An FOI Saga: Transparency in Yemen, Myopia in Washington

Vol. 30 No. 1

By

Richard N. Winfield leads the Media Law Working Group of the International Senior Lawyers Project, which he cofounded in 2000. He teaches comparative mass media law at Columbia Law School and American mass media law at Fordham Law School. He served as general counsel for the Associated Press for over three decades while a partner at Rogers & Wells, which later became Clifford Chance US LLP.

The story of how Yemen got its freedom of information (FOI) law is as unlikely as it is instructive. Despite its happy ending, however, the Yemen story also is an example of an inexplicable and wrongheaded misallocation of foreign aid funds, which stems from a myopic viewpoint in Washington and has broad implications for media law reform in autocratic countries.

The story of Yemen’s FOI law dates back to 2006, when the U.S. Department of State extended a four‑year, multimillion-dollar grant to the International Research and Exchanges Board (IREX), a prominent nongovernmental organization (NGO), to fund media development projects in the Gulf. IREX assigned Matt Shelley as its man on the spot to operate out of the IREX office in Beirut. An ex–broadcast news director and experienced media development executive, Shelley was an inspired choice.

Forward to 2008 in Yemen, where a group of opposition party parliamentarians had organized Yemen Parliamentarians Against Corruption (YPAC). The organization sought access to government documents as a key part of its strategy to investigate and expose the endemic corruption of the autocratic regime of Ali Abdullah Saleh. The YPAC reformers faced daunting obstacles: an entrenched, sclerotic, and corrupt government headed by Saleh; an insurrection‑ridden desert republic with nearly the lowest gross domestic product of the Arab world; scant natural resources; and a moribund parliament led by Saleh’s ruling party.

YPAC was led by an ex-parliamentarian, Salem Bin Talib, a brilliant, charismatic Yemeni politician who exercised his leadership, charm, brains, and legislative skills to acquire political allies. He convinced his allies, including some skeptical journalists, that Yemen needed an FOI law.

Early on, Shelley spotted Bin Talib’s superior talents and chose him—and YPAC—as IREX’s key partner. In order to carry out the federal grant, IREX reached out to the International Senior Lawyers Project (ISLP) to provide intellectual horsepower in the form of experienced pro bono media lawyers. Bin Talib persuaded his allies that working with the volunteer media lawyers to draft and pass a good bill was the solution to their need for an FOI law.

In my role as a cofounder of ISLP and head of its media law working group, I had little trouble convincing such old friends in the media bar as Madeleine Schachter, David McCraw, Sigurd Sorenson, and David Cook to handle the Yemen FOI project. They responded with stamina, expertise, and lawyers’ treatment of the Yemenis as important clients: four trips to the Gulf, thousands of hours in research, consultations, training sessions, television appearances, and bill drafting. This was volunteerism at its most effective. Schachter served as the energetic, yet diplomatic, driving force for the ISLP experts.

Bin Talib helped organize several meetings and bill drafting sessions in Jordan, where the security threats were not as great as in Yemen, and in Sana’a, the capital of Yemen. He worked with Schachter, then a Baker & McKenzie partner, who helped assemble a team of fellow media law practitioners. Their job was to work in-country, side by side with the Yemeni reformist politicians and journalists to produce an FOI bill that met international norms and reflected the will of Yemeni demands to the Saleh regime’s culture of secrecy.

Schachter has written an insightful and often funny first-person account of the services that she and her team performed in collaborating with the Yemenis. It appears in Exporting the Matrix: The Campaign to Reform Media Laws Abroad, an anthology produced by ISLP under my editorial guidance and recently published by Carolina Academic Press.1 As Schachter’s account reveals, the collaboration among the Yemeni reformists, IREX, and the ISLP media lawyers succeeded: a superior FOI bill was completed and filed. Of course, the ruling party predictably fought the bill and threw up legislative roadblocks because the Saleh politicians recognized the political threat that transparency would present.

By the end of 2009, however, the bill was stuck. The State Department grant expired, and the U.S. government would spend no more money to support the IREX professionals or to fund the airfare and lodging costs of the ISLP pro bono lawyers. IREX closed its office in Beirut, Shelley transferred to a different NGO in Pakistan, and Bin Talib went into exile. The prospects were bleak for the kind of openness that an FOI law would produce.

The unlikely story of how Yemen got its FOI law concludes with a series of unforeseeable and improbable events. Like several of its neighbors in the Middle East, Yemen underwent a violent uprising in early 2011; Saleh was wounded and ejected in a coup d’état, and his ruling party was overcome; and many reformers from Bin Talib’s YPAC organization found themselves in leadership positions. When Bin Talib returned to Sana’a from exile, the new prime minister, Mohammed Basindawa, recognized his talents and statesmanship and installed him as chief of staff. No sooner had Bin Talib assumed his powerful new role in the postuprising government than he was again in contact with his friends in IREX and ISLP. Within a few weeks on the job, he engineered passage in the new parliament of the FOI bill on which he and Schachter, Shelley, and their colleagues had spent so much time and effort.2

The Yemenis can take pride in their new law. The Centre for Law and Democracy (CLD), a Canadian-based NGO, analyzes and rates the ninety-plus national FOI laws around the globe. In July 2012, CLD issued its findings on the new Yemen FOI law, stating that “Yemen passe[d] the strongest RTI (Right to Information) law in the Arab world.” Using its RTI ratings methodology, CLD determined that Yemen’s law tied for seventeenth place “alongside Finland and Nepal, and significantly ahead of its [two] counterparts” among the twenty-two nations in the Arab world, “namely Jordan (which scored 56) and Tunisia (89).”3

When Garth Meintjes, the new executive director of ISLP, wrote a postenactment congratulatory e‑mail to Bin Talib, he asked Bin Talib to keep ISLP in mind if Yemen required more pro bono help from ISLP’s lawyers. Bin Talib responded immediately, “No, I will not keep you in mind. I will keep you in my heart.”4 That expression of appreciation helps explain why the effort worked: it captured the human qualities of not only the leader of the Yemeni reformers but also the web of relationships forged among the politicians, journalists, ISLP volunteers, and IREX professionals.

But any explanation omitting the crucial role that funding played in the process would be incomplete and misleading. From 2006 to 2009, hundreds of thousands of federal dollars were spent to cover travel and lodging costs for parliamentarians, journalists, the IREX staff, and ISLP pro bono lawyers, in addition to salaries and overhead for the IREX professionals. This combination of revenue and talent produced the first effective FOI law in the Arab world, marking the first substantive legislative act in Yemen’s history.

It is difficult to understand why the federal government was reluctant to continue funding Yemen media law reform after 2009. The current level of federal funding for Yemeni media development is a fraction of the level from 2006 to 2009. That downturn mirrors an alarming overall decrease in government funding for the development of free and independent media.

In June 2012, the Center for International Media Assistance (CIMA), a federally funded NGO at the National Endowment for Democracy, revealed that of all federal foreign aid dollars, only four-tenths of 1 percent is aimed at assisting the development of free and independent media.5 The CIMA study reported that only $222 million in federal and private foundation funds was spent in 2010 on all forms of media development abroad. Of that sum, only 5.4 percent was aimed at helping democratizing countries to adopt modern, progressive media laws, like Yemen’s pioneering FOI law. This marked a drop of 4.2 percent from the comparable figure in 2006 of 9.4 percent.6 Funding for media law reform from all sources is on a downward spiral.

As a result, the effort to create less hostile legal environments for the press abroad has become the underfed stepchild of foreign aid. A pie chart published in the CIMA study illustrates the lopsided priorities in funding. For every dollar spent on reforming laws, as in the case of Yemen, nineteen dollars is spent on such projects as training journalists and supporting media businesses.7 This misallocation ignores the realpolitik of helping create a viable independent press; not even the best‑trained journalist or media outlet with the best business plans or technology can survive in a hostile legal environment where prison awaits those engaging in critical reporting of the government. The CIMA study concluded that government and nongovernment funders alike have consistently “overlooked” the need to support media law reform.8

It is hard to explain such myopia. After all, it is no secret that autocracies deploy a variety of weapons systems to prevent and punish journalists for publishing critical coverage, and most autocratic systems are based on criminal libel laws, seditious libel laws, insult laws, civil libel laws, national security laws, official secrets laws, journalist licensing laws, Internet‑blocking and -filtering laws, and censorship laws. Stamping out critical speech is a key weapon in the arsenal of autocracies that hope to survive, immune from the scrutiny of a free and independent press. Maintaining systems that staunch criticism is an incumbency insurance policy for any repressive regime worthy of the name. It is as fundamental to a regime’s survival as secret police, informers, rigged elections, lapdog judges, and the usual ecosystem of fear.

The link between a transparent government and a budding democracy is inescapable. A modest analysis would suggest that there is a link between enacting/enforcing good media laws and a good, watchdog-free independent press. Another modest analysis would suggest that there is a link between such a free and independent press and the possibility of a self‑governing democracy. A further modest proposal would go something like this: Because reforming media laws is indispensable to sustaining a free and independent press and because a free and independent press is central to creating democratic institutions, policymakers and funders should reemphasize and reenergize support for efforts to enact progressive media laws. Considering that, against all odds, the parliamentarians in Yemen—aided by a changing political culture, additional funding, and the likes of Bin Talib, ISLP, and IREX—could enact a pioneering FOI law, there is room for optimism.

Endnotes

1. Ben Allgrove & Madeleine Schachter, An International Pro Bono Project: Commitment Through Collaboration, in Exporting the Matrix: The Campaign to Reform Media Laws Abroad 21–27 (Richard N. Winfield ed., 2012).

2. Ctr. for Law & Democracy, Yemen Passes Strongest RTI Law in the Arab World (June 10, 2012), http://www.law-democracy.org/live/yemen-passes-strongest-rti-law-in-the-arab-world.

3. Id.

4. E-mail from Salem Bin Talib, Chief of Staff, to Garth Meintjes, ISLP Exec. Dir.

5. Ctr. for Int’l Media Assistance, Nat’l Endowment for Democracy, Empowering Independent Media: U.S. Efforts to Foster a Free Press and Open Internet Around the World 6 (Marguerite H. Sullivan & David E. Kaplan eds., 2d ed. 2012).

6. Id. at 14–17.

7. Id. at 25.

8. Id. at 60.

Advertisement

  • About Comm. Lawyer

  • Contact Us

  • More Information