Struggling To Consult

The government approach is not how it should be done

This has already been a highly instructive year in terms of what the government considers ‘consultation’. 

To recap, in the first half of the year, various government authorities rushed to parliament a raft of bills that have to be enacted before the end of September 2023 in order to avoid greylisting by the Financial Action Task Force (FATF). 

Then in August the industrialisation and trade ministry, out of the blue, called for consultation on the long-languishing Investment Promotion and Facilitation Bill. 

Around the same time, in mid-August, the Ministry of Information, Communication and Technology, hosted another ‘consultation’ round on the draft data protection bill. 

With regard to the enactment of laws to avoid greylisting, it should be noted that it was a self-made emergency, in that the government had years to effect the changes to laws and regulatory frameworks, but had failed to do so. 

Only when threatened with greylisting, around the same time that South Africa was greylisted, did the wheels start turning and 13 new laws or amendment bills had to be enacted, without much substantive consultation along the way. 

Rightfully, commentators called out the desperate effort, which really should not be a model for how things should be done in a supposed democracy.

With regard to the investment bill issue, the ministry was accused of blindsiding stakeholders, at short notice, with the exact same bill that was pulled from parliament a few years ago because of problematic and sub-standard provisions.

Some business and investment sector stakeholders even complained that they did not know about the ‘consultation’ till after it had happened. 

In terms of the draft data protection bill, the situation was exactly the same – short notice invitation to a workshop where almost the exact same draft for which the ministry had called inputs in October 2022 was being discussed. 

Stakeholders that had submitted inputs during the ‘consultation’ process of 2022, saw none of their inputs – based on best practice regionally and globally – reflected in the draft discussed in mid-August.  

Small wonder many in civil society say ‘what’s the point’ and ‘why bother’ when what the Namibian government seems largely interested in is a pretence at consultation.     

Meaningful engagement

So, this is really a call on the Namibian government to stop with the problematic ‘consultations’. 

As the Institute for Public Policy Research (IPPR) and the Access to Information in Namibia (ACTION) Coalition, we have for years adopted and promoted the principle of multistakeholderism in law and regulatory crafting, as this is a standard being pushed at UN level.  

And not only do we wish to see multistakeholder consultations – that are also truly multidisciplinary, and not predominantly officials from various government departments filling the meeting hall, as was the case in some of the recent ‘consultations’ – but we also want these interactions to be based on the principle of meaningful engagement. 

What do we mean by this, you might ask. 

We defined and refined the principle of meaningful engagement at the inaugural Namibia Internet Freedom Forum (NIFF), hosted by the IPPR in late September last year, where we gathered a range of civil society actors to discuss various digital rights related issues.

The event adopted a working draft of a digital rights charter, compiled for the gathering by South Africa based ALT Advisory, that captures 11 principles that should inform civil society engagements with government. 

The first of these principles is “meaningful engagement”.

In our view, effective meaningful engagement requires, first, that all stakeholders make themselves reasonably available and to commit to participating in good faith. This means an end to the short-notice, rushed engagements. 

Second, there should be a clear assignment of duties in organising meaningful engagement sessions with an accessible agenda and provision of any relevant supporting documents or materials. 

Third, all stakeholders should be treated as participants in discussions and decision-making and not merely as spectators or observers. This means that participant inputs and contributions should be given fair and open consideration. 

Four, individuals and groups who may be adversely affected by the outcomes of any decision-making process should be fully informed prior to the decision and should be provided with the relevant information to take part in participatory processes ahead of time.

Five, every effort should be made to include a broad and diverse range of stakeholders to ensure that a wide variety of perspectives and experiences are represented. 

Six, consultative sessions should be continuous or reoccurring, if needed, and not the once-off engagements so favoured by government departments.

Seven, if processes fall short of these principles there should be reasonable complaints mechanisms to enable individuals to express their dissatisfaction or concerns with the process, or processes, followed.

If these principles are followed we might just “ensure that laws and policies reflect the will and best interests of the people”, as stated in the digital rights charter. 

Frederico Links is a Namibian journalist and governance researcher affiliated with the Institute for Public Policy Research (IPPR). He is also the chairperson of the Access to Information in Namibia (ACTION) Coalition. A version of this blog was first published in the New Era newspaper on 1 September 2023.

1 September 2023


Frederico Links

Frederico Links is a research associate at the Institute for Public Policy Research (IPPR) for which he coordinates work on cybercrime and data protection policy issues as well as public procurement matters