater certainty around timelines for the Appeals Board as a matter of fairness. These changes will go a long way in ensuring the Access to Information Policy actually ensures transparency and better reflects the bank’s commitments to citizen engagement.

Lastly, the Bank should immediately disclose the CBI report. By 2040, Nepal plans to build over 40,000 MW of hydropower and over 4,000 km of transmission lines, with help from numerous international financiers. Many transmission lines are being put on hold due to conflicts between local communities and project implementers, with fears of escalation to violent repression by the state. Recently, communities in Lamjung district in Nepal have been raising concerns about a European Investment Bank funded transmission line. The need for public debate and implementation of the CBI’s recommendations for conflict management are more important now than ever before for Nepal to sustainably develop its hydropower sector, and for people to engage peacefully with their government and the international institutions financing these projects.

Written by Shankar Limbu And Siddharth Akali. Advocate Limbu is an advocate and Secretary of the Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP), which provides free legal aid services and works to promote, protect and defend the human rights of Indigenous Peoples in Nepal. Siddharth Akali is a South Asia Consultant with Accountability Counsel, which amplifies the voices of communities around the world who are harmed by internationally financed projects. LAHURNIP and Accountability Counsel are supporting communities in Lamjung district of Nepal affected by the European Investment Bank funded 220 kV Marsyangdi Corridor transmission line, and had also supported communities affected by the World Bank funded Khimti Dhalkebar transmission line.

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