Past Due: Leveraging Justice for “Hard Accountability” in OGP

chalkboard with the word “liability” written on it
Photo Credit: Nick Youngson CC BY-SA 3.0 Alpha Stock Images

Defining Accountability

In a foundational article of our field, Jonathan Fox defines “hard accountability” as measures that have elements of transparency, answerability, and the threat of sanctions. Adapted to the OGP context, I suggest that hard accountability commitments are those that explicitly name a means of enforcing or brokering compliance with some other rule or right. I might be more generous in terms of whether they may offer reward in addition to sanction. The important thing is that there are tangible consequences and the means to achieve them.

1. Assuming the existence of soft accountability institutions

  • Assuming democratic institutions: For those of us that live in established democracies, we assume that the existence of a free press leads to the production of accurate information about government. On the basis of this information, people can choose to re-elect their representatives or vote them out of office. While there is some evidence to suggest that this happens, it does not occur in all places, at all times and we can’t assume that (a) information being released is any good; (b) that public interest investigators have the means to evaluate that information; and © that the public will respond with sanctions for accountability.
  • Assuming a market: Further, we often make the mistake of assuming a “consumer” model when dealing with government decision-making. We assume that if people have information about politicians’ poor performance or behavior, they will choose to put other politicians in power. However, this does not hold in areas where the government holds or grants monopoly powers, or where markets don’t exist — such as highway construction, eminent domain, use of force. In these areas, we absolutely need hard, specific accountability mechanisms — courts, oversight boards, environmental and financial auditors.

2. Failing to take into account interests and incentives

Bureaucratic incentives (or “Turkeys don’t vote for Thanksgiving”): Quite simply, officials are not incentivized to invite people to sue them or have an injunction put on a project they are proposing. There are exceptions, but they are rare and time-bound:

  • At the beginning of a new administration when politicians have incentives to make good on election promises to clean up the perceived excesses of the prior administration;
  • On the way out of office, when one administration wishes to bind the hands of the next;
  • During a power struggle between branches of government (where the legislature or courts create private rights of action or accountability);
  • When a legislature passes a law that is unimplementable and an agency looks to the courts for guidance and prioritization.

3. Lack of ideas and relationships:

  • Normalizing accountability in OGP: Finally, because they are so uncommon, perhaps members don’t know that they could include “hard accountability” commitments in their action plans. Given a certain level of popularity, a topic may take off quickly from relative obscurity to a preponderant topic of reform. For example, at the outset of OGP, commitments about beneficial ownership and gender rarely appeared in action plans. Now they are among the fastest growing areas of reform. It is possible that resistance is not a major factor — furtive discussions of hard accountability have simply yet to take hold.
  • Institutional prerogatives of accountability institutions: Another colleague suggested that “judges only listen to other judges.” This may be the case as independence is essential for survival of accountability institutions. It is safer to swim in the waters of professional associations brimming with peers than to be seen mingling with potential future defendants both for one’s own reputation and for the integrity of future cases.
  • Assuming institutions: We know that perfect information markets rarely exist. And, the last 15 years of declining democracy and journalistic capacity have certainly demonstrated that we cannot assume the existence of accountability institutions. Here, we need to undertake more concrete reforms to bolster civil society and media organizations.
  • Accounting for interests and incentives: Here, there are distinct limitations to what an international organization can and should do. We can encourage organizations (inside and outside of government) who work on hard accountability approaches to become involved with OGP. But until they make the calculation that it is less work to get reforms through OGP than through other channels, then this will remain a self-fulfilling prophecy; there will be no hard accountability commitments in OGP because no one sees OGP as a means to get hard accountability commitments.
  • Ideas and people: This is what OGP does best. In some sense, it is the real magic of all of those action plans and conferences — getting people together and realizing that the impossible is in fact possible. Could this happen for hard accountability commitments? It has happened elsewhere. Certainly, there are partners who pursue this work elsewhere but do not tap into it in OGP.
  • Access to information: A small number of commitments exists that seek to strengthen access to information commissions and improve the rules by which they operate.
  • Civic participation: There are no commitments enforcing the right to participate outside of the handful of commitments from Latin America on adopting and implementing the Escazu Agreement which includes the right to appeal the denial of participation.
  • Substantive accountability: There are a number of commitments that address complaints mechanisms — usually administrative — or strengthen ombudsmans’ offices, but they are rare. Our survey of administrative law reform in OGP found that there have been no commitments that strengthen procedure or substantive reform in rulemaking processes.
  • Actions to address harms: Does a right of action exist for natural or legal persons or a class of individuals if they’ve been harmed, by the government or another entity?
  • Non-compliance actions: Can people sue the government if it has violated the law, regardless of whether a harm has occurred?
  • Non-enforcement actions: Can people sue the government if it fails to enforce the law?
  • Citizen suits: Can people enforce the law on behalf of the state if the government fails to enforce the law?



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