CSO Participation in Policymaking (BA0005)

• What’s in the 2019 Action PlansCivil Society Participation in Policymaking (August 1, 2020)

• First Steps Towards a Future of Open Government for Bosnia and Herzegovina (November 1, 2020)

Which public issue will be addressed by this obligation?
Co-operation with civil society on public policy issues, including the process of European integration, has become de facto one of the political conditions for full membership in the European Union and is regularly addressed in both the EU enlargement strategies published periodically by the European Commission and in progress reports on Bosnia and Herzegovina for membership in the European Union.
The Treaty of Lisbon on the Amendments to the Treaty on European Union and the Treaty establishing the European Community stipulates that the European Union is based on the representative (role of political parties) and participatory democracy (the role of civil society). This is the participation of citizens and civil society organizations in the work of the institutions of the European Union through open, transparent and regular dialogue and consultation, proclaimed by the fundamental constitutional value on which the European Union is founded - and which also obliges candidate countries and potential candidates for membership.
In January 2017, the Council of Ministers adopted new Rules on Consultation in Drafting Legal Provisions ("Official Gazette of BiH" No. 5/17) and launched the web application eKonsultacije https://ekonsultacije.gov.ba to conduct a public consultation with the interested public on the regulations proposed by the institutions of Bosnia and Herzegovina. The web application eKonsultacij has a total of 55 registered BiH institutions that are conducting public consultations for regulations from their jurisdiction.

In 2018, 280 public consultations were conducted and 234 reports on the conducted consultations were published, which is a significant increase compared to 2017 when 111 public consultations were conducted and 108 reports on the conducted consultations were published. The total number of registered users on the web platform eKonsultacije in December 2018 was 1,876 and is higher for 389 registered users than the total number of web application users from December 2017.

However, the participation of civil society organizations is not sufficient and it is necessary to raise awareness and educate civil society organizations to participate actively in the process of public consultation organized by the institutions of Bosnia and Herzegovina through the web platform eKonsultacije.

What is the obligation?
To hold eight workshops for civil society organizations to present the Rules on Consultation in Drafting Legal Provisions ("Official Gazette of BiH" No. 5/17) and the possibilities of active participation in the process of creating regulations and other acts under the competence of the Council of Ministers of BiH. Web platform eKonsultacije would be presented at the workshop and the way in which civil society organizations can register and actively participate in the process of drafting regulations and other documents by sending their suggestions and comments.

How will the fulfilment of the obligation contribute to the solving of the public problem?
By fulfilling this obligation, we want to motivate civil society organizations to participate more actively in the policy-making processes of the Council of Ministers of BiH in order to improve quality of regulations at the Council of Ministers level with their suggestions and comments.

Why is this obligation relevant to OGP values?
Meeting this obligation allows the efficient adoption of public policies and establish clearer procedures of co-operation of the Council of Ministers and the civil society in BiH.

Goals/activities
In cooperation with the CSO, determine the location of the workshops

Prepare and publish a call for workshops

To hold workshops in eight BiH cities
Make Recommendations for improving the public consultation process based on proposals by civil society organizations
Implement recommendations in order to create a more quality legislative and legal framework for inclusion of CSOs in policy-making processes

5. Involvement of civil society organizations in policy-making processes

Main Objective

"To hold eight workshops for civil society organizations to present the Rules on Consultation in Drafting Legal Provisions ("Official Gazette of BiH" No. 5/17) and the possibilities of active participation in the process of creating regulations and other acts under the competence of the Council of Ministers of BiH. Web platform eKonsultacije would be presented at the workshop and the way in which civil society organizations can register and actively participate in the process of drafting regulations and other documents by sending their suggestions and comments."

"By fulfilling this obligation, we want to motivate civil society organizations to participate more actively in the policy-making processes of the Council of Ministers of BiH in order to improve quality of regulations at the Council of Ministers level with their suggestions and comments."

Milestones

"5.1. In cooperation with the CSO, determine the location of the workshops;

5.2. Prepare and publish a call for workshops;

5.3. To hold workshops in eight BiH cities;

5.4. Make Recommendations for improving the public consultation process based on proposals by civil society organizations;

5.5. Implement recommendations in order to create a more quality legislative and legal framework for inclusion of CSOs in policy-making processes."

Editorial Note: For the complete text of this commitment, please see Bosnia and Herzegovina's action plan at https://www.opengovpartnership.org/documents/bosnia-and-herzegovina-action-plan-2019-2021/.

Commitment Analysis

This commitment aims to foster wider and more substantial involvement of civil society organizations (CSOs) in state-level public consultations by holding informative workshops for them on public consultations across the country. In addition to increasing understanding of the consultation procedures, the Ministry of Justice aims to gather feedback on how to improve public consultation policies and use it as a basis for the state-level legislative revisions.

The commitment is relevant to OGP values, as it seeks to prepare the ground for greater civic participation in state-level decision-making processes.

This will be the first time that informative workshops will take place to explain public consultations.

There are two kinds of public consultation at the state level as defined by the Rules on Consultation in Drafting Legal Provisions; "minimal" – that are posted and receive comments via the online platform eKonsultacije [49] and "wider/additional" consultation such as through workshops and invitations for expert reports and similar and is recommended for issues of higher economic, environmental, social, and public interest. [50]

Since 2017, the majority of state-level institutions use the eKonsultacije platform to conduct the obligatory minimal public consultation for regulations and policies. Their annual legislative plans, strategic documents, and early drafts of laws are also subjected to public consultations. Interested individuals and CSOs can register on the platform as well and express interest in specific institutions. Through this system, contacts are forwarded to institutions, so they can invite interested parties when they organize public consultations. Institutions are obliged to look at comments and feedback during public consultations and provide justification as to why something was included or excluded. However, due to limited capacity, public consultations are not carried out systematically, and responses to comments and feedback are not often detailed. [51]

There are limited examples of "wider" public consultation since the platform was developed because of political and institutional deadlock surrounding the general election in 2018 and the subsequent delay in establishing a government. However, there has been substantial participation in some legislative drafts that were open to "wider" public consultation (such as more than 200 public comments on amending the Law on Free Access to Information). However, in this case, no action has been taken to amend the Law on Free Access to Information since changes were proposed in 2011.

Implementing recommendations from these workshops that improve the framework of public consultations could address multiple issues that limit the effective involvement of the public and the civil society organizations (CSOs) in decision-making. Interviews with the Ministry of Justice recognized the remoteness and complexity of state-level policies being an obstacle to civic involvement, [52] and international studies have highlighted that institutions stick to formal consultations without actual inclusion of CSOs' feedback and comments in legislative drafts. [53]

The number of public consultations and the extent of institutional interest in participation in state-level decision-making policies have been increasing over the years. According to the report of the Ministry of Justice of BiH – the institution in charge of monitoring the implementation of public consultation activities by the state-level institutions – 56 state-level institutions are using the eKonsultacije platform for their consultation work in 2018. [54] In the same year, institutions conducted a total of 281 minimal consultations in drafting legal regulations and other acts and published 234 reports on conducted consultations, [55] whereas 15 "wider" consultations were held. [56]

However, the number of submitted proposals and comments in the consultation process is quite small given that most public institutions do not receive any suggestions or comments during their consultation process. "Minimal" consultation processes must not be shorter than 15 days and no less than 30 days for "wider" public consultations. In the most recent survey the Ministry of Justice conducted in 2019, out of 56 institutions that responded to their questionnaire, only 17 indicated that they received suggestions and comments during their public consultations, whereas only one (1) institution rated the received input as good, 15 as satisfactory, and one (1) as not good. Although the eKonsultacije platform had 2,370 registered users as of December 2019, which is 494 more users than in December 2018, the majority of users are not active. [57]

The commitment would have a moderate impact if implemented. It should increase the number of CSOs using the eKonsultacije platform and participation in public consultations, although it doesn't commit to how many CSOs it wishes to engage with in workshops. Implementation of milestones 5.4 and 5.5 on making and implementing civil society recommendations on participation could be particularly important for long-term civic participation. The recommendations could further highlight known obstacles to civic participation as explained above and, in particular, that substantial and detailed feedback to consultations explain where and how public input is considered and incorporated, or not, into policies and legislation. Providing detailed feedback could also aid legislative reforms by making it harder to block the passage of changes of draft laws at a later time. [58] Such a change could present a big step from formal inclusion in decision-making procedures toward more participation in decision-making processes in the country. However, the commitment has quite a limited time frame for implementation of recommendations, which usually takes an extended amount of time for official adoption, beyond the scope of the action plan.

Commitment 5. Involvement of civil society organizations in policy-making processes

Limited:

The Ministry of Justice of BiH held three out of the eight planned workshops in person in major cities across the country with a total number of 60 participants. [35] Due to the COVID pandemic, the ministry did not hold further in-person workshops and instead organized three online workshops in 2021 for participants from across BiH. [36] The BiH Ministry of Justice organized and disseminated the call for workshops in collaboration with the Center for Civil Society Promotion (CCSP), [37] a nonprofit organization that has an extensive civil society network in the country. The call reached 500 CSOs directly by email and was promoted on websites of involved organizations and their social media.

The Ministry of Justice collected partial feedback from the reduced number of workshops it held, [38] so it collaborated with the Institute for Youth Development KULT to implement a country-wide survey on the cooperation of nongovernment organizations with BiH institutions. Based on responses from 199 CSOs, the institute analyzed the state of nongovernment organizations and the use of existing cooperation mechanisms with BiH institutions and international organizations. They confirmed that only 9% of CSOs use the eKonsultacije platform to participate in consultations. [39] The survey also gathered suggestions on how to improve the platform and foster wider CSO involvement in public consultations on the state level. One of the most prevalent suggestions was to promote the platform more widely; another was to technically improve the platform to make it more user-friendly. [40]

However, the Ministry of Justice has yet to revise state-level legislation as planned. [41] The Ministry plans to use the collected information to develop policy revisions that will be incorporated into amendments to the “Rules for consultations in preparation of legal regulations for state-level institutions.” [42]

Despite the number of organizations involved in the workshops and analysis, CSO representatives say that the commitment has not led to greater involvement of CSOs in public consultations. [43] They stated this might be due to the fact that CSOs do not see that comments and amendments are considered seriously by public institutions, as reports on consultation processes do not include justifications on why input is accepted or rejected. [44] Furthermore, they said that most citizens and even experts lack the ability to prepare amendments and phrase their suggestions in formal legal language. [45]

A ministry report shows that the e-Konsultacije platform has 325 more registered legal and natural persons than in 2019 (currently standing at 2,695), and the number of consultations has risen too (from 281 in 2018, to 539 in 2019, and 543 in 2020). [46] However, over a third of institutions said they did not receive a single comment or any feedback for their consultations in 2020. Of the 31 institutions that did receive feedback, only 5 institutions rated feedback as good. [47]