Reinventing Accountability: Making Democracy Work for Human Development (International Political Economy)

Reinventing Accountability Making Democracy Work for Human Development

Anne Marie Goetz and

Rob Jenkins

International Political Economy Series General Editor: Timothy M. Shaw, Professor of Commonwealth Governance and Development, and Director of the Institute of Commonwealth Studies, School of Advanced Study, University of London Titles include: Leslie Elliott Armijo (editor) FINANCIAL GLOBALIZATION AND DEMOCRACY IN EMERGING MARKETS Robert Boardman THE POLITICAL ECONOMY OF NATURE Environmental Debates and the Social Sciences Jörn Brömmelhörster and Wolf-Christian Paes (editors) THE MILITARY AS AN ECONOMIC ACTOR Soldiers in Business Gordon Crawford FOREIGN AID AND POLITICAL REFORM A Comparative Analysis of Democracy Assistance and Political Conditionality Matt Davies INTERNATIONAL POLITICAL ECONOMY AND MASS COMMUNICATION IN CHILE National Intellectuals and Transnational Hegemony Martin Doornbos INSTITUTIONALIZING DEVELOPMENT POLICIES AND RESOURCE STRATEGIES IN EASTERN AFRICA AND INDIA Developing Winners and Losers Fred P. Gale THE TROPICAL TIMBER TRADE REGIME Meric S. Gertler and David A. Wolfe INNOVATION AND SOCIAL LEARNING Institutional Adaptation in an Era of Technological Change Anne Marie Goetz and Rob Jenkins REINVENTING ACCOUNTABILITY Making Democracy Work for Human Development Mary Ann Haley FREEDOM AND FINANCE Democratization and Institutional Investors in Developing Countries Keith M. Henderson and O.P. Dwivedi (editors) BUREAUCRACY AND THE ALTERNATIVES IN WORLD PERSPECTIVES Jomo K.S. and Shyamala Nagaraj (editors) GLOBALIZATION VERSUS DEVELOPMENT

Angela W. Little LABOURING TO LEARN Towards a Political Economy of Plantations, People and Education in Sri Lanka John Loxley (editor) INTERDEPENDENCE, DISEQUILIBRIUM AND GROWTH Reflections on the Political Economy of North–South Relations at the Turn of the Century Don D. Marshall CARIBBEAN POLITICAL ECONOMY AT THE CROSSROADS NAFTA and Regional Developmentalism Susan M. McMillan FOREIGN DIRECT INVESTMENT IN THREE REGIONS OF THE SOUTH AT THE END OF THE TWENTIETH CENTURY James H. Mittelman and Mustapha Pasha (editors) OUT FROM UNDERDEVELOPMENT Prospects for the Third World (Second Edition) Lars Rudebeck, Olle Törnquist and Virgilio Rojas (editors) DEMOCRATIZATION IN THE THIRD WORLD Concrete Cases in Comparative and Theoretical Perspective Benu Schneider (editor) THE ROAD TO INTERNATIONAL FINANCIAL STABILITY Are Key Financial Standards the Answer? Howard Stein (editor) ASIAN INDUSTRIALIZATION AND AFRICA Studies in Policy Alternatives to Structural Adjustment

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Reinventing Accountability Making Democracy Work for Human Development

Anne Marie Goetz and Rob Jenkins

© Anne Marie Goetz and Rob Jenkins 2005 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Parents Act 1988. First published in 2005 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 1–4039–0624–6 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Goetz, Anne Marie, 1961– Reinventing accountability : making democracy work for human development / Anne Marie Goetz, Rob Jenkins. p. cm. — (International political economy series) Includes bibliographical references and index. ISBN 1–4039–0624–6 (cloth) 1. Administrative agencies – Management. 2. Public officers – Professional ethics. 3. Government productivity. 4. Civil service ethics. 5. Political corruption. 6. Poor – Services for – Cross-cultural studies. 7. Economic assistance – Cross-cultural studies. I. Jenkins, Rob, 1965– II. Title. III. Series. JF1351.G58 2004 352.3⬘5—dc22 10 9 8 7 6 5 4 3 2 1 14 13 12 11 10 09 08 07 06 05 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

2004053908

For Max and Nate, to whom we are jointly accountable

Contents Acknowledgements 1

viii

Introduction

1

2 Where Accountability Meets Governance: Globalization, Participation and Corruption

16

3

Accountability Failures and Human Development

45

4

New Roles for Accountability Actors

77

5

New Methods and Shifting Accountability Jurisdictions

110

6

New Standards of Accountability

134

7

Gender and Accountability

158

8 The Politics of Backlash: Critiques of the New Accountability Agenda

180

Notes

198

Bibliography

224

Index

241

vii

Acknowledgements We are indebted to many people who helped us in the writing of this book. Much of our initial thinking on this project resulted from participation as consultants for the United Nations Development Program’s Human Development Report 2002: Deepening Democracy in a Fragmented World (Oxford University Press). We gained many insights through our interaction with the HDR 2002 team. Particularly helpful were Sakiko Fukuda-Parr, Omar Noman, Kate Raworth and Ngaire Woods. Research assistance by Aaron Griffiths and Clare Waddington in the early stages of the work was very valuable. Certain lacunae were addressed thanks to comments provided by Rumel Mahmood. We subsequently engaged on many of the ideas in the book with Barbara Hendrie and Stefan Mniszko, to whom we are grateful. Fieldwork examining some of the experiments in accountable governance discussed in the book was supported by the Ford Foundation, the UK Economic and Social Research Council and the UK Department for International Development. We have presented work associated with this book at seminars at the UNDP, the International Development Research Centre (Ottawa), the World Bank, the Carnegie Endowment, the Lal Bahadur Shastri National Academy of Administration, Transparency InternationalNorway, the US Department of State, the Institute of Development Studies, the International Political Science Association and the University of Toronto. We would also like to thank our supportive colleagues at the Institute of Development Studies, University of Sussex, and the School of Politics and Sociology at Birkbeck College, University of London. Critical administrative support was provided by Julie McWilliam, who assisted with the bibliography and other matters. We are grateful to the editorial team at Palgrave. In particular we thank Amanda Watkins, Kerry Coutts and Jennifer Nelson, and of course Tim Shaw, the series editor, who was highly receptive to the idea of this book from the outset. A project of this kind is of course highly time-consuming, and has demanded great forbearance and understanding of the people closest to us. We would like to thank our families for their support for this and other work, and we especially thank our two sons for putting up with this for so long. We are also grateful for the hospitality and warmth of friends – both in the United Kingdom and in the countries in which we have conducted field research. We especially thank Lynsey Adams for her tirelessly cheerful assistance. Finally, our thanks go to the people whose work has inspired some of the thinking in this book. These are the people reinventing accountability in practice. We owe a particular debt to the activists of the Mazdoor Kisan viii

Acknowledgements ix

Shakti Sangathan (MKSS) in Rajasthan, India. We are grateful to Aruna Roy, Nikhil Dey, Shankar Singh, Ram Karan and many other members of the MKSS for allowing us to observe their work, and for their willingness to share their thoughts with us. We are grateful to other friends of the MKSS such as Kavita Srivastava, Harsh Mander, Prem Krishna Sharma, Jean Dreze and Neelabh Mishra for their patience in discussing the implications of the various movements for accountability with which they are associated.

1 Introduction

Accountability is a perpetual struggle when power is delegated by the many to the few in the interests of governability. To complicate matters further, in most systems of government the task of holding accountable those to whom power has been delegated is itself delegated – again, to a relatively small number of individuals: senior judges, auditors-general, members of legislative public accounts committees. The question of who will watch the watchdog is as old as it is unavoidable. To these perennial problems, globalization and political liberalization have added new ones. Powerful non-state actors capable of influencing the lives of ordinary people have multiplied, often act with impunity across borders and can evade the reach of conventional state-based accountability systems. The late twentieth-century wave of democratization has inflated ordinary people’s expectations that governments will be held accountable, yet many democratic institutions cannot deliver on this promise. Poverty, insecurity, environmental degradation and social exclusion have persisted despite the demise of authoritarian rule in many parts of the developing world. Liberal political institutions have become discredited in the eyes of many who once placed their faith in them. It is significant that critiques of democracy have, in many cases, been framed in terms of a pervasive lack of accountability. That the focus has been on the injustices visited on poor and marginalized communities represents a sea change in popular understandings of what democratic governments should be answerable for. Impatience with biased, ineffective and outright corrupt institutions has led people to seek new forms of engagement with existing accountability systems – and to invent new ones when necessity seems to dictate it. Where they cannot participate directly in closed official oversight processes, civic groups have often mimicked their functions through, for instance, people’s audits of government spending or public hearings on the environmental impacts of proposed infrastructure projects. Technological change has helped: cyberspace provides new tools and arenas for the investigation and exposure of malpractice; even something as simple 1

2

Reinventing Accountability

as photocopies of local government accounts in rural India, or the use of cell phones to report crime in urban Pakistan, can alter the nature of information exchange between citizens and public servants, undercutting the secretiveness that disguises incompetence and enables corruption to flourish. Through citizens’ efforts to hold powerful actors to account, the meaning of accountability is changing. This book reflects on a huge range of contemporary experiments around the world that cast themselves as efforts to hold the powerful to account. It sets out to describe, not prescribe. It does not specify even what an optimal level of accountability might look like in theory, let alone provide a practical remedy for the age-old dilemma of how busy ‘principals’ may exercise effective control over their far-flung ‘agents’. It does not offer a primer on building good governance, particularly in newly democratizing countries, though its analysis of accountability failures may help to expose some of the limitations of conventional public-sector reform programmes. The book’s purpose is not to declare definitively that some accountability initiatives adhere more genuinely to the essential meaning of the term accountability than do others, much less to insist that one or another method of achieving accountability is better. Its aim is both less and more ambitious: to make sense of the trend towards accountability-seeking in societies throughout the world. What can this amorphous mass of initiative – united only by a belief that the powerful must be held to account – tell us about changing perceptions of accountable governance? Clearly people mean different things when they use the word accountability, or when they express the urge to hold someone or some institution accountable. This is almost inevitable given the plasticity of the term itself. But because holding delegated authority accountable is integral to the idea of government subject to popular control – to democracy – there is no escaping the idea of accountability. And because efforts to reshape democracy are found everywhere, so too are efforts to reinvent accountability. With this in mind, the book’s underlying premise is that there is a contemporary global upsurge of efforts to reinvent accountability in practice, and that this requires us to rethink the place of accountability in theories of democratic governance. Imperfect democratization and uneven globalization have highlighted the failures of conventional accountability mechanisms and the need for substantial institutional renewal. Nowhere is the task more urgent than in the developing world: this is where democracy faces its most serious crises, and where people will turn away from democracy most quickly if it continually fails to deliver accountable governance. However, in a globalizing world – with its diffusion effects and jurisdictional uncertainties – our analysis must encompass the many concerns that have been voiced about the future of liberal republican democracy in the advanced capitalist world as well. So while the book focuses on the poor in developing countries – those

Introduction 3

for whom accountability failures have the most dire consequences – the analysis necessarily covers a broader canvas, occasionally examining accountability experiments in the north, and reflecting upon the evolution of ideas about accountability in the ‘democracy and governance’ sector of the development aid industry. This chapter serves two main purposes. It previews, in the first section, the book’s six main arguments, in the process outlining the structure of the chapters that follow. The second section introduces the idea of accountability – its component parts, the many meanings attached to the term and the distinctions that must be borne in mind when assessing efforts to operationalize it.

Summarizing the book’s main arguments Our first argument, on which the others must necessarily be built, is that something we call a ‘new accountability agenda’ is in the making. Despite the undeniable diversity among governance experiments that have sought to improve accountability, and the widely differing contexts in which they have been undertaken, it is possible to discern the defining characteristics of this new agenda. The three key elements of the new accountability agenda are explained in Chapters 4, 5 and 6, respectively, through an analysis of case study material drawn mainly from developing countries. Many readers will question whether anything so grand as a new accountability agenda exists – a view that reflects a healthy scepticism about such bold claims. There are, after all, a great diversity of policy and advocacy agendas related to governance reform, and these are constantly in flux, changing in response to the unfolding of events. We argue that something like a new agenda is in the making, and we set out to identify its core features. Existing mainly in fragments of conceptual innovation and practical experiment, the basic elements of this agenda are nevertheless increasingly visible. Still largely an aspiration rather than a concrete reality, efforts to put the elements of the new agenda into practice are, however, more widespread than ever. In their most promising forms, these experiments offer disadvantaged people opportunities to operationalize rights and to shift the terrain of governance from technical solutions to a more immediate concern with social justice. The new accountability agenda represents an expansion of accountability along the many dimensions of this concept. To put this slightly differently, there is now a wider spectrum of legitimate responses to the five fundamental questions that must be asked when seeking to understand the reality of accountability. The defining features of the new accountability agenda emerge from the answers to the questions: 1. Who is seeking accountability? 2. From whom (or what) is accountability sought?

4

Reinventing Accountability

3. Where (in which forums and over what extent of geographic coverage) is accountability being sought? 4. How (through what means) are the powerful being held to account? 5. For what (which actions, and against which norms) is accountability being sought? Elaborating the contours of an emerging agenda along five dimensions is a daunting task. Fortunately, its inherent logic reduces the number of analytical categories considerably. For while the impetus for a new accountability agenda emerges from these five questions, its actual manifestation contains, in fact, only four key elements: (1) a more direct role for ordinary people and their associations in demanding accountability, across (2) a more diverse set of jurisdictions, using (3) an expanded repertoire of methods, and on the basis of (4) a more exacting standard of social justice. These four elements of the new accountability agenda correspond to the questions ‘who’, ‘where’, ‘how’ and ‘for what’. The fifth of the original questions (‘from whom’) becomes less relevant when we recognize that the actors from whom accountability is being sought are, more or less, the same as they have always been, and that it is the new roles being played by those who seek to hold them to account that is the most significant change underway. Thus New Roles for Accountability Actors is the subject of Chapter 4. The nature of the accountability-seeking experiments allows us to reduce further the number of the new agenda’s defining characteristics – from four to three. Two of the questions – where accountability is sought, and how – can be addressed in tandem because it is primarily in response to the changing nature of accountability jurisdictions (the ‘where’) that an expanded repertoire of tools has evolved (the ‘how’). Chapter 5 thus elaborates the emergence of New Methods and Shifting Accountability Jurisdictions. This leaves one of the original five questions remaining: For what are the powerful being held to account? This is arguably the dimension along which accountability is being most dramatically reinvented, and therefore where its implications for how democracy can be made to work for the poor most require fresh analysis. Chapter 6, on New Standards of Accountability, focuses on the changing norms against which the actions of power-holders are being judged. Making sense of something as diverse and amorphous as the sometimes ill-defined pressure for greater justice in the world – which, arguably, is what this new agenda is all about – is a task fraught with methodological difficulties. Choices must be made. Accountability initiatives could, for instance, have been sorted according to the specific activities for which power-holders are being held to account, such as public spending, corporate behaviour and the promotion of national security, or the instruments used to promote accountability, such as market mechanisms and global treaties, or even the actors involved in these processes such as international organizations and

Introduction 5

transnational civil society networks. But for their larger relevance to be grasped, it is necessary to situate them first within the currents of thinking and practice that comprise the emerging agenda. We use a range of real-world examples – ordinary people seeking improved public services, or cleaner elections, or exposure and punishment of corruption – to illustrate the importance of each of the new agenda’s key features. These are not necessarily typical of new accountability-seeking methods in general or in a particular context. In some cases they involve extraordinary risk-taking, such as when ordinary people expose the misdeeds of bureaucrats and politicians who can hit back and make their lives miserable. We examine these cases because they capture an emerging phenomenon that might be built upon to allow poor and marginal people to improve their lives. None of the experiments is ideal, either in conception or execution. Some of the most promising will be difficult, if not impossible, to replicate exactly. And while all are capable of helping to orient accountability towards the objectives of human development, some will be of more help than others. While each of the three characteristics of the new accountability agenda is analytically distinct, in practice they tend to bleed into one another. In mid-2003, for example, the British government announced its intention to honour one of the ruling Labour Party’s 1997 election manifesto pledges: to introduce legislation that would create a new category of criminal offence – ‘corporate manslaughter’. Corporate executives have always been held legally accountable for financial outcomes, and firms have in recent years become increasingly accountable for environmental impacts. Executives have long faced the possibility of being sued individually for actions and decisions taken in their professional capacities – by shareholders, employees, and so forth. But the corporate manslaughter offence would allow company directors to be ‘held to account for deaths caused through gross management negligence’. One lawyer who lobbied for the legislation bluntly described the changing standard involved: ‘Fining companies is not enough. It is essential that directors can be prosecuted’.1 This example exposes the blurred conceptual boundaries between the new roles facing accountability actors, the new methods employed to constrain them and the new standards against which they are being judged. The power-holders targeted by the corporate manslaughter legislation were familiar enough, but were to be held accountable in a different forum (criminal rather than civil proceedings). The corporate manslaughter law is indeed a new mechanism, but of a classic type: national legislation implemented by the executive. At first glance, the novel aspect of this example is the higher standard of accountability to which corporate executives are being held; and yet, upon closer inspection, it becomes almost impossible to disentangle this new, more exacting standard from either the new roles into which the actors – courts, firms, executives – have been cast, or the shifts in the legal techniques employed. This essential ambiguity afflicts almost all of the case

6

Reinventing Accountability

study evidence discussed in Chapters 4, 5 and 6. Examples cited to illustrate new methods could, in some instances, have been as easily used to highlight the shifting roles of new actors. That many of the new agenda’s manifestations display two or more features of the new accountability agenda demonstrates the tendency for these trends to reinforce one another. The book’s second main argument, elaborated in Chapter 2, which addresses a number of the theoretical concerns of the book, is that the role of globalization in generating the current wave of ‘accountability-seeking’ has been misunderstood. Democratic deficits have clearly resulted from the compromising of state sovereignty, the rise of corporate power and the indeterminacy of multilevel governance – all features associated with globalization, defined generically as ‘the growth of worldwide networks of interdependence’.2 But two refinements to this narrative are necessary. First, there is an issue of sequencing. Blaming globalization for the world’s democratic deficits ignores the existence of flaws inherent in the two basic channels of democratic accountability – the vote and civil society pressure – both of which pre-date globalization. The second refinement arises in part from an awareness of the first: the need to draw attention to the role played by other aspects of globalization – that is, beyond simply its tendency to deplete sovereignty and blur jurisdictional boundaries – in driving demands for accountability. Globalization has been at least partly responsible for the worldwide proliferation of democracy in recent years – through the work of both intergovernmental organizations and transnational movements. This has brought democratic institutions to many poor and divided societies, precisely the types of environments in which democracy’s inherent accountability shortcomings are most clearly visible. So, paradoxically, one of the main ways in which globalization has contributed to the worldwide wave of accountability-seeking is by spreading democracy – warts and all – not by undermining it. The book’s third argument stems from our analysis of the way that conventional institutions of democratic accountability fail the developing world’s poor. By tracing a variety of deprivations back to systemic malfunctions in key accountability institutions – judiciaries, legislatures, human rights commissions, ombudsmen – we gain insight into how the resulting deprivations in one area of ‘human development’, such as access to basic services, can imperil the ability of poor people to protect other aspects of their well-being, such as livelihood security. This analysis, in turn, enables us to take issue with the existing literature, which tends to attribute institutional failure to ‘capture’ by elite interests. Our argument is that the preoccupation with capture obscures a second key reason why accountability institutions fail to work for the poor – that is, systematic ‘bias’ against marginalized social groups. The theoretical case for recognizing bias as an additional ingredient in analysing accountability failure is made in the latter part of Chapter 2, while the empirical analysis of the

Introduction 7

causes, mechanics and human-development outcomes of institutional failure comprises Chapter 3. Our fourth argument follows from the previous three. We contend that (a) an awareness of the key features of the new accountability agenda, (b) improved understanding of the reasons why this agenda has come into being and (c) a more complete appreciation of why conventional accountability institutions fail – that these three insights combine to reveal a more nuanced relationship between accountability and the ‘human development’ paradigm. Our point is that, when viewed in light of the accountabilityseeking innovations analyzed in this book, certain facets of Amartya Sen’s conception of ‘development as freedom’ can be further refined. Sen portrays accountability (the ability to sanction poor performance by rulers in an effort to improve it) as one of two core benefits of political liberty. The other benefit of what is also termed ‘voice’ is a ‘constructive’ one: the shaping of shared values through deliberation.3 The case studies discussed in this book suggest that voice is not only a mechanism for directly holding powerful actors to account, but also contributes to accountability indirectly, by allowing communities to arrive collectively at the standards against which the actions of power-holders are to be judged. This is introduced in the discussion of theoretical issues in Chapter 2, and its further implications are addressed in Chapter 8. The book’s fifth claim – which emerges in the analysis of the case study evidence in Chapters 4 through 6 – is that those elements of the new agenda that are consistent with this understanding of accountability’s place in the ‘development as freedom’ paradigm – particularly those promoting a more direct form of accountability – are engaged in a battle with other, more conventional and restrictive understandings of accountability. Many of the initiatives that profess to promote accountability target only very ‘soft’ aspects of accountability, or cling to traditional notions of how the powerful can be held to account, treating the structural difficulties of democratic systems as temporary glitches requiring the application of technical expertise. Such initiatives side-step institutionalized anti-poor biases that prevent accountability institutions from recognizing and responding to injustices that disproportionately, or even exclusively, afflict marginalized groups. The further implications of this argument are a key feature of Chapter 7, which treats the theme of ‘gender and accountability’ as a lens through which to view the changing nature of accountability in general, as well as some of the specific claims of this book. Our sixth main argument is that various aspects of the new accountability agenda are fuelling a growing political backlash. The motives vary widely, and are expressed in numerous ways. We address three streams of criticism: (1) that the design of new accountability initiatives tends to depoliticize the activism of the poor, or at least to channel it into activities that fail to challenge the structural power of political elites; (2) that accountability

8

Reinventing Accountability

experiments stunt the growth of formal democratic institutions; and (3) that they further erode trust in public officials, stifling both initiative and the development of a professional ethos, both of which are necessary to produce better outcomes for the poor. These concerns, and some of the factors that may or may not affect their validity, are the subject of Chapter 8.

Introducing the idea of accountability These days, no fiery demand for social justice – or, for that matter, sober discussion of public policy – is complete without an insistence that the powerful heed the voices of ordinary people, or that ordinary people be empowered to hold the powerful to account. Over the past decade, trailing in the wake of an amorphous ‘governance agenda’, the elastic concepts of voice and accountability have come to dominate not just the development discourse, but also the language of international politics, business and activism. But the more talk there is of the importance of voice and accountability, the less these terms seem to mean, and the less relevance they appear to have for disadvantaged people. In the discussion that follows, we seek to define accountability and to illuminate some of the many usages of the term. In Chapter 2 we examine, among other issues, the meaning of voice and its relationship with accountability. Accountability is often derided as a cure-all development buzzword, a fit subject for exhortation, but something that in most parts of the world is rarely achieved because it demands too much compassion of the powerful and too much undiluted civic virtue from ordinary citizens. To people weary of hearing about accountability – movements demanding it, governments promising to deliver it, aid agencies promoting it – the concept lacks both practical relevance and analytical content. The sheer ubiquity of the term means that there is much truth to these criticisms, but significantly less so if the virtuous connotations presumed in popular usage are replaced with a more clinical, value-neutral definition. Simply put, accountability describes a relationship where A is accountable to B if A is obliged to explain and justify his actions to B, or if A may suffer sanctions if his conduct, or explanation for it, is found wanting by B.4 Accountability is thus a relationship of power. But it denotes a specific variety of power: the capacity to demand someone engage in reason-giving to justify her behaviour, and/or the capacity to impose a penalty for poor performance. Crucially, this process is as much about public debate and discussion as it is the sheer imposition of will. In formal accountability relationships it is often the less powerful ‘principal’ that holds the more powerful ‘agent’ to account: ordinary citizens vote political leaders in and out of office, the legislature acts as a watchdog over the activities of the executive, a tiny audit office demands explanations about the workings of a large public bureaucracy. Accountability institutions

Introduction 9

are designed to support the rights of these less powerful actors in the accountability relationship. On the basis of this rudimentary definition it is possible to discern two key conceptual distinctions. The first is the distinction between the two aspects of accountability: (1) having to provide information about one’s actions, and justifications for their correctness; and (2) having to suffer penalties from those dissatisfied either with the actions themselves or with the rationale invoked to justify them. These aspects of accountability are sometimes called answerability and enforcement. They can also be thought of as weak and strong forms of accountability. Being accountable in the sense of having to explain one’s actions is a lot less onerous than being subject to sanction.5 But, as indicated above, there is more than one component to answerability. A less demanding form would require a power-holder simply to furnish a rationale for his or her actions. But when this explanatory component to answerability is combined with an informational component – for instance, an obligation of full disclosure that requires the power-holder to reveal the evidentiary basis upon which decisions were taken, such as supporting documentation and testimony from people consulted – then the range of plausible rationales available to explain his or her actions can be dramatically reduced. In practice, answerability and enforceability are equally important. Both are necessary; neither is sufficient. A system that provides for sanctions alone, without a formal process of reason-giving, can make judgements about either the validity of conduct or the appropriateness of sanction both less good and less fair. The ability to learn from mistakes is then also diminished. Moreover, there are often complicated divisions of labour in accountability relationships. Those entitled to demand answers from power-holders are not necessarily the same as those put in charge of deciding on and doling out penalties. In some instances, government agencies can enforce sanctions against politicians on the basis of explanations supplied to private agents in civil litigation. In other cases the information a firm provides to a regulatory agency can, when made public, stimulate a sanction in the form of a consumer boycott. The second key distinction is between the two key actors in the accountability drama, between the target of accountability, the one obliged to account for his or her actions and to face sanction, and the seeker of accountability, the one entitled to insist on explanations or to impose punishments. Reality has a way of complicating definitional precision. Many public bodies, for instance, are both seekers and targets of accountability. Legislators are accountable to voters, but are also legally empowered to hold executive agencies to account. In the standard ‘principal-agent’ model of accountability, the principal is trying to keep tabs on his or her agent, who has less (or no) stake in the outcome of the endeavour and so tends to pursue his own interest at the

10 Reinventing Accountability

expense of his principal’s. In the version of accountability used in this book, the target and seeker correspond, respectively, to the agent (the one to whom power has been delegated) and the principal. Different terms are used in this book precisely because a key element of the new accountability agenda is the recasting of roles in accountability relationships. Many people seeking accountability do so without a clear legal standing as principals. Instead, they highlight their moral claim to demand answers or impose sanction on holders of power. Much of the accountability-seeking discussed in this book aims to empower a greater range of ‘principals’ to scrutinize ‘agents’ more effectively. An example is the way Public Interest Litigation provisions enable actors other than directly affected parties to bring cases to court. In short, the principal-agent framework is based on a formal contract model and thus does not help us to understand accountability relationships – or how to bring accountability to relationships – where power is not explicitly delegated. A consideration of the practical operation of accountability systems highlights four further distinctions crucial to understanding how the concept of accountability is evolving in response to changes in the relationships between states and citizens, between public and private sectors and between states and global institutions. First, actually existing accountability systems force us to confront the difference between de jure and de facto accountability. In the real world there is very often a difference between who one is accountable to according to law or accepted procedure, and who one is accountable to because of their practical power to impose a sanction. This is why the stripped-down definition of accountability is shorn of moral content: it does not specify who plays the roles of A and B, the targets and seekers of accountability. In principle politicians are answerable to citizens; in practice they are often more immediately concerned with the sanctions wielded by corporate interests, such as the withdrawal of campaign finance. In aid-dependent developing countries, governments are, de facto, more accountable to external donors than to domestic institutions such as parliament, since the withdrawal of international grants and loans, or the threat of doing so if certain policy actions are not taken, constitutes a serious sanction. But, again, the reality is more complicated: when aid conditionalities are not fulfilled and donors do not deliver punishments as promised, developing country governments come to realize that their accountability to aid donors is less strict than it might seem on paper. Such governments might, in practice, only be required to ‘answer to’ aid donors – that is, to inform them of their actions (and inactions) and to explain the reasons for them, including the circumstances that led to non-compliance with conditionalities. When we hear people talking about the need to increase accountability, they are usually referring to one of two things – either ways of making de facto accountability relationships correspond more closely with those stipulated in law, or else insisting that moral claims be encoded into law, or

Introduction 11

at least followed in practice. Either way, the emphasis is on placing a check on the power of those whose actions affect people with relatively less power (who nevertheless possess certain rights). In common usage, then, ‘accountability’ is shorthand for democratic accountability – accountability to ordinary people and to the legal framework through which governance is effected. Accountability is conventionally conceived as a way of providing citizens a means to control the behaviour of actors, such as politicians and government officials, to whom power has been delegated, whether through elections or some other means of leadership selection. That actors in the private sector have come to assume many more powers than they once did in large part explains why they have come to be seen as legitimate targets of direct, rather than mediated, accountability. Their manifest power over the public sphere – as well, of course, as the sense in which their capacity to act derives from the legal provisions defining permissible corporate activity – has subjected firms to a demand that they be treated as holders of the public trust, and therefore a growing insistence that they answer to ordinary people, not just state institutions, for their actions, and perhaps suffer direct sanctions as well. The concept of accountability can also be firmly located within the framework of democratic rights and obligations. As one writer put it, ‘[g]overnmental accountability – that is, the duty of public officials to report their actions to citizens, and the right of citizens to take action against those officials whose conduct they consider unsatisfactory – is an essential element, perhaps the essential element, of democracy.7 Because of its renaissance over the past decade, the term accountability is explicitly used in recent constitutions like South Africa’s. But its basic components – such as the obligation on governments to inform citizens of their actions and to justify them – have been prominent at least as far back as the US Constitution, which, to take but two examples, requires the president, ‘from time to time’, to provide Congress with ‘Information on the State of the Union’ and, when vetoing any bill, to state publicly his objections to the bill, which are then to be published in the congressional journal. The second distinction of relevance to the practical operation of accountability systems is between vertical forms of accountability, in which citizens and their associations play direct roles in holding the powerful to account, and horizontal forms of accountability, in which the holding to account is indirect, delegated to other powerful actors.6 Elections are the classic form of vertical accountability. But also in this camp are the processes through which citizens organize themselves into associations capable of lobbying governments, demanding explanations and threatening less formal sanctions like negative publicity. Vertical accountability is the state being held to account by non-state agents. Horizontal accountability, on the other hand, consists of formal relationships within the state itself. It exists when one state actor has the formal

12 Reinventing Accountability

authority to demand explanations or impose penalties on another. Horizontal accountability takes a large variety of forms. Executive agencies must explain their decisions to legislatures, and can in some cases be overruled or sanctioned for procedural violations. Political leaders hold civil servants to account, reviewing the bureaucracy’s execution of policy decisions. Bureaucracies are themselves constituted according to accountability relationships, subordinates answering to their superiors in a chain of command that ultimately leads back to political representatives, who wield a variety of sanctions. Accountability systems also empower independent agencies, such as regulatory bodies, auditors-general and anti-corruption commissions, to engage in detailed scrutiny of the actions and decisions of bureaucrats and politicians. The judiciary subjects all of these entities, and the relations among them, to further mechanisms of accountability by assessing their conformity with legal norms and the constitutional division of powers. In short, governments constrain themselves, at least in theory, through a complex web of accountability relationships in which the right of seekers to demand information and explanations is matched by the obligation of targets to provide them, under threat of sanction. The third key distinction that must be borne in mind when examining the operation of accountability systems is the difference between ex post and ex ante accountability. Ex post accountability is, in a strictly definitional sense, the only true form of accountability. Holders of power are expected to take actions, the impacts of which can be assessed only after the fact by accountability seekers, who may choose to impose sanctions if explanations for the decision, or its outcome, are deemed insufficient. But ex ante accountability does exist – for instance, when the decision-making process is subjected to questioning before a proposed action is finally approved, as when government spending plans must be defended under cross-examination by legislators, in which case the exercise of sanction can take the form of parliamentary rejection or substantial amendment. The distinction between ex ante and ex post accountability underscores the degree to which the frequency of scrutiny, and therefore the frequency with which power-holders must engage in public reason-giving, affects the capacity of accountability systems to alter the incentives facing power-holders.8 Pratap Mehta argues that one of the problems of associating accountability too closely with democracy is the failure to appreciate ‘a series of tensions internal to the concept of accountability’, such as the ‘inter-temporal tradeoffs’ that arise in the process of trying to operationalize accountability. ‘Policies that seem harmful in the short run may secure a better future in the long run. By which time horizons should we hold those in power accountable?’ This is a good example of how reconceiving accountability can help to alter the criteria against which power-holders are judged.9 Fourth, accountability is not synonymous with either the widely used term ‘responsiveness’ or with a subjective sense of responsibility. Responsiveness

Introduction 13

is the desired attitude of power-holders towards citizens: we wish them to be responsive to the concerns and problems of ordinary people, to listen with impartiality and fairness to divergent views and to subject all expressions of need and interest to publicly agreed rules for weighing the merits of competing claims. Conventionally, public-sector actors have a duty to be responsive to the members of the public with whom they interact, but to account for their actions to their managers, who in turn account to the legislature and the executive, to financial auditors and to higher court judges.10 The responsiveness of public-sector actors is not governed by the same set or intensity of rules, checks and constraints as is the accountability of these actors. The idea of responsibility is also closely related to accountability, and is also distinguished by the lack of formal compulsion. In other words, an actor may feel responsible for taking action to improve the lot of poor people, but may not be required, technically and legally, to account for her actions or non-actions. Responsibility, then, corresponds quite closely to the notion of moral accountability – being accountable to other people by virtue of a shared humanity rather than because of some formally stipulated contract that can be enforced according to an agreed set of standards. That businesses speak, mainly, of corporate social responsibility rather than corporate accountability is not a mere difference of terminology. It reflects a belief that measures taken to mitigate the ill-effects of business activity fall into the category of voluntary action. The boundaries of accountability are, however, in a constant state of flux. Political engagement of late has been geared towards pushing voluntary selfregulation into enforceable commitments – though not necessarily through state regulation. The objective is to transform the grudging admission among powerful actors that their influence over the lives of ordinary people amounts to moral responsibility into a more concrete set of mechanisms for achieving accountability. This last development moves beyond the issue of the accountability of market actors to the question of preventing abuses of power in a wide range of non-state institutions. There is a tendency in political science to reduce accountability to either a state-citizen or intra-state relationship, with accountable parties restricted to elected politicians and public officials. The result of this state-centric view has been a profound divide between the ‘high’ politics of the state and the ‘deep’ politics of society, with profound injustices in the latter arena – for instance in gender or race relations – escaping the accountability norms governing relations in the former. Thus Lonsdale notes: [i]t is quite possible to have accountability in … the high politics of the state, honest rulers and free elections, and yet profound injustice or irresponsibility in the deep politics of society, that is, the relations between rich and poor, powerful and weak.11

14 Reinventing Accountability

Power-holders in non-state relationships stubbornly resist the application of the concept of accountability to their actions. Accountability is not seen as relevant in relationships in the family or the religious or ethnic community where the mantle of authority is conferred by age or gender or kin hierarchies or spiritual conviction, not delegated by popular choice. If it is ‘nature’ or divine ordination, not popular choice, that justifies authority, dominant actors in these relationships hold themselves answerable to no person, certainly not to their subordinates, envisaging at best perhaps a temporally distant final accounting to a divine authority. Struggles by feminists, religious reformers and human rights activists to check abuses of power in non-state arenas are complicated by the reluctance of public authorities to intervene in ‘private’ matters such as intra-family relationships or religious practice.12 The subordinate members of these relationships, however, are increasingly subjecting the actions of power-holders to critical scrutiny. That this often involves references to human rights and to shifting standards of public probity demonstrates how far the idea of accountability has seeped into institutions beyond the public arena. While reforms to formal institutions may have few tangible spillover effects in these other domains – allowing power abuses to continue unchecked – informal power relationships do appear to spillover in the other direction, undermining formal accountability relationships, and thus preventing anticorruption agencies, judiciaries and merit-based recruitment systems in the public administration from working effectively. In Chapter 7 we argue that the injustices in non-state social institutions must be addressed if formal accountability institutions are to serve the cause of human development. * * * Having defined accountability, we are now in a position to analyse how and why it is being redefined. Chapter 2 sets forth the theoretical underpinnings of our central argument – that a new accountability agenda is in the making. In the process we examine the complex causes of failure in conventional accountability institutions. After then examining – in Chapter 3 – the consequences of these failures for human well-being, the remainder of the book analyses a range of accountability experiments in many countries around the world. Through all the conceptual ambiguity one thing is clear: ordinary people and their associations are demanding more direct and meaningful engagement in accountability systems. Voting at election time is no longer enough, if ever it was. The result of these pent-up demands has been widespread experimentation with novel techniques for demanding answers and enforcing sanctions. Accountability jurisdictions are also in flux – simultaneously expanding across national boundaries and contracting to cover, in some cases, very small local areas. Perhaps inevitably, these trends have combined

Introduction 15

to alter the standards against which the behaviour of powerful actors is judged. Popular understandings of accountability and the practices used in seeking it are undergoing profound change. The new accountability agenda is expanding the range of legitimate accountability-seekers. It is expressing dissatisfaction with weak or consultative versions of accountability that downplay the element of enforcement. It is exposing elite biases in the workings of conventional accountability institutions. It is promoting broad-based deliberation on changing standards of probity and justice in the actions of power-holders. It is also provoking a backlash, a topic covered in Chapter 8.

2 Where Accountability Meets Governance: Globalization, Participation and Corruption

Having outlined the book’s main arguments and introduced the conceptual distinctions that must inform any analysis of accountability, we now situate accountability within three key debates in the study of governance in developing countries. This chapter’s main purpose is to advance further the set of theoretical propositions set forth in Chapter 1. These concern three relationships: (1) between globalization and the upsurge in accountabilityseeking; (2) between accountability processes and participation (or ‘voice’), including the implications for conceptions of human development; and (3) between different types of accountability failure.

Globalization and the emergence of a new accountability agenda We argued in Chapter 1 that the new accountability agenda is broadly characterized by three elements: an insistence on (1) a more direct role for ordinary people and their associations in obtaining accountability, using (2) an expanded repertoire of methods, sometimes in new accountability jurisdictions, in the pursuit of (3) a more exacting standard of social justice. These three elements will be clarified in Chapters 4, 5 and 6, respectively, by examining a large body of case material. But what is driving this new agenda? There is no uniformly applicable answer. The people and institutions demanding new approaches to accountability represent a diverse array of perspectives, their views shaped by the specific nature of the issues that most concern them and the unique contexts within which they operate. There is, however, a common thread: a core belief among accountability-seekers that contemporary politics is suffering from a democratic deficit, which stems – to a greater or lesser degree – from globalization. 16

Where Accountability Meets Governance 17

Globalization can be defined as the progressive reduction of barriers to the flow of goods, services, ideas, people, capital and cultural practices across state boundaries. But two aspects of globalization in particular have informed discussions of accountability. The first is interdependence – the tendency for decisions or actions taken in one place to have impacts on people elsewhere. Interdependence is nothing new, but arguably its effects are more acute than they once were, and are felt with ever-greater speed. The second aspect of globalization that often arises when new accountability mechanisms are discussed is the tendency for gaps to emerge between national jurisdictions. As Michael Johnston put it, a ‘world in which capital, people, information and enterprises move freely and rapidly from place to place offers new development opportunities of many sorts, but also makes accountability more difficult. Because the agents of cross-border corruption are capable of doing business almost everywhere, it is difficult to hold them accountable anywhere’.1 Much of this is a reflection of concerns about the viability of sovereign states in an increasingly borderless world – and thus the efficacy of traditional, state-led accountability systems. In this discourse, fears for the future of democracy are never far from the surface. History provides ample grounds for worry. Liberal representative institutions were forged within the confines of nation states and are associated with a territorially bounded definition of citizenship. Yet the increased intensity and velocity of cross-border interdependence, combined with the inability of national jurisdictions to coordinate their regulatory activities, have empowered a new range of actors – particularly multinational corporations, but also guerrillas and criminal syndicates – whose actions affect greatly the survival prospects of the poor. The influence of the IMF and the World Bank, or the disciplines of global capital markets, can severely limit the range of policy options facing governments – or are at least seen to be limiting them. The proliferation of transnational and multilateral actors poses enormous challenges for conventional accountability institutions. State-centred oversight mechanisms are therefore increasingly viewed as unsuitable, particularly when it comes to protecting the interests of people thus far denied the benefits of this globalizing world. It would be foolish to deny that globalization has made the challenge of accountability even more challenging. And to the extent that people believe that declining state sovereignty is primarily to blame, then globalization is almost by definition responsible for the rise of the new accountability agenda – that is, for demands that accountability be reconceived and reordered in response to new forms of interdependence, to the cracks between national jurisdictions and to the seeming impunity with which transnational actors defy democratic controls. It would be equally foolish, however, to take these arguments too far. To do so would be to obscure salient features of both globalization and democracy, both of which must be understood if there is to be any chance

18 Reinventing Accountability

of reinventing accountability so that it serves the poor. We must therefore interrogate further some of the reasons why the spread of democracy over the past quarter century has not resulted in the degree of accountability for which many had hoped. In the process, we hope to demonstrate that democracy and accountability have a much more ambivalent relationship than is often assumed by advocates of this new agenda, and that the emergence of a new accountability agenda is as much reliant on globalization as a reaction against it. These arguments are advanced in four parts. First, to blame globalization for the democratic deficits that allow powerholders to escape accountability – especially for decisions and actions that adversely affect the poor – is to assume an unwarranted degree of equivalence between democracy and accountability. As it happens, many of the shortcomings of democracy that have been attributed to the malign influence of globalization are inherent in the faulty mechanics of democratic institutions themselves. Put starkly, representation, and particularly the ability to hold representatives accountable, is a mirage at best. This holds for two aspects of vertical accountability: voting as a form of expressing preferences, and the exertion of pressure on elected representatives through civil society organizations. Pratap Mehta has argued that observers of democracy ‘now recognize elections to be, at best, very blunt instruments of accountability’.2 Despite ‘heavy anti-incumbent voting [in India and many other countries], elections seem to discipline politicians less than we would like’. There is a large theoretical literature examining why this may be the case. A volume edited by Przeworski, Stokes and Manin is perhaps the most comprehensive and conceptually rigorous account of the frequent divergence between different versions of representation, accountability and responsiveness.3 Some of the reasons why elections cannot produce the types of accountability that everyday views of democracy might lead us to expect are relatively easy to comprehend. In the absence of a popular referendum for each policy decision – or even each policy domain – voters must select governments that take actions on a huge range of controversial issues. A voter might agree with one or another contending party on some of its policy positions, but is unlikely to agree on them all. There are also problems of information asymmetry that skew the relationship between democratic representation and democratic accountability. Voters are almost by definition not fully aware of the conditions under which government decisions are made, or even about what governments actually decide, to say nothing of the lack of clarity concerning the outcomes of these decisions. This is an issue that political scientists have long recognized, and which continues to plague efforts at pro-poor reform. One study of British welfare reform began from the premise that ‘[g]overnments face pressures to [simultaneously] improve services and … ensure that their decisions are accountable to increasingly well-informed and challenging

Where Accountability Meets Governance 19

citizens’. But based on data from a national survey, which measured public knowledge in key policy areas, the study found that in many (though not all) areas – but particularly with respect to issues of ‘redistribution, increasing taxation of the better-off, or expanding provision for those on low incomes’ – the public generally ‘hold inaccurate beliefs about policy impact and the policy context in these areas’.4 The conclusions that can be drawn from such a finding are ambiguous at best. On the one hand, the lesson appears to be that more decision-making power in the hands of citizen-empowered bodies would be the wrong way to ensure the sought-for accountability. On the other hand, there are few grounds for expecting continued reliance on conventional democratic mechanisms – the informed choices of voters – to improve the accountability of officials for their decisions in these key areas of concern to the poor. Perhaps the most radical view on these questions is taken by Fearon, who argues that elections are not primarily a mechanism of retrospective accountability at all.5 When voters exercise their franchise, he argues, they are selecting what they believe will be a good government rather than enforcing a sanction on the incumbent government. This is partly because of an implicit or explicit understanding on the part of voters that the circumstances under which government policy is made is likely to change between the successive ‘mandates’.6 Mansbridge’s dissection of the concept of representation nicely encapsulates some of the intrinsic difficulties of equating democracy with accountability. She distinguishes between ‘representation as promising’ – where politicians make campaign pledges to attract votes, and sanctions for non-delivery are meted out at the next election – and ‘anticipatory representation’, in which representatives think ahead to the preferences that voters are likely to hold at the time of the next election and seek actively to shape those preferences. This second conception of what takes place in modern political systems – a view that crystallizes the work of many social scientists and political theorists – completely reorders the conventional view of democracy. Mansbridge puts it this way: The temporal shift produced by anticipatory representation has three implications: it undermines accountability, directs normative attention to systemic rather than dyadic interaction, and focuses that attention on deliberation rather than aggregation.7 The reason for mentioning this alternative conception of representation here is to highlight the first of the three implications Mansbridge has identified: while in theory accountability is central to democracy, in practice the two are substantially de-linked. This explains why in a range of countries people increasingly seek channels of accountability beyond the electoral system. The second and third implications of ‘anticipatory representation’

20 Reinventing Accountability

that Mansbridge identifies – that it moves beyond the citizen-state dyad (and thus includes ‘systemic interaction’), and that it encourages public deliberation about values – are issues also pursued in this book. In the latter section of Chapter 1, we introduced the notion that accountability is applicable to relationships other than that between the citizen and the state, an idea that is further elaborated in the discussion of gender and accountability in Chapter 7. And in the next section of this chapter we examine the influence of accountability mechanisms on public deliberation. If elections are the formal element of vertical accountability, then civil society – and the pressure it can bring to bear on holders of power – can be said to constitute its informal aspect. The ability of civil society to contribute to accountable governance – providing an informal and diffuse ‘watchdog’ service – has been wildly oversold during the past 20 years, particularly since the end of the Cold War. Nowhere is this more true than in the field of development. The aid-industry’s faith in civil society as a channel of accountability would be touching if it were not so unfounded.8 As with the flaws inherent in electoral accountability, the problem with the relationship between civil society and democratic accountability is not simply one of constructing better versions of civil society. This is the chimera that the aid industry has been chasing. The difficulty is one of overloaded expectations, and a failure to recognize the faulty assumptions on which the relationship between civil society and accountability has been conceived. A good example of this misplaced optimism comes from Argentina. A recent study found that Argentina’s financial and political crisis, which struck in 2001, was ‘fuelled by the unfulfilled promise of a democracy in which political leaders are accountable to society’. Prior to that crisis, development agencies had ‘hoped that the growing number of grassroots civil groups would contribute to democratization, particularly in the interior provinces where clientelism and patronage have long been thought to hamper local development …’. Hopes for a more deeply democratic Argentina ‘faded as social unrest broke out in Argentina’s interior provinces in the mid-1990s and the country began its slide towards collapse by the end of the decade’. While civil society was expected to promote accountability and consolidate democracy by undercutting patronage, it was often the case that civil society groups were themselves neutralized by non-democratic forms of politics. Occasionally, civil society organizations become entrenched within networks of patronage. The study concluded that ‘[c]lientelistic and patronage-based societies … condition the types of grassroots groups that arise, the scope of their activities and their potential for contributing to democratic change’.9 The idea that it is possible for development actors to check the power of elites by transforming identity-based forms of political organization into those built around modern/interest-based solidarities is a dangerous myth.10 The purpose of this discussion is not to dismiss civil society, much less elections. They are essential ingredients in the construction of a political

Where Accountability Meets Governance 21

order in which ordinary people are empowered to assert their sovereignty.11 But the vertical channels of accountability found in democratic systems are inherently flawed. They always have been and always will be. New forms of interdependence and the ease with which certain actors have exploited jurisdictional gaps has made globalization a convenient scapegoat for democracy’s failure to benefit the poor. This tendency can be avoided if we recognize that democratic deficits are inherent to democracy. The second reason to think that globalization’s adverse impact on democracy has been overstated – and it is this adverse impact, let us recall, that has catalysed at least some of the demands for increased accountability – has to do with historical sequencing. Even if we grant that democracy is beset with internal contradictions that have always made it a flawed instrument for delivering accountability to the disadvantaged, it is still hard to deny that advanced capitalist societies have suffered a wave of discontent with the once-unassailable institutions of liberal representative politics. But how recent a phenomenon is this? Short memories – and an obsession with the transformation of state sovereignty – have placed far too much emphasis on globalization, particularly on the liberalization of trade, the deregulation of capital markets, the spread of neoliberal structural adjustment programmes throughout the developing world and the implications all these trends are alleged to have had on the policy autonomy of democratically elected governments, north and south. In fact, the crisis of representative democracy in advanced capitalist societies became a high-profile issue well before the worldwide wave of market fundamentalism that began at the end of the 1970s, at the dawn of the Thatcher/Reagan era. Even prior to the 1971 collapse of the Bretton Woods monetary system and the first oil crisis of 1973 – two milestones in conventional narratives of globalization’s rise – hand-wringing about democracy in the OECD countries had become a common fixture of political and academic debate. Theodore Lowi’s The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority, published in 1969, was symptomatic of this tendency. Much of the crisis that Lowi and others described was associated with the cultural upheavals of the 1960s, which had little to do with global economic integration and much to do with social transformations within societies. A related sequencing issue concerns what Neera Chandhoke has called the ‘pluralisation of the state’, in which globalization has facilitated the emergence of ‘network governance’. Chandhoke argues that a new image of public authority has emerged, in which ‘the state is now represented as just one of the many agencies, organisations, or associations that dot the landscape’. The state ‘now shares power with sub-national governments, proliferating forms of network and partnership organisations, a variety of quasi-public and private organisations’ and other actors. Among the latter are ‘international agencies and other forms of supranational governance’.12

22 Reinventing Accountability

The important point for our argument is that this is just one aspect of the shift towards ‘network governance’, though the tendency has been to portray globalization (in its many aspects) as either the primary element in this phenomenon, or as the driving force behind it. And yet, as Chandhoke points out, there are at least four aspects of network governance: firstly [it] pluralises and decentres the state, by making it part of a network, which stretches not only from the global to the local but from the market to civil society. Secondly various levels of governance engage in partnerships that are based on cooperation rather than conflict. Thirdly, they (the relationships) connect to each other via horizontal linkages rather than through vertical chains of command. Fourthly, the relationships between different partners are flexible rather than bureaucratic.13 Network governance or, to use a slightly different formulation, the ‘decentred state’, has indeed given rise to questions of accountability: ‘which of the organisations which have been rightly called simulacra of governments are answerable to the citizens or even accountable to elected local and central governments?’14 But, crucially, the shift to governance was itself the result of a perceived failure on the part of the state to produce ‘efficiency and accountability’. The underlying problem was that ‘[t]he state, which by the middle of the 20th century had taken on too many tasks, suffered from both a crisis of governability as well as a crisis of legitimacy. It suffered from a crisis of governability because it was overloaded … It suffered from a crisis of legitimacy because it was not performing’ (emphasis added).15 So, to put it more directly: even if global actors participate in network governance, the faulty operation of which has no doubt partly fuelled the attempted reinvention of accountability, the rise of network governance was itself a product of an earlier wave of discontent with democratic states’ lack of substantive accountability, rather than being the result of globalization. The case of India highlights another sequential issue that helps to support the argument that globalization is less of a threat to democracy than we are often led to believe. What has contributed to India’s problems of democratic ‘governability’16 over the past 20 years (at least) is not the hollowing out of the state, or the decline of state sovereignty in the face of encroaching multilateral disciplines, but rather the success of democracy itself. India’s most exalted representative institutions – its parties and legislatures – were until the 1970s still largely the preserve of the same English-educated, upper-caste elite that led the movement for independence. The transition to a more demotic political discourse, and the entry into high politics of leaders from a much wider array of social groups, took place slowly during the 1960s and 1970s, and then accelerated rapidly during the 1980s and the 1990s.17 The emergence of pent-up demands by formerly marginalized

Where Accountability Meets Governance 23

groups – for economic goods, for government jobs, for cultural recognition – began to overwhelm the capacity of India’s democratic system to process them. It was not globalization – in the form of economic liberalization, which came late to India – that threatened the stability of India’s democracy, but the logic of democratic competition itself.18 Third, to the extent that globalization has contributed to democratic deficits, this has been largely because it has been deployed as ‘a necessary myth’, to use Hirst and Thompson’s evocative phrase – that is, as a means by which politicians evade accountability for unpopular decisions.19 Blaming capitalism or neoliberal economics does not obscure the fact that the global market is as much a product of intentional creation as it is a force of nature. And yet politicians have benefited from the ability to claim helplessness in the face of the ‘electronic herd’,20 the disembodied investors who allegedly stand ready to penalize any government that deviates from marketgovernance orthodoxy. Hirst himself was willing to concede that ‘in a multilevel system’, of the sort that currently characterizes global governance, but which is also a feature of network governance, ‘it is very, very difficult to say who is responsible for what decisions … So for the public, it is as if nobody made them’.21 This clearly impedes accountability. But the extensiveness or salience of this phenomenon is open to question. The few genuine cases of untraceable lines of accountability obscure the many other instances in which politicians intentionally blur accountability relationships. In the security field, for instance, Krahmann has observed how the shift from ‘government to governance’ (in other words, to diffuse network governance, including the contracting-out of service delivery to private providers) implies a ‘dissolution of clear lines of responsibility’.22 Rather than resting ultimately ‘with the legislative and executive’, today accountability is distributed among a multiplicity of public and private actors. Since these actors cooperate in the making and implementation of security policies … no single actor can be held accountable for the outcomes of this process. Moreover, governments, international organizations, NGOs, armaments corporations and private security companies are accountable to different agents. … Only the former three are in some sense accountable to the general public … But, as Krahmann points out, this suits the political interests of elected leaders: ‘some governments take advantage of the fragmentation of security policy making to avoid public debate over controversial international interventions’.23 And as one report on the US-led occupation of Iraq noted, the contracting out of military functions ‘enables the Americans, in particular, to wage wars by proxy and without the kind of congressional and media oversight to which conventional deployments are subject’.24 Far from

24 Reinventing Accountability

globalization subverting democracy, it is the natural democratic impulse to avoid accountability that is driving politicians to scapegoat globalization. Another example of intentional shirking of responsibility comes from the relationship between the IMF and member-governments, whether rich or poor. When the IMF takes a decision in an aid-recipient country, the IMF’s officials hide behind the truism that they are acting merely as advisors. As George Monbiot put it, ‘the lie the IMF tells is that it simply approves the “letter of intent” written by a government, in which the new economic policies are contained. This story relieves it of all responsibility for what happens’. Everything thus happens in ‘total secrecy’ – the recipient government blaming the IMF for the enforced confidentiality, and the IMF returning the favour – and as part of a pattern of ‘institutional deceit’.25 Fourth, we must recognize that, not only has the extent to which globalization short-circuits domestic processes of democratic accountability been exaggerated; in fact, globalization has itself contributed to the worldwide proliferation of democratic political systems during the past quarter century. That is, in addition to increasing interdependence and creating gaps between national jurisdictions, globalization has other, more democracysupporting dimensions that must at least be taken into account when assessing its overall impact. Though the magnitude of such democracy-supporting effects is always open to question, their existence itself is not. By increasing information flows across borders, globalization has – to at least some degree – contributed to a ‘demonstration effect’, whereby elements from successful democratic experiments in one jurisdiction are seen and interpreted elsewhere, and often suitably adapted for local conditions. This is at least part of the explanation for ‘Democracy’s Third Wave’, as Samuel Huntington has called it.26 Globalization has arguably heightened expectations of accountability by creating a convergence of standards (most notably, despite continued disagreements, in the area of human rights), by extending the geographic reach of legal regimes and by bringing misdeeds to the attention of the global media audience. Democratization, moreover, has raised the ability of publics to voice their discontent with the current arrangements for delivering accountability. There is no doubt that globalization is an element in what is driving increased accountability-seeking, but to focus on globalization’s democracydepleting side is to paint an incomplete picture. Though there is by no means unanimity as to whether it was right for the international community to have acted in Kosovo,27 the intervention is widely regarded as having been one of globalization’s better moments. State sovereignty was violated, but in the name of upholding human rights recognized in international law. Even so, the result has been calls for greater accountability in the way in which the post-war multinational administration has been conducted. The UN Mission in Kosovo has prompted ‘concern [about] the impact that

Where Accountability Meets Governance 25

accountability of international actors might have on the local political and legal culture’.28 It is global actors whose accountability is being called into question, but as a result of a situation in which they have acted to halt war crimes. The latest great wave of transitions from authoritarian rule saw scores of countries in Latin America, Africa, Asia and Eastern Europe adopting more or less liberal, representative systems of governance during the 1980s and 1990s. These political changes were accompanied by heightened expectations about the ability of representative government to improve respect for human rights and redress past inequities. But the extent to which democratic systems in developing countries have resolved problems of social inequality, poverty and conflict has been highly uneven. Democracy has not necessarily reduced social inequalities. Poor people, women and other socially excluded groups usually do not find themselves or their interests represented in politics. The role of traditional political parties in shaping inclusive policy platforms is undermined by corruption, a loss of faith in party politics, or by identity politics designed to advance the interests of narrowly defined social groups. In many new democracies citizens’ expectations of responsive governance are left unfulfilled. Low voter turn-out, declining party membership and pervasive distrust of politicians are also expressions of public scepticism about the responsiveness and accountability of public actors. The failures of liberal democracy are seen to have broken the direct link between people’s voice and the accountability of public office-holders. Institutions that are part of conventional accountability systems in representative democracies, such as political parties and legislatures, are seen to have become less reliable as instruments for articulating and aggregating voice or for enforcing sanctions against improper public-sector actions. Many accountability failures in third-wave democracies stem from their particular histories, especially the processes by which ruling parties were formed during periods of struggle. These have spurred the widespread concern with accountability at least as much as globalization has. Kenneth Good cites South Africa as a case in which the political leadership had become, even before the end of apartheid, merely ‘accountable to themselves’.29 Good’s argument is that the ‘popular, participatory struggles of the 1980s associated with the United Democratic Front (UDF)’,30 the movement that spearheaded resistance within South Africa, were ‘brought to a sharp end after the return of the nationalist leaders’ from exile (and prison) in the 1990s. Furthermore, the institutions of South Africa’s ‘liberal, representative democracy have also suffered under the rise since 1994 of a predominant party system and elitism’.31 A political culture of deference to senior leadership figures, and the habit of forging pacts among elite groups (something carried over from the days of negotiating with the apartheid regime), not only muffled criticism within the party, but also severed the link between ordinary people and their representatives.

26 Reinventing Accountability

One of the manifestations of this was the policy shift that resulted in the South African government embracing a fairly orthodox form of neoliberal economic globalization, carried out in part through private agreements among senior political figures, as well as between government officials and transnational firms, multilateral financial institutions and other international actors. But to blame globalization for the forms of non-accountability that Good identifies would be to confuse cause and effect. Indeed, Good indicts South Africa’s democratic institutions, particularly its proportional representation electoral system. Citing several examples of elected ANC politicians who had been ‘redeployed’ by the party, Good observes that ‘[o]ne of the implications of the list system … is that an MP who resigns from his or her party, or who is dismissed by it, may be removed from the National Assembly … with no reference by the party elite … to the voters … .’32 This was just a symptom of a larger malaise, in which ‘the political traditions of the ANC’ meant that the ‘responsibility, or rather loyalty, of ANC Ministers moves upwards to the leadership, and when this is supported by a record of devotion, the leadership extends its support downwards to them’. Given this dynamic, it was not surprising that the ANC’s national chairman would be quoted as saying that ministers should not regard the constitution as ‘more important’ than the ANC.33 The pooling of sovereignty through the creation of supranational institutions has, to date, gone furthest in the European Union (EU). The EU is an embodiment of certain trends associated with globalization: policy andinstitutional convergence, the integration of national economies, the reduced importance of national borders and the creation of ever-more-dense networks of interdependence. It is therefore not surprising that the EU, as the poster child for at least one type of globalization, has been heavily criticized for its non-accountability. This has emerged both in allegations that parts of the EU bureaucracy are hopelessly corrupt, as well as in the arguably more serious charge that Europe-wide institutions suffer, systematically, from a democratic deficit: decision-making that is increasingly remote from ordinary people, multiple layers of bureaucracy that blur lines of accountability, an elected European Parliament whose role is highly circumscribed (allegedly the reason why turnout rates for European elections are so abysmally low), and so forth. But this negative image has been robustly challenged, and not merely by officials with a stake in the system. The EU, the vision of what globalization could or will be, is not suffering a democratic deficit, argues Moravcsik.34 In fact, Moravcsik goes so far as to call the EU’s democratic deficit a ‘myth’, and a dangerous one at that.35 The EU, he contends, is a force for increased democratic accountability. The EU is not a superstate, practices ‘limited government’, has few powers of coercion, requires large majorities in order to pass legislation, is more transparent, and is a better reflection of public opinion than are most of the EU’s member-states. One reading of Moravcsik’s argument could

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be that the EU, despite his arguments, is less responsive than most domestic institutions; but, by his reading, it is certainly not less accountable. Even if late twentieth-century democratization can be decried as hollow in substance – low-intensity, semi-authoritarian, or illiberal – these attributes have been a feature of new democracies since long before global trade flows and transnational capital markets began to exercise their disciplinary functions. India’s political system – formally democratic since 1947 – has long had its democratic credentials called into question. Ayesha Jalal, in a play on the bureaucratic authoritarian description applied to many Latin American countries during the 1960s and 1970s, referred to India’s post-independence political system as a form of ‘democratic authoritarianism’,36 thus showing it to have more in common with its counterpart political system over the border in Pakistan than many may previously have realized. The point is that, while over the past 20 years globalization may have increasingly constrained the leaders of fledgling democratic states in some respects, for poor and marginalized people democracy reneged on its promises quite a bit earlier. So while globalization can be blamed for many things, it is not always and everywhere the cause of decreased accountability. As we have maintained, there is a clear case for seeing the disaggregation of the state and the blurring of jurisdictional boundaries as part of the reason why concerns about accountability have been on the rise. But this is just part of the story. Movements demanding greater accountability – and innovative experiments attempting to furnish it – are in many cases a reflection of the heightened expectations on the part of ordinary people and their associations that globalization has also carried in its wake – through the increased flow of information and awareness across borders, and the promotion of worldwide standards of human rights. To repeat, we do not claim that globalization has had no impact on democracy, just that the impacts are more complex than often appreciated. The new accountability agenda displays many features that are a reflection of globalization’s diffusion of ideas about acceptable modes of governance. Proponents of new forms of accountability have experimented with techniques that can either reach across, or work at levels below, national jurisdictions. These are discussed in Chapter 5.

Voice, accountability and human development We now turn to the relationship between accountability and a term with which it is often paired – voice. In the World Bank’s ‘Voice and Accountability’ index, for instance, political systems that score highly are deemed to be more democratic than those that score less well.37 Our aim is to critique some of the ways in which the idea of accountability has been conceived in relation to voice, and to advance an alternative view of the role of accountability in advancing human development.

28 Reinventing Accountability

As liberal representative political systems replaced authoritarian regimes throughout much of the developing world during the late twentieth century, hopes were raised in the power of free expression, democratic deliberation and political choice to improve the lot of poor and vulnerable people. But neither constitutional checks and balances (the machinery of accountability) nor the sanction of the ballot (the definitive expression of voice) are proving sufficient to make governments live up to their promises. All too often their decisions on how to spend public funds, administer justice, deliver services, promote national security and regulate economic activity favour more powerful social groups. Even worse, more and more of those groups seem to operate from beyond the reach of national politics. Multinational firms, transnational religious movements, international NGO networks, multilateral economic institutions – all are engaged in activities that affect the lives of ordinary citizens, but are not easily subjected to state, and therefore popular, control. More recently, attention has shifted from the establishment of democratic institutions to the task of making them produce better outcomes, particularly for disadvantaged people. Conventional forms of political voice and accountability – two of the defining features of liberal democracy – have not been able to safeguard the interests of the poor. Voting in elections, joining political parties and seeking to influence their agendas, expressing preferences in community forums – none of these channels of voice has been adequate to the enormous task of sanctioning governments for failing to promote human development. Not only has the direct link between people’s voice (the legally protected expression of preferences) and the accountability of public office-holders been broken, the indirect mechanisms for enforcing accountability (through, for instance, the courts and public auditors) have also in most developing countries failed spectacularly. Indeed, what some people have called a crisis of representation – the breakdown in the relationship between non-elite citizens and representatives who act on their behalf – is a widespread phenomenon, north and south. Regardless of the role played by globalization, there is no denying the proliferation of demands for new ways of making powerful actors, within and beyond the state, accountable for the impact of their actions on poor people. The response has often taken the form of efforts to increase ‘participation’, most notably through a proliferation of consultative exercises to bring the ‘voices of the poor’ to the ears of policy-makers. Initially welcomed, these initiatives have increasingly been dismissed as tokenism. They rarely come with measures obliging officials to take action or even to supply citizens with the basic information they need to make judgements about the appropriateness of government decisions and actions. A growing chorus of critics has sought to shift the focus from capturing the voices of the marginalized to holding the powerful accountable.

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But how is accountability different from ‘voice’, and why do they matter for human development? Voice is a metaphor for the variety of ways in which people express beliefs, articulate preferences and advance their interests. Voice can be expressed individually or collectively. It can stake out original claims or react to official decisions. Moreover, any of these variants may be peaceful or socially disruptive, and may take place within the arenas of civil society, between and inside political parties, through interactions between citizens and state institutions or within the state itself. The voice of socially excluded groups may be elicited as part of consultative exercises conducted by public and private power-holders, with no promise that their views will be acted upon, or it can be asserted by right, with an expectation of consequent action. These distinctions do not exhaust the range of conceptual quandaries associated with the term, but are suggestive of the many factors that must be considered when seeking to understand the concept of voice or its application to problems of human development. The term ‘voice’ is drawn from Albert O. Hirschman’s classic study Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States.38 Hirschman classifies voice as one of three strategies through which people seek to exert influence. The other two – when they exist as practical options – are exit and loyalty. Exiting denotes seeking an alternative to the existing organization, when one is formally available, or else making do with some informal substitute. Loyalty denotes improving one’s prospects through attachment to the centres of power. In the context of governance, voice describes how citizens express their interests, react to governmental decision-making or the positions staked out by parties and civil society actors. Over the past two decades, many citizen voice initiatives, undertaken in a huge variety of developing countries, have sought to expand consultation between officials and ordinary people over policy-making. There are parallels in advanced democracies: citizens’ juries, consultative forums, local social audits. While there is much deserved scepticism surrounding these initiatives, a number of studies indicate that they have had at least some accountabilityenhancing impacts in poor countries. Fiszbein found that in Colombia citizens’ direct participation in service delivery, combined with instruments for surveying local opinion, ‘promoted accountability’ by increasing citizens’ awareness of local governments’ actions and inactions, thereby enhancing their ability to assess the validity of justifications for decisions offered by officials. Increased participation led to increased demands for effective local government, which increased the political costs of inefficient and inadequate public decisions. One result was that local authorities began punishing errant bureaucratic personnel (mainly through transfers) in response to local expressions of voice.39 However, through sheer repetition, the plea that decision-makers must hear the voices of the poor has lost whatever resonance it might once have

30 Reinventing Accountability

commanded. Simply listening to these voices, and doing little to respond to their insistent demands, has discredited the idea that promoting voice is central to improving human well-being. Behind well-meaning efforts to broadcast the concerns of the poor40 lies an overestimation of the willingness of politicians to respond to what is, after all, a constituency that rarely exercises decisive influence in electoral politics. There is an assumption that more ‘voice’ for socially excluded groups will strengthen the moral and social claims of the powerless and result in a better representation of their interests in decision-making forums, and thence to a tangible influence on politics. Why this should occur without concrete compulsions for elite actors to change their behaviour (and to forgo patterns of decision-making that have long enriched them and their clients) is left unexamined. The notion that ‘voice’ will lead to interest representation and to influence over policy-making not only reveals a highly voluntarist (and classically liberal) perspective on political participation, it obscures the fact that the institutions of political competition and of governance may internalize elite biases to the point that they contain and diminish the voice of certain social groups. For instance, intervening between the expression of voice and the representation of interests in government are electoral institutions whose rules can restrict the representation of diverse interests, and thus return to office only politicians drawn from a narrow social category. Between the representation of interests and the implementation of policy a range of institutions of public oversight likewise often work to screen out non-elite interests. Front-line service delivery agents often fail to implement top-level policy directives to include the poor in their work, and do so with impunity because performance-monitoring systems are not geared to detect abusive treatment of poor clients. Judicial institutions may be closed to would-be litigants from the ranks of the poor because of high knowledge and financial access barriers, or because there are no provisions enabling the poor to act as a class in public interest litigation cases. Chapter 3 details these and other forms of institutionalized bias. The point is that too exclusive a focus on voice obscures the unequal power relationships embedded in the electoral process and public oversight functions – the basic institutions of formal accountability systems. The voicing of preferences or judgements divorced from the necessity of consequent action is akin to shouting in the void – somewhat cathartic perhaps but ultimately ineffective. This has led critics to dismiss the ‘participation industry’, by far the fastest growing sector of the aid and development business, as little more than purveyors of a sophisticated form of faithhealing.41 There is much truth to this. The vast majority of participation exercises empower people only by default – by indirectly disseminating information about government initiatives and beneficiary entitlements, or by bringing isolated people together into self-help groups or users’ associations required

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under programme guidelines. But the information provided is selective by nature. And the groups formed under such externally imposed circumstances are not easily sustained. Nor do they readily adapt themselves to other collective purposes. Arguably, the most empowering effect of exercises designed to capture voice is completely unintended, which is to catalyse indignation at their failure to produce action. Whether initiated by government agencies, nongovernmental organizations, private-sector businesses or party pollsters, attempts to elicit the voices of ordinary or marginalized people are ultimately conducted on terms dictated by the organizers. They are ‘by invitation only’. They are the powerless answering to the powerful. Genuine accountability reverses this relationship, making the powerful answer to the stifled majority in whose name they act, under threat of sanction. Hence the growing desire to demote voice and focus on accountability. It is a logical progression. Or is it? The fact is that voice and accountability are conceptually distinguishable, but inseparable in practice. For there to be answerability – the obligation of power-holders to justify their decisions and actions – someone has to be asking the questions. And if these questioners are to be drawn from beyond the ranks of government itself, then ordinary people must be endowed with voice. But the voice presumed in accountability relationships is very different from that of the focus-group participant. The genuinely ‘questioning voice’ has access to information about the context in which decisions were taken, including the legal requirements governing the actions of power-holders and the public promises made prior to action. Information is never ‘perfect’, and asymmetries will always be a feature of the relationship between accountability targets and the actors that seek to hold them accountable. But the obligation that power-holders engage in reason-giving, that they rebut charges of incompetence and ulterior motive, forces a crucial transition from passive to active voice. Participation, within a relationship of accountability, becomes interrogation. This highlights the need for participation to be accompanied by a range of instrumental rights – to information, to litigate, to issue dissenting reports through mechanisms that mimic the state’s public judicial function. We gain a greater understanding of the complex relationship between accountability and voice – the freedom to express opinions and to have a say in leadership selection and policy choice – by considering Amartya Sen’s work on the connections between political liberties and development outcomes. Sen’s ‘Development as Freedom’ paradigm identifies three benefits that arise from the bundle of political freedoms of which voice is an integral part.42 The first is the inherent value of liberty. The ability to express beliefs and to share in the management of one’s own community is a good in itself. Voice is thus integral to human development. The second benefit of political freedom (including the right to free expression, to assemble, to vote, and so forth) is its ‘instrumental value’. This

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corresponds to the voice-accountability linkage described above, in which voice – expressing an electoral preference at the ballot box, or exposing misconduct through access to information – disciplines power-holders by forcing them to respond to their constituencies. Sen’s path-breaking work on the role of democracy in preventing famine, and in particular the space democracies create for a free press, is a constant point of empirical reference in his analysis of voice and political freedom. The instrumental value of voice is also manifested through other accountability channels, such as courts, where citizens and their associations are free (in theory) to litigate against the state and other powerful actors. The third benefit Sen ascribes to free voice is its ‘constructive’ role. This is distinct from its ‘instrumental’ value in that the focus is not on using voice to sanction errant officials, either through elections or through the horizontal (state-to-state) channels of accountability. Instead, Sen refers to the ability of political freedom to foster deliberation – the interplay of many different voices. Freedom of voice allows citizens to engage in open debate over social goals and the trade-offs that collectivities are willing to make in order to achieve them.43 It is the first of these benefits of political liberty – its instrumental value – that has to date attracted the most attention in discussions of the relevance of Sen’s work to improving accountability. Bhargava’s account of Sen’s conception of the ‘instrumental’ and ‘constructive’ roles of political freedom focuses almost entirely on the former. Political freedoms, Bhargava argues, have instrumental value, particularly in poor societies. They make governments accountable and responsive to ordinary citizens, prevent rulers from privately consuming a large share of resources or squandering them publicly, protect us from poor governance, help governments to take correct decisions, and by providing a space for people to come together and act publicly, they help ensure the provision of essential services and monitoring their functioning. This instrumental value in poor societies extends also to prevention of catastrophes. Despite severe crop failure and massive loss of purchasing power, there has been no recurrence of famine in India since 1943.44 Barely a sentence in Bhargava’s analysis is devoted to the idea that political freedoms also ‘have a constructive value because through dialogue, discussion and debate, we come to understand what our real needs really are’.45 In short, both Sen and his interpreters associate accountability solely with the ‘instrumental’ category. And yet the ‘constructive’ role of political freedom is just as crucial, if not more so, in holding the powerful to account. While instrumental voice allows people to judge the performance of powerholders, and to determine whether they deserve to be sanctioned, it is voice’s ‘constructive’ role that makes possible the creation of standards for making

Where Accountability Meets Governance 33

these judgements. The ability to sanction poor performance is immeasurably degraded when norms concerning public conduct reflect a very narrow range of voices. Open dialogue allows societies to arrive at more inclusive values about justice, obligations, rights and needs. Voice, in its contribution to free and public discussion, helps to forge public norms – or what we call in Chapter 6 ‘standards of accountability’. Above all, voice permits political communities to arrive at a shared understanding of the norms and values that should govern the conduct of public life. There is another link between accountability and the ‘constructive’ role of freely expressed voice. The very accountability institutions that are used in the process of instrumentally applying voice to sanction substandard performance themselves become forums for the type of constructive interaction among voices that is essential to redefining the public standards against which accountable actors will be held in future rounds of scrutiny. Public judicial proceedings – whether in the formal legal system or, as we shall see in Chapter 5, in informal efforts to mimic otherwise inaccessible legal processes – are among the great forums through which values are constructed, challenged and reformulated to adapt to changing expectations of social justice. To put our argument slightly differently, the two consequential benefits of free political voice for human development are complementary – or synergistic – in ways that have not been recognized. Societies must define standards in order to decide what to hold governments accountable for. And it is in the process of demanding accountability that we find the most impressive kind of constructive voice issuing forth: the questioning voice. The articulation of belief that takes place in the process of public judgement – when great cases are on trial, representing huge issues – is the form of voice in which standards are ultimately set. And it is participating in this way that is perhaps the most fulfilling manifestation of citizenship. This is why people become fixated on particular trials (from the Dreyfuss Affair to the Nuremburg Trials to the Watergate Hearings). This happens not just because of an obsession with personalities and salacious details – though that is part of it – but also because ordinary people (in the form of juries, but also the public at large, reflected in the ubiquitous public-opinion polls) are involved in handing down a verdict. In doing so, they are shaping – not just reflecting – public standards of accountability. There have been both positive and negative assessments of judicial activism throughout the world – that is, of judges whose constitutional interpretations expand the scope of rights, and thereby increase the state’s obligations to its citizens. Some claim it increases justice to the poor; others that it hijacks legitimate democratic power. One analysis of India’s Supreme Court argued that, regardless of these instrumental impacts, the trend towards judicial activism in India has enhanced the possibilities of voice playing a constructive role – that is, in helping, through open deliberation, to shape the standards that public actors are expected to uphold. As Indian

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judges began to admit public interest litigation, and to formulate rulings in ways that addressed the concerns of social justice, [a] wholly novel conception of judicial power and process began to emerge. Adjudication emerges as a form of social conversation among the activist judiciary and social/human rights movements … on the nature and future of India’s potential for just constitutional governance. Social conversation on issues of law, rights, and justice is no longer a matter of cultivated discourse by, of, and for the professional managerial classes. … It now becomes a form of conversation among multitudinous narrative voices through which [subordinated social groups] represent the power of the oppressed no longer as power of exit but as power of speech.46 Regardless of the limits of this trend – its reversibility, its tendency to create social-activist middlemen, etc. – Baxi argues that ‘[i]t is simply undeniable that a remarkable, even profound, transformation of social conversation concerning governance, rights, justice and development … has occurred’.47 So, not only is voice used to interrogate power-holders for their decisions and actions, or to render a judgement on the need for sanction or the form it should take; the freedom to express opinions – the interplay of many voices – is the means by which societies collectively evolve the standards of justice and morality against which the actions of the powerful are to be assessed. It is this constructive role of voice – often exercized through accountability institutions themselves – that has been particularly evident in the emergence of a new accountability agenda. Benjamin Goldfrank’s work on decentralization and participation in Montevideo highlights these different approaches to voice. Goldfrank observes that ‘mainstream developmentalists’ view citizens as either: (a) suppliers of raw material used by experts to improve public policy design, or (b) volunteer labourers in limited development projects. He thus distinguishes between participation as information-provision, and participation as deliberation – the latter involving a substantive engagement in decision-making. Citizenled accountability procedures can foster these skills; they can prepare people to derive full value from the constructive benefit bestowed by political liberty. Even conceding most criticisms of the weakness of voice-based governance experiments, there is nevertheless always the possibility that even where voice has not been ‘heard’ in the design of programmes, it can be a latent force activated towards instrumental objectives. The rise of accountability-seeking demonstrates that demands are often: (a) driven by groups other than the poor, or (b) for motives other than the most altruistic. The question of how and why demand for accountability is generated is controversial.

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Sometimes these rights-seeking outcomes are unintentional. The chief minister of the Indian state of Goa had intended to muzzle the press when in 1997 he passed a so-called Right to Information Bill that contained several draconian provisions. This generated pressure, which in the end proved successful, for a revision of the legislation. Goa thus ended up with what was, for a time, India’s most liberal information regime, as well as a new civil society constituency committed to using these new rights to scrutinize more closely government decisions and spending patterns. This was an unanticipated consequence, but one that competitive democracies tend to produce.48 In a similar vein, Caseley observes that the governance reforms introduced in the Indian state of Andhra Pradesh during the 1990s were largely motivated by Chief Minister Chandrababu Naidu’s desire for political control. While only partially successful in actually improving accountability, these reforms resulted in increased accountability-seeking. Caseley notes, however, that a prerequisite for this trend was the prior 20 years of democratic mobilization that had taken place in Andhra Pradesh.49

Beyond corruption: alternative causes of accountability failure This third part of the chapter lays the basis for the analysis of human development deprivations found in Chapter 3 by examining the relationship between accountability and corruption. It makes a case for moving beyond corruption as the sole reason why accountability institutions fail to deliver justice to the poor. Accountability failure can thus be seen to derive from two sources: capture and bias. The category of capture consists mainly of corruption – the illegal use of public power for private gain – but also other forms of undue influence that do not, technically speaking, constitute corruption in that they stem from the intimidation faced by officials (from, for instance, politicians and the criminal underworld) rather than from an interest in direct pecuniary gain. Bias refers to practices that are not illegal or motivated by the desire for private benefit, but nevertheless involve allocative or regulatory decisions that benefit already advantaged groups. The literature on accountability, especially quantitative literature, tends to attribute accountability failure to corruption. We argue, however, that bias-related failures are equally important in explaining why accountability institutions have not worked for the poor. When analysing the nature of a corruption-related accountability failure – which must be undertaken if a remedy is to be devised – it is necessary to consider the ways in which corruption affects poor people’s well-being, particularly the longer-term impacts on their (mainly political) capacities to obtain or preserve welfare gains. Corruption adversely affects the poor along three dimensions of citizenship. Each corresponds to one of the three critical relationships in which citizens must engage – with the state, with the

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market and with civil and political society. First, pilfering of state resources intended to benefit the poor (such as subsidized food) is the most obvious example. Resources available for targeted schemes are reduced ex ante through tax evasion by the rich. And when resources devoted to programmes intended for universal provision (for poor and non-poor alike) are diverted through corrupt practices, this has a disproportionately negative impact on the poor, since unlike many other segments of society they are ill-prepared to substitute private provision. Second, corruption impairs the ability of the poor to achieve market gains. Not only does the draining of public resources for education and healthcare harm the market prospects of the poor; the state’s failure to enforce laws regulating market behaviour has dire consequences for many of their number. In the industrial sector, labour and environmental health standards are routinely flouted. In rural settings, land-tenure guidelines, credit-market regulations and minimum-wage laws pertaining to agricultural workers are subverted by the corrupt practices of officials charged with enforcing them. While these examples concern the economic relationships of the poor as producers, it is essential to recognize the ill effects that can also befall them as consumers. When policing of the market is lax, collusive relationships between firms and other organized economic agents (such as agricultural cooperatives) can impede whatever scant benefits poorer citizens may have been able to derive from their productive activities or from redistributive programmes implemented by the state. The third dimension of citizenship through which corruption affects the poor concerns participation in civil and political society. This is clearly related to the first two dimensions insofar as these forms of participation are undermined by resource-deprivation and a hostile market environment. The skimming of state resources at local levels tends further to enrich those groups in rural society responsible for denying social and economic opportunity to the poor in the first place. Their collective prestige and influence, combined with the collusive relationships they forge with state officials, can thwart the nascent self-help activities of poorer groups in the political sphere. For instance, state officials whose services have been bought by social elites to rig agricultural markets and evade taxation are not likely to call out the police against their powerful accomplices when the latter engage in violence or intimidation to prevent poorer people from attending village assemblies or organizing their own public meetings. It is through such sustained relationships between local elites and the state administration that networks of corruption – spanning the domains of developmental activity, market transaction and organized politics – have their most devastating impact on the poor. It is also important to take note of the longer-term impacts on poor people’s political capabilities. Corruption undermines movements for

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accountability. First, corruption contributes to creating an environment in which potential political allies of the poor become compromised by institutionalized corruption within the arena of civil and political society. Corruption is also an impediment to changing the relationship between citizens and corporations so that firms are more directly answerable to and sanctionable by citizens and their associations. Accountability institutions also fail the poor due to non-corrupt, but nevertheless biased, official decision-making. Bias-related accountability failures occur when the poor or other socially marginal groups remain disadvantaged because of built-in (or institutionalized) impediments to the reduction of the deprivations they face. We distinguish two main varieties of bias that have particularly adverse impacts on disadvantaged people. First, accountability institutions may simply have no formal remit for addressing injustices experienced by marginal groups. Biases in the wording, interpretation and enforcement of laws allow perpetrators who violate the rights of disadvantaged people to escape punishment. One example is the law of provocation in the Anglo-Saxon legal tradition, which does not penalize men who kill in self-defence, but imposes a maximum penalty on women who premeditatedly kill abusive husbands. Other laws and judgements can have built-in biases against the poor. Bureaucratic reporting systems – another internal accountability institution – may similarly fail to protect the poor. This is manifested in the criteria against which bureaucratic performance is measured. Many personnel procedures neither punish officials whose actions discriminate against disadvantaged people, nor reward those who achieve positive outcomes for the poor. Behaviour that is procedurally correct may disguise aspects of policy or programme design that are biased against underprivileged sections of society. Dominant social groups often receive higher levels of public services because of unexamined assumptions about their greater efficiency or desert. Staudt’s study of agricultural extension services in east Africa found that men were favoured over women, both because men were considered more likely to increase agricultural productivity, and because male extension workers found it more convenient to interact with male farmers.50 Health services may be oriented to the needs of better-off members of society, with medical research and clinic treatment protocols privileging attention to the illnesses of the urban middle classes. Front-line medical staff therefore routinely fail to diagnose or treat the ailments of the poor, and public health budgets neglect investment in rural and preventative services. The accountability systems within health service bureaucracies and the professional bodies charged with upholding scientific and ethical standards may not take action, or at least may perceive themselves to be impotent to intervene, because staff have followed formally sanctioned procedures and met standards stipulated by the medical profession.

38 Reinventing Accountability

While this first ‘no remit’ variety of bias denotes the incapacity of accountability systems to react to failures of public actors to act in the interests of the poor or social justice, the second variety prevents the poor from demanding accountability on their own behalf. There are a range of antipoor biases built into the mechanisms through which citizens are entitled to use accountability mechanisms directly, such as the access restrictions that face litigants who might wish to seek judicial remedies against powerful state or non-state actors. The first kind of bias is a failure to treat inequities in public-resource distribution as unjust and intolerable; the second prevents those most affected by these inequities – the poor themselves – from challenging elite-biased standards of accountability. These two varieties of bias – in the standards against which the performance of public actors is measured, and in the terms of access to accountability institutions – may simply reflect assumptions made by policy-making elites about client needs and rights, and about which kinds of citizens possess the resources and skills necessary to engage in accountability processes. These assumptions reflect not only class biases, but also other forms of bias based upon ethnicity, religion, race, age and gender. These are largely unintended biases, and all the more insidious for being so. Indeed, they are harder to expose and to excise than sheer corruption or capture because they are often internalized and normalized. In the process of arguing that accountability is ‘the hardest governance reform’, Stiglitz lends indirect support to the idea that bias (rather than simply capture) is part of what makes it so difficult. Asking who ‘the IMF is directly accountable’ to, Stiglitz reminds us that it is not just national governments in general, but finance ministries and central banks in particular. This means that the standards against which the IMF’s performance is judged by national governments has a built-in institutional bias. Were national governments represented at the IMF by labour or social welfare ministries, Stiglitz argues, the nature of accountability would be substantially different.51 An example of the intersection of both forms of bias is the failure of many legal systems to prosecute gender-based violence adequately. For instance, until 1995 Bolivia’s judicial institutions had no formal remit (the first type of bias) to prosecute cases of domestic violence. It was not defined as a crime. Women who suffered from domestic violence had no means of challenging this bias, because of the second type of bias: they had no locus standi in court because wives were denied the right to take legal action against husbands. This constituted a built-in barrier to married women’s access to justice. It reflected institutionalized biases, which presumed their consent to the loss of certain rights. In Chapter 7 we explore specifically gendered patterns of capture and bias in more depth because these expose a particularly resilient form of accountability failure.

Where Accountability Meets Governance 39

Another illustration of the complexity of the relationship between capture and bias is the case of Shiv Bachan Ram, a north Indian Dalit (exuntouchable). Ram was the victim of violence inflicted by a member of the middle-ranking Ahir caste. His crime was seeking to draw water from the village well, something that social prejudice has long prevented Dalits from doing in many parts of India, though things have progressed considerably over the past few decades.52 Currently, violence against a Dalit requires a case to be registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused, however, claimed that the atrocity charge (a more serious violation than common assault) could not apply in this case: the victim was not a Dalit, the accused insisted, because his father was born an Ahir, and it was only as an adult that he was excommunicated from the Ahir community for having married a Dalit woman. Even though Ram’s father had thenceforth lived among Dalits, and had assumed a Dalit identity – and therefore his son, Ram, was regarded by the village community as a Dalit (which was why his attempt to use the village well earned him a beating) – despite all this, the alleged assailant claimed that Ram was not a Dalit because he was the son of a man born an Ahir. An individual’s caste status, legally speaking, is determined according to the rule of patrilineality. In the end, there was no legal remit for holding the accused accountable for the hate crime in which he had engaged. That Ram’s father had himself been a victim of social prejudice became the reason for allowing an even worse form of prejudice to be visited upon his son. This form of bias – which in fact also included the gender bias of patrilineality – made the type of accountability envisaged by those who drafted the legislation impossible to secure. Moreover, another form of bias – the tendency of law-enforcement officials to discount the pleas of lower-caste complainants – meant that Ram and his family were effectively prevented from pursuing the matter further. It is altogether possible (in fact probable) that the police officials involved accepted a bribe from the family of the accused in order to cement the verdict that the assault did not fall within the purview of the Atrocities Act. But even were the police inclined to grant Ram’s claim that it was as a Dalit that he was attacked, regardless of his technical status under the law, it is unlikely that they could have done so without incurring the wrath of the locally dominant Ahir community; so even without accepting a bribe, the police would have been responding to the other main form of capture, whereby officials are subjected to intimidation. Thus do multiple varieties of capture intermingle with multiple types of bias. As it turns out, bias (rather than capture) is one of the main reasons why India’s National Commission for Scheduled Castes and Scheduled Tribes (NCSCST), the accountability institution responsible for, among other things, overseeing the implementation of the Atrocities Act, has failed to fulfil its

40 Reinventing Accountability

potential. As Niraja Gopal Jayal has shown, ‘instead of contributing to the welfare of poor Dalit communities, it has tended to work fairly systematically as an organization for the more privileged sections of these’.53 The NCSCST was ‘designed to function as a watchdog institution that monitors the executive wing on behalf of the legislative wing, while remaining autonomous of both’.54 Though it was supposed to be ‘roughly analogous to the CAG’ – the Comptroller and Auditor General – ‘in its actual performance of this role … the Commission has been circumscribed not merely as a result of institutional design, but also by its own predisposition to be self-limiting’.55 Its four areas of competence are ‘service safeguards’ (concerning the application of rules governing the recruitment and employment conditions of SC and ST publicsector workers), education, economic development and atrocities. Focusing on the internal workings of the commission, Jayal found that the Commission has, by choosing to interpret its constitutional mandate narrowly, laid itself open to the charge of elite bias. The fact that it is both most energetic and most effective in the area of service-related safeguards speaks for itself. Since the Commission, for the most part, acts on complaints, and it is the more upwardly mobile sections within these groups that are articulate and capable of mounting claims, it could be said to have been less than sensitive to the exclusions engendered by the lack of education or information …56 The problem of bias in accountability institutions directs attention to its sources in non-state arenas, in the social institutions that create and sustain inequalities based on class, racial, ethnic, gender, age and other differences. As mentioned in Chapter 1, growing concerns with abuses of power by dominant actors in these institutions – the family, the traditional community, the religious establishment – are focussing attention on the accountability of these actors. Attention to biases in formal accountability systems exposes the way in which norms that exist in non-state arenas – for instance, regarding group loyalty – seep into public deliberations about the distribution of resources, and about what is right or fair in social relations. This ‘spillover’ from traditional ascriptive communities into public arenas is much stronger than is the flow in the other direction. The enduring nature of social prejudices against poorer groups, women and ethnic minorities highlights the difference between ‘legality’ and ‘legitimacy’ in popular understandings of people’s rights and social status,57 and the uneven evolution from traditional communities based upon familial or other solidarities to notions of modern citizenship based on equal rights and the rule of law.58 While there are very few contexts in which the norms and affections developed in the private arena are fully excised from public deliberations, in developing countries the authority of the state in asserting the legitimacy of norms of equality or impartiality is particularly weak because it

Where Accountability Meets Governance 41

is often not the only (or even the dominant) form of political organization. It may not be perceived to have jurisdiction over relationships between castes or between women and men, and no legitimate remit in the non-state arenas where injustices are perpetrated – like the family, the community or the religious establishment. In many parts of Africa, where communal land-use systems are deemed beyond the control of the state,59 state authority has not been convincingly established. Non-state groups – such as traditional leaders – retain considerable social and coercive power. This further entrenches the ‘no remit’ form of bias. The existence of dual legal systems enables state authorities to absolve themselves of responsibility for addressing inequalities in non-state arenas. The difficulty of challenging biases stemming from these social institutions is explained in part by the fact that accountability to less powerful members is rarely a part of the implicit contracts or compacts underlying uneven power relations in non-state institutions. In familial or community relationships, roles, rights and obligations are ascribed by age, gender, lineage, race or ethnicity. Because these are seen as ‘natural’, immutable or ‘God-given’, they are extremely difficult to challenge on the grounds of their inherent injustice, even when the relative economic and social power of some of the actors changes. For instance, when men cannot fulfil their breadwinning role, their sense of entitlement to subservience from women and children does not necessarily diminish. Beyond the family, community relationships are in many cases characterized by a patron-client model in which reasonably explicit contracts for services – for instance, between a landlord and tenant farmer – become blurred with the addition of complex and asymmetrical obligations. Community norms of solidarity and reciprocity, lineage loyalties and patron-client relationships can also suffuse non-governmental institutions, including development NGOs and political parties. Membership in such organizations is often based on ascribed characteristics such as ethnicity, and leadership may be passed on through a family dynasty rather than earned through a struggle for the confidence and votes of members. Religious traditions such as Islam, Judaism and Christianity include an important role for answerability (providing an account to God) and enforcement (retribution and penance). In some religions, temporal representatives of divine authority – imams, priests, rabbis – are expected to be held accountable not by their congregations but by a higher moral authority, a process of self-governance beyond the bounds imposed by formal rules. The flaws in this system, at least in the Catholic Church, have come to light in the scandals about sexual and other forms of abuse by church authorities, prompting more open debate about the dilemma of reconciling a ‘sacred calling’ with the need for ‘secular accountability’.60 Improvements in accountability relations in one arena can spill over into others, though not always in predictable ways. Women who are freed from

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the constraints of unequal marriage contracts or unequal family relationships (through, for instance, obtaining the right to initiate divorce, or to inherit equally with their brothers) may be able to act more autonomously – on the basis of their interests as women – within civil society. This increases the likelihood that civil society will contribute to holding the state accountable for actions that affect women. Workers who receive better wages as a result of collective bargaining are more able to fund parties that seek to advance their specific interests. On the other hand, the powerlessness of some groups within non-state institutional arenas may undermine voice and power gains they make in the public sphere. Women who shift their rate of market engagement as producers through, for instance, access to micro-credit, may not always be able to translate this success into increased bargaining power in relation to men within the household. Ethnic minorities who gain access to policy-making forums through affirmative action may find that this public power does not diminish the contempt in which they are held by unenlightened neighbours. Thus efforts to tackle accountability failures in formal institutions must be attentive to the ways in which they can be undermined by the biases produced through enduring inequities in informal institutions. * * * We have suggested in this chapter that the language of accountability has come to embody a desire for greater social justice. This is a consequence of a range of developments since the last great wave of democratization. But we have also argued that the impetus for a reassessment of accountability can be seen as emerging from two main sources. The first is the legacy of institutional failure in democratic systems. The most notable failure is that of state institutions: there are now arguably more opportunities than ever for ordinary people to express voice, but in many states public institutions cannot offer a credible response in terms of either accountability or practical improvements to public services. Accountability institutions in democracies fail for a number of reasons. Most obviously, they may be captured by narrow interests and made to serve a particular political agenda. Relations of corruption are another variety of capture. At times, of course, accountability failure is also produced by technical incapacity and resource scarcity. Venality is not necessarily the problem (though corruption may itself account for some of the scarcity): it may simply be that there are insufficient financial and human resources for an audit office or court system adequately to review the vast array of government actions requiring scrutiny. These state failures have produced a second reason for rethinking voice and accountability: the proliferation of new actors, operating in a more diverse set of arenas – created simultaneously by globalization and localization – and engaged in a broader array of tasks. These state and non-state

Where Accountability Meets Governance 43

actors – the security services, private-sector firms, and international organizations, to name three that come in for closer scrutiny in the coming chapters – must, it is increasingly felt, be held more directly accountable to the public interest. As we argued in Chapter 1, many of these ‘new’ actors are not in themselves particularly new. Security services have been around a long time, and so of course have international business enterprises. And both have long been subjected to state regulation and oversight, so they have also been targets of past accountability initiatives. What is new is that the actions of these state and non-state agents are now increasingly scrutinized in terms of their impacts on the opportunities for poor people to realize substantive freedoms, and that the conventional mechanisms through which these and other actors account for their actions – via state-run oversight mechanisms – are seen as insufficient to produce pro-poor outcomes. On the other hand, if accountability institutions are seen as having failed to address the problems faced by disadvantaged people, and if these failures are not directly caused by capture or incompetence, then we must identify forms of bias that distort their operations. By focussing on bias as well as capture, accountability failure can be seen as a more complex and deeply rooted problem, reinforced by informal social institutions. We have suggested that bias operates at two levels. Accountability institutions may not see it as their mandate to promote social equity, poverty reduction or human rights – either because of the formal rules that govern their operation or the informal practices through which they function. Their procedures and mandates may be limited to preserving the interests of propertied groups. This deeply internalized bias is embedded, for instance, in the failure of legal systems in some countries to criminalize or prosecute violations of the rights of the poor or of women. Another form of bias is more superficial, but just as effective at excluding certain groups. These are biases built into the terms of access or claim-making in accountability institutions. Fluency in official languages, high degrees of literacy or financial solvency may be required to trigger an official investigation by a human rights commission or audit office, ruling out engagement by a large number of social groups. One of the novel features of what we call the new accountability agenda is the extent to which it is not merely seeking to plug jurisdictional gaps: it also attempts to address systematic biases by formulating new standards of accountability and by applying these standards to informal social institutions normally deemed beyond the remit of accountability systems – a topic addressed in Chapter 6. Attention to the relationship between accountability and voice warns against naïve expectations that more voice for the poor will compel powerholders to answer to the poor more directly. Institutionalized anti-poor bias can constrain and contain voice. We have also highlighted the constructive role that accountability processes can play in enabling the kinds of public deliberation that can challenge biased standards of probity and fairness in

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public life. Chapters 4 to 7 detail a range of contemporary initiatives to hold power-holders to account, to make the voice of excluded groups more effective and to revise standards. In Chapter 3, however, we develop in greater depth the problem of accountability failure in order to highlight the consequences of elite capture and bias for human development. We examine how different varieties of accountability failure compound one another, contributing to the political marginalization of the poor, the weakening of their voice and, hence, their continued invisibility to, or exclusion from, accountability institutions.

3 Accountability Failures and Human Development

As we argued in Chapter 2, corruption is not the only reason why accountability institutions fail to protect the poor. The very nature of democratic representation means that elections cannot possibly deliver fully on the popular expectation that bad governance will be punished at the ballot box. Moreover, accountability failures that particularly afflict the poor stem from elite ‘biases’ as well as from elite ‘capture’. In this chapter we detail the range of ways in which accountability failures – of both the capture and bias variety – adversely affect poor people. We focus on the impact that these institutional failures have on four aspects of human development: (1) on people’s ability to achieve market gains and livelihood security; (2) on their chances of improving their human capital endowments in education and health; (3) on whether they will live and work in a clean and safe environment; and (4) on their rights to physical safety. Corruption in anti-poverty programmes (‘targeted’ agricultural subsidies diverted to better-off farmers), in service delivery (vaccines for poor rural communities stolen by health providers) and in public goods (clean air and water regulations violated by firms with the connivance of officials) – these and other abuses undermine poor people’s ability to capitalize on the one asset they have in abundance, their labour. Beyond sheer corruption, the existence of both intended and unintended elite biases means that accountability institutions may fail to detect or punish abuses of power that particularly afflict the poor. Biases embedded in the formal remits, operating procedures and informal practices of accountability institutions can be racist and sexist as well as anti-poor. To the extent they deny certain groups (the poor, women, ethnic and racial minorities) the right or opportunity to demand answers of public authorities, they erode the value of the citizenship rights such groups can enjoy. Worse, problems of capture and bias can cripple the capacities of disadvantaged people to organize and articulate a collective ‘voice’. This is because, in addition to the way the capture of public property can deprive the poor of the resources needed for collective action, the biased functioning 45

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of accountability institutions can deny legitimacy and validity to their claims and complaints. This chapter illustrates these points with examples of accountability failures that disproportionately afflict the poor, and that work to perpetuate their material poverty and social marginality. Attention to the fact that some forms of accountability failure have a particularly concentrated impact on poor or socially excluded people, undercutting their market capacities and even their civil and political rights, enables us to identify some of the institutional and political causes of poverty. Recent studies of poverty reinforce an important point: that poor people experience deprivation across a variety of fronts; poverty is not simply a matter of low incomes. The World Bank’s World Development Report 2000–01, for instance, sees poverty as characterized by a lack of assets, security and power. Because the multiple forms of deprivation interact with and sometimes reinforce one another in unexpected ways, neither the World Bank nor the many other organizations that produced global poverty reports to coincide with the new millennium1 can be faulted for failing to distinguish between causes and manifestations of poverty. They are often one and the same. This holds true for accountability as well. Being unable effectively to demand accountability is both a symptom of poverty and one of the reasons why poor people remain poor. Many of the critical human development deprivations that afflict the poor – the lack of assets, security and power – can be traced back to an absence of genuine accountability. Doing so enables us to assess whether proposals for institutional reform are likely to address capture and bias in ways that will make powerful actors more answerable for the impact of their actions (and inactions) on human development. If accountability failures that reinforce poverty turn out to be constitutive, rather than merely contingent, features of conventional accountability systems, then reforms must address not only the capture of public resources, but also entrenched elite biases in the formal remits and informal practices of existing institutions.

Forms of bias and capture in conventional accountability institutions But before discussing the four areas of human development deprivation outlined above – which are illustrated with a range of case studies from around the world – we must briefly review how the problems of capture and bias afflict, in general terms, six key accountability institutions: (1) the electoral system; (2) legislatures; (3) reporting structures within bureaucracies; (4) oversight and regulatory agencies; (5) public expenditure management systems; and (6) the judiciary. Electoral systems, even in mature democracies – such as India’s or France’s – often fail to create incentives for representatives to promote the interests of

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the poor. Many have legally permissible avenues for influence-peddling that are beyond the reach of the poor – for instance, lax campaign-finance regulations or professionalized lobbying industries. Why the poor should have such difficulty using electoral processes as a tool for answerability and enforceability, even where they are a majority of voters, is a subject that has animated a great deal of research in political science, some of which was discussed in Chapter 2. History, culture and social structure play important roles. For instance, if voters are polarized around issues of identity (ethnicity, caste, race, religion, sect), politicians can more easily evade accountability for their failure to deliver services and justice to the poor. (A more charitable view would be that such forms of politics can build a sense of group solidarity and cultural pride, which may be more highly valued for some people than fleeting material gains.) Long-established relationships between elite patrons and lower-status people in clientelist systems may prevent voters from punishing errant politicians at election time, for fear of losing whatever benefits they receive as loyal clients.2 In young democracies, because few parties have a credible record of achievement on broad poverty-reduction programmes, political contenders often seek electoral advantage by developing and rewarding client loyalty through targeted spending.3 In most electoral systems voters lack information about the role of elected representatives in affecting service quality, and they tend to make decisions based on events close to election time.4 It is difficult for voters to coordinate in assigning rewards or penalties to politicians for their performance on public services, particularly primary health and education, because these are complex services and outcomes are hard to attribute to any one representative’s (or government’s) term in office. Information deficiencies lead voters to give more credit to politicians for initiating public works projects (like construction), providing direct subsidies for essential commodities (food, fertilizer) and increasing employment in the public sector. These sorts of public resources are most easily and directly targeted to supporters. Most of the defects mentioned here represent problems of bias in electoral systems, but there are problems of capture too: voters can be intimidated into electing politicians who will not advance their interests; corporate lobbying groups can ‘capture’ politicians by bankrolling their campaigns or various forms of electoral fraud can distort the collective voice and choice of voters. Legislatures should, in theory, be the forum in which government policy is reviewed, where the performance of the executive is monitored and where the detailed operations of key government functions – in particular, public expenditure management – come under intensive scrutiny. Legislatures, however, are notoriously open to capture – both corporately, where ‘party discipline’ often involves subtle forms of unwarranted inducement (such as undue rewards for compliant Members of Parliament in Westminster-style systems) and through the buying of individual legislators by sectoral interest

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groups or even wealthy individuals. Legislators in places as diverse as the American state of Texas and the Indian state of Gujarat have been almost literally captured, sequestered by party leaders who have relocated them en masse to neighbouring jurisdictions in order to, in effect, prevent them from performing their duties, whether this is voting on redistricting proposals (as in Texas in May 2003) or selecting a provincial chief executive (as in Gujarat in October 1996). Forms of bias are also evident. Parliamentary procedure – such as committee rules and filibuster provisions – often militates against deliberation on certain types of issues of concern to disadvantaged people. The UK House of Lords, until recently dominated by large landholders, long thwarted reform of property laws that would have given tenants greater rights in relation to property ‘freeholders’. The institutional design of the US Senate – in which each state, regardless of its population, elects two Senators – gives disproportionate voice to agribusiness and ranching interests based in sparsely populated western states. Reporting and management systems in the civil service make subordinates accountable to their superiors. The result is often capture. Under pressure to please their bosses, lower-level officials – regardless of their inclinations – are often obliged to collude in the abuse of public office in order to retain their jobs, or to avoid punishment transfers or even to ensure that they are not themselves charged with corruption. Classic abuses include buying and selling positions in bureaucratic hierarchies,5 obtaining underserved promotions and subverting competitive procurement procedures. All of these enable officials to derive illicit income. Many other varieties of theft allow senior civil servants and front-line service providers to abuse their positions of public trust. Anti-poor biases pervade various aspects of accountability systems within public bureaucracies. For instance, performance targets and measures may simply not reward pro-poor service delivery. Without a direct or explicit mandate to serve the poor, even well-intentioned officials who seek to do so may find it impossible to work against the grain of official incentives (as opposed to political pressures, which would constitute capture) that compel them to focus on other, better-connected constituencies. Procedures for filing complaints about poor quality services may be insensitive to the special conditions facing the poor, or access points to officialdom too remote from the sites of injustice that require remedy, allowing abusive treatment of clients or theft of public resources to continue unchecked. Public-service providers or officials in charge of distributing licences, permits or essential documentation, such as birth or land certificates, may use their ability to ration these goods to intimidate and control poor people – for instance, buying their acquiescence in other forms of abuse which perpetuate cycles of non-accountability. The consequence of these forms of bias and capture is that putatively public goods, even those as basic as the maintenance of law and order, can be dispensed as favours rather than as entitlements, making

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citizens not rights-holders but supplicants. This transforms public goods into private (rivalrous, excludable) goods in the process. Oversight or regulatory agencies often fail to take action to investigate abuses of power in the public or private bodies over which they exercise jurisdiction – for reasons of both capture and bias. Audit offices, environmental protection agencies, electoral commissions, equal opportunities bodies, labour standards offices and even anti-corruption commissions can underperform in response to undue influence exerted by political leaders or interest groups. The independence of these specialized accountability institutions is undermined when governments staff them with people who will turn a blind eye to official malpractice. Non-government oversight bodies charged with upholding professional standards, such as medical or teaching associations, may fail to demand answers of public authorities (including members of these professions acting in a public capacity) because of internalized and largely unremarked biases that prevent detection of certain types of abuses – such as abuses of the rights of subordinated groups. Oversight bodies can suffer from an unintended form of bias caused by data aggregation and work overload. Often these agencies are small and underfunded, yet are mandated to monitor and review a vast quantity of official decisions and actions. It is impossible for them to obtain the finegrained detail needed to detect specific, actionable cases of misappropriation or abusive behaviour. National audits suffer from this problem, missing bookkeeping gimmicks that disguise stolen funds at local levels. The results of national audits are often published years after the fact, by which time a new party may have come to power and any investigation of its predecessor would appear politically motivated. Public expenditure management systems often make only notional connections between the spending proposals of line ministries and actual spending patterns, fail to prevent extra-budgetary spending on the military or perks for top politicians, or lack adequate auditing mechanisms to expose these deviations. These are examples of the capture of public resources. Sometimes resource scarcity is the excuse used by politicians for the failure of public services to reach the poor. While outright capture can itself cause ex ante resource scarcities, elite biases in decisions about how to allocate limited resources can also be the cause of anti-poor distortions in public spending. Decisions about taxation and the mobilization of resources may favour the wealthy but result in inadequate revenue for the polity in general. These kinds of biases in the management of public finances may go entirely unchecked in formal audits because they represent sanctioned expenditure, not theft. Judiciaries suffer from capture when court officials subvert official operating procedures to benefit bribe-payers, or when judges lack autonomy from the political executive and respond to political agendas. Biases are built into

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judicial proceedings. Their formal impartiality offers little protection for the poor when access is limited by their inability to purchase legal representation or to travel to court locations, or by barriers imposed through the use of non-vernacular languages in judicial proceedings. More insidious and less obvious biases are also found: courts routinely discount the testimony of certain categories of plaintiff, such as women or the poor, especially when pressing charges against powerful social actors. These biases are sometimes specifically mentioned in laws themselves. The investigative and enforcement machinery of the judicial system, most notably the police, is often not only captured by elites through bribery and networks of influence, but also prone to elite biases when crimes committed largely by the poor, like petty theft, are investigated with more alacrity than are elite crimes, like tax evasion, which primarily harm the poor, whose chances for a better life depend disproportionately on the availability of public resources. Given the judiciary’s essential role as an arena for assessing complaints against other horizontal and vertical accountability systems – ensuring, for instance, that when irregularities are identified by government auditors they are investigated, and (where warranted) charges are pressed and a trial conducted – the existence of capture and bias in the judiciary can doom reform efforts. We now turn to the four human development deprivations exacerbated by failures in accountability institutions – lack of access to: sustainable livelihoods, particularly land and fair wages; capability-enhancing services, particularly education and health-care; a decent environment, particularly clean air and unpolluted water; and physical security, particularly freedom from abuse (or neglect) by police. Naturally, real-world examples of the sort provided below have a way of spilling beyond conceptual boundaries. Though they are invoked to clarify rather specific issues, it should be understood that many of the examples cited relate to more than one type of deprivation; that any type of deprivation will, inevitably, have been produced by failures in more than one sort of accountability institution; and that most of these failures will have been caused by a combination of both bias and capture.

Sustainable livelihoods The opportunities for disadvantaged people to engage in sustainable livelihoods is compromised by failures of accountability institutions. Much of the fault lies with anti-poor ‘bias’. Economic policies routinely discriminate against people working in the informal sector, and in ways that can be remedied only by thoroughly overhauled accountability institutions, such as new performance criteria for programme administrators linked directly to pro-poor outcomes. But corruption and other forms of ‘capture’ also impede the ability of accountability institutions to defend the livelihood prospects of the poor.

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Access and secure title to land are among the most important assets that can help poor people to improve their chances of a better life. However, many public actions ostensibly designed to promote access to productive resources fall prey to accountability failures. The Colombian government’s National Land Reform Institute (Instituto Nacional Colombiano de Reforma Agraria, or INCORA) was founded in 1961 to reduce the gross inequality in rural land ownership. Though INCORA’s average annual budget in the late 1980s was roughly US$140 million, its work ‘produced little visible effect’. Land reform legislation passed in 1994 failed to produce better results for the poor. Parliamentary questions raised from time to time sought to obtain at least a degree of answerability. But this form of oversight is a blunt instrument for securing accountability. The lack of more specific mechanisms of accountability within the programme itself was the more serious problem. The legislation provided for a ‘land purchase grant’, but the way this was structured ‘created incentives for collusion between sellers and buyers to overstate land prices, divide the surplus between them, and let the government foot the bill’.6 The poor were not in on this cozy arrangement. Conventional financial monitoring of such transactions was never going to be able to stamp out such abuses. On paper, the transactions appeared legitimate, even though this was in reality a case of the rich capturing resources meant for the poor. Accountability institutions have also fared poorly at ensuring that poor and vulnerable people are not denied credit for productive purposes. This happens both directly and indirectly. The indirect form arises when failures related to other livelihood concerns take their toll on people’s ability to access credit. A study of Kenya found that a lack of formal educational attainments and insecure title over land were the main reasons why rural women in particular who try to diversify livelihoods through enterprise activities are denied credit.7 Fieldworkers on the Bangladesh government’s anti-poverty rural micro-finance programmes are known to favour better-off villagers for credit, even though they are above the poverty line. This happens in NGO programmes as well.8 The terms of reference of internal accountability systems and external regulatory structures would need to be substantially redesigned for them to hold formal credit agencies and micro-finance institutions accountable for biases of this sort. Staff in these agencies are assessed on the basis of their performance in recovering loans and interest payments, not for their capacity to compensate for accountability failures in other public institutions that lower their borrowers’ creditabsorption capacity. The more direct route by which oversight mechanisms fail to ensure that poor people gain access to credit involves their inability to detect (or failure to prosecute) cases of corruption in government credit programmes. This is particularly important as corruption in formal credit markets can affect the rates offered through informal sources.9 A study by Transparency International

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Bangladesh found that people accessing credit from the formal banking sector paid a direct bribe of between two and 20 per cent of the loan value. This wide range reflected the diverse socio-economic profile of respondents, but the ‘[l]arger percentages are extorted from uneducated rural applicants’. Moreover, these farmers faced higher demands for bribes than the more affluent borrowers seeking commercial loans ‘because the bribe is usually shared with government officials that may be involved in the loan review process’, including the many functionaries at the local level. The bribes received by local officials ‘percolate up to District and higher levels and neutralize the monitoring function of the administrative hierarchy’.10 But these fees are just for obtaining the loan. In order to obtain an assurance from rural branch managers of state-owned banks that they will not actually have to repay the loan, borrowers pay up to 50 per cent of the loan’s value in bribes. These promises are often not honoured, but an audit by Bangladesh Bank revealed that branch managers had forgiven at least 1.6 billion taka in interest payments without authorization. These practices have other unfortunate knock-on effects – making it more difficult to improve accountability systems. The very fact that poorer Bangladeshis are forced to collude in such illicit transactions – and to pay a fee to access credit under such conditions – undermines their willingness to play a role in demanding accountability or protesting against corruption. The Transparency International study also notes a range of means by which unsuspecting farmers are cheated, including one confidence-trick in which illiterate people are persuaded to sign papers that they are told entitle them to a grant. In fact, they have unwittingly agreed to pay back a loan for up to five times the amount of the ‘grant’ funds they are given. The remaining 80 per cent goes to the con-men, who form a ‘corruption syndicate’ (including local government representatives and police officers) ‘to perpetrate the scam’. The Transparency International study makes clear that the negative impacts on the poor are the result of multiple accountability failures that reinforce one another. Members of Parliament, the Bureau of Anti-Corruption, the Judiciary, and the Police, that might have served as monitoring devices for the people are also agents of the political party that controls MOF [Ministry of Finance] … The Parliament’s Standing Committee on Finance is the people’s oversight agent that is supposed to discipline the MOF but it too is subject to stronger agency relationships to political parties.11 Obtaining employment and safe working conditions, and getting paid a fair wage (or at least what was due), is another aspect of livelihood security that has continued to elude many of the world’s poor. Accountability actors such as labour inspectors have in many cases failed to make any impact, and often make things worse by taking bribes in exchange for non-enforcement of

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regulations. This form of corruption also drives up ‘employment-related’ costs, reducing what employers are willing to spend on wages, benefits and occupational-safety measures that would assist workers trying to eke out a living. As for the self-employed, the obstacles faced by the poor in obtaining formal business licenses push them into both economically and legally marginal activities such as sex work, scavenging or street hawking. Yet these same marginal practices make the poor vulnerable to blackmail and bribery by officials, thus trapping them in self-reinforcing circuits of corruption and poverty. Accountability institutions may even be used by officials to prey upon people in these circumstances, sometimes to the point of criminalizing poverty. For instance the ‘beggars’ courts’ in Delhi12 use a very loose definition of ‘beggar’ as someone ‘wandering about’ (based on the 1959 Prevention of Begging Act) to give the police free rein to round up all manner of informal sector entrepreneurs, such as street vendors, palm readers or boot-black boys. The beggars’ court provides magistrates, lawyers and police the opportunity to collect petty bribes from the unfortunate individuals who are thus collected off the streets, and who, because ‘begging’ is technically a crime, would otherwise face a hearing. Bail is a major means of squeezing the accused, for although the court claims it takes no money for bail, lawyers routinely collect about half of the monthly earnings of a street hawker from each defendant and distribute it to other court officials. In effect, a combination of direct capture (bribes) and bias in the legal system (a definition of ‘begging’ that criminalizes many of the livelihoods of the urban poor) is used to persecute people in informal sector work, undercutting their already pitiful earnings. In such contexts a formal business licence may offer little protection to the self-employed. Rather, it can give officials further opportunities for predation. To take another example from Delhi, the licensing system for cyclerickshaw drivers not only fails in its purpose – limiting the numbers of rickshaws on the road and ensuring they are in good repair – it does precisely the opposite, enabling the police to profit from overcrowding and removing incentives for rickshaw-pullers to upgrade their vehicles and make their work less dehumanizing.13 Rickshaw-peddling is a dangerous and poorly paid job, and the use of desperately out-of-date cycle technology makes it even more physically depleting than it needs to be. Most rickshaw drivers lease outdated and often unsafe vehicles from large contractors, paying over double the value of a new rickshaw every year in rent. It is police corruption in the implementation of the official licensing system that keeps drivers from buying their own rickshaws and thus earning bigger profits, and from using some of the savings for the simple and accessible technologies available to make their work easier. The rickshaw license is officially available for Rs. 27 a year, but to obtain one costs at least Rs. 500–600 of ‘speed money’. But this license does not guarantee immunity from police harassment, so there is little point in paying

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for one. The Delhi Municipal Corporation frequently rounds up rickshaws, ostensibly to check their legal status, yet even owners of licensed vehicles must pay a bribe of between Rs. 30 and Rs. 300 to have them released, over and above the daily storage fees charged while they are impounded. The Corporation can fine even license-holding rickshaws – Rs. 100 each – for violations such as missing reflectors or mud-guards. The raids are a pretext for bribery, not a means of improving road safety. Unsurprisingly, this system of capture erodes the incentive to invest in safe and efficient cycle rickshaws, let alone to pay for a license. Large contractors operating fleets of extremely poor-quality rickshaws arrange to by-pass some of this police predation by purchasing licenses in bulk, and paying hefty monthly haftas (bribes) to the police. They recover these costs from the daily rent paid by the drivers. The opportunity even to have or keep a job is eroded when malfunctioning accountability institutions allow firms to become unviable. Many of China’s former state-owned factories went out of business due to asset-stripping and outright looting by managers, making the chances of reviving them under private ownership almost unthinkable. This has become an increasingly regular feature of the country’s capitalist transformation, reducing employment prospects for disadvantaged people.14 And the obvious inability of the anti-corruption agencies to take action in anything other than a symbolic (and highly politicized) fashion has increased the incentive for managers to embezzle resources, since they can do so with impunity. The nascent efforts of China’s independent union movement to counteract such tendencies have run up against these problems as well as the familiar constraints on the exercise of voice in the context of limited political pluralism. Even in other, more liberal, political systems, the power of unions to act as an effective force to demand accountability has been on the wane as a result of duplicitous government action.15 In Sri Lanka the government’s Board of Investment establishes officially mandated ‘worker councils’ in free-trade zones. These impede the emergence of active unions capable of either defending workers’ rights directly or insisting that enforcement agencies perform their functions impartially. In Mexico, too, President Vincente Fox has failed to address the problem of these ‘protection unions’. And rather than applaud the efforts of the employees’ union of Philippine Airlines to engage in voluntary wage restraint in order to assist the rebuilding of the company and protect their jobs in 1999, the Philippines President’s response was to override institutions for ensuring worker protection (including the courts) by proposing a strike ban and curtailing employees’ right to associate freely.16 Another example of an institution that fails to provide accountability in the interest of workers is India’s now defunct Board for Industrial and Financial Reconstruction (BIFR). The BIFR was designed to ensure that ailing industries that received government bailout packages adhered to the associated terms and conditions. These usually stipulated that government funds be earmarked for investments to upgrade plant and machinery in the hope

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of reviving the firm’s competitive position, and thereby saving jobs. But not only did the BIFR not keep effective watch on the uses to which the company managements put the funds – or compel other government agencies to monitor or report on these activities – the BIFR refused even to make public the terms of the revival agreements so that other actors in civil society could make inquiries to see if the bailout conditions were being honoured. In many cases, union officials that were allowed access to the relevant documents were themselves bought off by company managements, with law enforcement agencies taking a cut to continue protecting these collusive relationships.17 There has been much discussion in recent years of the plight of child workers, and the need for international agreements to outlaw the most egregious forms of child labour. Legislation to protect children exists in many countries, but is not enforced – another failure of accountability institutions. Human Rights Watch reports that Egyptian children employed by cotton-farming cooperatives work long hours, routinely face beatings at the hands of foremen and are poorly protected against pesticides and heat. Most of the children are also well below Egypt’s legal minimum age of 12 for seasonal agricultural work. The Egyptian government has a responsibility to ensure compliance with the country’s 1996 Child Law, but it fails in this duty by permitting cooperatives to employ children well below the minimum age for seasonal agricultural employment without regard for the law’s provisions governing the maximum number of days and hours that children may work. The cooperatives have further subjected children in their employ to routine ill-reatment and failed to provide them adequate protection from occupational hazards, in violation of both the Child Law and relevant international conventions.18 The examples in this section have dealt mainly with the failure of accountability institutions to enable the poor to thrive as producers in the market, where they encounter the exploitative practices of private-sector actors. Accountability failures are also rife where the state steps in to compensate for market failures, for instance with anti-poverty employment programmes. A chronic problem in public-works programmes that provide the poor with employment during drought periods is that corrupt income can be obtained by officials, at all levels, by bid-rigging, over-invoicing for materials and labour, manipulating labour-productivity norms and wage rates and onselling of subsidized grain meant for wage payments.19 In the case of antipoverty public-works programmes in developing countries, the result is that 40–50 per cent of budgeted resources are shared among cooperating contractors, government engineers, local bureaucrats, ministry supervisors and auditors.20 With so many agencies involved, lines of accountability get confused. There are no viable points at which adversely affected workers may lodge complaints or see an investigation launched, and no obvious part of the system that is free from the taint of graft. One observer of the elaborate system of pay-offs at different levels of a public works department in Nepal suggests that payments by lower-level

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officers to their senior colleagues represent the pay-off from disabling the accountability mechanisms at each point in the administrative hierarchy at which their actions are subjected to oversight reviews or audits.21 In Nepal, as elsewhere, corruption is said to be ‘systemic’ in that it pervades most of the public administration, and ‘systematized’ in that there is a ‘ladder’ of payments out of illicit earnings from lower to higher officers in the hierarchy. These payments follow fairly standardized percentages or ‘cuts’ of the illicit earning. This puts great pressure on lower-level civil servants to charge bribes or simply to misappropriate funds meant for public goods, because they must earn enough from bribes to cover the cost incurred in obtaining the post in the first place. In Nepal’s Department of Roads and Irrigation, a typical system for the distribution of ‘black money’ would be: 5 per cent for costs relating to the entertainment of visiting officials; 10 per cent to the district audit office; 10 per cent to local politicians, engineers and overseers; 25 per cent to the direct overseer; 15 per cent to the district engineer; and 35 per cent divided equally among the overseeing accountant, senior department officials and high-ranking bureaucrats in the ministry. Graft of this kind has a direct impact on the poor. Unskilled workers are supposed to be the ‘beneficiaries’ of employment-creation programmes linked to large infrastructure projects. Such schemes are intended to provide the poor with a minimum wage during periods of (usually seasonal) livelihood stress. But the collusion of actors within and across the many public institutions that deliver these programmes makes it nearly impossible for workers to pursue grievances against those who have appropriated a share of their wages.

Capability-enhancing services Appropriate and affordable basic services are essential for the poor to enhance their human capital base and to make the most of their physical assets such as credit or land. The key services for building human capital are education and health care. These are more effective when supported with other services such as sanitation, drainage, waste collection, piped water, housing, rural electricity, roads and public transportation, without which health problems and time constraints on productivity can increase. These capability-enhancing services can be complemented by ‘safety-net’ programmes for periods of great livelihood stress such as seasonal unemployment, disability or old age. Safety-net services include public-employment programmes, pensions, insurance and other forms of social welfare. Throughout the world, poor people experience serious obstacles to accessing and fully benefiting from basic capability-enhancing services, whether provided by the state or by the private sector.22

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It is important to distinguish between obstacles stemming from fiscal constraints and obstacles that are a combination of capture and bias in service delivery and design. Many developing countries simply lack the resources necessary to provide either universal or targeted social services; accountability may not be as big a problem as is the emaciated budget. Of course, very often these resource constraints are themselves partly the consequence of high-level corruption, which siphons public funds away from basic social services and amenities and into investments that produce bigger commissions for corrupt officials, such as defence contracts and large-scale infrastructure construction projects.23 The hugely expensive power plant built in the Indian state of Maharashtra by the now-disgraced US energy giant Enron is an example the kind of highlevel ‘capture’ that can set in place a perpetual drain on public resources needed for social and economic services. Constructed in the 1990s by Enron’s local joint venture, the Dabhol Power Corporation, the project included an energy purchase agreement that charged the Maharashtra government such high rates that it ultimately became cheaper for the government simply to pay the plant’s mandatory fixed maintenance and administration charges than to buy and use its electricity. The electricity produced by this wasteful plant is twice as expensive as its nearest competitor, and seven times as expensive as the cheapest electricity available in Maharashtra. Even accounting for the fact that the prices charged by Enron/Dabhol’s competitors do not fully reflect the true cost of electricitygeneration and transmission, the differential is too great to be explained away as a reflection of underlying economic realities. The Maharashtra State Electricity Board (MSEB) estimated that even if it were to purchase 90 per cent of Enron’s output from January 2002 onwards, its losses would be $1.2 billion a year. Strapped for cash, the MSEB would have to force local industrialists, who have been generating their own cheap electricity, to purchase the more expensive Enron power, thereby raising costs and cutting jobs. And meanwhile electricity for rural areas, for schools and clinics, would remain unattainably expensive. Enron made no secret of the fact that it had paid out millions of dollars to ‘educate’ politicians and bureaucrats in Delhi and Mumbai in order to obtain various government clearances.24 Capture in service delivery takes a wide variety of forms. One of the most common is staff absenteeism, where doctors, nurses and teachers collect their public-sector salaries and then moonlight during clinic and school hours. Random visits by researchers to schools and clinics in some developing countries have discovered absentee rates of up to 40 per cent, with higher rates for remote rural areas.25 Medicines are commonly lacking in clinics in poor countries,26 as are textbooks and desks in schools. Sometimes there was simply no money for them, but when these same materials appear on the open market, it usually means that health and education providers have

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been auctioning them off rather than supplying them for free or for an approved fee to clients. Alternatively, the kickbacks from procurement reaped by higher-level officials, or other practices such as over-invoicing for substandard materials, can shrink the quantity and diminish the quality of materials that reach lower-level service providers and their clients. The capture of resources meant for buildings and maintenance can make conditions so appalling or unsafe in public clinics and schools that patients and students must find alternative providers. The 1999 ‘Public Report on Basic Education in India’ details ghastly squalor in rural schools, which produces serious physical danger for children – the threat of collapsing buildings, and the vermin and disease encouraged in the unsanitary conditions.27 Finally, public service providers may exact payments for services that they should provide free of charge. Teachers may teach poorly in order to encourage parents to pay for after-hours tuition, or they may exact payments for the award of higher grades. Health-service providers routinely demand bribes for treatment, in effect transforming government clinics into private practices.28 Corruption in the day-to-day delivery of public services has a disproportionately negative impact on the poor. First, because the poor simply have fewer options than wealthier service users for ‘exit’ – for substituting private provision for poor-quality public services – they suffer most directly from the declining quality of services. If the poor do choose the ‘exit’ option, the costs of private provision may be even higher than the combined formal and illicit ‘top-up’ charges for public-sector services, because private providers may impose surcharges for servicing the physically remote, unsafe or unpleasant living areas of the poor. In Angola, one NGO found that poor people on the rural fringes of the capital city of Luanda paid a great deal more than those in built-up areas for their water supply as a consequence of having to purchase water in tiny quantities from private suppliers.29 Second, when it comes to everyday corruption, poor service users, because of their low social status and relatively low capacity to press complaints or expose corruption, may be under much more pressure from providers to pay bribes than higher-status public-service users, who might object or report corrupt officials. Where the poor are engaged in survival activities on the margins of legality, such as sex work or scavenging forest produce, their sense of possessing a legitimate voice may be weak, thus increasing their vulnerability to predation by government officials. Many economic marginals must pay off petty officials to avoid being reported to higher authorities. Refusal to pay would mean risking their livelihoods. Protest actions, unless extremely well coordinated, would be easily dismissed or crushed because of the social marginality of such people. For instance, Nepali sex workers in India stave off the risk of arrest, confinement to remand homes and potential deportation by paying regular bribes to the police. Police officers in Delhi and Mumbai are known to pay exceptionally high ‘commissions’ to their bosses for transfers to red-light areas,

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where earnings from bribes are high precisely because of the vulnerability of sex workers to ‘clean-up’ raids.30 The third reason why the poor suffer more than wealthier groups from accountability failures in public services is that the illicit payments made by the poor for services that should be available free of charge represent a much greater proportion of their meagre incomes than do payments made by wealthier service users. Beyond the problem of sheer capture, problems of anti-poor bias set in right from the design of public services. It is well known that elite biases among both designers of basic services and those who staff them produce a marked preference for urban and high-cost tertiary-level social services, such as hospitals and universities, as well as for high-technology investments in infrastructure, rather than in maintenance of existing facilities or their extension to poorer areas.31 This skewed distribution of basic services reflects poor people’s lack of influence in determining the types of public services that should be available, their physical location and the nature of interactions between service providers and clients. This lack of influence stems from a failure in representative politics that carries over to a lack of vigilance in national budgeting exercises that could, in theory, ensure that budgeted funds are devoted to primary-level services. Elite biases are also found in the terms of access to public services, in the types of services deemed most appropriate for the poor and in provider behaviours and attitudes deemed appropriate and even professional. Accountability instruments such as administrative reporting procedures, professional and service-level performance standards and oversight bodies often fail to correct for the social biases embedded in application procedures for basic services that end up disqualifying the most needy applicants. In Thailand, a string of exclusions are triggered by the requirement that, to apply for water or electricity connections, households supply a formal registration number furnished by municipal authorities. Informal housing erected in low-income or slum neighbourhoods generally does not qualify for formal registration. Yet, without this registration number, parents cannot register the birth of a child. Without birth certificates these children will not be able to enrol in school.32 Access barriers can limit and discipline the claims the poor make on public services, or can discriminate between and exclude particular categories of the poor, such as ethnic or religious minorities, or, as we will see in Chapter 7, women. Access barriers can be unintended, or can be intentionally built into the qualification requirements for applicants, or else can be left to the discretion of front-line state workers to apply. The case of India’s Public Distribution System (PDS), which makes subsidized basic commodities available for purchase by the poor, helps to illustrate this point. In the late 1990s, the state government in Maharashtra (of which Mumbai is the capital) abused the process by which applicants for means-tested benefits

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through the PDS were screened to deny members of the Muslim minority access to a range of public services. The Hindu-nationalist governing coalition in Maharashtra at the time, composed of the Shiv Sena and the Bharatiya Janata Party (BJP), introduced a policy of issuing colour-coded ration cards to different income groups, providing varying levels of rights to purchase cheap commodities. Yellow cards provided the greatest range of subsidies, but were also the hardest to obtain, as they required applicants to provide documentary proof that they were below the officially determined poverty line. The discretion exercised by local rationing officials in issuing these cards is, of course, an important source of personal rent for them, and can also be manipulated by party activists to create patterns of exclusion. People are willing to pay a substantial amount for their ration card (the going rate in 2000 was $10033 – an enormous amount for people living below the poverty line) because beyond the (limited) entitlements to subsidized food that the card provides, it also serves as proof of identity, a passport to a wider range of pubic services. Activists from organizations affiliated with the ruling parties used the new screening procedures to attempt to halt what they saw as an influx of illegal Muslim aliens (purportedly from Pakistan and Bangladesh) by unfairly harassing Muslims and denying their claims for official registration as BPL (or Below Poverty Line) families. Where poor people overcome access barriers to public services, they may encounter a fresh set of problems: contemptuous treatment by service providers, or discrimination in service provision that endows poor clients with less of a public resource than is their due. Poor people in need of health care may be obliged to pay bribes to be seen by a health professional, may not receive appropriate treatment or may be mistreated or humiliated. Poor children may not be able to attend school because their parents cannot afford the ‘informal payments’ that must be made to ensure that the teacher attends class. The school may be too far away, the quality of teaching too substandard or the risks of abusive treatment by teachers too high to make attendance worthwhile.34 Examples abound of high-handed, patronizing, rude or outright abusive nurses, teachers, police and local government officers. Service providers may single out clients for abuse on grounds other than class. For instance, girls in many schools in Africa and elsewhere are the targets of sexual harassment and even rape by male teachers.35 Health care workers in rural Maharashtra routinely provide less information on contraceptive choices and side-effects to their poorer women patients.36 In Benin, elite and peasant patients received radically different types of care from the same overworked nurses and midwives in the same service.37 Abusive treatment of maternity patients by midwives and nurses has been documented in obstetric services in black and coloured areas of South Africa’s Western Cape Province.38 Jewkes et al. (1998) found that abuse of women in ante-natal clinics included expressions of contempt, moral hectoring of unmarried mothers and violation of patient confidentiality.

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Women in labour and post-natal women patients endured verbal assaults, were required to clean floors and were neglected when in pain.39 Abuse varied in intensity according to the class, race and marital status of patients, with young black single mothers coming in for particularly punitive treatment. To limit their work burdens and to socialize pregnant women into deferential attitudes towards medical staff, nurses and midwives also imposed demanding entry-point rituals on expectant mothers. For instance, in one obstetric clinic in an African township (Kwazola) nurses told expectant mothers that in order to be sure of a booking for their delivery, they would have to begin queuing by 3:00 or 3:30 a.m. for the 7:00 a.m. opening. Many pregnant women could not travel at that hour, given the lack of public transport in the middle of the night and the dangers of physical attack in the townships. This draconian requirement kept bookings low, far below the clinic’s quota. Formal systems of administrative control, performance assessment and grievance redressal often fail to register or punish maltreatment of patients. Although procedures exist to sanction staff who abuse patients, senior managers in the medical system say they can only act if specific complaints are made by patients. But patients rarely register formal complaints for fear of victimization and further abuse, or because their contact with a particular branch of the health service is so irregular that there seems little point in spending time to make improvements. Incentive and promotion systems likewise fail to note or punish abuse of patients, partly because the local nursing culture condones controlling behaviour.40 The study of Western Cape ante-natal clinics also highlights shortcomings in informal accountability systems. Professional nursing ethics, imparted through training and socialization in health facilities or through nurses’ associations, appear actually to exacerbate problems of bias. Ideologies of patients’ inferiority and nurses’ intellectual and moral superiority, not an ethic of care and respect for patients, are often transmitted in these arenas.41 These failures in informal accountability mechanisms, combined with the relatively weak voice of a dispersed female clientele that is not in sustained contact with the health system, produce a poor-quality service and a longer-term negative impact on maternal health care. Accountability institutions often do not punish this behaviour, and sometimes even reward it. For instance, school teachers in some African contexts are not punished for sexually abusing students, whereas pregnant girls are forced to leave school. This outcome is the product of institutionalized elitist (or in this case, masculine) biases. Accountability and responsiveness problems at the level of service delivery also result from difficult work conditions and an inadequate or non-existent professional ethos centred on client needs. Demoralized, under-paid and poorly resourced workers will seek to control the variety of demands that clients place upon them by limiting the information about the services they offer, curtailing their

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contact with socially marginal clients and exaggerating rituals of deference in order to augment their own status and power in relation to clients.42 Beyond the failure of audit institutions and oversight agencies to control for corruption in the delivery of services, informal accountability institutions that cultivate quality controls among service providers, like the peer reviews and self-regulation that are provided by medical associations or teacher-training systems, may not only fail to encourage professionals to address the particular problems and needs of the poor, but instead usually uphold the interests and status of professionals. Poor people may be deprived of the information they need to make an objective assessment about whether the type and quality of treatment they receive from publicservice providers is adequate, or the best that can be provided under prevailing fiscal constraints. Indeed, authorities may deliberately suppress or distort information that would enable poor clients of public services to demand better treatment. A shocking example of this occurred at the turn of the twenty-first century in South Africa, where millions of HIV-positive people were denied treatment with anti-retroviral drugs. President Thabo Mbeki, Minister of Health Manto Tshabalala-Msimang and other senior members of the ANC cited fiscal constraints that prevented public purchase of expensive drugs from multinational pharmaceutical companies. More controversially, they justified their refusal to invest in anti-retrovirals with scepticism about the link between HIV and AIDS. Mbeki and other ANC leaders frequently argued between 1998 and 2002 that the viral explanation for AIDS was a western conspiracy designed to detract from the connections between poverty and AIDS, and to advance racist portrayals of African sexual practices. This position may seem less bizarre when it is acknowledged that biomedical and cultural representations about AIDS contagion do indeed tend to pathologize African sexual practices and family structures.43 Nevertheless, it has allowed all manner of myths and conspiracy theories about the causes and potential cures for AIDS to flourish in South Africa, while at the same time suppressing information about research findings on AIDS treatments, and enabling the government to continue to resist the testing and distribution of AIDS drugs. By 2002 the South African government took its idiosyncratic interpretation of the AIDS crisis beyond the arena of cultural debate and attempted to institutionalize it in the national oversight bodies responsible for regulating medical research and approving drugs.44 In September 2002 the Health Minister introduced a Bill to give her the power directly to appoint members of the Medicines Control Council (MCC). The MCC had taken an activist role in the HIV/AIDS debate, siding with conventional science and approving anti-retrovirals for prescription, particularly after a civil society campaign succeeded in pressuring the drugs company Pfizer to supply its anti-AIDS drugs for free to state clinics in March 2001. The new legislation enabled the

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minister to appoint to the MCC members who did not have the appropriate qualifications, and to appoint all members of the committee that would hear appeals on MCC decisions. This was interpreted as an effort to place supporters of the Mbeki line onto the MCC. Also in 2002 the Medical Research Council was subjected to high-level government interference and direct intimidation when the Department of Health suppressed a report on the impact of HIV/AIDS on adult mortality in South Africa. Through these and other45 actions the government continues to resist the dissemination of anti-AIDS drugs in state clinics, even though a civil society group, the Treatment Action Campaign, obtained a ruling in South Africa’s High Court in which the state’s constitutional obligation to promote anti-AIDS treatments was affirmed. By 2002 only 20,000 of the estimated six million HIV-positive South Africans were receiving treatment; these were the better-off, who could afford private treatment. This case demonstrates failure in both vertical accountability institutions (such as the electoral system) and horizontal accountability institutions (such as the legislature). The examples outlined above highlight the ill effects that accountability failures in public services can have on the human capital endowments – the health and education – of poor people. These failures will have a negative impact on the economic relationships into which the poor enter as producers. Other essential public services are designed to support the poor as consumers. However, redistributive programmes designed to strengthen the hand of the poor as consumers can instead, because of problems of capture and bias, twist their arms to accept much less than their fair share of public goods. An example is corruption in subsidized food schemes, such as India’s PDS, mentioned earlier. Through the PDS, state-procured food grains, sugar and other commodities such as kerosene are supposed to be available at below-market prices to poor consumers in rationed amounts. But a common practice is for shop owners illegally to divert a large proportion of those commodities to the open market. The remaining commodities are adulterated in order to disguise the ‘leaked’ portion.46 Frequently, in order to disguise the theft of commodities by officials and shop-owners, poor consumers are asked to sign the ration register in the ‘fair price shop’ to show that they have purchased more food than they actually have. This implicates them, knowingly or not, in the fraud, and they can be reminded of this if they attempt to protest to the authorities later. India’s Central Vigilance Commissioner has asserted that this kind of ‘[c]orruption is anti poor’, and calculates that ‘31% of the food grains and 36% of the sugar meant for the [PDS], which is designed to provide food security to the people below the poverty line, gets diverted to the black market’.47 Poor people attempting to improve accountability in the PDS instantly find that the perpetrators of fraud are the very people to whom complaints must be addressed. Formal vigilance committees are meant to monitor the fair price shops and check for impropriety. Yet these are chaired by local politicians, many of whom

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own or control these shops and obtain personal rents from the profits made from the unsanctioned sale of commodities on the open market.

Decent environmental quality Stories of poor people suffering ill health or losing their livelihoods as a result of environmental degradation emerge with depressing regularity in newspaper articles, NGO briefings and the reports of government agencies and international organizations: rivers polluted by industrial effluents, oncefertile soil become too salty to farm. The causes of policy failure are often complex, involving local contingencies and forces operating from much farther afield. But the disastrous impacts on the well-being of the poor can almost always be traced back to failures in accountability institutions. This may seem simply a different way of expressing a familiar grim fact – that those who suffer have little voice in the decisions that affect their lives. But this is not always, strictly speaking, the case. There is often ample scope for free expression: the chance to march in protest demonstrations, speak at local public hearings, comment on the findings of environmental impact assessments. But the offending projects – whether government dams or private-sector factories – so often go ahead anyway. Why? Because officials responsible for assessing risks and enforcing regulations have few incentives to perform either task with the diligence which they are duty-bound to employ. The chances of an official being penalized for faulty decisions after the fact – even when they were made in the face of clearly articulated, fully documented and logically incontrovertible opposition – are negligible. Which means that at the time environmentally disastrous projects are being approved, the formal obligation of public officeholders to answer for their provisional decisions, to justify them on the basis of firm and independently verified evidence, are met with shoddy reasoning and cavalier indifference – a mockery of public deliberation. In other words, when the institutions of ex post enforcement are lacking, ex ante answerability has almost no chance of serving its ostensible purpose. Large dam projects around the world have attracted attention for accountability failures that produce adverse social and environmental consequences for disadvantaged people, in spite of the fact that considerable voice has been raised ex ante to warn of likely negative effects. The depletion of fish stocks, the water-logging of land and the loss of forest cover have directly affected the livelihoods of poor people reliant on these vital resources. The social costs include involuntary relocation of thousands of people; a high proportion come from marginalized groups such as indigenous communities. This in turn leads to many further deprivations including a decline in the standard of living, an increase in health problems (including infant mortality and morbidity) and livelihood insecurity due to the loss of common property resources.48

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States and international funding agencies have rarely been accountable when planning and building large dams. The failures of conventional channels of accountability stem both from outright corruption and more subtle forms of policy bias. Both sources of failure are found in the muchcriticized World Bank-funded Lesotho Highlands Water Project. Allegations of large-scale bribery have been widespread. This, for some critics, explains why the project was undertaken without the critical environmental studies on erosion and downstream impacts having first been undertaken. Moreover, pervasive corruption in the project is thought to have made the social fund that accompanied this project of virtually no use to the affected communities. Anti-poor biases in the operating procedures of the relevant accountability agencies were also in evidence: none of the regulatory bodies, nor even the courts, were prepared to challenge the fact that the poor in South Africa’s townships, who suffer from water inequity dating to apartheid, would not be able to afford the project’s expensive water. Problems of capture and bias have been so blatant in this case that an effective prosecution was mounted by the Lesotho government, resulting in an 18-year sentence for the CEO of the Highlands Development Authority in June 2002. It is unusual enough for such a high-level official to be brought to book so quickly and to be given such a stiff sentence. But the Lesotho government went further, slapping a massive fine on the bribe-giver, the Canadian company Acres, and challenging the World Bank to debar the company from further contracts as specified in its procurement guidelines.49 A more general bias-related accountability failure is the routine practice of overlooking differential impacts of large dams on women and men. These include the widening of gender disparities, either by imposing a disproportionately large share of costs on women or through unequal allocation of benefits. In Sri Lanka, the Mahaveli Dam project introduced tenure arrangements that undermined women’s rights to own and control land. The Sardar Sarovar Project in India neither allocates land in the name of married women nor compensates them for the loss of income previously generated through the collection of forest products.50 Oversight mechanisms designed to increase the accountability of project implementation agencies for the impact of their actions on women have been a huge disappointment. For example, even though the Asian Development Bank approved a gender policy in 1998, a review of its dam projects indicates that the projects were largely oblivious to the gender dimensions of forced displacement. The World Bank’s Operation Evaluations Department acknowledged that commitments to respect the specific needs of women were ignored. The World Commission on Dams has issued detailed guidelines that include the need for informed and prior consent of indigenous peoples and ethnic minorities, public acceptance before projects are implemented and a thorough investigation of alternative projects. But they risk being ignored by countries

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and by agencies such as the World Bank, which has in fact been accused of watering down its own resettlement guidelines.51 These norms continue to be flouted with impunity by national dambuilding agencies. A good case in point is the proposed Ilisu dam in Turkey. The project is expected to create a large reservoir of 300 sq. kms, violating the rights of thousands of Kurdish people. Internationally accepted practice dictates that an Environmental Impact Assessment Report (EIAR) for projects involving involuntary resettlement should include a full resettlement action plan. The Ilisu EIAR has produced only a partial plan – failing, for instance, to incorporate an ‘indigenous peoples plan’ or to assess the legal rights of the Kurdish minority – and even this has not been disclosed to those affected by resettlement.52 Such practices undermine the capacity of opponents of the dam to demand further justification for the proposed actions. It is clear that the mere existence of international guidelines cannot produce accountability if oversight agencies lack the will to enforce them, or if there is no one that can be held accountable when agencies pass the buck among themselves. The intersection of capture and bias exacerbates the environmental problems and livelihood deprivations experienced by poor people displaced by large dam projects, but sheer corruption is the prime reason why accountability institutions in South-East Asia have failed to stem the region’s air pollution problems. In 1995 Indonesia banned the practice of burning forest to clear land, but plantation owners continued to do so. The executive director of the Rubber Association of Indonesia explained that burning was much cheaper than manual clearing, and that paying off local officials to turn a blind eye to persistent violations was relatively straightforward.53 Bribes in fact flowed into many levels of the bureaucracy, and were shared up and down the administrative hierarchy, ensuring a conspiracy of silence in which supervisors were almost guaranteed not to penalize junior officers for their obvious failure to enforce regulations, and juniors (if they knew what was good for them) returned the favour by not whistle-blowing on their senior colleagues. It was only when the annual ‘haze’ began to spread over Malaysia and Singapore in 1997, forcing Indonesia to declare a national emergency, that international embarrassment catalysed a crackdown. This did little more than show up the lack of domestic accountability: the 1997 burning was not the worst to have affected Indonesia, and poor farmers had long suffered ill health and damaged crops. But not only had they not been protected; the government had pinned the blame on farmers’ slash-and-burn agricultural practices. Though Indonesia’s government has stepped up indirect forms of accountability in more recent years – for instance, naming and shaming corporate culprits – Malaysia has not taken the idea of information-led accountability to heart. Even when Indonesian forest fires were affecting Malaysia in the

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summer of 2001, the Malaysian government still refused to release data on the extent of air pollution or its likely health effects, fearing bad publicity would harm the tourist industry. This is consistent with the record of Malaysia’s regulatory bodies, which have been shown to short-circuit accountability systems by siding with powerful interests rather than with disadvantaged citizens. The country’s Clean Air Action Plan was reportedly torpedoed by a group of influential ministers in 1994 on the grounds that it would be ‘too costly’.54 Sheer corruption, but also the complicating effect of contracting-out responsibility for environmental damage control to private actors, undermined efforts by Thai villagers living in the basin of the Mae Klong river to pinpoint responsibility for the contamination of their drinking water. After a local dumpsite used by a large pulp and paper company was flooded in 1996, people in two villages were exposed to contaminated water from their wells. People who were already poor were forced to pay for water from clean sources. In theory, the firm’s activities were subject to a range of regulatory controls. Regulations issued by Thailand’s Ministry of Industry, and administered by its Factory Control and Inspection Bureau, obliged firms to line the base of waste disposal sites with plastic sheeting to protect the soil from contamination. In addition, rules issued by the Science and Technology Ministry’s Pollution Control Department required sites to have their foundations compressed by a mechanized roller, so that the soil would be compact enough to minimize the risk of leakage. The inability of these agencies to enforce these rules is a classic form of accountability failure. While no credible proof of corruption was produced to explain this failure, officials in Thailand’s regulatory agencies (like those in many countries) are notoriously prone to bribery by those who should be the subject of their scrutiny. In the village of Wang Sala, two other, more subtle, causes were at work besides corruption. First, the failure of accountability agencies to perform their allotted functions was hampered by the existence of intermediaries. The pulp and paper company did not directly perform the site preparation, nor was it directly involved in the haulage, waste disposal or site management activities. Its much smaller subcontractor could more easily conceal its activities from regulators. Second, the ability of direct pressure by local residents to compel government agencies to take action was limited by their already insecure livelihood prospects. For many, employment with the company was their only hope of a better wage. Fear of losing their jobs made them refrain from open criticism or protest action. One local youth told a visiting researcher: ‘My parents warned me not to speak out against the factory, because that is where I can get a job in the future’. Intimidation – linked to, but distinct from, corruption per se – is a major reason why there is insufficient pressure on regulators to enforce rules that should protect the poor.55 Accountability agencies not only fail to prevent environmental degradation in areas inhabited by the poor, they often collude in covering up serious

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abuses. In November 1998, nearly 3000 tons of toxic waste was dumped in an open field in the town of Sihanoukville in southern Cambodia. Scavengers combing through the waste soon fell sick. One person reportedly died. Instead of conducting the thorough investigation they had promised, Cambodian politicians arrested protestors who had blamed corruption for the failure of the authorities to uphold environmental standards. A few low-level officials were arrested, but these were widely seen as scapegoats. Back-up mechanisms of accountability also failed. As a Human Rights Watch Report put it, ‘the judicial process against those responsible for the public health menace falls short of providing the thorough investigation and accountability promised by the Cambodian government and ensuring that the necessary checks and balances are put in place to prevent new cases of dumping’.56 Another case of an environmental cover-up – undermining the official transparency on which accountability must rest – comes from Bangladesh. Arsenic contamination of water from tube wells built by NGOs for poor communities came to the attention of doctors at Dhaka Community Hospital (DCH) in 1996.57 The government had been warned of contamination in 1984, and found at least one arsenic-contaminated well, though it refused to make the information public, and none of the oversight agencies was able to force it to do so. Wells continued to be built. In 1993 both the government and the WHO were informed through a letter sent by an Indian doctor, an international expert on arsenic. But still no action was taken. Internal accountability procedures were unable to force the authorities to do so. When the DCH attempted to expose the problem, its doctors were accused by the government of being ‘scaremongers’ and officials attempted to intimidate the media into not reporting news of the allegations. Finally, in January 1997, survey results from 14 of Bangladesh’s 64 districts were published showing high levels of arsenic toxicity in tubewell water. It was another three months before the problem was publicly acknowledged in a World Health Organization (WHO) statement saying that arsenic in drinking water was a ‘Major Public Health Issue’ which should be dealt with on an ‘Emergency Basis’. It was a further two years before UNICEF admitted publicly on US television that it had been ‘a part of the problem’. Internal mechanisms within each of these agencies not only failed to fix the problem in a timely manner, but no disciplinary action was taken against officials responsible for the cover-up. An indication of the government’s lack of commitment to seeking accountability was a warning from the Health Ministry to DCH staff who were organizing a conference at which international experts were to discuss the problem. The Health Ministry cautioned them against allowing anything ‘subversive’ into conference documents, and insisted that these be submitted for official approval before the conference.58 The courts have in some instances filled the accountability gap created by failed regulatory systems, oversight mechanisms and political processes. One

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study that documents the almost Kafka-esque bureaucratic breakdowns that have destroyed large parts of the urban environments inhabited by Calcutta’s poor also highlights some of the ways in which the judiciary has stepped in to take up the slack. But even then bias creeps in to complement capture: the initiative came mainly from middle-class groups which possess the financial and social capital necessary to sustain public interest litigation on these issues. Investigative agencies and court officials tend to be dismissive of the evidence provided by poorer citizens, even when they form associations to press their claims.59 A study of the Nigerian oil industry highlighted the role of accountability failures within the legal system that produced detrimental environmental and social impacts. Adverse effects faced by the poor included soil, water and air pollution, and the loss of arable land. In this case, the incapacity of the courts to handle highly technical detail – and their refusal to award damages or uphold convictions of perpetrators – in the face of claims by judges that they were ‘unqualified’ to rule upon these matters, had the effect of allowing industrial groups to operate with impunity.60 A particularly egregious failure of a state’s accountability institutions to uphold the rights of the poor against a corporate polluter is the case of the 1984 Union Carbide chemical gas leak in Bhopal, India. More than 3000 people were instantly killed when a cloud of methyl isocyanate escaped from the facility. Between 10,000 and 19,00061 people from the low-income settlements surrounding the plant are believed to have died subsequently as a result of long-term illnesses stemming from the poisoning. Union Carbide’s evasion of legal responsibility in the US courts has been one of the catalysts for the new strategy of establishing a subsidiary’s ‘foreign direct liability’ in the legal jurisdiction of its parent company (an accountability innovation discussed in Chapter 5). Although the Indian government initiated litigation against the company in the United States, Union Carbide’s lawyers successfully argued that American courts were not competent to judge the value of lives in the developing world. The case was transferred to India in 1986. The Indian government’s subsequent acceptance of what many saw as an inadequate settlement – allegedly ‘imposed’ by India’s Supreme Court – fed the perception that, like many other governments, India’s put commercial interests above both environmental concerns and the lives of its poorest citizens. Though the $470 million settlement was far less than the original claim of $3.2 billion, had the funds been properly administered, they might have brought a meaningful difference to the lives of survivors. The failure of the Indian authorities to provide adequate compensation to survivors, or to invest in municipal infrastructure and accessible medical services in the affected area, illustrates ongoing accountability failures in judicial and administrative systems. Another, earlier, accountability failure – the unwillingness of the authorities to enforce zoning regulations – arguably increased

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the death toll itself, by allowing informal settlements to be located in the shadow of the plant in the first place. Efforts to establish criminal responsibility have been haphazard. Union Carbide Chairman Warren Anderson was arrested when he travelled to Bhopal just after the catastrophe. Released on bail, with an undertaking to return to India when directed by the Indian courts, he never did. In 2002 India’s Central Bureau of Investigation proposed that the charge of ‘culpable homicide’ against Anderson be reduced to a non-extraditable offence – ‘hurt by negligence’. The chief judicial magistrate of the Bhopal High Court was widely applauded within India for rejecting this proposal. But the Indian authorities have made no significant efforts to extradite Anderson, and with a maximum 20-year sentence for culpable homicide (compared to two years for negligence) there is little chance that he will give himself up, or that the US government will seriously cooperate with India to pursue the aging Anderson. The $470 million paid by Union Carbide is less than one-tenth of the compensation paid following the Exxon Valdez oil spill in Alaska in 1989. The US government and the State of Alaska won over a billion dollars in compensation for Exxon’s damage to Alaska’s wildlife and coastline, and class action suits on behalf of commercial and subsistence fishermen and others whose livelihoods were affected by the oil spill won plaintiffs five billion dollars in punitive damages.62 In this case, private litigants were much more effective than was a sovereign state in the Union Carbide case where the government could not obtain justice for the killing of thousands of citizens. The Indian government was disadvantaged in not being able to hold Union Carbide to account in the company’s home-country courts – and, possibly, by fears among high-ranking Indian officials that their alleged regulatory failures might receive further publicity were they to pursue the matter with greater vigour.

Physical security The poor are often the primary victims of violent crime and human rights abuses, whether committed by fellow citizens or by state agents. Certain types of violations affect vulnerable groups almost exclusively. Crimes such as rape and domestic battery, for instance, are mostly suffered by women and children, while racial and ethnic minorities are often targets of systematic, organized assaults on their persons and property. While physical insecurity is itself a form of diminished human development, it also undermines health and well-being, and causes poor people to shy away from investing in their futures or broadening their income-generating efforts. Girls may not be educated for fear of sexual assault on the way to school or in the classroom. Where violence is perpetrated by the police, and left unpunished by the courts, the poor will perceive the justice system as a

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form of organized theft and will not expect to receive fair treatment from other state officials. They may avoid engaging with the state and accessing the public services that could help them out of poverty. One reaction to a lack of safety and security is for communities to form self-help policing initiatives that can evolve into vigilantism, compounding the security problems of rival social groups and undermining general respect for the law. Investment by the poor in do-it-yourself security systems (or in ‘protection’ payments to the police or to organized thugs) erodes their scarce disposable income, detracting from investment in their longer-term livelihood security and human development. In some countries, the police, far from acting as defenders of public order and security for all citizens, can be the agents dispensing violence and terror. Or they can reinforce social privilege by under-policing or ignoring lawlessness and violence in poor communities, while protecting the property and rights of the wealthy. A World Bank report, based on participatory research conducted in 1999–2000 with poor people in 23 countries,63 found that the police force in many developing countries was the public institution perceived by poor people as the most corrupt and predatory – extracting bribes and ‘protection money’, while dispensing harassment and abuse.64 Latin American countries suffer from very high levels of police abuse of suspects and prisoners, as well as the abuse of lethal force for the suppression of social movements and the control of crime in poor neighbourhoods. Police impunity in many Latin American countries is a legacy of military rule. Not only are the police, in some instances, accustomed to controlling, rather than protecting; the state’s apparatus of coercion is sometimes deliberately shielded or exempted from the institutions of democratic constitutionalism and civilian control as part of the deal struck by military authorities during the transition to democratic rule. In Colombia (and until recently, Brazil) the police were subject to their own system of justice through military courts, where conviction rates for torture and the abuse of deadly force are very low. Outside periods of political repression under dictatorships, the main victims of physical abuse in police custody and arbitrary use of lethal force are poor people and racial minorities. In Brazil, killings by the military police, who do much of the patrol work in urban areas, amount to a substantial proportion of all intentional homicides, particularly targeting young men and people of African descent in low-income areas.65 Though the military police have justified these killings as a means of controlling violent crime, studies of the thousands of police killings over the years show that more than half of those killed had never had any contact with the criminaljustice system, and few were even suspected of a violent crime when they were killed.66 Those who are arrested are likely to experience physical abuse in custody, or even torture, which reformers in the civil police system have acknowledged is a common practice.67

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This kind of police violence, which involves street shootings of suspects of non-serious crimes and routine physical abuse or even torture of suspects, bypasses the criminal justice system. It specifically targets the poor. The police rarely kill middle-class people. In contemporary Latin America, the individuals targeted for killing, arrest and abuse in custody are those who commit the crimes of the poor, such as petty theft or illegal squatting. In some countries, the police are supported in this crusade against the poor by laws that give them extensive powers to detain categories of people deemed a threat to the status quo. In Venezuela, the 1939 Vagrancy Law allows police to detain persons deemed a social threat for up to five years. In Argentina, police edicts allow the federal police to detain people for up to 30 days for vagrancy, drunkenness or even cross-dressing. These are examples of institutionalized anti-poor bias. That impunity in the exercise of police powers constitutes a form of ‘social cleansing’ is supported by evidence indicating that the victims of police excesses are not just those accused of specific crimes, but also social outcastes, such as homosexuals or street children.68 Other social groups whose associational power might threaten the political dominance of urban elites are also targeted. In Brazil and Mexico, the police have been associated for generations with killings of peasant squatters and union leaders in rural areas, to a degree that amounts to suppression of social movements.69 Multiple accountability failures produce the impunity in police behaviour that fundamentally erodes the physical security of the poor. Administrative systems to discipline the police are weak. According to human rights monitors, police disciplinary systems are untransparent and in some countries, such as Ecuador and Paraguay, unresponsive to complaints of torture.70 A report on pervasive police abuse in the United States reinforces this point: Perhaps most important, and consistently lacking, is a system of oversight in which supervisors hold their charges accountable for mistreatment and are themselves reviewed and evaluated, in part, by how they deal with subordinate officers who commit human rights violations. Those who claim that each high-profile case of abuse by a ‘rogue’ officer is an aberration are missing the point: problem officers frequently persist because the accountability systems are so seriously flawed.71 The organizational culture of the police, which should act as an accountability institution by supporting professionalism and respect for the law, reinforces the difficulties of checking police lawlessness. Tolerance for police brutality sometimes transforms it into a rite of passage, inducting newer recruits into violent behaviour. By implicating them in misconduct, such forms of initiation discourage officers from whistle-blowing or pursuing reforms from within. This culture of corruption and brutality is exacerbated by problems common to public services in developing countries: police are

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often under-trained, under-paid and under-respected, and therefore lack incentives to eschew the incomes and privileges obtained through extortion and cultivating a climate of fear. Financial auditing to expose illegally acquired income is also a missing accountability ingredient here. But the biggest culprit in the failure to establish democratic control over the police is the judiciary. The judiciary fails to prosecute crimes from which the poor disproportionately suffer, particularly violent crimes in low-income neighbourhoods or in rural areas. Brazil’s Pastoral Land Commission notes that of the 1730 killings of peasants, rural workers, trade union leaders, religious workers and lawyers committed between 1964 and 1992, only 30 cases had been brought to trial by 1992, and just 18 of these resulted in convictions.72 Not only does the judiciary show much less zeal in prosecuting crimes committed by the middle class than those committed by the poor against the property of the middle class, the judiciary has not been diligent in investigating or punishing police abuses. One reason for this is police interference with investigations and trials. Forensic evidence is tampered with or destroyed, and both witnesses and prosecutors are intimidated with threats of violence.73 Many countries lack effective agencies of oversight to regulate and reform police and justice systems, such as police complaints authorities or ombudsmen, independent judicial commissions or national human rights commissions. Where such agencies exist, they can be directly undermined by the police if they appear likely to threaten police impunity. For instance, in the Mexican state of Sinaloa, the president of the Human Rights Commission was murdered in 1990, and a police commander was accused of the killing. During the trial six prosecution witnesses were murdered.74 Alternatively, human rights oversight bodies can be undermined by political interests or captured by individuals or groups lacking commitment to human rights. In El Salvador, for instance, political capture destroyed the autonomy and effectiveness of the Procurator for the Defence of Human Rights (the Spanish acronym for which is PDDH). This office was created in 1992 to combat democratic misuses of state authority, based on the classic model of the Swedish Ombudsmen. Eduardo Peñate Polonco was elected to head the PDDH in 1998 while under investigation by the same body for his previous conduct as a trial judge, including charges of corruption. At the time of his appointment he was already facing nine complaints on such grounds as obstruction of justice and violation of legal principles. The leftist FMLN withdrew support for Peñate’s nomination, but the rightist parties remained firmly behind him. The appointment was confirmed. In the following year, the PDDH ‘suffered a sustained loss of credibility due to high staff turnover, apparent mismanagement of funds, and a visibly reduced emphasis on the investigation of human rights complaints’, according to one study. A strong Procurator is perceived as contrary to the interests of the ruling coalition.

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Civic organizations and parties with a stronger stake in the PDDH’s vitality have been too fragmented and ineffective to resist the politicization of this vital office.75 Corruption and intimidation of the judiciary account, in part, for the failure to prosecute police impunity. But a bias in favour of police impunity and against a fair hearing for the poor is built into several important procedural aspects of the legal system. For instance, most Latin American justice systems rely heavily on the written dossier, placing great value on confessions and other declarations by suspects and witnesses – a characteristic of Continental-style systems. The Anglo-American legal tradition, in contrast, relies much more on concentrated oral hearings. Human rights activists argue that judicial systems that consider confessions a key form of evidence create incentives for torture.76 The emphasis on written procedures also creates access barriers – alienating illiterates and speakers of indigenous languages – and encourages a delegation of judicial powers to poorly trained and inadequately supervised para-legals who prepare the written dossiers that judges rely upon when deciding cases. These procedural obstacles are good examples of the bias form of accountability failure – in this case, biases that prevent poor people from accessing and using oversight mechanisms. Perhaps the most disturbing bias is public tolerance for police brutality directed against the poor. Although Latin American publics are as scandalized as others by gross abuses of lethal force, particularly when there are police massacres of prisoners and suspects, many observers comment that there is a high level of approval for policing aimed at containing ‘dangerous classes’ and protecting the property of elites, even if this impinges on the right to physical security. A Brazilian human rights advocate argues that ‘throughout the continent, impunity is virtually assured for those who commit offences against victims considered “undesirable” or “subhuman” ’, the law constituting a ‘border guard’ that protects elite privilege.77 The social relations underlying these mechanisms of exclusion contribute to accountability failures in public-security systems in that they implicitly justify the absence of police protection for the poor. * * * We have argued in this chapter that many aspects of poverty result from failures in the institutions designed to assure public probity and regulate economic activity. To demonstrate the relationship between accountability failures and the deprivations endured by the poor and other socially marginalized groups, we have examined failures of oversight institutions to ensure equity in access to livelihood opportunities, to capability-enhancing services, to a decent environment and to physical security. These are four key arenas that determine the levels and quality of poor people’s physical, human and social capital.

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We have also suggested that there is much more to accountability failure than simple corruption, or the abuse of public office for private (financial) gain. Accountability failures also inhere in the reproduction of elite biases by institutions of public oversight. This often occurs because these institutions lack a remit to respond to the needs of the poor, or because institutions erect obstacles to those who might try to demand answers of public authorities or ask that punishments be imposed on people and institutions that violate their rights. Were conventional accountability institutions to work with greater efficiency, a number of biases in the conduct of public servants and the terms of access to public resources would nevertheless persist unchecked, and continue to reproduce social exclusions. This reflects, among other things, the problem of the weak political voice of the poor and other socially marginalized groups, who have difficulty in making accountability institutions answer for the injustices they experience. The failure of accountability institutions to answer to the poor, and to answer for their performance in terms of poverty reduction, produces a suboptimal distribution of public goods and services, one that produces neither human development nor efficiency gains. Worse, these failures reduce the capacity of poor people to work collectively as civil and political actors. By denying the legitimacy and validity of the complaints and claims of the poor, some biased accountability institutions may even contribute to an internalization by the poor of a sense of inferiority, thus preventing them from identifying shared interests. Faced with the multiplicity of accountability failures discussed in this chapter it is difficult to know what kind of accountability reforms would be most meaningful to the poor, and where to start when capture and bias are so deeply institutionalized and mutually supportive. In Chapters 4, 5 and 6 we analyse a range of accountability reforms that attack forms of capture and bias that existing accountability institutions and mainstream governance reforms have failed to address, or in some cases refused to identify as problems at all. We are not guided by a comprehensive theory of accountability reform. Instead, we document real-life innovations in tackling accountability failures around the world. Few of these initiatives spring from the top levels of governments trying to stem large-scale fraud, or from international donors keen to promote good governance, or from multinational corporate actors trying to reduce the costs of foreign direct investment. They stem primarily from citizens desperate to put an end to the daily acts of intimidation and extortion that impoverish them, and the disdain and abuse they encounter in their interactions with public agents. Some of the accountability experiments discussed include the actions of crusading and courageous public actors fighting sclerotic and resistant administrations. The initiatives we examine operate not just at the national level, but also involve individuals and groups using international legal

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instruments to pursue human rights abusers or polluting corporations across national boundaries. They also involve the creation of new international accountability instruments to address problems long neglected by states content to protect deposed dictators or criminally negligent firms. As we shall see, the cases involve the use of unconventional methods for monitoring and assessing the actions of public and private power-holders. And they insist upon new standards of probity, in which equity and social justice are explicit criteria against which power-holders must justify their decisions and actions.

4 New Roles for Accountability Actors

The institutional and accountability failures described in Chapter 3, and the stunning range of human development deprivations they have permitted to persist, have catalysed demands for the creation of more effective ways of making both official state agencies and powerful private actors accountable for the full range of actions in which they engage. Civil society organizations and crusading individuals, operating within and across national borders, are demanding that public authorities answer more directly to the people affected by their actions. Concerns about the accountability of large corporations, for instance, intensified with the bankruptcies of US-based firms Enron and WorldCom in 2001–02, and the financial crisis that struck the Italian company Parmalat in late 2003. These corporations not only exercised enormous employment power, and influence over large economic institutions, such as California’s deregulated electricity market (Enron) or dairy cooperatives in a number of countries (Parmalat); they are trustees of ordinary people’s savings through both their internal pension funds and the financial institutions that purchase company stock on behalf of small investors. Multinational firms exercise vast power over citizens in the countries where they operate. Through industrial pollution and the ill effects of their products – cigarettes, drugs – corporations affect more than just the people who consume them directly. These activities, of both powerful actors and the organizations and individuals that seek to hold them to account, create the impression of a vast expansion in the type of actors involved in accountability processes – that is, in the range of both seekers and targets of accountability. But this is largely illusory. In reviewing practical attempts to reinvent accountability, we find that there is not all that much change in the type of actors involved. It is the roles into which these familiar actors have been cast that is undergoing a transformation. Consider, for instance, public discussions about the accountability of multinational pharmaceutical companies. For many activists, north and south, the critical question is the same one posed in the title of an article 77

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published in 2000 in the New England Journal of Medicine: ‘The Pharmaceutical Industry – To Whom is It Accountable?’1 Pointing out that the industry – at least in the United States – ‘benefits enormously from publicly funded research, government-granted patents, and large tax breaks’, its author argues that ‘[f]or these reasons, and because it makes products of vital importance to the public health, it should be accountable not only to its shareholders, but also to society at large’.2 But pharmaceutical firms are, theoretically, already accountable to the public – through the regulations imposed under laws enacted by politicians elected through a system of universal adult franchise. The actors are thus not new. What activist pressures and public deliberation have accomplished, however, is to revise the criteria by which the firms’ performance is assessed, making their impact on ordinary people’s human development prospects, rather than compliance with financial and technical rules, the relevant standard of accountability. To the extent that governments fail to keep pace with these changes in norms, people and their associations feel vindicated in participating more actively and directly in the monitoring of pharmaceutical firms’ actions, and in participating in government-industry negotiations about regulatory matters. Individuals acting alone and civic groups waging campaigns also subvert the firms’ power when they exit to cheap, sometimes illegal, generic drugs, or take part in public protests against government policy or company behaviour. Familiar actors thus find themselves playing new roles. The idea of civic groups acting as seekers of accountability is nothing new; indeed, it is a cornerstone of liberal political theory. Civic organizations – operating in a relatively free political space somewhere between the family and the state – are a key catalyst in vertical accountability systems that seek to check abuses of public power. There is also remarkable constancy among the type of targets being held to account. As we have seen, even the global corporation, that most high-profile of the ‘new’ targets of accountability, is not only not new, but has long been subjected to accountability demands: multinational firms have had to answer to regulators in home and host governments, to shareholders, to trade unions, to the courts. None of this is to deny that there has been an increase in the number and visibility of both seekers and targets of accountability. National chapters of the Berlin-based Transparency International continue to be born, as do national human rights commissions, ombudsperson offices, anti-corruption commissions and equal opportunities bodies. At the international level, new institutions – such as the International Criminal Court and environmental and weapons-control treaties – are being established. Targets from whom accountability is sought are also proliferating. The World Trade Organization (WTO), established in 1995, is perhaps the most visible example. And the number of multinational corporations is also on the rise as firms from several developing countries begin to establish themselves outside their home

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jurisdictions. Within states, too, the devolution of political decision-making and public-service management to subnational authorities has generated a large number of new accountability targets, their close proximity to people making them loom larger at local levels. Though neither the targets of accountability, nor the actors seeking it, are fundamentally of a new type (though they may have multiplied and become more visible), the methods used by accountability-seekers to achieve their objectives, and the jurisdictions over which they seek to impose accountability, have indeed undergone important changes. Both of these issues – and indeed the interrelation between the geographic scope of operation and the choice of technique – are addressed in Chapter 5 (on ‘New Methods and Shifting Accountability Jurisdictions’). Targets of accountability are struggling to adapt to (or resist) these new methods, as well as to rapidly changing norms of performance, the subject of the subsequent chapter (on ‘New Standards of Accountability’). It is the complex and often unpredictable interplay between these factors (concerning technique, scope and norms) that largely explains why both seekers and targets of accountability find themselves playing new roles, performing alongside actors with whom they have rarely shared the stage. No actor has been liberated from type-casting more than civil society. Their dramatic range expanded, citizens and their associations are playing three new roles. First, they have assumed positions as quasi-official agents, either attempting to substitute for failing state accountability institutions, or participating directly in formal accountability processes as fully vested players. Second, civic groups are playing a more central role in creating new formal accountability mechanisms. Third, civil society organizations have themselves increasingly become targets of accountability. In the discussion that follows, we address these three trends in turn, focussing the analysis on the extent to which each new role may have opened spaces for disadvantaged people to benefit from changing relationships of accountability.

Substituting for (and participating in) official accountability processes To understand the significance of citizens and their associations participating directly in official accountability mechanisms, or mimicking these processes in ways that attract significant public attention when states refuse to open up their internal mechanisms, it is helpful to return to the distinction between horizontal and vertical forms of accountability. While citizens and civil society have traditionally been relegated to participation in vertical channels of accountability – voting, advocacy – they have now begun to take part in those horizontal channels that, because they involve state agencies checking

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the power of other state agencies, have excluded non-state entities by definition. In other words, the search by citizens and their associations for new roles has caused the vertical–horizontal distinction to blur. This blurring represents a shift towards augmenting the limited effectiveness of civil society’s watchdog function by breaking the state’s monopoly over responsibility for official oversight. This new ‘hybrid’ form of accountability3 is now reasonably widespread, but a number of recent examples suggest insights as to how citizens might prompt more satisfactory performance from authorities, or even see sanctions enforced for manifestly poor decision-making or outright corrupt behaviour. The indicative cases reviewed here are grouped according to the accountability institutions involved: parties and electoral competition, public expenditure management and audits, judicial and law enforcement institutions and accountability systems in public service bureaucracies. Citizen engagement in political accountability systems Voters in many countries are right to feel cynical about reforms to electoral and campaign-finance systems that seem to have no effect on the rate at which politicians accumulate illicit earnings. India’s various reforms, for instance, have not had much substantive impact: though visible campaigning expenses have been reduced, there is little indication that politicians have had their illicit sources of wealth choked off. Measures requiring parliamentarians to declare their personal assets may come with confidentiality provisions keeping that information away from the ordinary citizen. Efforts by electoral commissions to proscribe parties that engage in criminal activity or violence, or to prevent politicians with criminal records from taking up their parliamentary seats, may be desultory, delayed by years of legal proceedings, or else directly subverted by judges who have been intimidated by criminal politicians. Once elected, representatives are deft at evading citizen demands for greater transparency. Representatives often seem so little concerned about voters’ sanctions (ex post accountability) that much stronger ex ante controls on the quality of parties and politicians are needed to enable voters to identify scoundrels before they get into office. The case of the Poder Ciudadano (PC), an Argentine civil society association dedicated to fostering cleaner political competition, is an example of citizens taking on some of the roles of a horizontal state accountability agency such as an electoral commission. The PC monitors campaign finance norms, broadcasts information about the assets of politicians and accumulates evidence that can be used to expose political corruption. As one analysis put it, the PC has ‘filled the vacuum left by government institutions that were supposed to bring transparency to the electoral process, but failed’.4 The PC’s approach to ‘developing mechanisms of citizen control’ in elections began with the creation of a database of Argentine politicians, including their professional profiles and political platforms. The next step

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was ‘a project aimed at full-fledged financial disclosure’ of campaign finance for elections to the capital’s city council (in 1997 and 2000) and for presidential elections (in 2000).5 This kind of transparency, which included candidates declaring their personal assets, did not in itself provide all of the elements of accountability. But it did add an increased element of answerability to complement the process by which an enforcement mechanism – in the form of voter choice – could be exercised by ordinary people over their elected representatives. In this sense, it was a substantial step towards making ‘politicians more accountable to public opinion by requiring them to comply with norms of democratic governance … turning what has traditionally been either a passive or partisan voter into an informed citizen’.6 Moreover, the data on personal assets could then serve as baseline information against which successful candidates’ financial rectitude could subsequently be assessed by comparing their assets prior to election with those held after a term in office. The PC also created a methodology whereby the spending of parties during election campaigns could be monitored. This is ordinarily a job for an electoral commission, but where such institutions do not fulfil this important function, a space is created for non-state actors to assume these duties – sometimes in partnership with the state, sometimes in a bid to shame the relevant state institutions into performing their appointed functions more effectively.7 ‘Voter education’ efforts elsewhere, such as the high-profile Project Votesmart in Oregon, USA, do not always go as far as the PC in publicizing details of campaign financing or exposing excessive rates of asset accumulation by politicians. Project Votesmart has created a database on over 13,000 elected officials and candidates for office in the United States. This information covers the backgrounds, issue positions, voting records, campaign finances and performance evaluations of legislators and candidates by over 100 advocacy groups from across the political spectrum. But unlike the PC, Project Votesmart does not engage politicians directly in declaring assets and making commitments to probity. Project Votesmart seeks to improve political accountability by giving citizens and the media the information they need to sanction politicians for poor decision-making or criminal behaviour. Evaluations of Project Votesmart show that access to better information on the behaviour of politicians had little to no short-term effect on voter mobilization amongst socially excluded groups.8 This is because information alone is insufficient to alter the social conditions that produce either political alienation or clientelist relationships, where poor people vote on the basis of material inducements or social pressures exerted by powerful patrons. Indeed, research on developed country democratic processes shows that voters react to evidence about corruption in politics by becoming more fatalistic and apathetic about the value of political participation, and (increasingly) refusing to vote.9 It seems that, as some of the theoretical

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literature discussed in Chapter 2 indicated, ex post controls on politicians (voting them out of office) do not necessarily operate more effectively when good information about their conduct in office is available to voters. Voter education is at best only a weak answerability tool because it neither engages citizens more directly in public decision-making or reviews of spending, nor links information disclosures to investigative processes. Mainstream efforts to improve the accountability functions of political institutions such as legislatures aim to enhance the capacity of legislators to hold the executive to account. Conventional reforms in these areas include finance and audit acts that focus on ‘strengthening parliament’s hand’ through access to detailed monthly reports on actual expenditure, capacity building to aid the deciphering of budgets and financial-control mechanisms to restrain off-budget expenditure. Citizen efforts to participate in processes that cast light on departmental operations or off-budget spending can provide assistance to particularly energetic parliamentarians by demonstrating popular demand for probity. The sleuthing and publicizing work of the Mexican civil society group Fundar, within a broad-based network called the Civic Alliance, helped bring an end to the use of a Presidential secret account that operated independently of congressional approval.10 After a sustained campaign, the pressure led to the abolition of the secret fund, and set in place other measures to improve budget transparency.In Zambia, civil society groups provoked unprecedented moves by parliament in 2000 to lift the president’s immunity from prosecution, freeze the presidential discretionary fund and publicize MPs’ assets.11 In other contexts parliamentary oversight committees have been opened up for more direct citizen participation. South Africa’s parliamentary committees are noted for their transparency and accessibility to the public, to the point of holding hearings in remote locations in order to overcome the mobility and time constraints of poor people. But, again, making submissions to parliamentary committees limits civil society to an ‘information-provision’ role; no submission is guaranteed a full hearing or investigation, and civil society groups are not guaranteed full access to the information upon which parliamentarians are making their decisions. In general, the controls that voters exercise over politicians once in office are so weak, and the collusion of opposition legislators with corrupt executives so cheaply purchased, that there are great limits to how far citizen engagement can improve political accountability. A substantial alteration of legal and constitutional frameworks is needed to produce more direct answerability of politicians to citizens, an alteration that might create formal institutional space for civil society groups in government, as is the case with corporatist constitutional arrangements. Nevertheless, short of such radical measures, citizens have found it possible to engage in other institutions of public oversight to considerable effect.

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Citizen engagement in financial planning and auditing No ‘horizontal’ arenas of public oversight are more closed to civil society engagement than the planning of public expenditure or the auditing of public accounts, yet it is here that the most striking forms of direct civil society engagement are to be found. Citizens’ organizations are seeking improvements in both the allocation of public resources and the probity exercised in their expenditure. Budgeting and auditing tend to be secretive affairs because of the political sensitivities involved in collecting government revenues, establishing priorities for national spending and then assessing whether the money was spent as it should have been. Citizens have an enormous stake in how national and local funds are spent, but are not normally admitted to the key decision-making bodies that establish spending priorities, and certainly not to auditing processes, since citizen auditing would strike at the heart of practices that preserve the powers of bureaucrats and politicians. Secrecy in public accounts can mask the use of public funds for personal gain and the patronage arrangements through which these illicit rents are distributed. The last decade of the twentieth century saw a proliferation of citizen efforts to participate in national and local budgeting, and more recently these have been complemented by citizen audits of actual spending. Participation in formulating the budget and analysing it after the fact correspond to the categories of ex ante and ex post accountability outlined in Chapter 1. The idea is to make officials answerable for their proposed spending plans as well as, more conventionally, for whether money was actually spent as planned. Budget analysis by civil society organizations – either after budgets have been initially presented for legislative endorsement or, indeed, after they have been executed – has also flourished in recent years.12 (Budget analysis from a gender perspective is one of the accountability tools discussed in Chapter 7.) But while these efforts are important in helping to provide a framework through which a more precise form of answerability might be engendered, they tend not to involve the enforcement that is implied by direct involvement of citizens in detailed auditing functions. This is because civil society budget analysis generally excludes direct auditing of accounts, depriving citizen investigators of the documentary proof of malfeasance that is provided in detailed financial accounts. The limitations of excluding audit functions from citizen participation in budget management emerge from an analysis of the most well-developed system of participatory budget formulation: in the municipalities of Porto Alegre and Belo Horizonte in Brazil.13 Participatory Municipal Budgeting has been promoted in Brazilian municipalities since 1988 by the Partido dos Trabalhadores (PT), or Workers’ Party. It gives groups of citizens a direct say in how local funds are spent, and institutionalizes their role in monitoring the execution of public works, and

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in reviewing actual spending. Though by the late 1990s it was being practised, to varying degrees, in a large number of Brazil’s 500 municipalities, it has tended to be most effective where the PT has been in charge of city government, particularly in Porto Alegre and Belo Horizonte.14 It is a multi-stage annual exercise involving city residents both directly and through neighbourhood representatives in a cascading system of public assemblies and sectoral committees. These bodies establish spending priorities for basic capital investments (paved roads, drainage and sewage, school construction) in their own neighbourhoods. Two huge annual open assemblies are held. The first reviews spending on the previous year’s budget; the second is the forum for electing representatives from each of the city’s main zones to sit for the rest of the year on the Participatory Budget Council. Members of this Council, which include senior municipal officials, are responsible for assembly of the municipal budget. They follow a strict set of criteria that assigns a certain level of resources to every city region according to: (a) its population and proportion of poor residents; (b) the quality of existing services; and (c) whether the region has received substantial city resources in the past (in which case it earns a lower priority for current spending). Delegates can also compete for specific works needed by different communities within their regions, and indeed sub-regional groups meet to lobby delegates for this purpose. Once the Participatory Budget Council draws up the municipal budget proposal, it submits it to city hall and reviews the final proposal, which city hall then submits to the city council. The Participatory Budget Council is then responsible for monitoring the implementation of the budget, particularly the execution of approved public works, and for investigating problems that delay these works. Although the PT has taken credit for the participatory budgeting idea, at least one observer has suggested that it was a civil society group that first initiated citizen engagement in budgeting. Avritzer argues that the Union of Residents’ Associations of Porto Alegre came up with the idea of a public budgeting process in the mid-1980s.15 A statement from the organization in 1986 outlines why engagement in budgeting is so critical for citizens’ capacity to promote accountable local government: The most important aspect of the City Hall is the collection of taxes and the definition of where the public money will go. It is based on this that we will have or not the funds with which to attend to the demands of the popular estates and neighbourhoods. This is the reason why we want to intervene directly in the definition of the municipal budget and control its application.16 From this time, popular participation in budgeting became a political demand of left-wing parties in the area. However, once the PT was in power, the precise structure of the participatory process was established by neither

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civil society nor the PT, but by planning officials from city hall. To avoid politicization of citizen engagement (at least along party lines) the officials insisted that local-level residents’ associations – not the large apex residents associations or other formal civil society groups – be the foundation of the participatory process, the location from which delegates should be elected. They were obliged to concede to the PT’s demand that sector-specific advisory bodies be established in parallel to the technocratic and insulated bureaucracies usually responsible for identifying new public works or services and monitoring their implementation. These sectoral committees are not alternative sources of planning instructions; rather, they serve to bring greater transparency and public review to the hitherto closed decision-making of the technical bureaucracies. The result, apparently, has been a shift in the language and attitude of city bureaucrats from a ‘technobureaucratic’ to a ‘technodemocratic’ culture, in which technical staff attempt to convey recommendations in accessible language and move from a relationship of command over citizens to one characterized by negotiation and persuasion.17 Advocates argue that during the 1990s participatory budgeting in the two cities produced much greater equity in the distribution of public funds.18 Between 1989 and 1996 the proportion of households in Porto Alegre with access to water rose from 80 per cent to 98 per cent, the percentage of households served by the municipal sewage system rose from 46 per cent to 85 per cent and the number of children enrolled in public schools doubled.19 Perhaps more importantly from an accountability perspective, the greater transparency involved in the budgeting processes improved confidence in the management of public funds. Tax revenues increased by 50 per cent between 1989 and 2000.20 Levels of popular participation have grown over time, with historically disempowered groups (women, poor and working class people on the urban periphery) making up at least half, if not more, of the regional assemblies.21 Citizen engagement in monitoring public works has also led to much higher levels of efficiency in executing physical projects, as suggested by a study of the extension of the public sewage network in Porto Alegre.22 While only 15 per cent to 20 per cent of budgetary demands are met, over time almost 90 per cent of participating communities have perceived material gains. In about 30 per cent of projects across the two cities, residents have had to intervene to make sure that works were properly executed. People have infrequently sought assistance from politicians. Instead residents have turned to their regional assemblies or directly to delegates on the Participatory Budget Council. This by-passing of traditional political mediators, who use such appeals for help as a means of establishing patronage relationships, suggests a profound shift towards citizens seeing service-delivery as theirs by right, rather than as a favour to be obtained through political contacts. It is a shift from ‘loyalty’ to ‘voice’, to use Hirschman’s terms (introduced in Chapter 2).

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What is not at all clear from the published accounts is whether this system endows participants with the legal and technical capacity to audit past expenditures in detail. While ‘reviews’ of previous budgets are conducted at the beginning of each planning year, this process is undertaken at the huge assembly meetings, and therefore does not permit the degree of disaggregation necessary to audit the many spending decisions involved in capital projects. Also unclear are how far spending information is broken down, whether participants have a right to demand intimate spending details for every project or the extent to which the monitoring of public works involves close inspection by members of the Participatory Budget Council of the quality of the inputs, their technical appropriateness and so forth. These very intimate details of spending in public works schemes have been the centrepiece of a striking experiment in direct citizen auditing of government spending in the north Indian state of Rajasthan. A grassroots organization called the Mazdoor Kisan Shakti Sangathan (MKSS), or Workers and Farmers Power Association, has turned ordinary people into financial auditors, in effect substituting for inefficient and corrupt official auditing agencies.23 The result of years of work to expose local corruption has been legislative reform to the system of local government such that throughout Rajasthan, village-level accounts now must be subjected to scrutiny by a village meeting to which all residents are invited. Citizen auditing of the kind the MKSS promotes is almost unheard of for several reasons. First, few countries offer citizens a statutory right to the disaggregated financial records (and supporting documentation) required to scrutinize local public spending. Second, because citizen auditing can expose corruption and networks of privilege between bureaucrats and local elites, it is strongly resisted by administrators and politicians. It can be a highly risky activity for ordinary citizens, and can jeopardize other, patronage-based relationships they may have with politicians, bureaucrats and local elites. Third, there is an inescapable level of expertise necessary for budget analysis in order to make sense of government accounts, and a capacity for generating independent testimony on financial transactions is needed if official accounts are to be verified. The MKSS tackled these three constraints through three interlinked initiatives. First, it led a state-wide and national campaign for citizens’ legal right to information. Second, the MKSS built a cohesive and highly motivated local organization with connections to journalists, lawyers and other social action groups to enhance its lobbying potential (and to reduce the likelihood that its members would be attacked by local elites). Third, the MKSS developed innovative methods for aggregating and analysing budgetary information. The MKSS’s work began in the early 1990s in a campaign to secure minimum wages for seasonal employees – mostly impoverished rural women – on government drought-relief works. The campaign revealed the

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role of corruption in the underpayment of wages. It became clear that local authorities were billing the central and state governments for amounts that far exceeded what workers were paid. To expose specific instances of these and other forms of fraud that deprived the poor of development resources – inflated estimates for public-works projects, the use of poor-quality materials, over-billing by suppliers – access was required to financial records. These have long been kept secret by local officials. The MKSS needed not just aggregate balance sheets, but also supporting documentation, like employment registers and bills submitted for the purchase of materials, which could then be cross-checked against other sources of information, including the physical worksites themselves. Starting in the mid-1990s MKSS activists obtained this documentation by appealing to the virtue of sympathetic bureaucrats, and by obtaining leaked documents from low-level clerks. This provided the raw material from which the MKSS developed its key innovation for exposing corruption: the jan sunwai (or ‘public hearing’). This is an open-air forum in which the government’s official records are presented alongside testimonies by local people. The information is read aloud to assembled villagers, who are invited to give further testimony that identifies discrepancies between the official record and their own experiences as labourers on public-works projects or applicants for means-tested anti-poverty schemes. Meticulous research is conducted beforehand to scrutinize government expenditure accounts, including receipts, employment-wage registers and invoices for materials. MKSS volunteers compare stated expenditure with evidence of actual spending. Evidence is gathered through interviews with workers and contractors on these schemes, as well as with villagers who observe poor-quality work. This is a painstaking process. It can take weeks for multi-person teams to check if all workers listed on an employment register for a particular public work were indeed involved in the work. They are visited and asked to recollect the number of days they worked on a particular project, the amount of work they accomplished and what (or even whether) they were paid. Dossiers are compiled on every public work under investigation. Through this direct form of ‘public audit’ many people discovered that they had been listed as beneficiaries of anti-poverty schemes, without ever receiving payment. Others were astonished to learn of large payments to local building contractors for works that were never performed. This approach depends upon a principle of collective and very local verification of official accounts, as it is only at the local level that the many small diversions of funds, which go unnoticed in massive formal audits, can be detected. Local officials are invited to attend the public hearings and to defend themselves or explain discrepancies. On a number of occasions officials have pledged to return the stolen monies. During the 1990s, the greatest constraints the MKSS’s public hearing method faced were the absence of a

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statutory right to information about local government spending and the lack of ‘mandatory legal outcomes’ to ensure that cases of corruption or malfeasance were acted upon by the state’s investigative agencies. Throughout the decade, the MKSS launched high-profile public protests to demand the right to obtain government-held information, particularly relating to financial transactions. This sustained pressure, and the opportunities created by the installation of a more sympathetic state-level ruling party in 1998, resulted in the passage of a provincial Right to Information Act by the Rajasthan State Assembly in 2000. This Act meant that MKSS activists no longer (at least in principle) needed to rely on leaks by friends in the bureaucracy, or stage protests outside local government offices, to obtain financial accounts. But there were still no mandatory legal outcomes: the identification of prima facie cases of corruption, and even admissions of guilt on the part of politicians, was insufficient to galvanize the police into lodging a case or taking investigative action. As of late 2003, the police and bureaucracy had taken substantial action on only one case – that of a Dalit local council chairperson who had allegedly unwittingly been made the front man for a prominent upper-caste landlord’s schemes to siphon funds from anti-poverty programmes. The bias of the administration in protecting the corrupt activities of upper-caste ring-leaders by making a scapegoat of a low-caste accomplice is unsurprising, and indicative of the entrenched resistance faced by the MKSS.24 It was to overcome this kind of obstacle that the MKSS campaigned for, and won (in the spring of 2000) an amendment to the state’s local government legislation that institutionalizes the public hearing method at the village assembly (or gram sabha) level and requires law-enforcement agencies to follow specific procedures in response to allegations of corruption arising from these public hearings. The amended legislation empowers village assemblies to conduct audits of the development activities initiated by their local elected councillors and by local bureaucrats. Particularly under scrutiny are the village secretary, the junior engineer (who oversees all public works) and the patwari, the lowest-ranking land-registry official. Higher-level officials, such as the Sub-Divisional Officer (SDO), are legally obliged to register cases reported by the gram sabha, to constitute an enquiry committee and to report back to the gram sabha.25 The MKSS’s public audits are the most striking example we can find of citizen engagement in public oversight functions that involve obtaining direct answers about public spending and enforcing sanctions for corruption. Within India, as a result of the MKSS’s demonstration effect, a few NGOs have attempted to replicate its methods. ActionAid India – an NGO – has been a strong supporter and publicizer of popular auditing. In October 2001 it worked with a small community organization in the state of Orissa to conduct a detailed public audit of government development works in nine villages of Bolangir district, and discovered that half of government

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spending could not be accounted for.26 Internationally, PC in Argentina has monitored recurrent public spending. It developed A database of the prices and terms paid by different government agencies in their procurement operations. … [T]he database recorded the monthly expenditures of public hospitals in Buenos Aires; the municipal government provided its written consent for the activity. The secretary of health of Buenos Aires reviewed the results with the hospital directors, pointing out clear discrepancies in the prices paid for standard products.27 But in general, when it comes to scrutinizing public spending, the nearimpossibility of obtaining certified government accounts means that most citizen efforts can go no further than participatory budget formulation at the local level (as in the Brazilian example mentioned earlier) or else budget analysis at high levels of aggregation, identifying the likely impact of proposed public spending on categories of people such as the poor, children or women.28 Moreover, local public audits are socially risky. Because they can expose theft by local politicians and officials, and by implication their patrons higher up the chain of command, they are likely to trigger ferocious counter-attacks. The MKSS itself has faced many threats from local elites, though violent attacks have been kept to a minimum largely because of the support and implicit protection that the group enjoys. Its excellent national contacts in the media and legal profession mean that no attack on its leaders would go unreported or unpunished. Other groups in India attempting popular auditing have, however, faced serious harassment and even violence. In the Orissa case, many villagers testifying in public audits received death threats, and local politicians warned some villagers that a substantial monetary fine would be imposed on anyone speaking at the public hearing. Chetna Andolan, a people’s organization based in the state of Uttar Pradesh, was forced in the late 1990s to cease its attempts to discover the whereabouts of money for an employmentgeneration scheme because of violent attacks on its members. In another attempt at public auditing, in a village south of Jaipur, the capital of Rajasthan, members of a rural workers’ union allied with the MKSS made more than 70 visits to the village council office to request information about spending on an employment-generation scheme. Each time its representatives were harassed and abused, and once they were physically assaulted.29 The technical difficulties and social risks of public auditing should not be underestimated. Not only does it involve a torturous information-extraction and verification process; it also puts at greatest risk those who have the most to lose because they must confront powerful local elites who can threaten their livelihood security. In some cases budget analysis and popular budgeting have made the transition from ‘softer’ forms of accountability (participation in or demanding answers about decisions relating to resource allocation)

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to ‘harder’ varieties such as popular auditing. In Uganda, an NGO that monitors the use of the national Poverty Action Fund – made up of international debt-relief savings – has become increasingly restless about its inability to make certain that actual spending patterns conform to budget plans.30 In Canada, Native American women have broken ranks with their tribal communities to form something called the First Nations Accountability Coalition. Affiliated groups in British Columbia have organized meetings at which they ‘prod tribal leaders to open up closely guarded tribal accounts for public scrutiny’.31 In the summer of 2000, one of the movement’s leaders collected testimony at 13 public hearings across Canada, and presented findings about the mis-spending of funds by tribal leaders to the Canadian Parliament. The First Nations Accountability Coalition faces the same obstacle as the MKSS: official secrecy. Despite Canada’s progressive freedom of information legislation, and the fact that many tribal budgets are largely funded by the federal government, these accounts are not made publicly available. International development organizations increasingly support engagement by citizens and their associations in reviewing national public expenditure plans. The World Bank and other donors have supported Uganda’s finance ministry in its use of local and vernacular newspapers to publicize quarterly central government disbursements made to each district headquarters. This information has been used by civil society groups, such as the Uganda Debt Network, to identify discrepancies between monies allocated and funds actually spent in service delivery, particularly in rural schools. This also enables civil society groups to confront buck-passing by local officials when they claim that money for local services has not been disbursed by the central government. The Poverty Reduction Strategy Papers (PRSPs) required of all countries seeking debt relief under the Enhanced Highly Indebted Poor Countries Initiative (HIPC2) must spell out not only national priorities for combating poverty, but also mechanisms for monitoring the achievement of the stipulated objectives. Involvement of civil society organizations in monitoring the achievement of poverty targets is often limited to participation in data analysis. But in a few cases it has gone beyond this, and indeed beyond the monitoring of aggregate expenditure across major budget headings. In Uganda, a tripartite system (involving government, NGOs and donors) has tracked the flow of funds from the finance ministry through line ministry accounts down to service-delivery units such as schools and clinics.32 Similar plans are afoot in Malawi, where the Malawi Economic Justice Network, a coalition of civil society organizations, is seeking to extend this concept all the way down to the auditing of input purchases – schoolbooks, maize seeds, medicines.33 Citizen engagement with the judiciary and law enforcement agencies In countries like India and the United States, long-established democracies where rights are constitutionally guaranteed, there exists a long tradition of

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citizens and their associations using litigation to bring themselves directly into what were once closed official processes.34 Indeed, the judiciary is the one ‘horizontal’ accountability institution that most directly opens itself to citizen engagement. When adjudicating cases brought by members of the public, the judiciary’s orientation shifts to allow it to act as a mediator between the otherwise incommensurable vertical and horizontal axes of governance. Through these means citizens begin entering the horizontal process of in-depth monitoring of government. Using the tools available through litigation, individual citizens and activist groups become part of an official fact-finding process. Discovery motions make available governmentheld information that can incriminate officials who may never have expected such detailed scrutiny of their decisions. Courts in many poor countries are being reformed to increase participation by poor people by making legal language less archaic and removing some of the power of intermediaries. Through expanded jurisdiction for Public Interest Litigation (PIL) in some countries, people’s organizations have achieved a rare level of direct involvement in generating accountability to the poor. (This has sometimes been aided by the application of international human rights law in domestic courts, or the growing recourse to international tribunals when domestic options have proven unsuccessful – discussed in further detail in Chapter 5.) In many countries rules of legal standing allow only injured parties or those with a direct legal interest to bring a case to court. This is an important manifestation of bias in a key accountability institution. This has obstructed poor people’s access to justice; acting in an individual capacity, they usually lack the necessary resources, such as legal literacy and funds to meet the costs of litigation. Also, the focus on an individual plaintiff makes it difficult to pursue cases of concern to a broad class of disadvantaged citizens. In recent years countries such as South Africa, India and Bangladesh have liberalized the rules of standing so that anyone acting on behalf of a person or a group of people can bring a case to court. This has greatly enhanced poor people’s access to justice. One of the main innovations of India’s celebrated PIL movement is also a simple procedural reform, initiated by the judiciary itself. Under the doctrine of ‘epistolary jurisdiction’ any citizen is allowed to file a case simply by writing a letter to the court. This has widened poor people’s access to justice. PILs filed by such people or their supporters have resulted in legal and policy reform addressing bureaucratic corruption and inefficiency, the social oppression of women and ‘backward’ caste groups, industrial pollution and environmental degradation,35 the treatment of displaced persons and state violence. Indian courts have also experimented with other procedural changes such as the use of non-adversarial proceedings, the creation of specialized courts and tribunals and the appointment of commissions of inquiry to report on matters of common interest to the poor.36

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Organizations representing groups of disadvantaged people have litigated directly against state accountability institutions for failing to perform specified duties – whether due to incompetence, corruption, inadequate resources or insufficient legal authority. By using court discovery procedures to obtain sensitive information, non-governmental actors demonstrate the role that state oversight agencies should be playing, but are not. And by engaging in the process of demanding reason-giving, in a forum that institutionally requires formal responses, PIL has had at least a symbolic impact, and in some cases has arguably contributed to the mobilizational capacity of the litigating organizations, thereby strengthening other forms of voice. Even so, the proportion of poor people (or their organizations) able to use courts and legal process remains tiny. PIL demonstrates that it is possible for citizen-litigants to enter into formal accountability institutions to become active demanders of answerability in a forum that carries the weight of enforcement. This combination of answers and sanctions is precisely what most citizen-initiated approaches to hybrid accountability aim to achieve. However, there are important barriers to the effective use of PIL, particularly by poor people, including the nearimpossibility of having favourable decisions implemented by a hostile bureaucracy. PIL has also triggered a subsequent interest by social movements in adopting, almost mimicking, legal processes. This has taken the form of procedurally complex public hearings, of which the MKSS’s approach is but one variety. Non-governmental groups in a range of countries hold ‘public hearings’ when formal accountability institutions – such as environmental regulators, police investigators or human rights commissions – fail to provide information, consult citizens or conduct thorough investigations. This is particularly true for controversial infrastructure projects likely to have damaging environmental impacts, such as large dams (an issue discussed in Chapter 3). The logistical arrangements surrounding the collection of evidence, both for one-off hearings as well as for the researching of faux-official ‘status reports’ on incidents of police violence, are formidable and represent a ‘judicialization’ of social action. Instead of demanding an enquiry, such activist-led initiatives conduct enquiries themselves, and if successful in conveying their evidence to a larger constituency, are sometimes in a strong position to demand inclusion in official investigations. It is a common, and probably accurate, perception that resistance to ideas about social equity in the public sector is often greatest at the ‘frontline’, where legal changes or new policies must be implemented, rather than at the top of public institutions. Nowhere is this contrast more marked than in the judiciary. There is often a huge gulf between upper-level courts, where individual judges may act with vision and integrity, and street-level law enforcement services, where lofty ideals of equality and justice seem of little use in keeping public order, or where low-paid officials supplement their income through petty bribery. Yet even in this unpromising arena we find

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instances of citizen engagement to curb police excesses and enhance citizen security. Some of the better-known examples are the women’s police stations pioneered in Latin America, which improve both the prevention and prosecution of domestic violence, as well as the protection of victims. These examples are discussed in Chapter 7. Citizen engagement in administrative accountability systems Samuel Paul, in his study of the importance of client ‘voice’ in improving the quality of service delivery in an irrigation programme in the Philippines, argued that any citizen effort to improve service delivery by public agencies must target internal systems of hierarchical control ‘because agency structures, and monitoring and motivation functions, are internal to service providers and supervising agencies and because actions or responses of providers are normally subject to hierarchical control’.37 But it is extremely difficult for citizens to participate in establishing minimum acceptable performance standards for public-sector workers, or to provide incentives to trigger, or rewards to recognize, performance improvements. In the absence of openings for direct citizen influence on service providers, a common civil society response is to publicize details about the gaps between government commitments and actual delivery, in the hope of embarrassing officials into a response. But such efforts are almost always stranded on the outskirts of public-sector bureaucracies. However wellproduced, this information on service quality or on client needs can be dismissed as partisan by bureaucrats, or ignored altogether because it is unconnected to internal reporting procedures and performance-assessment criteria. For instance, many members of Slum Dwellers International (SDI), a network of organizations of urban poor people in 14 developing countries, challenge poor government service delivery in slum neighbourhoods through information-collection exercises. One Mumbai-based affiliate, a women’s group called the Society for the Promotion of Area Resource Centres (SPARC), engages slum-dwellers in self-enumeration and mapping of informal communities and supplies these to policy-makers to support appeals against evictions or demands for improved amenities. Another member of the network, People’s Dialogue in Cape Town, has challenged the government’s diffident reaction to the HIV/AIDS pandemic by collecting statistics on HIV/AIDS incidence amongst poor people. The organization sees this as an ‘appropriation of [the] bureaucratic language of State power’ enabling it to generate information that is not at the disposal of the state, and which can be used to pressure state officials into taking more appropriate action.38 In both cases, official responses tend to be localized ameliorative interventions, dissipating tensions only for short periods. However, in spite of the significant mobilized presence of poor people behind these exercises, neither initiative has succeeded in obliging public officials to account systematically for failures in service provision. Nor has either produced

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substantial service-delivery improvements, let alone in the enforcement of punishments where officials have been remiss. Another example of the limitations of this ‘information-provision’ approach is the ‘Report Card’ method used by the Public Affairs Centre, an NGO founded by Samuel Paul based in the south Indian city of Bangalore. Report Cards on urban services reflect the findings of public-opinion surveys about the perceived quality and appropriateness of a range of public services. These are conducted in low-income neighbourhoods in major Indian cities and are compiled by professional survey teams in the hope that rigorous research techniques will enhance the credibility and legitimacy of the results. This method has the disadvantage of divorcing the enquiry process from any mobilization or participatory process involving the inhabitants of low-income neighbourhoods. The absence of a mobilized constituency behind the embarrassing facts revealed by the Report Cards also limits their potential to force officials into a strong response. Where the position and job security of bureaucrats is not contingent on the quality of service delivery, public exposure of substandard work will have little effect on them. It might be expected to have more of an impact on politicians, but this requires timing these exposure exercises around election periods. The impact of these surveys is also limited because they do not involve financial or even actual performance auditing, and thus do not represent a challenge to the state’s monopoly over horizontal institutions of accountability. A more confrontational approach to improving the quality of urban services is emerging from a small, mainly middle-class citizen’s association in the densely populated eastern side of New Delhi. Parivartan (‘Change’), a group with about 400 volunteers, of whom about 40 are consistently active, was founded in 2000 by a disenchanted bureaucrat from the city’s income-tax department. Parivartan targets two types of bribery that distort service delivery: ‘extortionate’ corruption, where bribes must be paid in order to obtain services that ought to be provided free of charge, and ‘mutual’ (or consensual) corruption, in which giver and taker collude to provide the giver undue advantages.39 The latter practice tends to be more costly for the state and includes individuals in high tax brackets bribing income-tax officials to obtain much lower tax assessments. Other examples are bribes paid by residents of low-income communities to electricity department officials in exchange for turning a blind eye to illegal tapping of electricity. Starting with the income-tax department and Delhi’s electricity board, Parivartan launched a campaign to dissuade ordinary citizens from paying bribes, and naming and shaming bribe-takers on loudspeakers on the doorsteps of these agencies. Parivartan has set up a desk on the street outside both agencies, collecting people’s stories about bureaucrats who had extorted payments from them. These testimonies were presented to India’s Central Vigilance Commissioner and other relevant officials to pressure the income-tax department and electricity board to investigate individual

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cases. The electricity board proved cooperative, resolving 850 out of 1200 grievances in 2001. Service failures were rectified, and in some cases bribes returned, though no action was taken against officials. But in the case of the income-tax department, official accountability channels were unable to trigger a response. Parivartan then filed a PIL case against the incometax department, and with the help of the media sought publicly to embarrass corrupt officials. In January 2002 the department agreed to investigate complaints and institute internal transparency reforms. Parivartan has used Delhi’s 2002 Right to Information Act to great effect to secure service improvements from the city’s water board and other departments responsible for road works, street lighting and park maintenance. Parivartan encourages middle-class people to demand information from service departments about streetlights that have not worked for years, sewage leaks in domestic water supplies, poorly maintained roads and the like. These specific informational requests have had, according to a Parivartan volunteer, ‘miraculous results’,40 producing the immediate appearance of road crews, plumbers and electricians in neighbourhoods that had not seen them for years. This practical reaction has substituted for actually furnishing the information sought in the applications. While this approach has produced immediate responses from errant service providers, it represents neither answerability nor enforcement. Compensatory action comes without reason-giving, and there is neither admission of corruption nor sanction for poor performance. Recognizing these shortcomings, and the fact that its approach privileges middle-class neighbourhoods and registered service users, as opposed to more marginal populations, Parivartan started to borrow from the MKSS’s ‘public hearing’ approach, combining it with its own experience of court action. In 2002 it began using the Right to Information Act to obtain information about government spending on primary schools in Delhi’s low-income neighbourhoods. Its objective was to discover the whereabouts of money dedicated to primary schools in a much-touted city campaign. Eight hundred and fifty rupees (roughly $20) was allocated for each child for school improvements; little actually materialized in Delhi’s 1850 public primary schools. Parivartan intended to contrast official accounts of spending on primary education with its own survey of primary schools, and to seek sanctions for any corruption this exposed through a PIL action in Delhi’s High Court. In January 2003 Parivartan conducted a public hearing in a low-income neighbourhood in northeast Delhi and audited 68 contracts administered by the municipal corporation’s engineering department for roads, lanes, drains and the installation of hand-pumps. Half of the money spent on these projects could not be accounted for, while an uncalculated portion of the remaining money had been lost through overcharging for poor-quality inputs.41

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Efforts to obtain better answers from public-sector bureaucracies need to be combined either with substantial and sustained social mobilization (to put pressure on officials and to protect accusers), or else with other, more systematized, forms of institutionalizing voice, to achieve a more substantial movement in the direction of genuine accountability. Participatory municipal budgeting in Brazil would be impossible without arrangements to institutionalize the participation of city communities and to oblige city officials to report to representatives of these communities. The examples of citizens’ direct engagement with ‘horizontal’ accountability institutions reviewed here differ from the burgeoning literature on civil society engagement with public bureaucracies in the ‘co-production’ of services,42 or the literature on state-society ‘synergies’.43 By now it should also be clear that they are distinct from the currently popular ‘participatory’ or ‘consultative’ forums for information-sharing between officials and citizens. They involve citizens not supplying information, but demanding answers. They are not, with some exceptions, about complementary service delivery; they expose capture and bias in the public sector, and in some cases they involve efforts to see that sanctions or punishments are enforced. Most of these examples involve confrontation between citizens and officials. This is inevitable. Officials and politicians will not relinquish easily their ability to derive corrupt income. The non-confrontational examples of citizen engagement in oversight functions reviewed here (for instance, participatory municipal budgeting in Porto Alegre) secure cooperation from officials at the cost of the enforcement dimension of accountability. They rely upon the good will of officials to furnish the answerability dimension. Citizens who insinuate themselves into horizontal oversight functions, or seek to become fully vested participants, often pit themselves directly against well-oiled systems that allow officials (with political backing) to cream off a portion of public resources. Citizen engagement is highly resented at best, and usually resisted and subverted, sometimes violently. Citizens counter this by investing in technical skills to enable them to make a valued contribution to the work of officials, or at least to enable them to make an informed assessment of official actions and accounts. They must also find ways of defending the legitimacy of their presence in oversight arenas. They do this either by developing a substantial social base, cultivating allies in high places or seeking a more permanent legal basis for their presence. Citizen-initiated direct engagement in oversight functions seems most effective in generating accountability under the following conditions. First, as just noted, these approaches require either a base in a specific social constituency or legal standing for the citizen associations in question within institutions of public-sector oversight. Second, they must provide a continuous presence for these observers throughout the process of the agency’s work so

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that they can build up technical expertise and become regular participants in official monitoring processes, rather than poorly prepared invitees to oneoff consultations. Third, citizen monitors need structured access to the flow of official documentary information, particularly on public spending patterns, and also the right to consider alternative sources of information on the quality and impact of public services and decisions. And fourth, citizens who engage in or observe oversight functions need access to alternative forums for airing grievances – for instance, the ability to issue dissenting reports directly to legislative bodies, or the right to represent parties harmed by public actions and to litigate in the public interest.

Civil society involvement in the creation of new official accountability institutions By catalysing the creation of new international regimes on issues like the environment, human rights and gender discrimination, civic organizations find themselves playing unaccustomed roles. Forging new interstate accountability institutions is not a completely novel activity for them; several historical precedents exist for this type of activity, the international antislavery movement in the nineteenth century being the classic example. But over the past decade transnational civil society networks have grown deeper and broader, creating new moral and epistemic communities. They seek to introduce new standards of accountability more sensitive to excluded groups by creating completely new institutions to challenge forms of state impunity defended on grounds of sovereignty or culture. Keck and Sikkink see ‘transnational advocacy networks’ as comprising nongovernmental research or advocacy organizations, local social movements, foundations, the media, churches, trade unions, some intergovernmental organizations and parts of national governments. Their tactics involve generating politically usable information, calling upon symbols and stories to make sense of situations to distant audiences and holding powerful actors accountable for their previously stated policies or principles.44 One of the first global-level successes occurred when NGO advocacy on environmental issues played a substantial role in the adoption of the Montreal Protocol on Substances Depleting the Ozone Layer in 1987. Comparable achievements became more common in the late 1990s. During that period, the NGO Working Group on the Security Council emerged as an important interlocutor for the UN’s most powerful body, while the Jubilee 2000 Campaign changed thinking and policy on poor countries’ international debt. NGO mobilization played a significant part in forcing governments to abandon secret negotiations for the Multilateral Agreement on Investment in 1998, and has shaped debates at the WTO, with the Doha Declaration reflecting a number of activist concerns.45

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One of the most clear-cut successes was the banning of anti-personnel landmines. The International Campaign to Ban Landmines (ICBL), a diverse NGO coalition, was the prime mover in the Ottawa Mine Ban Treaty of December 1997, which prohibited the use of anti-personnel landmines. In October 1996 a conference was held in Ottawa to promote a pro-ban movement. It was attended by ICBL members and government representatives. About 50 government representatives committed themselves to an immediate and total ban. A committee was established to draft the treaty in Vienna in February the following year, thus beginning the ‘Ottawa process’. Thanks to the ICBL’s prodding, this process shifted away from the two existing diplomatic tracks – the Review of the 1980 Convention on Certain Conventional Weapons and the negotiations within the UN Conference on Disarmament. At the end of the Brussels conference held in June 1997, 97 countries signed what was known as the ‘Brussels Declaration’ to demonstrate their commitment and willingness to sign the Mine Ban Treaty at the end of the year. Later that year, the ICBL and its founder, Jody Williams, were awarded the Nobel Peace Prize for, among other things, helping to create a fresh form of diplomacy. The ICBL contributed to a rapid reversal in international policies towards land mines. It was only in 1995 that Belgium became the first country to pass domestic legislation banning the use of landmines. Just 32 months later, 122 states agreed to the comprehensive ban. NGO representatives were heavily involved in the process. Many were included in states’ delegations to preparatory meetings and review sessions, part of a new pattern of ‘unconventional diplomacy’ involving civil society in international negotiation processes.46 The significance of this case is that transnational civil society mobilized action on an issue that had previously been seen as the business of states alone. Weapons and security are at the heart of state sovereignty. NGOs played a major role in seeking to create an official intergovernmental mechanism through which states could be held accountable for commitments to humane standards in the conduct of warfare. NGOs initiated the landmine ban by placing the issue on the international political agenda, resulting in intense media and public attention, or ‘cognitive agenda setting’.47 Perhaps as importantly, they helped to change how governments perceived the legality of landmines and the effects of landmine use – which has been called ‘norm agenda setting’.48 NGOs thus became ‘moral entrepreneurs’ whose tactics included ‘grafting’ taboos from previously de-legitimized practices of warfare (such as chemical weapons) onto the landmine issue, and instigating and exploiting debates that put mine proponents on the defensive.49 Similar dynamics helped to create the International Criminal Court (ICC). The Coalition for the International Criminal Court (CICC) was indispensable to the 1999–2000 Rome treaty that established the ICC. NGOs played

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an important role in supporting a series of regional conferences (in Dakar, Guatemala City, Canberra) that spurred awareness and acted as training sessions on the issues raised by the draft Statute of the ICC. The CICC coordinated the more than 200 NGOs that attended the conferences, and promoted new forms of interaction between government officials and NGOs. During the conferences they were given space to advocate on specific provisions. The press likened the NGO influence to that of a major government. The extent of ‘partnering’ with governments and the degree of consultation with the UN Secretariat provided a model for future negotiations.50 Another important element was the ability of NGOs to mould negotiations towards issues that affected marginalized groups. Thematic caucuses, such as those devoted to women’s and children’s issues, played a vital role in ensuring that issues like gender crimes and crimes against children were addressed in the treaty, and that adequate provision was made for victim and witness protection.51 A significant achievement was the inclusion of sex crimes within the definitions of ‘crimes against humanity’ and ‘genocide’; both now include rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization and any other form of sexual violence of comparable gravity. This corrected a serious gap in existing international legislation for war crimes, the Geneva Conventions, which designated rape, forced prostitution and sexual assault as ‘grave breaches’ of the Conventions, but not as war crimes, and as a result no indictments had ever been made in this area.52 Civil society organizations have also been critical players in ensuring follow up action by states on commitments undertaken through international treaties or at major conferences. Following the Fourth World Conference on Women in Beijing in 1995, women’s NGOs have been very active in creating national institutional mechanisms for the advancement of women. ‘National machineries’ have a crucial role to play in monitoring the implementation of the Beijing Platform for Action and are thus useful – though not unproblematic – mechanisms of accountability. They have the difficult task of analysing how government actions result in tangible changes in women’s lives. In Jordan, where the national machinery is composed of high-level government officials and representatives of civil society, each participating government and civil society body is required to submit regular progress reports,53 which can lead to acrimonious disputes. Despite these and other difficulties, civil society has demonstrated a capacity to bridge the gap between the creation of institutions for international accountability – bodies to which governments must answer – and the establishment of national mechanisms, which can engage in domestic enforcement action against agencies that fail to honour these commitments. Blurring the line between domestic and international levels represents another example of hybridization in accountability systems.54 It is not just at the international level that civil society institutions have pressed for the creation of new accountability institutions. They have been

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extremely active in supporting new state-level public oversight bodies, including bodies that might give them formal rights of engagement. PostCold War democratic transitions have allowed civil society groups to participate in drafting new constitutions and thereby to help shape the terms of answerability between different branches of government and the people. The engagement of civil society has been particularly notable in relation to the creation of new oversight bodies such as human rights commissions, public protectors, law reform commissions, equal opportunities commissions and ombudsperson offices. Most of these institutions are designed to respond to citizen ‘whistleblowers’, with procedures for investigating individual and group complaints about both officials and private power-holders. Few of these new oversight bodies, however, endow citizens with the elements necessary for an effective accountability role – namely, as suggested in the first part of this chapter, a right to information or litigation, or the means of intervening in bureaucratic reporting relationships so as to institutionalize new standards of performance and trigger sanctions procedures. One example of a citizen-instigated and citizen-run new accountability institution that does vest in its members these ‘hard’ accountability powers is the Citizen-Police Liaison Committee in Karachi, Pakistan.55 The CPLC was established in 1989 after a particularly intense wave of violent crime, kidnapping and car theft in the city. Karachi is a centre for organized crime fuelled by arms and narcotics smuggling across the Afghan border, mafias engaged in manipulating land records and ethnic violence pitting the Mohajirs (Urduspeaking immigrants from India, the majority of Karachi’s population) against the ‘native’ Sindhis who dominate provincial and city politics. The abduction and murder of the American journalist Daniel Pearl by Islamists in 2002 earned Karachi a reputation for international terrorist operations. The CPLC was formed after prominent members of the Gujarati-speaking business community proposed to the Governor of Sindh Province that a version of UK and US ‘neighbourhood watch committees’ could help to mitigate crime. The Governor made the CPLC a statutory body and had the police rules amended to give the CPLC legal powers to monitor – in the police stations themselves – the registering of ‘First Information Reports’ (FIRs) on criminal incidents,56 to collect statistics on registered criminal cases and to assist in the detection and prevention of crime.57 These extraordinary powers have in practice very rarely been used by the CPLC. Instead it has worked more subtly within established hierarchical and reporting systems to improve non-material incentives such as working conditions. This has had the effect of improving crime investigations, as well as job satisfaction and, in the process, the accountability of the police force. Karachi’s police offer a textbook case of capture. City and provincial politicians constantly interfere with the police, viewing it as a key element of their political machines. Because they can influence transfers of personnel within

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the police force, politicians secure political support by transferring away officers who are uncooperative with local strongmen. Alternatively they informally auction off plum police positions (particularly the local precinct manager position, the Station House Officer) to the highest bidder within the police force. Officers recover the expense of buying a post by exacting bribes from the local citizenry. Combined with resource scarcities,58 corruption produces a police force that is irrelevant to the rich (who often employ private security agencies) and a constant irritant (or worse) to the poor. By significantly improving the management of crime data, the CPLC has not only brought higher success rates to police investigations, but also brought more transparency to the operations of local precincts, where most of the abusive practices against the poor occur. The CPLC’s contribution – including the provision of computer equipment and software – enabled its volunteers to gain the police’s trust. Simultaneously, it addressed citizens’ loss of trust in the police by providing alternative channels for communicating with the police. Citizens can register FIRs in CPLC offices instead of police stations. They can also lodge complaints in CPLC offices about poor treatment in precinct offices, where they may have been harassed or where an officer may have refused to register an FIR. The re-opening of a reliable emergency police reporting line also provided the CPLC with an extremely important alternative source of information on crime that it could use to monitor the rate at which local stations register FIRs, and in the process, contribute to better monitoring of the performance of local police officers. The CPLC records a crime on its database as soon as it receives information from one of three sources: the police radio, a citizen phoning in directly or the police’s emergency phone line. However, local police stations only record crimes once an FIR is made. This is where individual police officers exercise their discretion in punitive ways against ordinary citizens – not just in Karachi, but all around the world.59 The result of ten years of CPLC work has been much improved spatial crime analysis, improved police work in some areas, notably car theft and kidnap cases, and a somewhat improved public image for the police. One could argue that, because the CPLC focusses mainly on crimes that afflict wealthier people, it has done little to make the police more responsive to the poor. CPLC volunteers, however, claim that its presence in city police stations reduces cases of illegal detention and torture. By providing an alternative channel through which people may report crimes and register FIRs, they may have improved poor people’s recourse to the justice system. But no hard evidence is available to suggest that the CPLC has substantially improved the accountability of the police to the poor. Indeed it may be that the reason why the CPLC has won the trust of the police is that it has left largely undisturbed the petty harassment and extortion through which lower-level police officers augment their salaries. Nevertheless, the CPLC experience

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is of importance because it does more than improve police efficiency in investigating high-profile crimes; it enhances accountability – not only between public servants and citizens (albeit middle class and wealthy ones), but also between state agencies. In other words, an actor from the vertical arena of accountability has improved the quality of horizontal accountability in the justice and law enforcement system. How is this so? The CPLC mediated a constructive information-sharing relationship between the Motor Vehicle Registration Office and the police communication control unit to bring together information on stolen cars (from the police) and vehicle registration data. This helped to identify stolen vehicles more effectively. Due to bureaucratic turf-protection there had been no online links between the Vehicle Registration Office and the police, but once established, both agencies could monitor each other. The potential for this information analysis exercise to be tampered with has been avoided because the data is stored on the CPLC’s server. Indeed, when in 1995 the main server in the Motor Vehicle Registration office mysteriously burned down, with no back-up, it was the CPLC’s server and data that enabled information on vehicles registered prior to 1995 to be retrieved. This respect it has benefited from an accident of Karachi’s ethnic make-up, where the tiny Gujarati-speaking business elite that dominates CPLC’s membership is not notably attached to a single political party, and, as a minority, has found social protection in public displays of civic virtue and good works. The CPLC excludes journalists, lawyers and members of other elite groups, and in so doing has created a ‘countervailing elite’ that is a keen critic of the CPLCs’s work and seeks to hold it accountable.60 Most important, however, has been the CPLC’s success in gaining the trust of the police. It has done so by not using its statutory powers to inspect police station records, and has never publicly named and shamed individual officers. Any such act would have cut into the authority of senior police officers, and in an organization where hierarchy and the chain of command is central, the effect would have been alienation of the police and a refusal to cooperate. The CPLC’s work has made the Karachi police only a little less corrupt and a little more responsive. But given the substantial obstacles to reform in so profoundly politicized an institution, the CPLC’s modest achievements should not be dismissed.

From seekers to targets of accountability As we have seen, roles played by accountability actors are changing in complicated ways. Many seekers of accountability have become targets in their own right. Some actors are both targets and seekers at the same time, their role dependent on context. International organizations are in some

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arenas becoming more accountable to the member-states of which they are composed, and to publics demanding less government intermediation between their own preferences and the decision-making processes at the multilateral level. The International Standards Organization (ISO) is just one example. A body which has long set international technical standards for such mundane products as screws and ball-bearings, the ISO has received more attention in recent years from governments that were once content to let scientists deliberate in relative peace. States have started paying attention not only because of the increased reach of ISO activities (into contentious food safety issues, for example), or because its standards are increasingly used by other international organizations, but also because journalists, civic groups and publics at large have begun querying the power of such an obscure entity, particularly the degree to which it is open to undue influence from corporate interests. One critique of the ISO committee that oversees agreed rules on ‘corporate environmental management’ characterized it as ‘[n]ot accountable to ordinary citizens and hidden by an aura of neutrality and by the technical arcana of engineering specifications …’.61 A body that used to be responsible for holding firms and governments accountable for the standards they set themselves is now finding itself a target. In other cases the logic is reversed: many international organizations have increased their willingness and capacity to hold member-states accountable for commitments made under the multilateral conventions administered by their permanent secretariats. The WTO can oblige member-states to report on their activities through the Trade Policy Review process. This also involves answerability to other member-states, which are able to present queries on the reports filed by their trading partners.62 The degree of effective enforcement varies from organization to organization. But even those international organizations that appear to have the most fully developed structures for monitoring and ensuring compliance find that their power over member-states is sometimes more illusory than real. The recent failure of the European Commission to take stern action against countries that violated the terms of the EU Growth and Stability Pact (which limits fiscal deficits) is a good example. Civil society has been instrumental in both of the phenomena with which this chapter has so far been concerned: the dismantling of barriers between vertical and horizontal channels of accountability, and the construction of new transnational accountability institutions. Civic groups have also been a central part of the third trend associated with the redefinition of accountability roles: the shift from seeker to target of accountability. That all three of these processes are happening simultaneously hints at the fluidity involved. That civil society should be accountable is nothing new. Article 71 of the UN Charter requires NGOs applying for formal ‘consultative status’ to

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demonstrate transparency within the functioning of their organizations. This is similar to certain requirements in many domestic settings. But civil society groups seeking to play a role in multilateral processes are particularly vulnerable to charges of non-accountability. Colas, for instance, cautions that [i]nternational civil society should not be equated with a new, transnational domain of socio-political activity that acts as a bulwark against the unaccountable institutions of global governance because … many agents of international civil society are themselves thoroughly unaccountable and undemocratic.63 Colas’s point is that regardless of their contribution, transnational civic groups ‘do not currently possess the requisite degree of legitimacy and accountability to be considered as democratic representatives in a globalised political community’.64 Private actors such as national and local NGOs, religious associations, political parties and international public actors such as the UN, the World Bank and the IMF, which have been so important in seeking to improve national accountability institutions, are increasingly themselves coming under the glare of public scrutiny. These organizations are pressed to answer for their use of resources and the relationship between their officials and leading states. A study funded by the United Nations Environment Program argued that many NGOs lack the degree of accountability required for them to play an enhanced role in movements for greater justice in local, national or global governance – though it admitted that some NGOs were adapting better than others.65 The interest in holding non-official actors to account is also triggered by accountability conundrums caused by the growing power of these actors in public affairs. At local levels, where NGOs and other private actors are taking on tasks conventionally managed by the state – for instance, the delivery of social services or the management of public amenities – the lines of accountability are becoming increasingly blurred. The privatization of service delivery and some other state functions has confused the public perception of the formally accountable actor: is it the private provider, the relevant government department or the nominally independent regulatory agency? This has catalysed a search for means through which communities can hold these actors directly to account. At the international level the power of actors such as multinational corporations or global economic institutions can have the effect of reversing lines of accountability such that the state responds to these actors rather than the other way around. This limits the mechanisms available to control their actions, and has provoked the extension of accountability jurisdictions into the global arena, an important focus of Chapter 5.

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NGOs, though not subject to the same accountability relationships that govern the public sector or private industry, do need to maintain their credibility with members and client groups, as well as with the funders and government agencies with which they interact. They also must fulfil formal legal reporting requirements, as must all registered charitable associations. Nevertheless, there is increasing concern about generally weak accountability systems in development NGOs, even though they, like all charities, have legal reporting requirements to the state.66 Accountability gaps can result in undetected mistreatment of beneficiaries and staff, as well as financial irregularities. For instance, in the Indian state of Orissa, where NGOs employ over 20,000 people, junior-level NGO workers lodged complaints against their employers with the National Human Rights Commission and the State Women’s Commission. These included charges of abusive treatment and even sexual harassment by superiors.67 Perhaps a more common problem is that the lack of effective internal and external oversight mechanisms, combined with inadequate leadership and weak constituencies, places the performance of some NGOs somewhere between fraud and incompetence.68 Some NGOs are keen to respond to their critics by addressing these accountability problems. Since the mid-1990s ActionAid India has encouraged other voluntary sector organizations in India to invest in internal accountability improvements and to demonstrate direct answerability to service users by conducting public audits of their accounts. This can satisfy critics concerned about a lack of transparency in the use of foreign and government funds, and enables NGO members and beneficiaries to demand answerability for the organization’s achievements and failures. In the case of the public audit held in 1997 by the Social Work and Research Centre (SWRC) in the Indian state of Rajasthan, this demonstration of probity and transparency served also to build the credibility of the SWRC’s support for anti-corruption campaigns in the state. The SWRC threw open its books for public scrutiny in an extremely well-publicized social audit. It convened a panel of assessors composed of eminent people from the media, the judiciary, the police and social activism to preside over a review of its spending over the previous ten years. Over 300 villagers, as well as local and state-level politicians and the press, were invited to scrutinize records of spending on night schools, family planning camps, employment-generation schemes for women and projects on drinking water, solar lighting and reclaiming wastelands. Receipts, invoices and wage-employment registers were on display, as were details and statements of all bank accounts held by the NGO. The salary of the director was revealed, as were the salary registers from 1986 to 1996 for 400 full- and part-time staff. Amounts received from foreign and government sources were detailed, along with other sources of income such as awards from international organizations. Details of foreign trips taken by the director and others were provided.

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Though this was an impressive display of transparency, through which the SWRC was subjected to probing questions from its local constituents and outside critics alike, it is worth noting that it has not become institutionalized as an accountability mechanism, nor have rights or procedures been established to enable SWRC’s beneficiaries to review spending regularly, demand from the leadership a justification for spending or enforce sanctions for inappropriate spending. Instead, the exercise responded to allegations from local and provincial politicians that SWRC was channelling foreign funds to a local organization (the MKSS) that lacked the license necessary to receive foreign funds. It was not prompted by demands from the membership to review spending. By contrast, victims of the devastating cyclone that hit the state of Orissa in early 2000 did begin to pose questions about the uneven reach of NGO and government relief operations. As discussed earlier in this chapter, ActionAid India held village-level ‘social audits’ in Orissa to review its emergency work. These were public hearings to audit the food-for-work relief programmes and the delivery of other relief supplies such as housing material and rice. The hearings were an opportunity for locals to criticize the organization of relief-delivery and to air complaints about the composition of disaster-recovery committees – for instance, the under-representation of women. Though this method imposes requirements of answerability on the NGO leadership, like the SWRC’s public audit it does not provide NGO clients with means of enforcing sanctions should the need arise.69 The issue of the accountability of NGOs has become more pressing with the rapid ‘scaling-up’ of their operations. Their apparent comparative advantage in reaching poor people has led over the last 20 years to large funding increases. As a result successful national and global NGOs have undergone organizational transformations that make them more closely resemble large corporate bodies than the small voluntary societies from which they originated. However, many NGOs lack corporate management structures and accountability systems. Historically they have tended to substitute informal control mechanisms, which rely upon the incentives created by shared ideologies or faiths, for the harder accountability mechanisms involved in formal bureaucratic reporting measures. This is now proving inadequate to inculcate huge new staff cohorts with the same degree of probity and selfless commitment shared by the organizations’ founders, or to ensure consistency in service quality across far-flung operations. Breakdowns in the capacity of ideology, religious morality or socialization to promote probity are evident in reports of financial scandals and human rights abuses within faith-based organizations. These are driving previously subordinated and newly empowered memberships to insist on new and explicit controls on religious leaders, as well as higher ethical standards of accountability to enable churches to catch up with changes in social norms – for instance, on women’s and children’s rights. Christian churches around

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the world are being subjected to increased calls for accountability, both to prevent corrupt practices and to satisfy members’ demands for just treatment. In 1998 the eighth assembly of the World Council of Churches adopted recommendations aimed at empowering women against oppressive structures. An open letter from members (entitled ‘From Solidarity to Accountability’) called for churches to honour their duties of solidarity with women, including breaking the culture of silence around violence and abuse and creating restorative justice processes for victims. In response the assembly agreed, among other things, to encourage churches to provide opportunities for women to speak out about issues of violence and abuse, and to combat the exclusion of people from leadership positions on the basis of gender, age, race, cultural background and disability. In 2001 a major new campaign was launched demanding that the Vatican be held accountable for its commitments to protect women from harassment.70 A demonstration was held outside the Vatican’s UN Mission in July 2001 following reports in the US National Catholic Reporter71 of the sexual harassment, exploitation and even rape of Roman Catholic nuns by priests. According to supporters, despite being briefed on the facts of sexual violence against nuns in 1995, the Vatican had taken no action to end this abuse. One of the many petitions of this campaign called for the Vatican to reveal measures it has taken to secure justice for women, to cooperate with local civil authorities by providing evidence and assisting with the prosecution of Catholic church officials involved in rape and other sexual violence and to issue a public apology for all forms of violence against women committed by church officials.72 There are numerous other cases of increased calls for accountability in churches, for instance in response to outrages such as the sexual abuse of children, or in response to evidence of financial impropriety. The Seventh Day Adventist (SDA) Church faced scandals in 1999–2000 over interest-free loans to church officials and misuse of the Parsonage Exclusion tax benefit.73 Members for Church Accountability, a group of SDA members concerned about improving the church’s accountability, argued that questionable business dealings had exposed flaws in the church’s leadership structures. This group concentrated on three areas: reforms in financial accountability, policy-compliance and representation.74 * * * The direct engagement of citizens in formerly closed horizontal accountability functions has occasionally proven effective. Some civil society groups have developed innovative means of exposing corruption in public spending, and have found ways of working with officials to generate incentives for greater responsiveness to the poorest citizens. At both international and national levels, civil society groups have shown a surprising capacity to legitimize efforts to democratize accountability relationships and to protect

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their members from violent backlashes. Yet while the courage and creativity of innovations such MKSS’s popular audits must be applauded, it is also important not to make too much of these achievements. The substitution of citizens’ informal mechanisms for failing state-centred accountability institutions, and even the creation of new mechanisms giving citizens formal rights of participation in public oversight, inevitably raises questions of legitimate authority, controls on power and limited impact. The participatory spirit animating efforts to democratize accountability institutions also raises problems of governability. Participatory municipal budgeting in Brazil has encountered this problem. The need to ensure intensive participation and equal representation from across the spectrum of local civil society has led to increasingly acute time constraints. In Porto Alegre the city’s executive administration has repeatedly asked that a narrower representative base of citizens be established. Civic organizations have resisted this, demanding the opposite, an expansion of representative positions so that they may better influence even more aspects of municipal decision-making.75 The intrusion of civic organizations into official accountability institutions, especially when they also provide services, may have the perverse effect of relieving pressure on the state to improve accountability and performance. By substituting for failed state agencies, particularly concerning the collection and analysis of crime data, but also in the registration of crimes, the Citizen–Police Liaison Committee (CPLC) in Karachi was responding both to police venality and incapacity. But it is not clear that the CPLC’s work will contribute to long-term improvements in police capacity. The police may even be content to cede permanently these and other responsibilities. Some proponents of the ‘New Public Management’ might welcome ‘privatisation’ of police functions. But like the larger privatization agenda, it raises questions about the means by which controls can be placed on private actors, the limited impact of parallel service providers and the tendency towards lax regulation. Too often the result is a failure to ensure that alternative service providers include the poor and other socially marginal groups among the publics they serve. The formal or informal widening of access to forums in which the allocation of state resources is debated may serve only to widen access to corrupt income. This is precisely why some politicians promote radical decentralization – it multiplies opportunities for pilfering from public resources, thereby creating new clients upon which leaders can rely for support. In Bolivia, where the Law of Popular Participation governs the decentralization process, there is evidence that some of the local associations involved in monitoring local spending have themselves become implicated in patronage politics, and in some cases outright corruption.76 The newly participatory citizen, or citizens who have been so successful in monitoring service providers that they have a virtually or actually institutionalized place in public office, may abuse their privileges of special access and insider knowledge.

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In the Indian city of Ahmedabad, for instance, a Tax Payer Protection Council formed by citizens to embarrass bribe-takers in the income tax department has become so powerful in relation to the department’s bureaucrats that it now plays a critical ‘gatekeeper’ role and has been accused of taking money to influence officials.77 Where space is made for citizens in oversight institutions there is potential for citizen–state collusion in subverting accountability. Where citizens set up parallel accountability mechanisms there is potential for these arenas to be abused. Where such institutions function, in effect, as surrogate courts, without a democratic mandate or a uniformly applied process, and with rather limited resources for investigating official wrong-doing, some miscreants may evade prosecution, while others may become scapegoats. Without ‘objective’ external monitoring of probity in the actions of citizens’ associations there are few ways of controlling for this, and measures to improve the internal accountability of citizens’ associations are insufficient to ensure that they act with integrity and in the public interest. At the heart of this problem is the issue of democratic representation. Civil society groups may claim that they have a broad democratic mandate, but they cannot claim as much legitimacy as a duly elected government. In reality most represent very narrow sectional interests, and lack basic procedures for enabling even their limited constituencies to hold them to account. Establishing legitimate authority, controls on power and measures of effectiveness are of course the central challenges of governance. In Chapter 8 we ask whether the citizen efforts to engage directly in institutions of public oversight might actually undermine democratic accountability or create situations of ungovernability.

5 New Methods and Shifting Accountability Jurisdictions

That actors in accountability relationships are assuming new roles implies the emergence of new methods. For instance, direct citizen involvement in auditing government expenditure, discussed in Chapter 4, catalysed a novel means for detecting and exposing malpractice: the public hearing. This chapter examines new methods that have emerged as a result not merely of there being a greater number of actors in the accountability business, but as a consequence of the changing nature of boundaries in an era of globalization. It thus focusses on the relationship between how accountability is being sought and where it is being sought. The use of new methods for monitoring the actions of power-holders, and the recourse to (or the effort to legitimize) alternative accountability jurisdictions – literally from the local to the global – has generated new expectations about (and therefore new standards of ) accountability, the subject of Chapter 6. One feature of globalization – a slippery but unavoidable concept – is the constant redefinition of ‘accountability jurisdictions’, the spaces within which accountability can legitimately be sought. This reorganization has three dimensions, each of which has altered the means by which people and institutions seek to check holders of power, whether that power has been formally delegated or not. First, a geographically expanded legal sphere, as well as the ability of civil societies to engage in surveillance across national borders, has catalysed efforts to make human rights abusers answer for their actions, and to make firms and governments liable when they fail to comply with international environmental and labour regulations, no matter where these abuses occur. Second, at the other spatial extreme from these global actions, there has been a proliferation of local-level arrangements for ensuring fairness in resource distribution and in seeking justice. Third, the borderless world of cyberspace has created not only a new site of accountability; it has also thrown up new ways of bringing people together to demand it. We analyse these three dimensions in turn.

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Expanding accountability jurisdictions The reach of accountability institutions in the past tended to stop at national boundaries, even though all manner of illegal practices have never done so. But actors at both national and international levels are seeking to reach across national boundaries to hold human rights or environmental abusers to account, in effect extending the jurisdictions in which these violations may be prosecuted. Former heads of state enjoying domestic immunity for human rights abuses are being charged under the domestic laws of other states, and in some cases have been arrested for trial or extradition when they travel. Corporations that profit by abusing labour rights or ignoring environmental protections in host countries are being chased by their victims to courts in the corporations’ home countries.1 The role of domestic accountability institutions within experiments involving transnational justice has varied. As we argued in Chapter 2, popular alarmism about the porousness of state boundaries and the erosion of democratic control over accountability institutions is clearly misplaced. In most cases prosecutors still rely upon domestic legal systems, but some of these systems now enable them to extradite an offender from another country – even for offences committed in that country. Under certain conditions, people affected by human rights or environmental abuses committed by a foreign actor (usually a corporation) can take their abuser to court using the domestic laws and courts of the corporation’s home state. The limitations and costs of these border-breaching efforts, however, have fostered support for the creation of transnational institutions with global reach – legal institutions such as international war crimes tribunals and the ICC. This also includes international institutions to monitor states’ compliance with multilateral environmental agreements, and even less formal international regimes for mutual monitoring of compliance with voluntary labour, environmental or product standards. Finally, institutions that already function in the international domain, such as the UN and the World Bank, are seeking to engineer new accountability practices within and between states. They are doing this in a range of ways. They attempt to solve domestic accountability problems by using international legal instruments to protect national resources. This has been the logic of the World Bank-created offshore account for the deposit of Chad’s new oil revenues, designed to control for the leakage of these revenues into military or other forms of expenditure that do not address Chad’s social development objectives. The international arena is also used to challenge individual states to address problems caused by global (or at least multilateral) accountability failures, such as the depletion of the ozone layer, or problems in the treatment of refugees. Transnational social movements and NGOs are invited to approach international human rights bodies to

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represent plaintiffs unable to represent themselves, or to monitor and report on the compliance of individual states with their human rights commitments. Prosecuting human rights abusers Criminal prosecutions using domestic law against human rights abusers in other countries have been accompanied by increased judicial activism. International legal instruments for trying crimes against humanity such as international human rights laws and specialized war crimes courts (Nuremberg, Tokyo, the UN Criminal Tribunals for the Former Yugoslavia and for Rwanda) have been in existence for half a century. But some contemporary human rights prosecutions are altering the geographic and institutional context within which human rights abusers and corrupt officials are held accountable. The best example of this is the campaign to hold General Augusto Pinochet, leader of a military government that ruled Chile between 1973 and 1990, accountable for the crimes he allegedly committed when in power (kidnapping, torture and murder). What makes this campaign, which was launched in 1996, a departure from other efforts to hold former dictators accountable for crimes they committed while in office is that, in the Pinochet case, a single country, Spain, based its prosecution primarily on domestic, not international, law. Thus a former dictator was threatened by a legal action brought not through an international court, but rather through a unilateral decision made in the judicial system of a single country. It was the harmonization of law between Spain and other countries that made possible Spain’s (almost granted) request for extradition from the United Kingdom. It is the simultaneous existence of these various models of law – international, transnational, harmonized domestic systems – that creates the many grey areas in contemporary discussions about accountability, and how best to promote it. In July 1996 the Spanish magistrate Baltasar Garzon began proceedings in a Spanish federal court against Pinochet and other Chilean military junta leaders and members of the DINA (the secret police) for kidnapping, illegal detention, torture and murder committed in Chile and other countries between 1973 and 1989. Garzon was able to do this because of the penetration of international human rights law into the domestic legal order in Spain. In the mid-1980s, jurisdiction for universal crimes (crimes against humanity) was inscribed into the Spanish Penal Code and other bodies of domestic law. The Spanish Constitution also notes that ‘validly enacted international treaties, once officially published in Spain, shall form part of the internal legal order’.2 Spanish law also recognizes the principle of ‘individual international responsibility’, a key principle in international law, which expressly overrides any immunity attached to the office held by a person accused of a crime against humanity. These provisions enable Spanish courts to prosecute offences perpetrated by non-Spanish actors, including state functionaries, against non-Spanish citizens.

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Two years later, a Spanish extradition request obliged the British government to put Pinochet under arrest while on a visit to the United Kingdom for medical treatment. After protracted preliminary questions in the British courts dealing with the immunity of a former head of state, and the scope of the extradition enquiry, Pinochet faced extradition and trial in Spain for torture and conspiracy to torture. This was eventually dropped on health grounds, and he was returned to Chile. The precedent set when Spanish courts and the UK House of Lords interpreted international law to override the immunity of a former head of state empowered Chilean legal activists, such as prosecutor Juan Guzman, to take up the pursuit of Pinochet upon his return to Chile. Guzman challenged the Chilean amnesty for Pinochet. The Chilean Supreme Court upheld an appeals court decision to lift Pinochet’s amnesty and the immunity of other army officers. Using international law, the Chilean judiciary was emboldened to gather testimonial and forensic evidence of mass graves and concentration camps, and Guzman brought 105 cases against Pinochet. In early 2001, judicial proceedings against Pinochet were again dropped on health grounds (dementia), but trials of his subordinates are ongoing. In spite of the failure to prosecute Pinochet directly, this case signalled at least the beginning of the end of impunity for violations of international law by current or former heads of state. A direct consequence of the Pinochet proceedings was the February 2000 arrest in Senegal of Chad’s former president, Hissene Habre. This was the result of a civil, not a state action. Habre’s victims – survivors of torture and terror – travelled to Dakar, the Senegalese capital, to testify in court. The Senegalese legal system was unable to surmount the political obstacle posed by Senegalese leaders’ open support for Habre. Habre’s arrest was ultimately overturned by another court, and the judges pursing Habre were dismissed.3 Another example of unilateral action against human rights abusers through the assertion of universal jurisdiction for crimes in international law was the June 2001 conviction, by a Belgian court, of two Rwandan nuns – for acts of genocide committed in Rwanda in 1994. Sister Maria and Sister Gertrude were convicted of handing over to Hutu killers as many as 7000 people from the hunted Tutsi ethnic group. These Tutsis had taken sanctuary in their convent. Later, the two nuns provided petrol so that militiamen could set fire to a barn where about 500 Tutsis had taken refuge. They were sentenced to prison terms of 12 and 15 years, the first case in which a jury of citizens from one country had judged the defendants for war crimes committed in another. In this case, the state was prosecuting on the basis of a (since amended) law that allows Belgian courts to hear cases of atrocities committed by alleged war criminals seeking sanctuary on its territory, even though the atrocities occurred abroad.4 International human rights law is increasingly incorporated into the domestic legal regimes of countries that sign multilateral treaties. But

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enforcement mechanisms are uneven. For instance, although the rulings of the Inter-American Court of Human Rights in Latin America are accepted as binding by 21 of the 34 members of the Organisation of American States, very few of these have enforcement mechanisms built into their national laws. It is often left up to NGOs and other civil society groups to monitor Inter-American Court rulings and to exert pressure for enforcement in domestic courts. Cases of private actors seeking to press human rights charges against ex-heads of state from other countries has implications for the balance of power between politicians and the judiciary in domestic accountability relationships.5 The increased willingness of judges to apply European and international law in the face of executive resistance, and the support for this by a public tired of impunity, raises the importance of judicial review as a means of holding public bodies legally accountable. Transnational rights regimes such as the 1998 European Human Rights Act or the 1965 European Social Charter raise the possibility of constitutional rights that transcend national regimes, increasing the power of individuals in relation to officials.6 The growing geographic reach of activist judges and the assertion of universal jurisdiction for crimes against humanity have raised concerns about the unevenness of this method of accountability and its potential to reinforce inequalities. The emerging trend of bringing civil actions against human rights abusers is inevitably opportunistic: arrests cannot be made unless the individual in question has left the security of his or her own country. Actions have thus far been sporadic. This kind of judicial activism does not represent the coordinated and comprehensive investigation and trial of human rights abusers that is needed to institutionalize an accountability mechanism that tackles this kind of impunity. These limitations were underlined when in 2002 a Belgian appeals court threw out a case against Prime Minister Ariel Sharon of Israel for his role in the 1982 killing of Palestinian refugees in Lebanon. While upholding Belgium’s controversial law of ‘universal jurisdiction’, the court ruled that suspects had to be physically on Belgian soil to be investigated and tried. In a second case the court tossed out, on the same grounds, a complaint against former president Laurent Gbagbo of Cote d’Ivoire. He was accused of crimes against humanity for alleged complicity in an October 2000 rampage of killing and rape by the country’s security forces in the capital of Abidjan that left 57 people dead. These rulings also led to the dismissal of pending cases against President Fidel Castro, Yasser Arafat, Saddam Hussein and several African leaders. Critics have worried that these cases were filed mainly to score political points, as suggested in the reaction of an official of the Israeli Foreign Ministry to the Sharon case: ‘It’s a lawsuit that started with more politics than law, and it is lucky that the outcome is more law than politics’.7 The cases cited above have focussed on the ways national courts have used notions of universal jurisdiction to enforce punishments against people

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guilty of crimes against humanity and other human rights abuses. The mirror image of this phenomenon also exists: civic groups using international law and multilateral institutions to hold states and their domestic legal systems to account for failing to protect the rights of their own citizens. The European Court of Human Rights in Strasbourg has been used in this manner and has been able to expand the responsibility of member states to advance the rights of minorities and socially excluded groups. It was used, for instance, by the Budapest-based European Roma Rights Centre to improve the treatment of Roma people in Bulgaria. In 1998 the Roma Rights Centre took to the European Court a case of a Roma teenager subjected to torture and degrading treatment while in police custody. The court ruled against the Bulgarian government, finding that it had violated the victim’s rights to physical security. It also ruled against the government for failing to conduct an official investigation into the incident. This was a landmark ruling in that it extended the scope of international law by making the right to an investigation part of the right to be free from official mistreatment.8 It transformed a negative right into a positive right. War crimes tribunals offer better-known examples of the use of transnational legal space to prosecute prominent human rights abusers, particularly ex-heads of state. They are highly selective: not only are very few people tried, but very few wars are considered for judicial investigation. Inevitably, such selectivity implies that interstate power relations determine which individuals will be tried, and for which actions. The growing need to address human rights abuses autonomously of geopolitics produced pressure for the establishment of a permanent international institution with global jurisdiction – an ICC, which was also discussed in Chapter 4 as an example of the way in which non-state actors contribute to the creation of new accountability mechanisms. In 1999 in Rome, 120 countries agreed to establish the ICC, and on 1 July 2002, after 76 countries had ratified the Rome Statute, it came into existence. Its mandate is to prosecute war crimes, genocide and heinous violations of human rights, but only if states fail to take action first. Geopolitics is already crippling this nascent institution. The most important state still to ratify the Rome Statute on the ICC is the United States. A major sticking point is United States’ refusal to countenance the possibility that its troops might be prosecuted abroad – a position that has hardened considerably since the 11 September 2001 attacks on New York and Washington propelled the United States into a borderless ‘war on terrorism’. International frustration with the United States’ position on the ICC emerged a few days after the creation of the court, when the United States refused to renew the mandate for the engagement of its troops in the UN peacekeeping force in Bosnia unless they were exempted from prosecution under the ICC. This request for immunity for US troops was eventually toned down in a compromise proposal, which provided for a one-year moratorium on investigations of UN peacekeeping personnel.9 This stopgap

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measure has of course not resolved the critical issue of the United States’ support for the ICC. The anxieties about the ICC expressed by the administration of President George W. Bush parallel the fears of power-holders around the world about efforts to democratize accountability relationships: in this case it is not just the infringement of national sovereignty that is a concern, but also the worry that the ICC will be used for score-settling by countries and other actors disgruntled with the United States’ ‘global policeman’ role. The US ambassador to the UN, John D. Negroponte, suggested that this would divert the ICC from going ‘after the gross violators at whom it is truly aimed’.10 Behind this position, however, is the United States’ urgent anti-terrorism project, the prosecution of which has already meant engagement in open-ended conflicts in Afghanistan and Iraq, defiance of the Geneva Protocols on the treatment of prisoners of war in its camp for al-Qaida suspects in Guantanamo Bay,11 and restrictions on the civil liberties of even its own citizens. While international support for the war on terrorism is strong, the United States’ insistence on being able to enjoy immunity anywhere in the world is a serious threat to the idea of global human rights and to the emergence of transnational accountability jurisdictions more generally. The precedents set in international criminal tribunals have played an important role in domestic efforts to bring ex-leaders to book in countries in transition from authoritarian to democratic forms of rule. International successes in 2001 in arraigning ex-heads of state for human rights abuses (particularly the case of Milosevic) inspired efforts in Argentina to initiate prosecutions of military leaders from the 1980s. Two sweeping amnesty laws from the 1980s that had shielded prominent former military leaders from prosecution were declared unconstitutional in 2001. This laid the legal groundwork for the arrest in 2002 of General Galtieri and more than 30 other military officers on charges that they ordered or took part in the kidnapping, torture and execution of more than 20 members of the left-wing Montonero guerrillas during the ‘dirty war’ of the early 1980s.12 The growing need to address human rights abuses in a more comprehensive and continuous way than is provided for through specialized international war crimes tribunals or difficult-to-enforce international legal instruments has produced pressure for action at the other end of the spectrum of legal activism: the local level. Efforts to prosecute human rights abuses at their source include a renewal of indigenous legal institutions such as the local justice tribunals in Rwanda discussed later in this chapter. Recognition of the important role of civil society groups in monitoring state compliance with international human rights conventions and implementation of rulings of human rights bodies has led to efforts to strengthen the hand of civil society. All major international human rights commissions13 already accept submissions of parallel reports from civil society actors about the compliance of states with their obligations under international human

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rights conventions.14 However, the failure of states to internalize their commitments to human rights by changing their law-enforcement practices has encouraged treaty-writers to include provisions in international agreements to allow submissions by private actors – whether victims or non-governmental organizations – as one of the ‘trigger mechanisms’ that would launch an investigation into a given matter. Article 15 of the Statute of the International Criminal Court, for instance, empowers the ICC prosecutor to investigate allegations of crimes not only upon referral from the Security Council or individual states, but also on information from victims, non-governmental organizations and ‘any other reliable source’.15 This is, in fact, a complicated case of the feedback effect at work in the model we have elaborated in this book: the new role for private actors that has been created by a new accountability method (the ICC), which was itself the result of non-state actors playing an unaccustomed role. These provisions for private actors to make (potentially investigationtriggering) submissions may, ultimately, enable the ICC to break free of at least some of the political constraints it faces in investigating human rights abusers – for instance, when the Security Council or individual states refuse to grant it jurisdiction. Some signatories of the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) agreed to an Optional Protocol in 1999 enabling individuals or groups to lodge complaints directly to the UN-based CEDAW committee for investigation. This protocol empowers the CEDAW Committee (a body of 23 independent experts charged with examining signatories’ compliance with and implementation of the provisions of the Convention) to receive and consider complaints from individuals or groups in those countries that have ratified it. Seventy-five countries have since signed the Optional Protocol, but it remains to be fully ratified in many of these, and as a new measure it is too soon to see whether this will improve states’ compliance with the Convention. Women who have exhausted their options under national law, or who have found that ‘the application of such remedies is unreasonably prolonged or unlikely to bring effective relief’, can now directly seek redress at the international level.16 The protocol enables NGOs to submit cases to the CEDAW committee on behalf of individuals or groups even without their consent if ‘the author can justify acting on their behalf without such consent’.17 Also, the CEDAW committee can, on its own initiative, make inquiries when it ‘receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention’.18 As Mary Robinson, then the UN High Commissioner for Human Rights, stated in 2000, the Optional Protocol: will act as an incentive for Governments to take a fresh look at the means of redress that are currently available to women at the domestic level. This is perhaps the most important contribution of the Optional Protocol.

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It is action at the national level which will create the environment in which women and girls are able to enjoy all their human rights fully and where their grievances will be addressed with the efficiency and speed they deserve.19 The effectiveness of this Protocol and the CEDAW committee’s new power to investigate human rights abuses will depend on the committee’s resources and the support it receives from within the UN system. In this particular case the new measures are unlikely to have much effect, as CEDAW has been one of the most underfunded and weakly enforced of all international human rights instruments. Since its foundation in 1979, the CEDAW committee has on many occasions concluded that some of its signatories have failed to meet their obligations in terms of national law and government policy, but it has never formally declared any state in breach of the Convention.20 The appeal by national courts to universal jurisdiction to punish the most heinous crimes against humanity means that sovereignty cannot be claimed as cover for domestic atrocities, and that abusive ex-heads of state or other public and private actors are not secure anywhere. The evolution of international legal institutions into more focussed instruments for tracking down and prosecuting people who have abused human rights within and beyond their borders means that individuals are held accountable to global society, not just to citizens of their own countries. There are many as yet unresolved problems with these instruments, not least the need to guard against partisan score-settling. Another problem is that the assertion of a prosecutor’s or state’s ‘individual international responsibility’ to investigate and try people accused of ‘universal crimes’ can produce a form of global vigilantism for which there are as yet no effective oversight institutions. Arguably this ‘individual international responsibility’ is exactly the role in which the United States has cast itself in its war on the amorphous phenomenon of anti-Western terrorism. The fact that as yet the United States has made mainly a token appeal to international legal institutions in this war must stand as a reminder that these new institutions and methods are ultimately constrained and limited by geopolitical considerations. Litigating against corporations Multinational corporations are the second major target of judicial accountability-seeking in a geographically expanded jurisdiction. The United Nations Conference on Trade and Development (UNCTAD), a Geneva-based research and policy-advisory body, estimates that there are 60,000 multinational parent corporations worldwide, with over half-a-million foreign subsidiaries.21 This burgeoning set of transnational actors is widely seen to have growing influence over national economies (and economic policies). Multinational firms are also regarded as insufficiently accountable for the

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impact of their activities on the environment or the welfare of workers. The failure of developed and developing country governments to defend domestic interests in the face of these companies’ commercial activities is feeding the perception that governments increasingly uphold commercial interests at the expense of human development or environmental protection. Large oil (and other natural-resource extraction) companies are known to have made under-the-table deals with corrupt African or Asian leaders, subsequently claiming that, as private companies, they cannot be held responsible for how governments spend revenues from natural-resource extraction. Of course, no firm has the power to bring peace to Angola or to eradicate corruption in Nigeria. However, globally there is less tolerance for the way multinational companies bolster corrupt governments or undermine accountability reforms by making illicit deals with government officials. A landmark development was the 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed by all 29 member countries of the OECD, as well as five non-member countries. Since it went into effect in February 1999 it committed signatories to outlaw bribes given by their own nationals to foreign public officials and to end the practice in some countries of making foreign bribes paid by companies tax-deductible.22 Many firms have a direct interest in supporting anti-corruption reforms in the countries in which they invest because these will produce more efficient governance. This, in turn, creates a better environment for business. British Petroleum took a unilateral initiative in 2001 to disclose its tax payments to the government of Angola so that Angolans could demand answers from their government about where this money went. The action prompted a furious response from the Angolan government, including threats of possible termination of oil contracts. The billionaire financierturned-philanthropist George Soros launched the ‘Publish what you Pay’ campaign in mid-2002 to support energy companies that undertake financial-transparency initiatives. Supported by NGOs like Global Witness, Soros is pressing international stock-exchange regulators to oblige all large energy companies to disclose itemized accounts showing the payments made to individual governments. Currently, under stock-exchange listing rules their payments to different countries are amalgamated in a single set of accounts, making it impossible to identify payments made in any one country. Such mandatory disclosure requirements would level the playing field between competitors, thereby removing threats of contract termination with host governments.23 In May 2003, an international group of investment fund managers whose combined portfolios amounted to $600 billion in assets joined the call for transparency. The group relied on appeals to business sense as much as to moral outrage. A statement issued by the group said that the current system all but requires firms to make illicit payments, and that this represented

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‘a significant business risk, making companies vulnerable to accusations of complicity in corrupt behaviour … and possibly compromising their long term commercial prospects’.24 It is this combination of an ethical approach and hard-nosed realism that has attracted the likes of British Prime Minister Tony Blair, who has been pushing the Extractive Industries Transparency Initiative. Unlike the Soros initiative, the EITI is a ‘voluntary disclosure’ agreement, and therefore does not overcome the familiar defection problem. Soros in fact wants something more radical than for firms to be forced to divulge their payments to governments: ‘publish what you pay is an essential first step’, he says. His message to governments: ‘publish what you receive … and then be accountable for what you receive’.25 Efforts such as these are welcomed by domestic anti-corruption campaigners, but they do not address the labour, human rights or environmental abuses for which corporations may be directly responsible. An emerging ‘foreign direct liability’26 legal instrument has sought to legitimize the notion of holding parent companies to account in their home jurisdictions for the actions of their subsidiaries elsewhere. Legal action has been initiated by citizens, and occasionally states, in cases in which corporations have adversely affected public health or the environment. Cases include litigation in the United States for a range of alleged violations: Texaco for the adverse environmental impacts of its activities in Ecuador; Unocal for human rights abuses associated with its investment in Myanmar; Freeport McMoran for environmental destruction caused by its copper mine in Indonesia; and against Union Carbide for its role in the Bhopal gas-leak disaster (where the Government of India was itself the plaintiff on behalf of the victims).27 In the United Kingdom, allegations have led to actions against Rio Tinto over its Rossing Uranium mine in Namibia, and against Thor Chemicals for mercury poisoning suffered by workers in its South African mercury recycling plant. In Canada the mining company Cambior faced litigation over alleged pollution from its gold mine in Guyana. Central to all of these claims is the demand that home countries accept increased responsibility for regulating the negative extraterritorial impacts of ‘their’ multinational firms. This form of transnational litigation assumes two main forms. Most of the US-based litigation is concerned with corporate compliance with international law, using the 1789 Alien Tort Claims Act, which allows foreigners to bring civil claims against a party in the United States that has violated laws or treaties to which the United States is a signatory. Alternatively, litigation in the United Kingdom or Canada (and to some extent the United States also) seeks to make parent companies ensure that their behaviour as direct investors elsewhere matches the standards that would be expected of them at home. Foreign litigants acquire legal standing on the basis of an English legal provision that allows English courts to hear a case if there is no other appropriate legal forum.

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An example of this was a UK House of Lords judgement that allowed 3000 South Africans to bring an action against an English asbestos company – Cape plc – in the United Kingdom rather than in South Africa, where the asbestos-related medical conditions had been contracted. Cape plc had closed its UK operation in 1968 (and now works in asbestos removal), but had allowed its South African operation, Cape Asbestos SA (Pty) Ltd, to continue for another decade. In 1979, when Cape plc sold its South African subsidiary, no trust fund had been established and no medical scheme was put in place. Many former workers contracted asbestosis, a disease that destroys the lungs and can lie dormant for up to 40 years; there is no cure. The Law Lords’ decision in mid-2000 to uphold the plaintiff’s appeal for the case to be tried in the United Kingdom meant that for the first time British courts were confronted with a class action from foreign workers. Cape plc argued that the case should be fought in South Africa on the grounds that it was the most natural jurisdiction. But if the case were moved to South Africa, the Law Lords found, ‘the probability is that the plaintiffs would have no means of obtaining the professional representation and the expert evidence which would be essential if these claims were to be justly decided. This would amount to a denial of justice’.28 The verdict upheld the Law Lords’ groundbreaking 1997 decision to allow a former Rossing Uranium engineer and throat cancer patient to pursue his case in England because funding was not available for a trial in Namibia.29 Aside from the still-unresolved implications of these decisions for company law (which separates the identities of parent companies and their subsidies, thereby limiting parent-company liability), this decision takes courts into politically sensitive decision-making about the quality of justice systems in countries hosting multinational operations. So far not one of these major foreign direct liability cases has resulted in a clear win for the plaintiffs, though some cases (for instance, against Thor Chemicals in the United Kingdom) have been settled out of court. But these efforts have usefully opened up corporate governance to scrutiny, and triggered efforts to revise company law with a view to abolishing the doctrine that maintains the legal firewall between parent companies and their subsidiaries. Legal challenges to the impunity with which corporations exploit workers or destroy the environment have prompted greater corporate interest in establishing and adhering to voluntary production and social standards. This issue is discussed in Chapter 6. The inadequacies of corporate self-regulation became all too evident with the spectacular bankruptcies of Enron in 2001, WorldCom in 2002 and Parmalat in 2003–04, to name just a few of the many corporate finance scandals. The issue here has not been abuse of overseas employees or of the environment – though there have been some charges in a few cases. At issue is the way corporate actors can distort and undermine the market itself, domestically and beyond. These companies deceived stockholders by overstating profits and amassing unsustainable debts. Enron also exploited its

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market dominance to manipulate energy prices to its own advantage. Much of the new legislation rushed through the US Congress in the aftermath of these scandals focussed on domestic accounting norms and on the emoluments of CEOs. Medicine for America’s corporate ills, however, inevitably has to be swallowed abroad too, because the impact of the accounting practices of large corporations, whether US-registered or based overseas, are no longer limited by territory. The increasingly global reach of many large corporations provokes an expansion of jurisdictions for company and accounting law and regulation. The provisions of the Sarbanes-Oxley Act (2002), for example, turn out to apply in full to all companies with a stock-market listing in the United States, regardless of where they are incorporated or the quality of corporate governance and auditing in their home countries. The Act’s provisions include measures to improve the quality and oversight of the accounting industry (through the creation of a new public accounting oversight board), to improve the independence of company auditing exercises (by ensuring that only fully independent directors sit on the company audit committee) and to locate responsibility for malpractice squarely on the shoulders of CEOs (by making them personally certify annual accounts). This means that nonAmerican auditors working overseas will have to register with and obey the new accounting oversight board in the United States if they want to be listed on US markets. CEOs of non-US companies will have to certify company accounts. And companies in which employees are represented on audit committees, as is the case in Germany, will find themselves in violation of the independence rule of the Sarbanes-Oxley Act. Overseas critics see this as a prime example of the way market globalization can violate state sovereignty in setting norms and rules for corporate governance. Some complain that the extra-territorial impact of US corporate law is having the effect of setting up the US Securities and Exchange Commission as a global regulator.30 The creeping globalization of accountability jurisdictions for corporations has so far taken the form of an aggressive expansion of American legal practices into countries that the United States feels have inadequate systems for enforcing financial reporting standards. This has raised hackles among non-US corporations and regulators. There are some indications of increased interest in developing more globally acceptable financial reporting methods. The Sarbanes-Oxley Act, for instance, makes no reference to the United States’ Generally Accepted Accounting Principles (GAAP). Instead, senior corporate executives must attest that accounts ‘fairly represent’ the company’s financial condition. This means that executives will not be able to avoid legal action by following the letter of American accounting rules, but must instead consider overall fairness, an accounting principle more common in Europe. Notions of overall fairness invoke corporate and individual responsibility and integrity, and though they leave much open to interpretation, they can also incorporate domestic views on the quality of corporate governance.

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Localizing accountability jurisdictions: decentralized justice, governance and service-management Throughout the 1990s a major component of public-sector reforms in developing countries has been decentralizing the state. Political decentralization and administrative devolution – bringing control over development planning, revenue collection and expenditure to the local level – has been touted as a way of enhancing public-sector accountability. This assumption rests on the principle of reducing the number of intermediaries between citizens and government decision-making, spending and project-execution. The expectation is that citizen scrutiny and the responsiveness of public agents will both intensify with the shrinking of physical and social distance between the two.31 Some decentralization experiments, notably the ‘People’s Plan Campaign’ in the south Indian state of Kerala, take the principle of eliminating intermediaries as far as possible, by assigning decision-making power and financial control over development projects to village assemblies, or entrusting small project-execution teams, composed of the very people who will benefit from an investment, with responsibility for constructing, operating and maintaining road or irrigation works. Citizen engagement in adjudicating local disputes, or in planning and even delivering services, creates a much more palpable sense of direct voice and influence in the public sphere than do more conventional forms of engagement such as voting for a candidate to represent one’s views, or lobbying through a civil society organization, where it can be hard to see a connection between one’s views and official actions. An important feature of many decentralization exercises is the creation of local tribunals using a modified form of customary law and employing respected local people as magistrates. A good example is the local ‘Alternative Dispute Resolution’ mechanisms with which many Latin American countries are experimenting.32 These rely on indigenous ethical concepts and norms, ostensibly of more direct relevance to everyday social life than are distant national legal frameworks. This is expected to make judgements more legitimate, and to increase access to justice by speeding up dispute resolution and taking pressure off the courts. Behind these expectations is the belief that local dynamics of trust and reciprocity (underwritten by fear of reputational consequences of norm-defying behaviour) can substitute for formal procedures such as cross-examination, formal representation and the collection of evidence.33 The empowerment of local tribunals in Rwanda to hear some of the backlog of cases of genocide – both the domestic and international justice systems are hopelessly overstretched – exemplifies this trend. Given the procedural formality of the International Criminal Tribunal for Rwanda (ICTR), compounded by a lack of funding and inadequate infrastructure in its host city of Arusha, Tanzania, it is not surprising that the wheels of justice

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are moving very slowly. By 2001, after seven years in existence, and with an annual budget of $90 million, it was still in disarray. Five of the ICTR’s nine judges had spent more than 18 months without hearing a substantial case. Although in 1998 it did convict Rwanda’s ex-Prime Minister, Jean Kambanda, of genocide and crimes against humanity (he was the first ex-head of government to be so convicted), by 2001 just 63 people had been charged, of which 45 had been detained. Nine were on trial, and 27 more were waiting to be tried. Though eight of those on trial at the time were later convicted, justice was being dispensed pitifully slowly compared to the scale and speed of the atrocities in 1994 that saw 800,000 people killed in 100 days. Within the domestic Rwandan justice system convictions have come more quickly: in 2001 there were 130,000 suspects in prison and in 1998, 22 people were executed for genocide. But there are worries about the substandard nature of the country’s jails and courts. In 2001 the Brussels-based International Crisis Group concluded that in both Rwanda and the ICTR there is a serious risk that those already in custody will be released because they have been held for too long without trial.34 Fear that delay will allow those responsible for acts of violence to escape punishment has catalysed the search for new mechanisms of accountability. The government has adapted a traditional system known as gacaca, or ‘justice on the grass’, which refers to the fields on which community elders adjudicate disputes. An important feature of Rwanda’s genocide was that, in terms of implementation, it was a decentralized affair. Those who actively participated in the violence certainly received inspiration and direction from above, but the killing, rape and maiming took place locally, with perpetrators usually known to the victims. The only people who can provide testimony to the events are people from the locality. So it is at this level that cases will be adjudicated, by local ‘judges’ selected by local people. In October 2001, the process of identifying a quarter of a million people to act as judges began, and in June 2002 the first gacaca courts convened. Each citizen was entitled to volunteer names of candidates with the probity and rectitude to act as judges. Elections were only held if someone objected to a particular nomination. The gacaca judges received basic legal training before the courts convened. People charged with engaging in violence are tried in the villages where their alleged crimes took place. The judges are assembled into 19-judge ‘benches’, and collectively decide cases on the basis of testimony provided by local people. Meeting once a week, the courts use witnesses’ memories to piece together accounts of what happened, drawing up lists of the dead and of those suspected of killing them. Suspects are categorized according to their crimes. Rwanda’s mainstream court system judges those charged with ‘Category 1’ offences – ringleaders and those who were particularly cruel or responsible for the deaths of large numbers of people – but all others face the gacaca process.

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It is too early to judge the effectiveness of this experiment, though it is clearly part of a wider trend towards adopting non-conventional means of ensuring accountability. The accountability of these new mechanisms will itself need to be addressed. Some worry about the security of witnesses, others about the potential for witch-hunts, as suspects will have no legal representation. Some are horrified at the thought of killers being allowed to return to their villages, but an even more alarming prospect, as The Economist magazine pointed out, is that there is ‘no guarantee that people involved in the genocide will not be selected as judges’.35 Decentralized initiatives are known to fall prey to skewed local power relations, and oversight institutions will find it difficult to monitor developments in such a large number of localities. Gacaca, and other experiments like it, risk romanticising ‘traditional communities’. This neglects the impact of local power relations. Proponents of bringing power closer to the people may forget that power is already quite near the people, in the form of local elites; and for this reason still out of their grasp. Sales pitches for decentralization programmes have an understandable tendency to obscure the ability of elites to use new institutions to perpetuate social control.36 But ‘community engagement’ in dispensing justice or managing projects is not synonymous with accountability. On the contrary, elite capture (and therefore abuse) of decentralized funds to fuel patronage networks is one predictable outcome of devolved justice or project implementation. To avoid capture by local elites, some decentralization models have placed substantial accountability tools directly in the hands of local people. Bolivia’s 1994 Law of Popular Participation empowers elected community leaders to call for local audits and even trigger the suspension of funding to local governments shown to be corrupt. Organizations Territorial de Base (Community Based Organisations (CBOs)) are given jurisdiction over a given territory and assigned rights and duties covering a range of social, infrastructural, productive and environmental matters. Because they co-manage funds with the municipality, they are empowered to scrutinize the municipality’s spending. The Law of Popular Participation created a new local institution, the Vigilance Committee (VC), composed of six elected leaders from neighbourhood associations generally affiliated with a development NGO involved in a service-delivery activity. Each local VC is expected to act as a watchdog on its municipal council, ensuring that community projects and priorities are reflected in municipal budgets and expenditures. The VC is also empowered to wield a legal instrument called a denuncia against local councils that are suspected of corruption. The VC can call for regular audits of local government, and if it detects corruption, it can lodge a complaint with the national executive branch, which conveys it to a special committee of the Senate, which can in turn suspend central funds to the erring council until the case is resolved. Though VCs have in some instances

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been captured by elites, they have been able in other cases to expose corruption and unseat errant local politicians.37 Kerala offers perhaps the strongest model of devolved accountability responsibilities. Right-to-information provisions are included in the legislation that created the new, lower-level tiers of local government. Transparency provisions open up avenues of scrutiny that can be used by engaged citizens and their associations. Many factors, of course, conspire to render useless these types of rights when people are unorganized. In the Kerala case, the right to information applies to all planning documents, including those related to beneficiary-selection in means-tested programmes, as well as estimates, bills and receipts for works undertaken to improve physical sites. Photocopies are supposed to be supplied free on demand. At the site of most public works, a daily notice is supposed to list the names of workers and wages earned and a record of the materials purchased – with unit costs, quantities and transport charges. This act of transparency revealed a tendency for women workers to be paid, illegally, less than men.38 The selection of beneficiaries for national anti-poverty schemes involving credit, subsidized housing and latrines, and homestead plots for landless people – a common way of rewarding clients in patronage networks – is subjected to particularly intense public scrutiny in Kerala. Numerical weightings – ‘relative backwardness points’39 – are assigned according to criteria of need agreed in village assemblies.40 Eligibility criteria for anti-poverty benefits are published locally, and applicants must complete forms and attend a village assembly meeting at which all applications are publicly assessed and ranked according to the previously established criteria. A sub-committee, composed of local politicians, government officials, citizen members of planning groups and volunteer ‘resource persons’, verifies the list of beneficiaries to ensure that no one is misrepresenting their eligibility. The advantage of this system is that flawed decisions can be disputed by appealing to publicly agreed and measurable criteria of need. The great transparency in the composition and publication of beneficiary lists ensures that skewed resource distribution patterns (or attempts to disguise them) become more immediately apparent and provoke protests. In spite of this formidable array of measures for local accountability, there is relatively little take-up in Kerala of opportunities to hold local officials to account. Efforts to invoke rights to information about the basis for beneficiary selection can be met with delaying tactics or demands for payment.41 Some of the public notice boards for posting local spending information have been transformed into cinema poster hoardings. And there are numerous reports of malpractice in local spending, and exclusion of the poor, women and scheduled castes from planning and decision-making, including direct and sometimes violent suppression of their efforts to participate.42 This attests to the limits of putting the onus of vigilance on those who have the least time for challenging the local power-holders, and the most to lose

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should things go wrong. It is the poor who are most likely to depend on elite patrons for employment or to facilitate interactions with the state. Many efforts to localize planning and service delivery through citizen engagement have enabled local elites to corner an undue share of government resources, or have lost their initial energy through paralysis or a lack of technical sophistication.43 The observation that elites may act more ruthlessly against the poor at the local level than at the centre has in some contexts caused central authorities to support local people in their struggles against power-holders, or to defend minimum performance standards. Recognized by students of local government as the ‘paradox of decentralisation’,44 this selective engagement of central authorities in local service delivery has in some cases been successful in building the autonomy of service providers in relation to local elites, while simultaneously building their direct accountability to service users. Selective central engagement to hold local power-holders to account has produced an important new model for service delivery, recently given the seemingly contradictory label ‘accountable autonomy’.45 This approach offers, on the one hand, better information to providers about client needs (and to clients about providers’ plans) by regularly bringing the two together to review problems in service delivery and find local solutions. This enhances the responsiveness and direct answerability of providers at the local level. On the other hand, central line managers remain involved in monitoring these local deliberative processes, ostensibly to check abuses that might occur in local decision-making. The involvement of central actors defends the autonomy of service providers in relation to local elites, and also back-stops local accountability mechanisms through externally imposed oversight and sanctions. One of the best-known examples of this approach to designing accountable and responsive local services is the innovative Health Agent Program in the Brazilian state of Ceara, which has brought marked improvements in basic health indicators in this poor state. This case is discussed in Chapter 8, in connection with backlashes against accountability. Another example is the municipal-neighbourhood partnership in school management in Chicago, USA. A crisis in Chicago’s education system, which by 1987 had been labelled ‘the worst in the nation’ by the then Secretary of Education William Bennett, triggered a fundamental reorganization that devolved considerable authority over day-to-day management and longerterm planning to school staff and parents. Since 1988, elected Local School Councils (LSCs), which included parents, community organizations, teachers and the school’s principal, have governed Chicago’s schools. The LSCs’ powers made the Chicago school system the most decentralized and participatory urban educational system in the United States. LSCs are responsible for hiring, firing, evaluating and redefining job descriptions for school principals. They approve and monitor school budgets, develop three-year ‘School

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Improvement Plans’ and control discretionary state funds allocated to schools in poorer areas. This system creates a tight feedback loop between planning, implementation and results-assessment – a way of combining ex ante and ex post accountability. This is alleged to be one of the main reasons why local management is regarded as delivering services better tailored to community needs. This new structure is neither centralized nor decentralized. It gives much more power to local educational staff and clients than did the previous topdown and expert-based approach to school management. However, LSCs remain dependent on central offices for various kinds of technical support, and accountable to them for both process integrity and performance outputs. The main corrective measure that central authorities impose on failing schools is not punishment, but a renewed investment (through community mobilization, dispute mediation and building technical skills) in effective community collaboration over schools management. This has the effect of altering the incentive structure of education providers. Teachers and school principals report directly to parents, creating a client-centred, problemsolving approach that redirects their responsiveness reflexes downwards towards clients rather than upwards to superiors.46

Virtual accountability jurisdictions: cyberspace as method and arena An excellent example of the way in which the creation of new methods of promoting accountability (the question of ‘how’) coincides with the emergence of new arenas within which it can be pursued (the question of ‘where’) is the use of the internet by accountability-seekers. Advances in information and communication technology have always been something of a mirage when it comes to improving governance for ordinary or disadvantaged people. But in efforts to hold actors accountable, the World Wide Web, and the associated developments such as the reduced cost of long-distance voice communication and the spread of cellular texting, e-mail and image-transfer services and chat rooms offer new techniques for a range of accountabilityseekers. For example, environmental agencies in the United States use the internet to provide citizens with information, gather public input on agency decisions and foster networks of interested citizens, even if they still offer limited opportunities for online interaction.47 Korean civil society organizations have used the internet for advocacy and campaigning to make effective demands for political reform. Although only reaching a portion of the population, their efforts in 2001 included disseminating information about candidates standing for election, and listing several who were deemed unfit for election.48 Also in 2001 a brash Indian news website called Tehelka.com posted videotaped evidence of high-level Indian bureaucrats and ministers in the BJP-led coalition government receiving bribes or arranging to do so

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over a fabricated arms deal.49 High-level resignations in the Ministry of Defence followed (including the Defence Minister himself), enabling a more focussed opposition attack on government corruption than had been made in some time.50 These uses of the internet do little more than amplify civil society’s traditional watch-dog function. But the internet is not just a tool for surveillance and communication, it is also a new but geographically unconfined ‘space’ – a digital environment within which it becomes possible to both force answers from powerful actors about their behaviour and mobilize other accountability-seekers (official and unofficial) to impose punishments on those whose conduct is found unacceptable. Pursuing this logic, Hammond and Lash have asked whether the rise of something they call ‘Cyber-Activism’ is ‘creating a kind of civil accountability that imposes novel checks and balances on the power of global corporations, providing new ways of articulating and enforcing social values – in effect, giving rise to new forms of governance?’51 Cyber-activism, they argue, is indeed ‘an intensified, internet-enhanced form of voluntary social activism directed against major corporations that run afoul of social or environmental expectations’. They cite in this connection the process by which Nike was pushed into reforming itself. After labour abuses at Nike production facilities in the developing world were publicized through the internet, the company’s management initially tried to brush off the charges. Eventually, it pursued a radically different strategy, and its CEO admitted publicly that ‘[t]he Nike product has become synonymous with slave wages, forced overtime and arbitrary abuse’. Finally, Nike used the internet to publicize the reforms it was undertaking in order to improve the conditions of workers and the environments of the localities in which it operated. Other companies, most notably the oil giant Shell, subsequently adopted this strategy with much success. Another successful case is the campaign by Rainforest Action Network and Greenpeace against Home Depot, at the time the world’s largest lumber retailer. The campaign resulted in the company’s management promising to cease sourcing timber from endangered forests and from suppliers that engaged in unsustainable harvesting practices. The key feature of this campaign was that it involved not only these two well-known NGOs, but also a larger constellation of accountability-seekers that, were it not for the internet, would have remained invisible, dispersed and rendered impotent by their isolation. These included ‘hundreds of environmental organizations and grassroots groups that built public awareness through e-mail, Web sites, advertising and media stories and co-ordinated protests in stores across North America’. As one commentator put it, ‘even as the technology revolution is empowering corporations, it also is giving new leverage to regulators and consumer groups’.52 Hammond and Lash refer to this general phenomenon as ‘civil accountability’, inferring that internet and communications technology have fostered

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a new form of civil society geared towards a new type of accountabilityenhancing activism, operating in a new de-spatialized environment. Some of the issue networks formed are catalysed by well-known organizations like Amnesty International, but their real power results from the actions of ad hoc communities of interest formed in cyberspace. Such communities are not located in a geographical place, rarely have a formal structure, do not go through long periods of door-to-door solicitation and organising, and do not raise funds from foundations.53 But while the ability of autonomous networks to defy the conventional constraints on activism is what makes them so promising as a more direct channel of accountability, it is their disregard for the conventions that underlie established accountability institutions that makes them problematic. In particular, the notion of due process is undermined by the immediacy of the reputational penalties imposed on both public and private actors. Criteria for weighing information are usually vague and subject to change without notice. The scope for malicious misinformation is enormous. The need for more formal accountability mechanisms to regulate this type of behaviour is becoming more apparent, and the demand for it is growing. It will never be possible to solve the problem of infinite regress – the need for watchdogs to watch over watchdogs, ad infinitum. For this reason, some web-based accountability-seekers are promoting a more structured approach, employing more rigorous methodologies to provide information, on an ongoing basis, about the actions of powerful actors. The press – a more conventional form of this activity – has always found it difficult to separate its news-reporting and editorializing functions. Agents of ‘cyber-accountability’ face similar difficulties. Nevertheless, web-based organizations like Corporate Observer Europe, and many others like it, seek to engage in worldwide surveillance, using local affiliates to build a global picture of the activities of multinational firms. They focus on creating transparency, rather than simply demanding that it be instituted, in the sense of taking information in the public domain or available through the work of local investigators, and actively disseminating it through the internet. The underlying principle is that for dispersed voices to enforce accountability, passive transparency must be supplemented by active watching, and that this requires a coordinated, if unofficial, channel. The World Resources Institute (WRI) is creating a particularly ambitious form of internet-based decentralized-yet-global surveillance. They call it Global Forest Watch, and as with the other examples examined in this book, it is not, on its own, a fully assembled, seamlessly integrated accountability system. The objective is for it to serve as a tool that can enhance the substance of accountability relationships – informed questioning leading to

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more serious answerability. Through a collaboration among more than 100 scientists, the WRI in 1997 produced maps that indicated the location of what was left of the world’s old forests. This information-supply catalysed a demand-side response from forest-protection activists in many countries. Their concern was not simply to formulate a one-off campaign to bring whoever was responsible for forest depletion to book. They sought instead to contribute additional information, in a uniform format, to build a more sustained instrument for pursuing accountability. The local groups decided to keep tabs on the activities of logging companies, and to register their findings in the online database, including indications of where practices violated internationally recognized sustainable-harvesting standards. This created a constantly updated visual representation of the world’s forest cover, including indications of the actions of individually named firms. The aim of Global Forest Watch is to integrate fragmented surveillance so as ‘to become a kind of Human Rights Watch for endangered forests, a disciplined Internet community that ensures a fair and objective scrutiny of the practices of all forest product companies.’54 Another variant of cyber-accountability is when the detailed functioning of formal accountability institutions is subjected to minute scrutiny, and the findings are posted on the internet. An important example of this is the work of the Public Service Accountability Monitor (PSAM), based in South Africa’s Eastern Cape province, which saw its job as tracking ‘individual cases of misconduct and corruption and the reactions of the responsible departments to these cases’. PSAM ‘monitors the performance of individual departments’ compliance with regulations and implementation of disciplinary procedures’.55 The non-profit groups that operated this programme took advantage of the highly developed transparency and right-to-information provisions in the South African Constitution and related legal instruments. Were government accountability agencies not obliged to divulge details of their own oversight and enforcement activities, it would not have been possible for the PSAM to subject them to independent analysis to determine whether they were conforming to procedural standards, before posting the raw data and legal analysis on the web. In other words, this non-official watchdog was keeping the official watchdog under surveillance. As the programme’s management put it, their objective was to ‘follow-up’, in minute detail, the ‘cases of public sector corruption and maladministration … in an objective and politically non-partisan fashion’. The fairly straightforward methodology was based on verified information obtained through a standard process. First, the PSAM compiled reports of ‘misconduct, corruption and maladministration’ by monitoring the press and documents produced by the government’s Special Investigating Unit, the Auditor-General’s office, Parliament’s Public Accounts Committee and NGOs. Each case was entered into the PSAM database, and assigned a researcher. Based on consultations with legal advisors, the researcher identified

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regulations that had been breached and disciplinary procedures that should have been implemented. The researcher then conducted a thorough investigation to establish the basic details of the case, before conducting tape-recorded telephone interviews with representatives of the concerned departments. The representatives were selected in consultation with the Director General’s Office of the Eastern Cape Province and, when police cases were involved, the Provincial Commissioner of the South African Police Service. The interviews were based on a predetermined list of questions about the case and relevant legislation, management procedures and public-service rules. A transcribed copy of the interview questions and case summary was then sent to the Director-General of the Provincial Administration and the Speaker of the Provincial Legislature requesting them to take cognisance of the case and to pursue appropriate action. Finally, the case information was published online, including responses from all the actors involved. The starting point for the PSAM project was a belief that ‘when public resources are abused through corruption and maladministration it is ordinary members of society, and in particular the poor and unemployed, who suffer the consequences’.56 The idea is ‘that if public officials who have been found guilty of acts of gross misconduct, corruption or maladministration continue to be employed, this sets the precedent that misconduct will be tolerated by public service management’. For public officials to be held accountable, the public must ‘be reliably informed’ about not only the general level of service delivery outputs, but also ‘the performance of individual departments and officials within the public service’. The PSAM recognized that there were serious institutional shortcomings to the accountability agencies in the South African system. The Auditor-General’s office is only able to obtain funds for its investigations from the government institutions that it audits, and many of these refuse to pay, or claim a lack of funds. When audits do take place, the fact that it must await submissions from the relevant entities being subjected to the audit means that its access to information is limited, in many cases, to general aggregate financial statements that cannot be cross-checked against other documentation. Visitors to the PSAM’s website could find regular updates on specific cases, or could receive automated e-mail notifications of new updates. A posting of 13 June 2001, for example, included new details of the Department of Agriculture’s failure to discharge its accountability function: it had, contrary to disciplinary procedures, not suspended an official convicted for the rape of a colleague’s 12-year-old daughter. While on bail pending the outcome of his appeal, the official remained on the residential premises of the educational institution in which he worked, and raped another colleague’s daughter – a nine-year-old. The PSAM dossier documents that the Department conducted no investigation and never charged the official with misconduct. The PSAM also obtained and posted the Department head’s explanation for why no

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disciplinary measures were taken, which was that the matter was a subject of legal proceedings. The PSAM then posted the relevant regulations that discredited this justification, and provided evidence that in fact the Department had no written record of the case at all. There are serious questions about the potential for this type of initiative – external monitoring of accountability systems – to catalyse the sort of public outrage that would make it effective. This reservation is all the more pertinent given the serious equity concerns inherent in the nature of the information technology upon which this particular case relies. While the internet can help to publicise how the actions of the powerful negatively affect the poor, and in some cases reveal, in painful detail, the failures of accountability institutions designed to protect disadvantaged people, cyberspace is a forum that, in its current form, largely excludes the poor from active participation. Accountability to the poor is replaced by what may be, for the time being, the second-best solution – accountability for protecting the interests of the poor. * * * Given the rate at which jurisdictions are expanding, contracting, merging and sometimes becoming partially deterritorialized, it is perhaps not surprising that there has been a shift in standards of accountability as well. This includes what power-holders are to be held accountable for – which actions count and which do not – and the criteria used in assessing performance. These are the issues that dominate Chapter 6. For now we merely emphasise that the use of new methods is bound to involve shifting standards. The phenomenon of actors playing unaccustomed roles is also related to new criteria for judging power-holders: an actor’s position cannot but affect his or her assessment of the legitimacy of certain actions and decisions. Similar considerations apply concerning an actor’s interest in the level at which justice systems operate: the physical extent of the accountability jurisdiction is important in affecting which norms are applied in assessing the actions of various actors. But these new standards are not simply the result of new roles, methods and jurisdictions. The application of these new standards – for instance, in the area of human rights – helps to shape discussions about, for instance, the appropriate level at which accountability mechanisms should operate, and the characteristics of the actors able to work within them.

6 New Standards of Accountability

The third element of the new accountability agenda is the emergence of a new set of standards against which power-holders are judged. A shift in standards is to some degree implicit in the trends reviewed in Chapters 4 and 5. When actors in accountability relationships assume new roles, when they reach across old accountability jurisdictions or create new ones, when they use new methods to either demand answers of power-holders or trigger enforcement processes – under such circumstances the criteria used to assess the performance of accountability targets are bound to shift. But changing accountability norms are not just the result of new sorts of actors and new forums and methods for seeking accountability; they are also an important cause. There is, as we have maintained, a dynamic relationship among the three elements of the new accountability agenda. Changing standards, for instance, help to legitimize the engagement of previously excluded actors in accountability relationships, and are catalysts for the creation of new methods of scrutinizing the behaviour of power-holders. Part of the reason why non-state actors have, in some cases, been able to participate directly in national and international accountability institutions is that popular expectations have undergone fundamental changes. In 2004 one of India’s state election commissioners openly welcomed the direct participation of NGO election monitors, issuing instructions to polling officers to facilitate their efforts.1 A decade earlier such an intrusion on official accountability processes would not have been tolerated by India’s public authorities – jealous guardians of their turf – let alone actively embraced. It is evident that there has been a shift in the standards against which the ‘standing’ of accountability actors is assessed. This chapter surveys evidence that standards of accountability – expectations about what constitutes acceptable performance by various categories of target – are changing. The nature of the shift is complex. There is no uniform pattern across countries, policy domains or institutions. Moreover, there is often a disjuncture between shifts in public attitudes and changes to official

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standards. With these caveats in mind, we argue that demands for reforms to accountability systems, and efforts to implement them, tend increasingly to involve the imposition of standards that are: (a) built around outcomeoriented, rather than process-oriented, criteria; (b) focussed on human development, including issues of rights; and (c) based on a more compressed time frame for the accountability cycle. Our usage of the term standards refers to two interrelated but analytically distinct elements: first, the set of activities for which power-holders are accountable; and, second, the criteria used in assessing the performance of actors in carrying out these activities. We seek throughout the analysis to chart the implications of changes to both elements for the operation of accountability institutions. We pay particular attention to the political implications of the fact that there are often large gaps between moral standards and the criteria used in official procedures. Accountability institutions routinely fail to keep pace with changing popular expectations about the kinds of benchmarks against which public officials should be measured, as well as the timespan across which performance should be assessed. This issue is discussed at length in the next section, as well as in a case study of reform to the WTO later in the chapter. Examining shifting standards of accountability also involves an examination of the flow of ideas about how powerful actors should behave. To what extent, for instance, does reform in the public sector influence standards of probity in the private sector? The final section of the chapter examines the proliferation of new voluntary labour and environmental-protection standards.

Culture, norms and moral-procedural gaps What constitutes a shift in standards? Calls to expand the range of actors subjected to accountability often, upon closer inspection, turn out to be demands for more exacting criteria for assessing the performance of powerholders. For instance, a New York Times op-ed piece published in 2002 insisted that it was high time America’s Ivy League universities were held accountable for their student-admissions policies: The wonder is that, with all their influence, we agree to leave [the Ivy League Universities] alone in their maneuverings. While most other powerful social institutions, both public and private, must answer to an array of politicians, consumers, lawyers, inspectors general and organized pressure groups, the Ivies retain an aristocratic autonomy that the public seems loath to challenge or to second-guess. It’s odd. Since who goes to Harvard this fall may substantially determine who runs the country 20 years from now, we all, in a sense, have an interest in Harvard’s decisions – and yet it’s not an interest we pursue. Instead, we trust Harvard to come to its own judgments. Such blind faith just isn’t like us [Americans].2

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Harvard and other elite universities are, however, already accountable to most of the agents listed in this quote (as well as some others). The proposal is for more specific controls placed on their admissions policies, based on a particular conception of the public good. Perhaps the most telling phrase is the last one. When the author says that trust in large institutions is rather un-American, he refers to a trend of the past quarter century – the shift away from ‘trust’-based approaches to the exercise of power. This is one of the main trends driving the new accountability agenda; as we will see in Chapter 8, it is also at the heart of a key criticism of the new agenda – that the new approaches to accountability further deplete the trust which holders of office must have if they are to take decisions effectively. In a number of cases where actors are assuming new roles as accountabilityseekers it is impossible to overstate the importance of shifting attitudes in bringing about these changes. A good example is NEPAD (New Partnership for African Development), which aims to improve the terms on which African governments engage with their international partners across a range of issues and domains – including aid, trade, investment, multilateral rule-making and enforcement, democracy and governance and so forth. Rejecting the paradigm of conditionality-based lending, though not necessarily all of the neoliberal content of the reform programmes themselves, NEPAD’s architects explicitly seek ‘national ownership’ of development strategies. But at the same time, the onus cannot be only on the aid-recipient governments. Thus the term ‘mutual accountability’ came into the NEPAD lexicon. De Waal argues that One of the most promising elements in NEPAD is the donor commitment to ‘mutual accountability’: not only do the aid recipients have to have a clean record, but the donors too have to remedy their deplorable record of overburdening conditions, constantly changing priorities, and conflicting reporting requirements.3 The focus on the issue of donor accountability reflects changing attitudes to the aid relationship though these may appear to be merely a change in the roles played – for instance, the donor governments abjuring certain enforcement mechanisms. Changing norms and expectations about equality in gender relations have enabled women to participate more effectively in demanding accountability from public and private institutions – so much so that even the patriarchal leadership of Christian churches, as we saw in Chapter 4, has had to respond to women’s complaints about sexism and autocracy. It is hard to escape the conclusion that there is a relationship of reciprocal influence between the processes of accountability (including agents and objects, methods and arenas) and the standards to which these processes are expected to conform. When previously excluded or overlooked social groups demand more direct

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accountability, systems of justice and standards of fairness must confront the reasons why they were overlooked or excluded in the first place, and begin to challenge the elite biases that may have produced these exclusions. The disconnection between more exacting standards of accountability and inadequate means of enforcing them reflects two profound processes of change – both still far from fully institutionalized – in political and social life around the world. The first is the wave of democratic transitions, mainly in developing countries since the mid-1970s, accompanied since the early 1990s by foreign-aid programmes to produce ‘good government’ and build state capacity. Other aspects of globalization have also contributed to the formation of new standards. Debates have raged on such issues as the permissible level of divergence in labour standards between trading nations. Held argues ‘that contemporary globalization has … triggered or reinforced the significant politicisation of a growing array of issue areas’.4 By shifting the boundaries of what constitutes a legitimate subject for political debate, this process has helped to introduce new standards of accountability. The second macro-process is the long-term democratization of personal relationships in response to feminist, anti-racist and other social-equity struggles of the past century. In both of these processes of political and social change, expectations about justice and accountability have raced ahead of institutional reforms to accommodate them. Democratic transitions have occurred in societies in which bureaucracies are still much more responsive to particularistic obligations stemming from traditional relationships than to ideals of impartiality and equal treatment. Corruption and other forms of accountability failure are often explained as expressions of the incomplete transition to a modern state and the shallow popular internalization of democratic political culture. Chabal argues that particularly in African countries the boundaries between public and private, between the state and civil society and the economy, are unclear, and that this produces weak distinctions between public and private property, encouraging politicians and bureaucrats to derive private benefit from public resources as a matter of legitimate right.5 In such contexts, the very notion of ‘corruption’ can be alien. As Visvanathan and Sethi argue, ‘rational legal authority with the idea of public office, impersonal rules, and the demarcation of public and private, office and home, [is needed] to create the discourse of corruption as we know it’.6 It is sometimes argued that this absence of clear and internalized distinctions between public and private eliminates the sense of moral culpability on the part of corrupt public actors, and also weakens the capacity of citizens to make moral judgements and distinctions about the behaviour of public actors – classically, between whether the offer of an inducement to a bureaucrat is a ‘gift’ or a ‘bribe’.7 As suggested by Herzfeld, an anthropologist: ‘accountability is a socially produced, culturally saturated amalgam of ideas about person, presence, and polity … [whose] meaning is culturally specific … [and which] cannot break free of social experience’.8 Clapham

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considers the creation of effective institutions ‘an enterprise which depends to a large extent on culture: on the ability to respect and delegate authority; on the capacity to conceptualize and implement a distinction between the “public” interests of an institution and the “private” interests of the individuals within it; on conceptions of obligation and accountability which are ultimately moral and societal in nature’.9 Clapham holds out little hope for externally imposed ‘changes in political culture’, which the aid industry ‘charateristically’ seeks to effect ‘by strengthening “civil society”, an approach which may well be regarded as carrying within it the cultural assumption of Western … societies’. A culturally sensitive view can of course degenerate into a relentlessly relativistic perspective on corruption and accountability,10 the implication being that the aid industry’s ‘crisis of corruption’ discourse is a Westernimperialist conceptual venture that misidentifies traditional relationships and exchanges as exploitative.11 According to this view, if ‘corruption’ has indeed become a convenient explanation for policy failures in developing countries, then it is a racist strategy to blame failure on culture-specific governance practices; it forestalls efforts to examine the role of external economic forces (such as global trade regimes) and multilateral economic actors (like the World Bank) in perpetuating poverty. Standards of accountability are, no doubt, shaped by local political cultures. But the proliferation of efforts to improve the accountability of powerful public- and private-sector actors around the world, and the concomitant sense of a crisis of accountability, is significant not so much as an indicator of the great variability in how polities shape distinctions between public and private, but rather as a sign of growing demand among ordinary people for a clearer statement of the rationale for those distinctions. It also reflects resentment by ordinary people at the ease with which public goods are appropriated by private interests. Struggles for accountability around the world signify an assertion of citizens’ rights to see public resources properly managed. Parry makes this point particularly well. His ethnography illustrates the real dilemmas faced by people seeking to bribe their way into factory jobs (if they are lucky) in a public-sector firm in Chhattisgarh, central India. It depicts well-meaning functionaries unwillingly and sometimes unwittingly getting drawn into corrupt practices, and reveals how corruption is ‘normalised’ by everyday practice. He concludes: ‘… the idea of a “crisis of corruption” may be as much a product of a growing acceptance of universalistic bureaucratic norms as of its actual increase. Corruption has seemed to get worse and worse not (only) because it has, but also because it subverts a set of values to which people are increasingly committed’.12 There is, in other words, a mismatch between traditional systems of patronage and privilege and the expectations of citizens in contemporary democracies – about fairness, equality of opportunity, the rule of law and the state’s obligation to ensure that basic needs are met. Thus, while there is

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always a moral-procedural accountability gap, this problem is exacerbated under current conditions. This is because the almost ceaseless shifting of accountability jurisdictions and actor-roles has made demands for a revision of standards a more or less permanent state of affairs. Conflict among competing views is similarly unending. This can, at times, detract from the necessary focus on making existing institutions – based on traditional roles, fixed jurisdictional bounds and conventional methods – work as best they can to overcome biases that reside within any system of justice. The biases that get reflected through the moral-procedural gap are expressed not so much in the formal structure of accountability institutions – though these may exist (or may have been imposed by external actors), buried in the deep structure of national parliaments, audit offices and anti-corruption commissions – as in the informal practices through which they actually function, practices that override formal rules about due process and fairness by unduly privileging private interests. New norms concerning what constitutes acceptable conduct for public officials catalyse the development of new methods and institutions for obtaining justice, such as reparation programmes, or the use of other legal mechanisms, such as civil suits. There have been more than twenty ‘truth commissions’ around the world, and many of these use the information obtained to mount further investigations and prosecutions through normal judicial processes or administrative tribunals. There is considerable variation in the way in which this species of accountability mechanism has evolved from one ecological niche to the next, and this in turn stems from the differences in standards – and processes for arriving at standards – from one national context to another.13 South Africa’s Truth and Reconciliation Commission (established in 1994) was based on the idea that human rights abusers under the apartheid regime were obliged to provide answers about their actions – for instance, what happened to disappeared persons – and that in exchange the state forfeited its right to impose penalties. Answerability – the obligation to divulge the ‘truth’ – is obtained at the expense of enforcement because otherwise the still powerful offenders would not likely submit to a public cross-examination, preferring to hide behind legal protections. There are doubts in the South African case about the value of voice delinked from institutional, as opposed to moral, accountability. This, in the view of some observers, delegitimizes the entire project of accountability, substituting ‘efforts to forge moral unity and communitarian discourses’ for ‘accountability and justice defined as proportional retribution and procedural fairness’.14 The stress on truth or answerability alone may not even produce the reconciliation that is expected. Clinical studies found that victims of abuse, or families of those killed, derive little psychological benefit from these processes,15 a situation not helped in the South African case by the delayed and inadequate reparation process.16

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Among the many examples worldwide of similar such Truth Commissions, South Africa’s was unique in possessing an amnesty provision, and was one of the few to have reconciliation and restorative (as opposed to punitive) justice as its central principle. However, the South African Truth and Reconciliation Commission did keep an eye on the problem of the moralprocedural accountability gap by refusing amnesty to the vast majority of applicants, thereby reserving for many human rights abusers a more vigorous prosecution strategy, at such a time as the political situation and the prosecuting powers of the new government would allow. A report by Amnesty International and Human Rights Watch in February 2003 strongly asserted that the time had come to tackle these delayed cases: ‘After the end of apartheid, some people argued that South Africa’s transition was too fragile to withstand a raft of prosecutions against human rights abusers. These arguments no longer apply, if they ever did’.17 The second trigger for changed standards of accountability, and the second arena in which there is a large gap between expectations and institutional practices, is the democratization of social relationships. The growing centrality of social justice and equity to the understanding of accountability reflects the shift away from a culture of deference for institutions, which itself has been fuelled by successful challenges to failing or grossly biased accountability relationships in institutional arenas beyond the ‘official’ public sphere. In arenas such as the family, the market and the local community, socially inequitable relationships have often been neglected or tolerated by the state (and by public mores) on the grounds that they are best dealt with through voluntary mechanisms or through customary dispute-resolution. But as levels of education, population mobility and knowledge about other parts of the world increase, weaker parties to these arrangements are in many countries eliciting state support to combat sexism, racism or other forms of disadvantage. Expectations are thereby created not only that institutions of public-sector oversight should intervene to prevent or mitigate injustices in the private arenas of the family, market or community, but also that state institutions should include attention to inequalities stemming from gender, race, caste and other forms of difference in all activities they audit, disputes they adjudicate and performances they evaluate. In other words, there is a growing sense in the developing world’s new democracies that the ‘public’ must be more inclusively defined to embrace women, religious outcasts, ethnic minorities and other marginalized groups. If public actors are to be fully accountable to all these new publics, they must be sensitive to the particular forms of injustice each group faces – injustices that are often overlooked because of systematic bias in conventional accountability systems. In newly democratizing countries, there is often a large ‘legal-practical’ accountability gap on gender issues – between women’s formal legal entitlements as citizens and the willingness of governments to answer to women

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for upholding these rights. Many constitutions have gender equality built into them yet they do not address contradictions between equal rights in civil law and deeply unequal rights in customary laws that retain legal primacy on issues relating to family matters. Many developing states have signed international human rights treaties that commit them to advancing women’s rights in domestic economic and social policy, but have not subsequently made the changes (to legislation, policy and bureaucratic practice) needed to counter sex-based inequalities in access to public and private resources. One effort at the international level to introduce a gender-sensitive standard of accountability was the campaign by the UNHCR (United Nations High Commission for Refugees) in the 1990s to make states broaden the definition of ‘refugee’ to include individuals who have experienced (or are threatened by) gender-based forms of persecution. In 1993 the UNHCR added sexual violence to the 1951 Convention relating to the status of refugee, where refugees are individuals with ‘a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion’ (Article 1(2)). Canada and the United States now consider female genital mutilation, forced abortion and sterilization gender-based forms of persecution, making them grounds for granting refugee status.18 The question of whether standards of accountability can be made gendersensitive is discussed in more depth in Chapter 7. Here it is important to note that the moral-procedural accountability gap in relation to gender equity is in many countries substantial. Many states value the progressive image they acquire by subscribing to international gender-equity goals. But the relative weakness of domestic feminist lobbies means these states get away with not investing in the substantial institutional changes required for them to live up to their rhetorical commitment to gender equity. They can have their progressive cake without having to swallow the costs of threatening men’s privileges in, for instance, the job market, or laws on inheritance, domestic violence or child custody. This is more than just another example of voice without accountability, because moral-procedural accountability gaps of this kind risk discrediting new standards of accountability long before they are institutionalized.

Processes, outcomes and human development The emergence of new standards against which the behaviour of public actors is judged has extended to powerful private-sector actors, and the gap between standards and procedures is particularly marked in efforts to hold corporations to account. Demands that the indirect impacts of corporate operations should also be subjected to higher standards of social justice have not been matched by reforms to domestic and international law. In October 2001, at

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a hearing in the European Parliament, Premier Oil, a British petroleum firm, was accused by the NGO Earth Rights International of having been a party to human rights violations (including forced labour) through its operations in Burma. The firm’s official response was strikingly out of sync with changing standards of accountability. Premier Oil’s Corporate Social Responsibility Officer said at the time ‘[t]here are no international sanctions that do not allow our operation to go ahead there’ – a double negative and a legalistic formulation that, while broadly technically correct, neglects the changing criteria against which powerful organizations are being judged in the court of public opinion, a barometer to which Members of the European Parliament ought to be acutely sensitive. Premier’s contention was reportedly that ‘it could not be held responsible for the behaviour of troops it retained to protect its pipeline and employees’.19 But, in fact, not only was the firm being held ‘responsible’; it was also being held accountable (in a de facto sense) in that changing standards of public morality had forced it to at least answer for its alleged conduct. Many forms of public accountability in constitutional democracies employ assessment frameworks that judge how well accountable actors adhere to procedures, or how reasonable their decisions were in light of the information they possessed at the time, rather than the outcomes produced by those decisions. This is particularly the case within state bureaucracies, where civil-service rules specify the sequence of actions officials must take in response to, say, a particular variety of crisis, rather than what they must actually have achieved in responding to such a crisis. There has always, however, been another latent strain of accountability that transcended the legalism of the procedural-compliance standard. For instance, government ministers have long been expected to demonstrate their willingness to assume ultimate responsibility for events that take place during their watch. Resignation was a matter of symbolic cleansing, regardless of whether all of the procedures had been properly followed, or whether the decision-making showed a logically rigorous process of deliberation. So in a sense the new standards that we are referring to may not be completely new. What is new is the growing share of accountability relationships where one finds attempts to impose an outcome-oriented indicator for judging the power-holder’s performance. A campaign orchestrated by an international coalition of NGOs called Agribusiness Accountability (AA) illustrates this dissatisfaction with technical, procedural criteria. In its campaign to hold multinational corporations to account for actions that impair people’s right to food, the AA is concerned less with firms’ adherence to food industry regulations than with whether the laws themselves are likely to produce positive human development outcomes. Legal correctness is not the focus here. The claim of activists is that the formal rules are out of line with public norms. The head of one of AA’s partner organizations,

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World Food Security, argued that: It has become increasingly clear in the past quarter century that almost all aspects of the global food system are dominated by a combination of corporate agribusiness, wealthy people in both industrialized and developing countries, and the financial institutions and national governments that guide and support them … Much of this power is exercised without accountability … Such exercise is basically undemocratic and unethical. It must be challenged and changed.20 The AA campaign reported that ‘the United Nations Special Rapporteur on the Right to Food presented an interim report to the UN General Assembly which states “that it is now time to develop binding legal norms that hold corporations to human rights standards and circumscribe potential abuses of their position of power” ’.21 The AA initiative is seeking to shift popular understandings of the legitimate chain of command in accountability relationships: whether or not corporations are in conformity with their obligations to the states in whose jurisdictions they operate, they still must be held accountable for their contribution to a rights violation – the nonavailability of food. This substitutes a new set of accountability targets for the traditional target (the state), which now seems beyond reach, and is in any case often incapable of enforcing rules on equity and access. So there is agreement that people’s rights have been violated; but who is burdened by the corresponding obligation is left unclear. The arguments in the document produced by the UN’s Special Rapporteur on the Right to Food supports an integrated view of how new standards and new roles should emerge. The Rapporteur argues that it should be possible to hold corporations accountable for not respecting rights to food, but as the representative of the UN, an organization of states, the Rapporteur was compelled to admit that it is the state that is currently the accountable party in such matters. In other words, states must regulate to ensure the right to food, directing firms if need be to take actions that will assist the state in meeting its international legal obligations. Thus, to blame corporations is, arguably, to point the finger at the wrong actor. To shift the standard in the way suggested (rather optimistically) by AA – that is, to insist upon holding corporations accountable for the impacts of their lawful actions – is problematic from many perspectives, including the credibility of the state’s impartiality in contract-enforcement. (This is, of course, distinct from any claims made under civil or criminal law, which are obviously a necessary deterrent to abuse.) Why meeting food security should not be the role of state policy is left unclear by the campaign literature, except for the implicit idea that the state is too weak to regulate effectively. To buy into this line of argument, however, is to buy into the myth

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of the powerless state – and in the process, to reduce pressure on states, individually and collectively, to regulate in ways that promote human development. This is symptomatic of the conceptual confusion currently reigning in accountability activism. International financial institutions are also being subjected to new, outcome-oriented, standards by a range of accountability-seekers. The World Bank has been the target of increased demands in recent years – from both protestors and the governments that collectively own a controlling interest in the Bank – to increase its accountability to disadvantaged people in the countries in which it operates.22 The new levels of scrutiny such organizations face are, in some cases, prompting them to insist on improved public accountability mechanisms within the countries to which they provide assistance. This appears to be a concern driving the World Bank’s approach to creating a new public oversight agency to monitor the use of oil revenues in Chad. In Chapter 5 the Chad Oil Fund was briefly mentioned as an example of a novel mechanism, which because of the nature of its transnational actors (firms and multilateral institutions) possessed a degree of jurisdictional fluidity as well. But there is a standards-related dimension to this example as well. The World Bank-devised offshore account for the deposit of Chad’s oil revenues was designed to control for the leakage of these revenues into military or other forms of expenditure that do not address Chad’s human development objectives.23 It is a method, but not really that novel. It is at best a new form of an old idea – a modern version of the old-fashioned trust fund, escrow account or hypothecated revenue stream. What is new is that the Chad project represents a shift in the standards of accountability. The standard has shifted in that the funds must be devoted to the pursuit of highly specified human development outcomes. Chad is expected to experience an oil boom in the years ahead. In 2002 an international consortium of oil companies led by ExxonMobil started pumping in its Doba basin in the south of the country. Government revenues are expected to reach an annual level of $80–140 million by the middle of this decade. The institutions for ensuring that these riches help to benefit the country as a whole – particularly the poor majority – is a good example of how new pressures for accountability force a range of key actors to adapt. The World Bank is, in financial terms, a small player in the deals being struck between the Government of Chad and the international oil companies. But the Bank’s participation in the project provided critical bridge financing and was crucial in cementing the deals with oil companies, because it signals that the Government is a reputable player. The Bank is using this leverage as a way of pushing the government and the oil companies into adopting new standards of accountability. Because of the fear that the oil firms and the government will collude to skim off funds from the oil revenues, the Bank has insisted on the creation

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of an ‘independent accountability board’. Its mission is to oversee not only the negotiation of agreements and the collection of funds, but also to ensure that a percentage of the oil profits is ploughed into social development. The board includes several representatives of civil society organizations as full members. This committee presides over decisions about how oil revenues should be spent. To have access to these funds the government will have to secure the consent of the accountability committee. Eighty per cent of these revenues are to be earmarked for health, education and basic infrastructure. There are substantial fears that this kind of arrangement will encounter difficulties. In early 2002, in the thick of Chad’s parliamentary elections, the US House of Representatives Subcommittee on Africa stated that it was questionable ‘whether the government of Chad has the institutional capabilities, even if it has the political will, to use oil revenue in the agreed-to manner. It will be the role of the World Bank and the United States to help Chad’s government honour its commitment, even if it should resist’.24 In the absence of elements of a larger accountability system – courts to adjudicate disputes in the functioning of the board, and a strong electoral commission to make elections freer and fairer – off-shore financial-accountability mechanisms, even if linked to oversight bodies with built-in citizen participation, are unlikely to safeguard the interests of the poor. There are inadequate means for ensuring the accountability of the board’s nongovernmental representatives. Even if their commitment to financial probity could somehow be ensured, they can be intimidated by politicians who command the security services. That the board will have difficulty resisting the government has already been established. The government’s first taste of oil money went into arms purchases to enable General Idriss Deby, the president, to quash a fresh rebellion in the north of the country. A littlediscussed clause in the arrangement for the ‘independent accountability board’ enables the president to make these ‘emergency’ calls on the oil revenues.25 In a reaction to this problem, non-governmental groups in Chad and Cameroon joined together and insisted on engagement from the World Bank in strengthening civil society scrutiny of the oil revenue management board. In March 2003 two local organizations affiliated to the Berlin-based Transparency International (the Action Tchadienne pour l’Integrité and Transparency International Cameroon) committed not only to joint monitoring of the revenue management board, but also to monitoring whether people displaced by the Doba exploration and the pipeline itself were adequately compensated. The NGOs also demanded inclusion in World Bank inspection missions.26 This initiative demonstrates a growing sense of civil society entitlement to participate directly in accountability institutions. It also demonstrates an internationalization of the terrain for accountability exercises. The networking that occurs when local anti-corruption groups

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affiliate with Transparency International improves monitoring, and ensures rapid dissemination of concerns about wrong-doing. The possibility of NGO members of the oversight panel being co-opted, it was originally thought, could be prevented through parallel consultations between other local groups and the multinational oil firms, though this strategy may be of limited value. A representative of Friends of the Earth (France) contradicted claims made by ExxonMobil about its interactions with NGOs: ‘Company representatives did meet with local groups but most of these meetings took place in the presence of Chad’s military, the same groups that had massacred hundreds of civilians in the oil production arena in order to “pacify” the region in preparation for the project’.27 Without more basic checks on the exercise of arbitrary power by such key institutions as the armed forces, innovations in accountability relationships will face constant threats. Part of the pressure on the World Bank to insist on these kinds of oversight mechanisms stems from earlier accountability failures in Bank-funded projects. An independent report on the need to learn lessons from past mistakes referred specifically to the Chad pipeline project.28 The report also recalled the massive displacement produced by Guatemala’s Chixoy Dam, built in late 1970s and early 1980s with financing from the World Bank and the Inter-American Development Bank. The Guatemalan military massacred the Amerindian Rio Negri community that was in the way. The report argued that the World Bank could have done more to prevent this atrocity – in effect substituting external for domestic accountability. The context of civil conflict is common to both the Guatemala and Chad cases, and the report demands that the Bank insist upon more accountability, less impunity and a greater willingness to share information broadly.29 Accountability systems are increasingly expected not just to satisfy concerns with outcomes, but also to examine outcomes of a particular kind – those that improve social justice and the realization of rights. This means, among other things, holding state and non-state actors accountable for whether they contributed to improving poor people’s levels of human development. This, by definition, includes the degree to which powerful actors contribute to the promotion of ‘active citizenship’, or people’s capacity to participate meaningfully in the decision-making processes that affect their life chances. To make human development the standard against which power-holders should be held accountable creates even more complicated accountability relationships: accountability-seekers demand that powerholders be held accountable for their ability to empower citizens to continuously hold them to account. This is thus an outcome-oriented standard, but one in which the outcome sought is a capacity to participate in accountability processes. The ‘right to information’, and its connection to other forms of accountability-seeking, illustrates this point. In response to demands that

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new standards of accountability be operationalized, citizens in some countries (or localities within countries) have been granted substantial rights to obtain access to government-held information, and to litigate against serviceproviders in the event of breaches of trust or poor performance. This represents a more radical vision of accountable public-sector management than many states can entertain. It reverses the political-administrative control system from one in which bureaucrats and politicians remain primarily responsible for monitoring the actions of public and private power-holders, to one in which citizens can trigger accountability investigations directly. States have been more willing to grant citizens statutory rights – for instance, the right to information – to enable them to temper the excesses of market agents, than to discipline public employees or politicians. Strong evidence exists linking citizen-held rights to information and litigation with success in curbing private-sector actions that are damaging to the environment. A study that examined the effect on environmental regulation of state-sponsored right-to-know and right-to-sue provisions in the United States found that such rights are highly effective in holding industrial polluters to account. The study found that efforts to engage citizens in environmental regulation through the more conventional means of consultation, public hearings and so on tended to be cosmetic measures. But states that armed citizens with the right to sue polluting industries, and with state-funded right-to-know programmes providing information on toxic emissions, reduced emissions over time.30 Transparency laws, such as California’s extensive rules on disclosure of toxic waste emissions, arm citizens with the information needed both to determine whether industries are breaking pollution controls and to embarrass industries into improved self-regulation. One of the tools used by anti-pollution activists is the United States’ federal Toxic Release Inventory (TRI), made available under a ‘right-to-know’ law enacted in response to the 1984 disaster in Bhopal, India.31 This US law mandates that the 30,000 largest private and governmentrun chemical facilities publish estimates of toxic chemicals released or transferred off-site. The US TRI is available to the public via print and the internet. It offers a fairly minimal form of environmental regulation; it sets toxic release reduction targets, but provides no penalties for not meeting them. However, citizens have been able to use it to control polluters in at least two ways. First, the collection and exposure of TRI data has a disciplining effect on polluters. The information and the ease of comparison enabled by the TRI data allows journalists and anti-pollution activists to expose polluters, producing reputational damage and in some cases significant declines in the share value of publicly traded firms.32 Second, even though the Environmental Protection Agency does not penalize firms for inaccurate reporting, citizens can sue firms for not fully complying with TRI disclosure provisions.33 It might be argued that right-to-know provisions and strategies based on litigation are inappropriate for poor people in developing countries.

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Illiteracy and the inaccessibility of technical information on budgets (or toxic releases, or the environmental impact of building a large dam) mean that right-to-information laws may never be used. Courts are improbable arenas in which to stage empowerment struggles for many reasons. Some of these were summarized at the close of Chapter 3. Yet there is evidence – for instance, the local spending audits in India discussed in Chapter 4 – that rights to information and litigation have empowered citizens in relation to providers, and in some cases have triggered a public-sector response. Citizen rights to litigate against public actors for poor performance has been most effective where citizens have also been awarded a statutory right to certain services, and where rules on legal standing enable representatives of the poor to litigate in the public interest. Where citizens have a statutory right to certain services, their rights to sue providers for inadequate services are more substantial. The Employment Guarantee Scheme in the Indian state of Maharashtra has been held up as an example of substantial empowerment for the poor. The scheme gives applicants statutory rights to employment (or to unemployment benefits if employment cannot be provided) – an official guarantee. Applicants must form themselves into a group before approaching a local government office and requesting work. If the employment guarantee is not respected, applicants may collectively challenge the state administration for failing to create jobs or to provide unemployment payments. This is done through local protest but also through legal cases. Legal aid groups in Mumbai have represented job applicants in a number of successful Public Interest Litigation cases in the state High Court that have secured government admissions of responsibility, though none yet has secured actual pay-outs of lost wages or benefits.35 Litigation exposes accountability failures and can galvanize other social groups into examining the mis-use of public funds. Beyond the courtroom dramas, however, the availability of litigation as an option and the existence of a statutory right to state services can have other salutary effects on the ability of socially excluded groups to demand accountability. Statutory rights to public goods such as education or health may help to build the collective voice of the poor by creating a point of access to the state for groups of citizens who may become aware of, and then act upon, shared interests.36 One problem with rights-based provisions for transparency, or with the creation of statutory rights to services, is that they put the onus on citizens to demand their rights, or when these are denied, to initiate proceedings against service providers. Rights-based approaches to service delivery do not necessarily oblige government workers to provide, suo moto, a service (or information) to a particular client group. A rights-based programme that was stillborn for this reason was a Madhya Pradesh scheme in the early 1990s that guaranteed tribal groups rights to their original land. No land was ever returned, as few tribals were aware of this scheme. The very few bureaucrats who took the trouble to return land to tribals instantly ran up against powerful elites who had illegally encroached on tribal land.37

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Bias and standards: analysing proposals for reform of the WTO’s dispute settlement system Charges that the system of multilateral trade governance administered by the WTO is lacking in accountability usually centre on the inability of the WTO’s institutional structures, which theoretically constrain all memberstates equally, to resist the undue influence exerted by a small number of powerful states. This, allegedly, gets reflected in the conduct of negotiations, the review of trade performance and the adjudication of disputes between member-states. Another way of stating this is to say that southern states – both the ‘Developing Countries’ and the ‘Less Developed Countries’ (LDCs), to employ the nomenclature used by the WTO to distinguish the poor from the extremely poor – lack the capacity to hold either the WTO’s machinery to account for its failure to ensure procedural fairness, or to hold rich memberstates accountable for their failure to honour their treaty obligations. The legitimacy problems of the WTO’s Dispute Settlement System (DSS) stem from the fact that it is seen as subjected to two types of accountability failure: those caused by capture, and those caused by bias. Arguably, most of the complaints about the DSS’s failures as an accountability institution revolve around questions of bias: that is, the institution, as currently constituted, has no remit for addressing issues of inequality between states, which undermines basic procedural fairness. Of course, some of the complaints concern allegations of systematic capture, or the use of undue influence to obtain better outcomes through the subversion of norms governing the operation of existing institutions. But while criticism has intensified since the late 1990s, developing countries’ continued engagement within WTO processes could also be seen as evidence of the institution’s legitimacy. The old General Agreement on Tariffs and Trade (GATT) system, according to one of the pioneers in the study of international trade dispute mechanisms, was biased against poorer countries: ‘the quantitative analysis … makes it pretty clear that the GATT dispute settlement system is, at the margin, more responsive to the interests of the strong than to the interests of the weak … in the rates of success as complainants, in the rates of non-compliance as defendants, in the quality of the outcomes achieved, and in the extent to which complainants are able to carry complaints forward to a decision’.38 The WTO’s DSS has shown a large increase in usage, compared to the old GATT system. Holmes et al.39 find that the share of cases initiated by developing countries has been increasing over the life of the WTO (their study covering the period from 1995 to 2002). Given that the DSS seems to have at least been more accessible to poor countries than its GATT predecessor, why then is the legitimacy of this – the WTO’s main institution of accountability – compromised to the point of being regarded as rigged against poor states? There is a long list of grievances – issues of legal standing, the availability of funds, the appointment of panels

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and the rules governing enforcement. In accountability terms, it could be said that several rules governing the operation of the DSS adversely affect the interests of LDCs and developing countries, making them unable either to obtain answerability or to impose sanctions against rich countries that fail to honour their treaty commitments. Arguably the most contentious variety of complaint about the DSS’s fairness concerns the system for implementing judgements – that is, in terms of the standards applied in the enforcement dimension of accountability. An enforcement machinery is a central element in an accountability system. Currently, most developing and LDC member-states are disadvantaged in terms of their ability to compel compliance by developed member-states with their WTO commitments. Though there are several reasons for this, the major cause for concern is the bilateral nature of enforcement. The only way for a member-state to enforce a DSS Panel’s decision that has found violation by another member-state (in the absence of that state’s voluntary compliance with the actions specified in the Panel report) is to impose retaliatory sanctions – that is, to withdraw trade access. When a developing or LDC member-state has its complaint upheld, but nevertheless has a small domestic market, access to which is not a priority for the developed memberstate, the developing country or LDC deemed by the Panel to have suffered ‘nullification or impairment of benefit’ has little leverage to enforce compliance on the part of its richer trading partners. Key developments in the evolving accountability landscape are reflected in proposals for reforming the rules governing dispute settlement. Reform proposals clearly reveal a thirst for new roles in accountability relationships, and new methods for coping with changes brought on by the varying coverage of the sometime overlapping jurisdictions. But underlying, and certainly supporting, these innovations are changing standards of accountability – the criteria against which power-holders are to be judged. Standards debates have been a source of much controversy in and around the WTO over the past decade – particularly the question of whether tradeaccess privileges should be conditional upon adherence to internationally agreed norms on the treatment of workers and the environment. Though these ‘social clause’ standards were not adopted within the WTO, a case can be made that other types of standards have been taking root with less fanfare. The most far-reaching is the emerging consensus on ‘sustainable development’ – a term found in both the preamble of the WTO’s founding document and in the subsequent Johannesburg summit of 2002. The worldwide focus on sustainable development has placed unprecedented pressure on the WTO to provide special development-related exemptions to poor countries – that is to employ the Special and Differential Treatment (SDT) provisions. Through the instrument of SDT, and in the name of promoting ‘coherence’ across all sites of north-south negotiation (whether in the World Bank, the IMF or the WTO), a raft of reform proposals has been floated.40

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As this book has consistently maintained, people are demanding less mediation of accountability relationships: they are insisting on being more directly involved in official accountability processes. In the case of the DSS, this is reflected in proposals to reform the rules governing legal standing, or eligibility for participation within WTO dispute processes. Such proposals challenge the state’s privileged position as the sole formal participant in international accountability institutions. Formal status is sought for non-state actors within the DSS – for instance, through a transparent system for submitting amicus curiae (friend of the court) briefs that panels would be permitted to consult, or even to rely upon, in rendering a judgement on a specific matter.41 Two cases gave particular prominence to this reform proposal. The first was the ‘Shrimp-Turtle’ case, in which the Panel considered, in formulating its Report, submissions by non-governmental experts. The second case was the complaint by Canada against France, which had banned imports of chrysotile asbestos on health and safety grounds. The Appellate Body in the Asbestos case initially invited non-governmental groups to submit amicus curiae briefs, but once submitted, the AB disallowed them.42 The movement to open up the dispute process to non-state actors has been opposed by various developing country governments, who see it as yet another instance of expert voices from the north dictating economic policy to the south. Developing countries are tired of international aid charities that have absorbed most of the neoliberal assumptions of World Bank economics, and certainly do not want to be lectured to by large western environmental NGOs, like the Sierra Club, which many critics feel promotes conservation over people’s development. Developing countries fear that such (mainly western) organizations would, if given the chance, use their financial muscle to enter into every dispute involving southern challenges to northern environment-linked trade restrictions, food-safety regulations and so forth. Amicus curiae has been seen by its opponents as part and parcel of the strategy to bring labour and environmental standards into the WTO ‘through the back door’. The shift in standards also contributes to the widespread belief that the existing sanctions-based approach to enforcement must be replaced with something fairer.43 Shaffer is among those who believe that the United States and the European Union are focussing on procedural issues that ‘fail to address the central challenge that developing countries face under the current WTO dispute settlement system: that of remedies’.44 Formal submissions on this issue have been made by a number of developing countries – for instance, Ecuador,45 and by a group consisting of Cuba, Honduras, India, Indonesia, Malaysia, Pakistan, Sri Lanka, Tanzania and Zimbabwe.46

Social clauses and standards-based frameworks At the 2003 annual general meeting of ExxonMobil, a group of shareholders demanded that management provide a report on the impact of the firm’s

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activity on sustainable development and climate change. The group’s proposal won the support of a surprisingly large 20 per cent of shareholders. This illustrates two key points about the changing nature of accountability standards. First, the home jurisdiction of a company can have mixed implications for its commitment to new, more encompassing standards. ExxonMobil, because of the US government’s failure to get tough on emissions regulations, or to tax petrol at anywhere near the rates in European countries, has it easy. But when it comes to social standards, rather than environmental standards, US government policy cuts the other way. US sanctions on Libya, Iran and Burma – ostensibly on human rights grounds – have given ExxonMobil’s European competitors an advantage. Second, trends in the evolution of standards are non-linear, making them very unpredictable. Whether standards of accountability will continue to cover an ever-widening range of social concerns is by no means self-evident. In mid-2003, one investment banker told a journalist that interest in ethical investing had declined along with share prices: ‘Social responsibility is a bull market issue!’47 In Chapter 5 we discussed efforts to hold corporations accountable through litigation. An increasingly popular alternative to litigation is voluntary certification. ‘Process standards’ schemes establish minimum levels of protection for the environment and for workers, and include provisions for certifying adherence to them. These codes of business conduct are based on a belief that many consumers are willing to pay more for products that have been produced in ways that minimize negative social and environmental consequences. They are a method for coping with the uncertainty and lack of familiarity that arises when transactions take place across jurisdictional boundaries – that is, where neither government-imposed criteria of accountability, nor the capacity of governments to enforce them, are uniform. One of the most familiar programmes is Rugmark, a scheme certifying that products are created without child labour. The Rugmark initiative was established in 1994 to address the problem of child labour in hand-knotted carpets in South Asia. It was established by consumer groups, carpet manufacturers, bilateral donors such as the German Agency GtZ and international organizations such as the United Nations Children’s Fund (UNICEF). Manufacturers perceived a potential threat to the carpet industry from the possibility of external boycotts. Under the Rugmark scheme, goods made without child labour are labelled as such and production facilities are monitored and inspected. Education is provided for child workers who lose their livelihoods when firms agree to be bound by the terms of the scheme. Both the inspections and social welfare activities are funded by a levy on carpet importers and exporters. In the first year of Rugmark’s operation, unannounced inspections revealed 760 children working illegally on 408 looms in South Asia. By September 1996, enforcement action had led to the decertification of 164 looms. While there have been some successes, the fear is

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that child workers may simply end up employed in more hazardous industries, and there are reports that many carpet manufacturers are moving from the Indian state of Uttar Pradesh to neighbouring Bihar, where child labour is abundant, and in particular to remote villages where monitoring is more difficult, if not impossible.48 The alternative to programmes like Rugmark is either private litigation or the use of trade sanctions, both of which raise political and practical problems. Proposals for sanctions-based regimes are a major point of controversy in discussions on the shape of the international trading system. Detractors – including most developing country governments – see them as a threat to their sources of comparative advantage, and a disguised form of protectionism. Advocates of regimes for enforcing labour and environmental standards through the use of sanctions see them as the only method with strong enough ‘teeth’ to force compliance. But in the case of trade standards on the use of child labour, practical difficulties arise that can make them counterproductive – for instance, driving dismissed child workers further into poverty. In 1993 a news report broadcast in the United States exposed the employment of child labour in Bangladesh by contractors of Wal-Mart, a large US retailer. The fear of consumer boycott led Wal-Mart to cancel contracts with Bangladeshi textile manufacturers. This, and the threat of legislation in the United States that would prohibit imports produced with child labour, led the Bangladeshi textile industry to take draconian action to protect its trading relationship with US importers. An estimated 50,000 children were dismissed. A number of studies concluded that many of these children ended up in the informal sector in workshops subcontracted by textiles enterprises, working in much worse conditions than before.49 Novel multipartite agreements emerged in the 1990s to prevent children and their families from suffering as a consequence of compliance with labour standards. For instance, in Bangladesh, the Bangladesh Garment Manufacturers and Exporters Association (BGMEA), in association with the International Labor Organization (ILO) and UNICEF (supported by the Government of Bangladesh and the US Department of Labour), signed a Memorandum of Understanding in 1995 to end employment for children under 14 years of age. The agreement requires manufacturers to partially subsidize schooling for ex-child workers. The ILO was responsible for designing a monitoring system, offering employment to family members of ex-child workers, prohibiting factories from hiring new underage workers and ensuring that factories re-employ ex-child workers when their schooling was completed. Both school stipends and the monitoring system were funded jointly by the BGMEA, the ILO and UNICEF.50 A 1995 survey found child workers in 43 per cent of BGMEA member factories. By early 1998, only 8 per cent of BGMEA factories still employed child workers. The absolute number of children working in factories also declined.

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In October 1998 only 35 children were found compared with hundreds of children earlier. By 1999, 8193 ex-child workers had been withdrawn from the textile industry and enrolled in the education programme. This number gradually decreased to 3351, as some children reached the age of 14 and became eligible to work.51 While the factors affecting the viability of trade-sanctions-based regimes may vary from issue to issue, the idea that they can undermine the very objectives they were meant to advance has reinforced the movement towards voluntary compliance schemes. Despite this, a number of tradesanctions-based agreements are in existence, including provisions in the North American Free Trade Agreement, the US Generalised System of Preferences and the bilateral trade agreements between the United States and Chile, Singapore and Jordan. Nevertheless, the international political stalemate (partly but not entirely on north-south lines) on the question of permitting sanctions within the context of the WTO has made the voluntary certification route the main avenue of accountability efforts. There are by now a vast array of standards-based schemes. Indeed, as one review of the literature argued, ‘a major problem’ in promoting compliance ‘lies with the large number of standards. Making sense of such standards can be a bewildering and complex undertaking’.52 In practice, the proliferation of voluntary agreements has made it difficult for consumers – who in many cases represent the means of enforcement – to understand the criteria used to assess compliance with standards, or to be sure that the mechanisms for assuring compliance are effective. These problems have been manifested by embarrassing failures of the monitoring mechanisms used in these certification schemes. The US-based Social Accountability Initiative (SAI), which assesses the production methods used by supplier firms, had certified that a footwear production facility in China’s Guandong province had satisfied the requirements of its SA8000 factory conditions standard. But in 2000 when investigators from the US National Labor Committee inspected the factory, which is owned by a Taiwanese company, ‘they found dormitory rooms packed with up to 28 people and work shifts that normally ran to 12 hours’. They learned that the management had recently fired workers who had gone on strike against withholding of wages and excessive hours, and that ‘[w]orkers had also been coached to lie to SA8000 inspectors’.53 Voluntary certification schemes for increasing adherence to labour and environmental standards also fail to address problems of bias. As one analysis put it: ‘[p]rofessional auditing of labour standards, commonly evolving out of the more technical auditing of quality assurance … is sometimes carried out with minimal consultation with workers or local stakeholders. Such forms of monitoring have been subject to criticism for their failure to genuinely address working conditions’.54 The nature of the instruments used in this style of accountability – which ‘often involves a “tick box” approach’ – renders

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invisible the barriers faced by the most vulnerable groups in gaining access to mechanisms of redress. There is another level at which bias operates. A study financed by Germany’s Volkswagen foundation on the types of firms able to comply with standards concluded that ‘[e]vidence from Vietnam and Bangladesh points to significant biases in favour of larger garment producers, and in the case of Vietnam state owned enterprises’.55 The result is that more vulnerable groups feel the pinch: Workers in smaller firms, in subcontracting units and in the informal economy are likely to be most squeezed by the imposition of standards. Such workers may be less skilled and less educated than their counterparts in larger, standard-compliant, firms. They may account for a disproportionately greater share of women, migrant and ethnic minority workers who are less able to acquire jobs in the formal enterprises that meet global standard norms.56 Thus, the process of enforcing new standards to protect workers and the environment can perpetuate (or even exacerbate) biases. These kinds of failures have been at least part of the reason why there has been renewed interest in a different variant of non-compulsory accountability promotion: the multilateral pact. The UN Global Compact, because of its association with the Secretary General’s office, has been perhaps the most high profile, but it lacks many essential enforcement features. Aware of these shortcomings, the OECD has endorsed a code of conduct for firms conducting business outside their home jurisdictions. In June 2000, 33 countries signed up to these Guidelines for Multinational Enterprises – a revised version of a procedure originally adopted in 1976. The Guidelines include provisions on labour relations, environmental protection, consumer affairs, the promotion of local economic development and corruption.57 The way in which the Guidelines are to be used reveals not only the importance of changing methods for achieving accountability, but also the role of shifting standards. Governments, rather than non-governmental human rights groups, are responsible for investigating allegations that firms are violating provisions of the code of conduct. But the complaints themselves need not be initiated by governments, though the exact rules of eligibility for who is authorized to initiate a complaint are a matter of controversy. This is a matter of shifting public standards about who can legitimately demand answers through international forums. The act of investigating the complaint rests with the National Contact Point (NCP), a government office located within each of the countries that has endorsed the Guidelines. The NCP, which in some countries is multipartite (with regularized involvement from trade unions, business associations and NGOs), is empowered to engage in negotiations with a firm found

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to have violated one or more provisions of the code. If the NCP is not satisfied with the firm’s proposed remedial action, or the implementation of the remedy, it is then able to issue a report about the allegations, its findings and the outcome of the mediation talks with the firm.58 Through the NCP mechanism the function of answerability is subjected to a separation of powers (or division of labour), in which civil society can initiate demands for answerability, but only government officials are able actually to secure the answers through an investigative process. The function of enforceability is also delegated to yet another sphere, the larger court of media and public opinion. The NCP’s report on the findings of its investigations does not trigger formal regulatory or legal proceedings. Media pressure and public opinion are expected to bear the full burden of catalysing a popular backlash against erring firms. Fear of a tarnished corporate image is deemed a sufficient incentive to prevent firms from violating the code of conduct in the first place. This type of accountability mechanism thus relies on the emergence of new public attitudes about – or standards of – accountability. * * * This chapter has suggested that citizens’ expectations about standards of accountability have often raced ahead of what public- and private-sector actors are willing and able to accept. This affects what is considered honest and responsible behaviour on the part of public-sector actors, or ethical business practice in the private sector. We have analysed a range of accountability initiatives by citizens, bureaucrats and businesses to demonstrate the extent to which there is contestation over standards of probity in the actions of power-holders. In general, however, people increasingly demand that the actions of state and corporate actors be judged in terms of their contribution to social justice. That this is not an internally consistent process is evident from the absence of public outrage in France in response to the corruption trials of top executives of the previously state-owned oil giant Elf. These trials exposed the complicity of senior members of the Mitterand government in corrupt payments to African heads of state. In 2001 there was a similar lack of concern about the involvement of French President, Jacques Chirac, in corrupt construction deals during his tenure as mayor of Paris. France’s Cour de Cassation ruled in October 2001 that while still in office President Chirac was not only immune from prosecution on charges of corruption, but that he could not even be questioned by investigators probing several cases of misappropriated public funds. Older standards of accountability (which protect acting heads of state from prosecution) were applied on the question of answerability as well as enforceability. And by dismissing the jurisdiction of the relevant horizontal channels of accountability – legal proceedings, administrative inquiries – the court had effectively placed the burden for

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checking abuse by power-holders on vertical channels of accountability. They required French voters to throw Chirac out of office before there would be even a chance of him being held accountable. The lawyer pursuing the case against Chirac argued that the judges had ‘in effect turned the French electorate into a jury’, and had ‘sent a clear message to the nation: you must decide whether the president should be pursued or whether to wait for another five years, which amounts to an amnesty’. Unfortunately, as we have seen, electoral institutions are often very ineffective in achieving this type of accountability. According to an analyst from a French polling agency that has measured Chirac’s continued appeal despite this negative publicity: ‘The question of honesty just isn’t central to Chirac’s voter appeal’.59 These examples are offered by way of suggesting that the formal instruments of accountability can produce little by way of better government without constant social questioning about whether they are responding to sufficiently high standards of accountability.

7 Gender and Accountability

Many of the accountability initiatives reviewed in this book are evidence of the frustration of socially excluded groups with the failure of accountability institutions either to answer directly to them, or to include their concerns in the definition of ‘the public interest’. The case of women provides perhaps the clearest illustration how political marginality can become manifested institutionally. For women, being at the margins of political life has translated into being, in many contexts, invisible to accountability institutions. In this chapter we examine gender biases in access to accountability institutions as well as in the procedures and standards of probity they adopt. We also pay attention to outcomes, which as we have seen increasingly dominate performance measures. Women’s experience of accountability systems is a particularly striking case of the internalization and reproduction of biases by institutions of public oversight. In addition to identifying gender-specific forms of accountability failure, this chapter evaluates some important contemporary accountability innovations to see whether they address these failures – and if they do, whether they succeed. When assessing these innovations, we maintain the distinction between the ‘soft’ (answerability) and ‘hard’ (enforcement) dimensions of accountability. Moreover, we examine not only new approaches to accountability (citizens asserting direct oversight roles, in new accountability jurisdictions, using new methods, on the basis of more exacting standards), but also reforms to the kinds of conventional public oversight bodies that, thus far, have remained mainly in the background of our analysis. These include reforms to electoral systems, local government structures, judicial systems, recruitment patterns in public sector bureaucracies and the like. The various reforms are discussed with reference to their capacity to make power-holders answerable for gender equity through vertical and horizontal accountability institutions.

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Why should public actors answer to women, or answer for gender equity? In what sense might it be argued that public-sector actors and other powerholders should be accountable to women? And if public actors answered to women, what would be they answerable for? Would they have to answer for their performance in advancing gender equity? There are two obstacles to establishing the need for public-sector accountability to women, and accountability for gender-equity. First, as a gender, women and girls rarely constitute an identifiable constituency to which politicians answer through the electoral process. Representative democracy is organized on the basis of politicians representing geographic constituencies, but women are not concentrated within specific geographical voting areas. And yet ‘concentration’ as such should not really be an issue for women; they constitute half of any given locality. Many minorities have been dominant electorally with a much smaller percentage of the population. It is translating numerical weight into practical influence that is the challenge. The relevant factor is that women have rarely voted en bloc.1 If the ‘gender gap’ in American elections – which measures the difference in support for a given candidate between women and men voters – exceeds even ten percentage points, it is considered newsworthy. Second, women do not necessarily coalesce behind a set of interests related to gender equity, even though a formidable body of social-science research has found that gender helps to shape individual experiences, and individuals’ perspectives on needs and interests.2 Women’s interests are not determined solely by their gender. They have different needs depending on their class, caste, region, race, age, ethnicity – or some combination of these. Men may (depending on the individual’s preference profile) share certain interests in gender equity; thus, just as female gender does not determine a commitment to feminism, male gender does not preclude it. It makes little sense, then, that public-sector actors should answer to a constituency that does not necessarily articulate a shared set of interests that stem from experiences of gender-based subordination. More fundamentally, the question of whether public actors should answer to women as a social group with needs and interests distinct from men – sometimes in conflict with men – reflects a longstanding debate about how interests are represented in liberal democracies. The liberal democratic tradition sees individual rights as a precondition for political participation. Individuals, not groups, vote and stand in elections, and political parties are the vehicle through which interests are aggregated and represented. Different electoral systems create different sorts of incentives: some provide greater incentives for parties to appeal to the largest possible cross-section of voters. Parties do this by advancing a platform of ideas and policies, but the

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socially contentious, even counter-cultural policies associated with a feminist agenda often alienate the median voter. As Anne Phillips summarizes: ‘The representation of women as women potentially founders on both the difficulties of defining the shared interests of women and the problem of establishing mechanisms through which these interests can be voiced’.3 The classic liberal response is to insist that women and feminists must learn to participate better – to improve their position through better education, more secure positions within the market, strengthened civic associations and increased leverage as ‘constituency brokers’ within political parties. This is not far from what women around the world have been doing throughout the twentieth century. The results, in terms of the proportion of women in office4 or the feminist content of policy, have been disappointing. The persistently low proportion of elected women, even in countries with powerful women’s movements, has led feminists to conclude that the conditions on which participation is invited are fundamentally flawed by gender biases. These undermine women’s capacity to translate civil society ‘voice’ into influence over policy-making. The United States has a strong women’s movement – one dedicated to gender equity. And yet only 14.3 per cent of the United States’ elected representatives in 2002 were women. This is below the global average of 15.2 per cent.5 In some contexts, gender ideologies make women’s subordination an unsuitable subject for public debate. Domination of women by men within the family – and in society – is often deemed to be natural or a matter of divine decree, not human choice and social construction, and is therefore beyond the remit of formal politics and, by extension, accountability institutions.6 This has negative implications for the capacity of women’s political ‘voice’ to trigger public sector answerability. If it is felt that public actors need not answer to women for gender equity because women do not organize or vote decisively as a group, or because political parties do not campaign on gender-equity platforms, we ought to take into account the fact that masculine and elite biases in political and civil society institutions may inhibit the articulation and representation of women’s interests as an organized political constituency. Can accountability institutions include gender equity in the standards against which public actions are judged? Should gender equity be included in the definition of ‘the public interest’ even if gender equity lacks strong political backers? Can there be accountability without representation? Feminists argue that women’s relative political weakness and the unpopularity of gender-equity goals justifies inserting gender equity into the standards against which public-sector actors are judged. If accountability failings contribute to women’s low social status and poor human development achievements, and if these problems contribute to women’s lack of effective political ‘voice’, then public-sector actors need to create a ‘level playing field’ for women’s participation in civil society and politics. The only way this can

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be achieved is through measures to ensure that the distribution of public goods, the regulation of the market and the dispensation of justice do not reinforce women’s secondary economic or social status. Thus, even in the absence of a strong social ‘voice’ demanding gender equity, the public sector is obliged to advance gender equity. So far this has been an abstract discussion positing a scenario of a weak women’s movement and a lack of support for gender equity in politics. In the real world the situation is not so stark. Women’s movements in many countries have achieved important victories in terms of gender-sensitive legal change, social welfare policies to provide women with institutional survival alternatives to men and gender equity in the market through measures such as equal pay for equal work. In addition, the argument that public actors ought to be accountable for gender equity has in one sense already been won, given that many national constitutions guarantee women the same rights as men. States have signed international treaties on the protection of women’s human rights – for instance, the Convention on the Elimination of All Forms of Discrimination Against Women. States are also party to UN resolutions on women’s rights, such as the 1993 General Assembly Declaration on the Elimination of Violence Against Women, or the 1995 Beijing Platform for Action, or regional covenants such as the InterAmerican Convention on the Prevention, Punishment, and Eradication of Violence Against Women. These international covenants clearly establish that states are accountable for abuses of women’s rights that occur in the private arena, not because the state is the direct perpetrator of those acts, but because it has a responsibility to prevent violations of women’s rights or else to prosecute offenders. States are therefore responsible for establishing a legal and administrative system that will protect rights and ensure access to remedies if violations occur. Low rates of compliance with these legal instruments allow women’s low social status and lack of political power to persist. When public-sector actors fail to answer to women or answer for gender equity the practical consequence is the immiseration and disempowerment of women.

Gendered ‘capture’ and ‘bias’ In many states accountability institutions systematically fail to answer to women for violations of women’s rights, or to correct for undue privileges awarded to men by public-sector or non-state institutions. We are concerned here with accountability in both the state–citizen relationship and the relationship between the state and other holders of economic and social power. Thus our review of gendered accountability failures will address abuses of women’s rights that are either directly perpetrated by the state or else endorsed by the state. This includes legislators who entrench the supremacy of men’s property rights and sexual prerogatives in law, and state

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employees, such as teachers, health workers, and police officers, who harass women and girls. Our starting point is a belief that the state has the ability to influence attitudes and behaviours within non-state arenas. At the very least the state has the capacity to shift norms by, for instance, declaring unjust the rules that undermine the rights of the relatively powerless parties in market or domestic transactions. The appropriate role of the state in adjudicating disputes over injustices in the market, the community or the family is a matter of intense debate in most countries, and is very often the marker of ideological divisions between political parties. But it is the state’s intrusion on ‘domestic’ relationships that attracts the greatest protest. States, however, already regulate many aspects of what goes on in domestic relationships, from policies on reproductive health, childhood immunizations, inheritance and child custody laws, to their measures to outlaw certain kinds of sexual practices. Thus the state can revise family law to give women equal rights to divorce, inheritance or child custody. To prevent certain customary approaches to social control that are in violation of human rights – for instance, stoning of adulterers – the state can require communitybased systems for adjudicating disputes to conform to civil and criminal law. It can intervene in the market to ensure that women receive equal pay for equal work. Or it can affirm the social value of the care-work that women do through policies supporting maternity leave, pensions for women and a range of other welfare provisions. The state can help to build women’s social and economic rights and power within family, market and community institutions by ensuring that private-sector systems of accountability and responsibility conform to standards of gender justice. Violations of women’s rights are very often not registered as problems of corruption or ‘capture’. Women are as much disadvantaged as men when corruption reduces the resources available for social services, infrastructure or national economic development, or when it erodes confidence in public institutions. It is nevertheless possible to look at the problem of illicit capture of state resources from a gender perspective. Corruption at the level of resource delivery may affect women differently from men in two ways.7 First, money destined for women’s development – whether a subsidized loan, a minimum-wage job on an employment-generation programme or investment in reproductive health care – may be more easily pilfered by state agents because women tend to be less aware of their rights, and less willing than men to demand that public authorities account for missing funds. Second, there are sexual ‘currencies’ of corruption – for instance, when sexual services are demanded of women by state agents, in lieu of money bribes. The sexual exploitation of schoolgirls by teachers in return for tuition amounts to the abuse of public office for private gain. If ‘private gain’ includes advantages for a social group rather than an individual, then arguably it is possible to identify implicit or explicit collusion

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between male state officials, politicians and citizens in denying women access to some development resources or human rights in order to advance men’s social and economic position individually and as a group. An example of this is the apparent (but unarticulated) male collusion in defending masculine sexual prerogatives when judges, lawyers and accused rapists challenge the personal integrity of women victims of sexual assault to undermine their testimonies. Certain forms of abuse of women’s rights are not prosecuted effectively – for instance, ‘honour killings’ in Pakistan, or domestic violence in many countries. This serves the interests of a patriarchal culture. This kind of male collusion is a form of capture: in order to preserve male privileges, women are excluded from opportunities to participate in decision-making and denied property rights and access to justice. These and other forms of accountability failure that afflict women fall more readily into the category of gender bias in the enforcement functions of accountability institutions. Bias describes the leakage of patriarchal norms into purportedly impartial law and policy. As a result, male prerogatives go unchallenged and women’s domestic roles remain firmly in place. Bias inheres, for instance, in the design and interpretation of many aspects of the law – for instance, in defences and standards of proof that privilege men’s perspective. This is found in legal systems where norms of evidence and modes of cross-examination seriously downgrade (or dismiss altogether) the testimony of women rape victims. Typically these work to establish that women’s consent to sex had been correctly assumed by the accused. An explicit version of this is women’s diminished legal standing in Shari’a systems that discount women’s testimony – to reserve for men the privilege of being fully self-representing human beings. Alternatively, bias inheres in social policies that limit women’s pensions or welfare benefits on the assumption that women will be provided for by men. This is the ‘no remit’ variety of bias described in Chapter 2 – where there is neither a specific legal injunction to advance gender equality, nor a basic understanding that gender injustices are to be treated as socially intolerable and illegal. Efforts to expose and remove these kinds of sexist biases require institutional reform to incorporate notions of gender equity into the standards against which the performance of public actors is judged. Ideally, such reforms should include efforts to compensate for the constraints on women’s time, resources and authority that limit their access to accountability institutions and their ability to influence them.

Challenging gender biases in representative democracy In this section we identify gendered forms of capture and bias in electoral institutions and in institutions of public oversight. We also review reforms to these institutions (both internal reforms and independent civil society

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initiatives) that are designed to make them more accessible and accountable to women. Are they likely to improve public-sector answerability to citizens (in this case, women)? And do they produce effective sanctions when women’s rights are violated, whether by public or private power-holders? Elections Democratization in developing countries and in transitional economies over the last 20 years has afforded women’s movements opportunities to shape new political institutions and to increase women’s political participation. Countries with strong women’s movements such as South Africa have produced state-of-the-art constitutions entrenching a public commitment to gender equality, and women have joined representative politics in unprecedented numbers. But even in the absence of a strong women’s movement, some countries have introduced institutional reforms to increase women’s participation in the public arena. Examples include the constitutional amendment in Argentina that obliges parties to make 30 per cent of their candidates in national assembly elections women, reserved seats for women in parliament and local government in Uganda and the quotas for women candidates adopted voluntarily by the strongest parties in Namibia and Mozambique. Supporters of these measures hope that more women in legislatures will enable women to act as an effective political constituency. Affirmative action laws or voluntary quotas for women on party lists represent attempts to counteract unintended gender biases in electoral arrangements, particularly in the way in which votes translate into seats. In Chapter 2 we discussed limitations of electoral systems as accountability institutions. These limitations compromise the responsiveness of politicians between elections, and undermine the effectiveness of voting as a means of holding them accountable for past actions. Here we consider characteristics of electoral systems that keep the proportion of women (and other socially excluded groups) in public office low and ensure that gender-equity debates are peripheral to the policy agendas of parties and governments. One major difference in electoral systems that affects the proportion of women elected is whether voting districts are represented by a single member of a national assembly (single-member districts) or whether they use a multi-member arrangement. Most countries using single-member systems rely upon a simple plurality election, where the candidate who wins the most votes is sent to the legislature regardless of whether the winner’s vote tally amounts to a majority of total votes cast. Most countries using multimember arrangements elect representatives by proportional representation (PR), where political parties prepare lists of candidates, voters select a party (not a candidate) and the party sends candidates from its list to the legislature in proportion to the votes it has won. Multi-member PR systems are known to return more women to office than Single-Member Simple-Plurality (SMSP) systems. A review of 53 national assemblies in 1999 compared PR

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systems with non-PR systems. In legislatures elected through PR, 20 per cent of members were women, compared to 11 per cent in single-member plurality systems.8 In 2000, a broader survey of the world’s legislatures also found that all of those in which more than 20 per cent of members were women use PR systems.9 In Africa, countries with PR systems have legislatures in which on average 11.65 per cent of representatives are women, in contrast to 5.46 per cent in SMSP systems.10 Many observers argue that the explanation for the low levels of women in office in SMSP systems lies in a combination of voter reluctance to select a woman if their district has only one representative and party reluctance to front women candidates, particularly for marginal seats.11 In multimember PR systems where a particular party is strong and can expect to see a number of its candidates elected, there is less resistance to including more women amidst their candidates. While PR makes a difference, there is still considerable variation among the set of PR cases in terms of the proportion of women elected. Some countries with PR return persistently tiny proportions of women to legislatures (Israel and Greece), just as some countries with SMSP systems return substantial proportions of women to office (New Zealand and Canada). Countries differ, of course, by much more than their electoral systems, and a number of variables including political culture and the nature of political parties (discussed in the next section) influence women’s electoral prospects. One element of cross-national variation in electoral arrangements that deserves attention here is affirmative action. Quotas for women on candidate lists are more common than arrangements in which a certain number of seats are reserved for women. Quotas for candidate lists are most often adopted voluntarily by political parties and are most common in PR systems. In SMSP systems the application of quotas is difficult where local party branches are closely involved in selecting their sole candidate. In the United Kingdom, national party executives prepare lists of candidates. In doing this the Labour Party has made some effort to increase the proportion of women (though it has avoided setting a quota) on these approved lists. There are reserved seats for women in local government in Uganda and India, and in national assemblies in Tanzania, Uganda, Pakistan and Bangladesh. Reserved seats at the national level tend to be filled by nomination. For instance, in Tanzania and Bangladesh, women’s seats are filled from lists approved by the party leadership. Women’s reserved seats are assigned to each party according to its share of directly elected parliamentary seats. In Uganda the majority of seats held by women in parliament are likewise not decided by universal suffrage. Instead, a ‘woman representative’ for each district is selected by a district-level electoral college composed of local government representatives, who are primarily men. Both quota systems and reserved seats have obvious drawbacks, not least because they can stigmatize the candidate as a token, diminishing her

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credibility as a representative. Affirmative action may also result in the selection of women who are not particularly committed to gender equity. Where party executives determine which candidates are included on a party list or which woman will fill a party’s reserved seats, aspiring candidates will be primarily accountable to the leadership rather than to a potential feminist constituency. In the Ugandan case, selection for reserved assembly seats by a district-level electoral college likewise inhibits aspirants from advancing a feminist agenda, or confessing connections to the women’s movement, which would be tantamount to electoral suicide.12 An alternative reservation method that enables women to compete for the popular vote, rather than lobby for a nomination from party elites, is the reservation of a percentage of territorial constituencies in an SMSP system for all-female competition. India’s local government elections use such a system, introduced as a result of a 1992 constitutional amendment that reserved one-third of local government seats for women. It was hoped that this critical mass of women in local councils would constitute a force capable of responding to the needs and interests of local women. In practice this has happened relatively rarely because often elected women are proxies for politically powerful men who, had these wards not been reserved for women, would have campaigned for local office themselves. The fact that the location of the reserved territorial constituency rotates after each election creates a disincentive for parties to invest in women’s political capacities. Women are seen as short-term participants in politics: after the reserved constituency’s term is over and competition has been re-opened to male candidates, even the incumbent woman representative stands little chance of getting re-elected. The reservation system has not altered patronage systems at the local level, where elites dictate candidate selection and voting patterns.13 Campaigns continue to be waged not on programmes and policies – least of all on gender justice – but on appeals to caste and community loyalty.14 Among the affirmative action measures discussed, voluntarily adopted party quotas for female candidates have been perhaps the most effective at normalizing women’s engagement in politics and encouraging parties to promote gender-equity concerns. In some cases, the struggle to establish these quotas has helped to strengthen the party’s commitment to gender equity, and to forge a connection between women politicians and the women’s movement. In other cases, such as where conservative parties adopt quotas to match the successes of left parties that have fronted women candidates, as has been the case in continental Europe, quotas can be the entry-point to internal debate on gender-equity issues. Perhaps the greatest advantage of voluntarily adopted quotas is their timelimited nature. They are avowedly stop-gap efforts and do not represent a permanent constraint on free competition. They do not risk turning women into an insular ‘enclave group’ in politics, which can happen when permanently

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reserved seats for women also become upper limits on their numbers in politics, or when women’s gender alone determines their access and presumed interests. As Mansbridge points out: systems of proportional representation with party lists have well-known costs, but are still a relatively flexible way to introduce selective descriptive representation, as those lists can change easily in each election. Similarly, experimental decisions by political parties to make a certain percentage of candidates descriptively representative of an underrepresented group are preferable to quotas imbedded in law or constitutions. Such ad hoc arrangements can be flexible over time.15 One difference between PR systems and SMSP systems concerns political parties. PR electoral arrangements tend to produce multi-party systems, whereas SMSP systems tend to produce stable two-party competition. The nature of party organization also tends to differ between these two systems. The PR systems of continental Europe and Scandinavia tend to produce strongly centralized parties, while parties in developed English-speaking countries with SMSP systems are often decentralized, with candidates selected by local branches. The link between the type of electoral system and degree of party centralization is less clear in developing countries. Parties and legislatures Research suggests that women have greater influence within parties, and are more likely to be fronted as candidates, when parties are both more highly institutionalized and centralized and when top leaders support gender equity.16 As Waylen argues, ‘women activists both inside and outside the parties can exert pressure more effectively on an institutionalised party system than on a weak party system. In an institutionalised party system it is clearer where the pressure points are and any changes to the rules can be enforced more easily’.17 For instance: ‘in an institutionalised system there is stability in the rules of competition and party organisations matter: therefore rules, for example over quotas and candidate selection, can be enforced more easily’.18 Comparing women’s political gains in Argentina’s weakly institutionalized parties with gains in Chile’s better-institutionalized parties, Waylen notes that in Argentina women were unable to sustain an initial surge of impressive gender-equity policy victories in the immediate post-transition period. These had depended almost entirely on presidential patronage, rather than on widespread support within party organizations. In Chile the longer and tougher struggle to feminise parties resulted in a more secure place for some feminist policies in party platforms. Waylen suggests that ‘the absence of institutionalisation allows for the dominance of elites, patrimonialism and clientelism that may favour individual women, but does not generally facilitate a long-term increase in the total number of women active in conventional politics’.19

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Another way of defining when political parties are institutionalized is to assess whether they feature some of the following: clearly formulated (and consistently observed) rules for candidate selection, well-defined policy priorities, organizational structures distinct from the personal networks of individual leaders and a distinct and coherent group in the legislature.20 Parties in developing countries are sometimes patronage-based, and in many contexts the rise of identity politics (often accompanied by increasing violence in political competition) is contributing to the de-institutionalization of parties. Parties cannot function as accountability institutions in such a context. Not only do they lack internal accountability systems, but if party platforms are based upon appeals to ascriptive loyalties rather than policy proposals, leaders are less easily held to account for campaign promises. In such a situation, there is little point in seeking to change party rules to introduce quotas of women candidates or to make gender equity a policy objective. As Norris concludes: ‘since the process is not rule-governed, changing the rules will not alter the outcome’.21 In legislatures, opposition parties are rarely effective as gender-sensitive accountability-seekers. Opposition parties rarely perceive an electoral payoff from exposing the government’s failure to honour its commitments to gender equity. Because women’s rights are so often seen as a minority interest, governments have rarely lost power as a result of failures in this area. Where this has happened, it has been because women in civil society have persuaded other social groups and opposition parties of the broader social importance of women’s concerns. One example of this is the way women’s protests about alcohol abuse by men in rural Andhra Pradesh (India) in the early 1990s escalated into an anti-alcohol campaign that was adopted by opposition parties.22 After the opposition won the elections, Andhra Pradesh’s new ruling party imposed prohibition in the state. Another means of raising the salience of gender-equity matters in legislative debates is through parliamentary committees dedicated to gender-equity and equal-opportunities issues. One of the most successful is the South African Parliament’s Joint Standing Committee on the Improvement of the Quality of Life and the Status of Women, initially set up to review the government’s performance on commitments made under the international Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It was subsequently made a permanent feature of the committee structure in parliament, where it assesses the gender-differentiated impact of new legislation. It also works on institutional and cultural changes in parliament itself, challenging its family-unfriendly sitting hours, the lack of childcare and so forth, thereby contributing to women MP’s increased effectiveness. This committee also raises questions about the impact on women and children of the government’s spending plans, using information provided through a civil society group conducting gender-sensitive budget analysis, which will be discussed below. However, parliamentary committees

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do not entitle civil society representatives to reasoned answers, to official information or to sanction poor decision-making by women parliamentarians or any other members of the government. Decentralization Women are expected to benefit as much as other citizens from decentralization – perhaps even more so, because it is assumed that constraints on women’s time and mobility are less severe at local than national levels, and therefore they will engage more effectively in local politics. This assumption appears to draw on women’s experience of local government in the west, where they have long been more successful at winning seats and influencing decision-making at local than at national levels. Though data are poor on numbers of women elected to local councils in developing countries23 there are indications that local government may not be as accessible to women in the south as in the north. A study from the densely populated Kabale District in south-western Uganda shows how village councils, which also serve as local land tribunals, routinely deny women land rights in their disputes with male relatives over the sale of family and homestead land.24 Under customary law in most parts of Uganda, women have fairly secure rights to use land, though not to own it, rights that are protected by the longstanding custom requiring husbands to consult their wives on land sales. But according to Khadiagala, when women in Kabale take their land disputes with male relatives to the village land tribunals, they are confronted with demands for substantial bribes. They are not in a position to out-bribe their male relatives, who have larger disposable incomes. In some cases tribunal members have themselves purchased land from men whose wives objected to the sale, thus violating women’s right to withhold consent to land sales.25 Neither the central ministry responsible for monitoring local government nor the Ministry of Justice has sought to counteract these biased and corrupt legal processes at the local level. The evident gender bias in the functioning of local tribunals is not checked effectively by any accountability institution. Electoral processes are inadequate to correct for this because of women’s difficulties in winning seats on the local councils, or in taking a stand against local patriarchy even when they do. In recognition of the strength of traditional authority in local government, some contemporary decentralization experiments institutionalize special measures to ensure that women participate in policy debates, are formally represented as councillors and have access to local development funds. For instance, in India, beyond the reservation of one-third of local government seats (and one-third of council chairperson positions) for women-only competition, the states of Madhya Pradesh and Kerala require 30 per cent female attendance at a village assembly to reach quorum. Rajasthan requires 50 per cent. These measures are open to abuse: local

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councillors may ensure that only a certain class of women – their supporters – attend village assembly meetings to make up the required 30 per cent female presence. And doctoring attendance registers is not beyond the capacity of village elites. Nevertheless, these measures provide entry-points for women to demand answers of public authorities, and may in time be used more effectively.

Gender biases in horizontal accountability institutions The judicial system Judiciaries often condone or even perpetrate abuses of women’s rights. The law frequently fails to criminalize or prosecute offences against women, such as domestic violence, rape within marriage or the denial of women’s inheritance rights. In some places legal systems virtually sanction violations of women’s property, inheritance and child-custody rights by confining these to a domain of family or customary law beyond the reach of modern constitutions. Law-enforcement or judicial personnel are themselves sometimes directly responsible for violations of women’s rights, as when the police fail to assure the physical security of women. Schuler usefully distinguishes between three levels at which gender biases operate in the legal system: first, a ‘substantive’ level (in the laws themselves); second, a ‘structural’ level (in the organizations and systems that enforce the law); and third, a ‘cultural’ level (in the beliefs and attitudes of lawyers and other personnel).26 At the substantive level, laws sometimes cover injustices perpetrated within the home. This gives spouses impunity to assault one another. Section 276 of Bolivia’s Criminal Procedure Code states: ‘as grounds for impunity, the law provides that no penalty will be applied when injuries … were inflicted by the husband or wife. …’27 It was not until 1995 that this provision was changed to define domestic violence as a crime. A Human Rights Watch report on domestic violence in Brazil in the 1990s found that women faced a criminal justice system so biased against them that courts regarded the defence of male honour as a legitimate plea in cases where husbands murdered their wives. Such acts were considered consistent with the rule of law, to the degree that the law recognized male authority in the private sphere and relegated women to a subordinate status.28 Alternatively, rules of legal standing sometimes prevent women from litigating against their husbands for domestic assaults or other abuses. Another gendered access barrier embedded in law is the imposition of time limits for bringing charges against perpetrators of sexual abuse. Courts often make no allowance for the time required by some victims of domestic abuse or sexual assault to gain enough confidence to name their attackers. While legal discrimination is most marked and egregious in the case of violence against

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women, it also occurs in relation to women’s property rights. Until recently, in Rwanda women could not inherit land, houses or cattle, and were not eligible for loans.29 At the structural level of the judicial system – in the administration of law by the courts and its enforcement by the police – gender-specific access barriers and discriminatory practices abound. Linguistic, informational and financial barriers can keep women, who on average have lower educational endowments than men and a much weaker economic position, out of the courts. One study suggested that in Colombia women do not use the courts to defend their rights because they fear abuse and intimidation by lawyers and court officials.30 Women were also reluctant to use the courts because of perceived inefficiencies in dealing with cases of violence: the judiciary possessed no effective means of making men obey a summons, and no way of ensuring that a formal investigation of complaints would be undertaken.31 The medical professionals responsible for preparing forensic evidence of sexual assault for the courts, and the police responsible for investigating charges of sexual assault or domestic battery, also treat women victims of violent assault badly: poor collection and processing of evidence, reluctant pursuit of attackers, particularly if attackers are related to the victim, and sometimes even physical abuse – for example, sexual assaults on women in protective police custody. These practices, embedded in procedural aspects of some legal systems, amount to a form of bias, depriving women of a fair hearing. Even where the injustices disproportionately experienced by women are included in the definition of criminal behaviour, they are usually ineffectively investigated and prosecuted. In Pakistan domestic violence is deemed a crime. But even though it is estimated that 80 per cent of women experience abuse or violence within the household, there has not been a single successful prosecution of a husband for injuring his wife since 1947.32 Finally, at the cultural level, male bias in the attitudes of judges and lawyers (which produces unsympathetic or even punitive hearings) and male bias in policing (which protects sexual offenders and undermines the cases women try to build) is by far the most significant reason why the judicial system does not function as an effective accountability institution for women. These biases institutionalize the discounting of testimony by women victims of sexual assault, and subject women victims to humiliating courtroom exposures of their sexual histories. The UN Special Rapporteur on Violence Against Women reports that ‘[c]onsent has been defined as the legal dividing line between rape and sexual intercourse. In court, the argument over consent … often degenerates into a contest of wills and credibility’.33 Judgements about the ‘appropriateness’ of women’s past sexual behaviour become the focus of rape cases.34 These obstacles point to a form of accountability failure that operates through collusive practices based on gender. In other words, there can be both tacit and explicit cooperation

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between male offenders and male police, lawyers, prosecutors and judges, based on shared norms about the supremacy of men’s sexual prerogatives. Gender-specific improvements to accountability in the judicial system involve amending laws to give women recognition as independent persons under the law. Feminist activists around the world have pursued this project through much of the last century with considerable success, managing not only to criminalize forms of violence against women perpetrated in the private sphere, but also to ensure that women have full legal personhood so that their access to property, inheritance, child custody and so on is no longer controlled by male relatives. Legal reforms also ensure that the terms of access to the legal system are not gender-biased. For example, the Indian Penal Code was altered in 1997 so that reporting delays on crimes involving sexual assault would no longer constitute an acceptable reason for judges to impose less than a seven-year sentence.35 Women’s activism at the international level has helped to highlight gender biases within domestic legal systems, mainly by offering independent perspectives on states’ compliance with international treaties such as the Women’s Convention.36 However, there are still areas of injustice in gender relations that do not fall within the purview of constitutional or modern civil and criminal law. One is rape within marriage, which in many countries is not a crime. Rape within marriage in India is not illegal unless the wife is under 16 years of age, and rape within marriage in Sri Lanka can only be prosecuted if the partners were separated at the time of the crime. Customary and civil law have overlapping jurisdictions in many areas of family relations. In some African countries this has become a matter of great tension. Constitutions (and courts) have been unclear about the precedence of tribal or constitutional law in matters relating to property ownership, inheritance, divorce, polygamy and child custody. Changes to the structure of the judicial system can, in certain circumstances, tackle the problems of inadequate support to women victims of violence and inadequate security in trials. Some countries have established special women’s police stations with female police, medical staff and counsellors. In Brazil the first women’s police station was set up in 1985 to work with victims of domestic violence in Sao Paulo, and was followed with similar units in most Brazilian states.37 The result there as elsewhere was an increase in the number of women and children reporting violence, as well as improved prosecution and punishment.38 The problem of witness protection for victims of sexual assault has been addressed in the International Criminal Tribunals of Rwanda and the former Yugoslavia, where protective measures include the use of pseudonyms, one-way closed-circuit television for the giving of testimony in camera, scrambling victims’ voices and images and even withholding the identity of the victims or witnesses from the accused if necessary.39 Finally changes to the culture of the judicial system involve alterations to courtroom procedure to acknowledge the coercion women feel when

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threatened with violence and when confronted with their accusers during trials. An example is changes to evidentiary procedure to affirm women’s testimony. In cases of sexual violence this involves making the accused prove consent, instead of requiring the victim to prove that there was no consent. International criminal law as used in the tribunals for Rwanda and the former Yugoslavia do this, defining rape and sexual assault in terms of the force applied by the defendant rather than the resistance offered by the victim. It also makes the victim’s sexual history inadmissible. Another important accountability initiative has involved increasing the numbers of women lawyers, judges, police and court officials – all the way down to the clerks who perform an important judicial gatekeeping role. Gender must not be assumed to predict the sympathies of state personnel. Women staff of male-dominated judicial institutions often identify much more strongly with the sexist attitudes of their male colleagues than with the problems of women victims. Women police in Zimbabwe were found by one women’s NGO working on the prosecution of domestic violence to be more disbelieving of, and hostile towards, women victims than were their male colleagues.40 Women judges and magistrates have nevertheless played an important role in bringing gender-sensitivity to the substance and interpretation of the law at the national level and, most strikingly, at the international level. Two female justices in the UN Criminal Tribunals were instrumental in changing the legal treatment of rape during war time. Carla Del Ponte, the Chief Prosecutor for the Tribunals for Rwanda and the former Yugoslavia, pushed the boundaries of international law in defining rape, sexual assault and forced prostitution as war crimes and as ‘a grave breach’.41 South African Justice Navanethem Pillay, the ICTR’s only female judge, encouraged women victims of rape to come forward as witnesses in the 1998 trial of Jean-Paul Akayesu, leading to an indictment. The public administration At the core of most public-sector reforms are efforts to promote efficiency in public-service delivery and to eliminate corruption. These efforts to build administrative capacity are geared primarily towards improving the capacity of the public administration to provide the best possible physical and human infrastructure for market transactions. There is growing interest in making these public-sector reforms serve the goal of poverty reduction as well. There is as yet much less interest in, or understanding of, using public administration reforms to promote gender-equity. Public-sector bureaucracies and the services they provide can be genderbiased from the very point at which women try to access them. An example from Egypt of a gender-specific access barrier is the requirement of an identity card for the poor to access subsidized goods or social welfare services, or to get their children into school. Identity cards are not evenly distributed by

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gender. Because a woman’s name can be added as a dependent on her father’s (and later her husband’s) identity card, girls and women tend not to be issued them. Great care is taken, however, to ensure that all boys and men have ID cards, as Egypt’s policy of compulsory conscription relies upon monitoring ID cards. Men are penalized if they do not have their ID cards in order. The registration of women as dependents on their fathers’ and husbands’ ID cards limits their access to public services in two ways. First, it means that women’s engagement with public-service providers is mediated by male relatives, and presumably only done with male approval, thus reproducing aspects of female subordination to men within the family. Second, in cases of separation or divorce, a wife is left without an identity card, stripping her of a requirement for accessing the public services for which she would at that point have even greater need.42 Where women overcome access barriers to public services, or access barriers to the accountability institutions that are supposed to counteract these biases, they often encounter a fresh set of problems. Within the public administration, incentive systems rarely reward the extra effort needed to work for women’s advancement – to keep girls in school, for instance, or to help women clients cope with problems in their private lives that prevent them from making effective use of public resources. Gender-blind or genderbiased disciplinary and reporting systems within the public administration fail to measure whether access barriers to women clients of public services have been lowered, or whether their particular needs in relation to services have been addressed. Much more intentional bias is evident in contemptuous treatment by front-line service providers. In Chapter 3 we noted examples from the developing world of rude or outright abusive treatment of women and girls by public-sector nurses, teachers, police and local government officers. This kind of biased behaviour often goes unchecked within state bureaucracies and is often overlooked by external professional bodies to which publicsector employees belong. Women’s associations and international institutions have prioritized several areas for gender-sensitive reform to public-service bureaucracies, including actions to ensure a stronger presence of women at all levels of the bureaucracy, the use of gender-sensitive performance measurements, the creation of bureaucracies dedicated to advancing women’s rights and mechanisms for consulting with women clients of public services. A growing number of case studies of interactions between public-sector workers and clients reveal differences in how male and female members of staff interact with women clients; women staff display greater sensitivity and responsiveness to the problems of women clients.43 This effect only emerges where a number of institutional and contextual factors combine to overcome professional and cultural biases against women. These include supportive top-level leadership (and significant numbers of women in the

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leadership), an organizational mission that prioritizes gender-equity, a bureaucracy composed of at least 30 per cent women44 and incentive systems that reward performance that advances women’s interests. Because accountability systems within public-service bureaucracies are so obstinately closed to external engagement – and centred on reporting and promotional systems and professional norms specific to each sector – reformers have focussed on enhancing the responsiveness of providers to clients through consultative exercises, rather than opening up these bureaucracies to ‘hard’ accountability triggers in the hands of public-service users. Elsewhere in this book we have expressed misgivings about ad hoc consultative exercises as they rarely endow public-service clients with rights to access official documents that show the basis upon which decisions were made or the specific uses to which public funds were put. These consultative exercises routinely involve women’s associations, but sensitivity to gender differences rarely goes beyond the invitation letter. Few credible measures to counteract resistance to gender-equity concerns within official bureaucracies emerge from such consultations. Equally, no steps are taken to compensate for women’s particularly acute deficiencies in time, basic literacy and policy-analysis skills. A World Bank evaluation of its experience in promoting participatory approaches to formulating Poverty Reduction Strategy Papers in its poorest borrowing countries admits that women’s efforts to articulate their concerns are often drowned out by other more vociferous and more technically competent civil society groups. It also notes the near-total disappearance of women’s perspectives on poverty reduction priorities once the consultative stage is over and line and finance ministries resume the job of public-expenditure planning.45 The importance of establishing a formal presence for the representation of women’s interests in the public administration in the absence of an effective civil society voice has long been recognized by feminist activists and has produced thirty years of experimentation in bureaucratic representation. Different types of ‘national women’s machineries’ have sought to promote women’s interests. These range from bureaux in the office of the chief executive, to ministries devoted specifically to women’s issues, to women’s units in key line ministries, such as agriculture, health and education. A recent comparative analysis of women’s political effectiveness across Europe found that women’s units are one of the key factors in promoting gender equity in policy-making.46 Studies of women’s units in developing countries have been more equivocal, suggesting that they have often been appropriated by the ruling party to legitimate its rule. They have also been starved of resources, and have little effective access to, and certainly no veto-power over, official decision-making.47 Nevertheless, these are important accountability institutions. Their effectiveness depends on their proximity to key decision-making arenas and their formal powers within those arenas, their budgetary and staff endowment

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and the extent to which they are supported by the national women’s movement. The Servicio Nacional de la Mujer (SERNAM) in Chile is considered a successful case. Its head is a cabinet member. SERNAM has worked with the Planning Ministry to steer budgetary resources to women’s development. The organization’s connections to the women’s movement enhance the impact of its efforts to reduce women’s poverty and improve women’s employment options.48 However, SERNAM lacks formal oversight powers to review policy-making in other sectors, and in that sense relies on informal rather than institutionalized accountability controls.49 On the other hand, the equivalent bureaucratic unit in Bangladesh, the Directorate of Women and Child Affairs in the Ministry of Social Affairs, possesses substantial formal powers to review government policy-making, but its chronic and sustained staff shortages have prevented it from doing so effectively.50 To overcome these kinds of constraints, some of these institutions of public oversight on behalf of women rely on women’s associations to act as ‘whistleblowers’. The Commission for Gender Equality in South Africa offers accreditation to civil society associations and rights for such groups regularly to observe Commission work. Civic groups can supply the Commission with information and monitor its follow-up activities. In the south Indian state of Kerala, the provincial Women’s Commission relies on civil society groups to strengthen its hand in alerting officials to cases where women’s rights have been violated. It can also trigger investigation procedures by the police and other agencies to help in prosecuting abuses of women’s rights. Auditing and budgeting Governments around the world regularly fail to match their pledges to gender-equity with budgetary commitments. Thus, even before governments spend money, gendered accountability failures occur in public expenditure planning systems that do not consider women and men’s different needs. More broadly, fiscal policy rarely takes into account the contributions to the nation’s economic output made by the domestic and reproductive sector (the ‘care’ or ‘reproductive’ economy). The care economy is the largely unpaid sector of domestic cooking, cleaning and informal health provision that maintains the labour force and nurtures the young, the old and the infirm. The creation of national wealth is partly dependent on this sector, yet its outputs are not officially measured. Consequently, women – the majority of care-economy workers – do not receive full recognition as economic actors in the way that formal-sector salary-earners and tax-payers do. This means that they may not be perceived as having a legitimate ‘say’ over national fiscal policy. The state may not feel it must answer to women for economic planning because women are not seen as contributors to the fiscus. A vigorous set of initiatives took place around the world in the 1990s to expose gender biases in public-expenditure planning and even in national

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fiscal policy. Gender-sensitive budget analyses are conducted through partnerships between states and NGOs, or sometimes by NGOs alone. They assess whether government spending unfairly benefits particular social groups, and whether national commitments to gender equity are supported by targeted spending in key sectors. They commonly produce an analysis of how different expenditure scenarios would affect women. Gender-disaggregated budget statements are produced to show the share of spending explicitly directed towards women, to public services known to benefit women (whether or not services are explicitly targeted), to income transfers that might reduce women’s dependence on men, to business support from which women would gain in agriculture, manufacturing, services and so forth.51 More ambitiously, some initiatives re-cast national accounts to incorporate women’s unpaid work. This highlights the impact of reduced social-service spending on the burden of domestic care work.52 It also contributes to the production of gender-aware medium-term economic policy frameworks.53 Most of these initiatives are, at best, efforts to improve the answerability of office-holders for gender-equity. Citizen-initiated gender budget analyses produce parallel gender-aware budgets that are supplied to parliamentarians in the hope that they will use the information about gender-biased public spending to goad the executive into more appropriate spending patterns. This falls into the weaker ‘information provision’ category of accountability initiative identified in Chapter 4. There are two obvious constraints on the effectiveness of supplying parliamentarians with critical budget analyses. First, it is next to impossible to avoid a substantial delay in producing these analyses since they cannot be conducted until after the budget priorities have already been announced. Second, even sympathetic parliamentarians cannot go much further than raising questions about gender-differential spending patterns. Government answers to these questions are rarely followed up. Information on gender differences in actual spending would equip critics with the data needed to demonstrate the deviations (between what is budgeted and what is actually spent) that constitute evidence of capture of public resources. Gender budget initiatives do not produce evidence that can be used for the enforcement dimension of accountability. A lack of access to information on government spending is the main obstacle to this, but even if this information were available, it is not disaggregated by gender and therefore would be difficult to use. However, some tools have been developed to improve information about actual spending patterns and their impact. Public Expenditure Incidence Analysis calculates the amount spent on particular public services at the user level, and gathers data on gender differences in the numbers of users and in the types and qualities of services they access. In Ghana one of these studies exposed important urban and rural differentials in access to health and

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education services, and also showed a marked gender and class bias in secondary school enrolments.54 Such information constitutes hard evidence of gender (and anti-poor) biases in spending and policy-implementation patterns, but there are few cases to date of such evidence being used effectively in legislatures to embarrass governments or to sanction ministry officials. Until this happens, claims that gender-sensitive budget analysis can serve as an accountability tool55 must be moderated. * * * It is ironic, but not coincidental, that some of the most progressive-sounding equality agendas have been adopted by bureaucracies in countries with relatively weak women’s movements. Many developing countries have bureaucratic units devoted to advancing women’s interests, progressive equalities provisions in the law and gender-sensitive development plans. But these innovations may reflect a developing country’s dependence on external aid – and responsiveness to an international development agenda – rather than the strength of its domestic women’s movement or the effectiveness of feminists in government. The focus on accountability mechanisms in this chapter is not intended to downplay the importance of women’s political voice in demanding answers of public authorities, or to suggest that better promotion of women’s rights will necessarily flow from gender-sensitive institutional engineering. But, as noted in Chapter 2, voice without accountability is a formula for disenchantment with politics. Thus the urgency attached to increasing the proportion of women in politics (or in participatory forums) must be matched by efforts to make accountability institutions both answer more directly to women and sanction office holders when their actions violate women’s rights. The challenge is to ensure that such reforms go beyond increasing the proportion of women present in public institutions, to improving public-sector answerability to a gender-equity constituency. When assessing affirmative action measures to increase numbers of women candidates or representatives we must ask how the means of women’s access to office affects their perceived legitimacy as politicians, and their capacity to articulate a genderequity agenda should they wish to do so. When assessing public-sector reforms we should ask how far performance standards, reporting systems and disciplinary procedures are guided by a concern with promoting gender equity. Where special institutions – Equal Opportunities Commissions or Ministries of Women’s Affairs – are established to monitor government performance at promoting gender-equity, we need again to ask whether such organizations can establish a relationship with a women’s constituency, and whether they have adequate powers to review government policy, to gain access to information about decision-making and public spending, to force the initiation of an investigation or to recommend sanctions.

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This chapter has shown that accountability systems designed to make power-holders answer for performance in meeting gender-equality goals are profoundly biased. Gender bias is perhaps a special or extreme case of marginality because the naturalization of women’s subordinate status is inscribed in the very definition of the ‘public arena’, and therefore in the exclusion of women and gender-equity norms from the remit and practical working of so many accountability institutions. Appreciation of this phenomenon in terms of a masculine capture of public resources and male bias in the workings of accountability institutions is helpful in suggesting targets for gender-sensitive repair of accountability systems.

8 The Politics of Backlash: Critiques of the New Accountability Agenda

One indication that a new accountability agenda is indeed emerging is the political backlash it has engendered. The motives of the critics vary widely, and are expressed differently in different contexts. In this chapter, we examine three streams of criticism: (1) that the design of new accountability initiatives tends to depoliticize the activism of the poor, or at least to channel it into activities that fail to challenge the structural power of political elites; (2) that non-state-centred accountability experiments stunt the development of formal political institutions; and (3) that the increasing surveillance of officials stifles bureaucratic initiative and inhibits the development of a public-service culture more generally. Our intention in this chapter is to define the contours of the backlash and to assess the validity of some of the stronger charges, without necessarily defending all aspects of the emerging accountability agenda. We pay particular attention to the third line of critique – which reflects the trade-off between control and creativity – both because it is the most compelling, and because there is some evidence that the proponents of the new accountability agenda have begun to accommodate these concerns. The ability to address this set of problems is important in its own right. But it also signifies the malleability of the new agenda, and the tendency for the reinvention of accountability relationships to become a continuous process.

Depoliticization Pratap Mehta is among those who have argued that the prevailing discourse of accountability – as well as efforts to operationalize it – has tended to obscure the need for political struggle: harmonizing the different components of accountability cannot be done by conceptual fiat. It is an empirical matter that has to be addressed by 180

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institutional design and more importantly, the concrete work of politics. But often in discussing these matters we assume that accountability is either one single thing, or that its various components all go together. Much of our discussion of reform seems to make this assumption and is impatient with the intrinsic messiness of accountability.1 In a similar vein, John Harriss has noted the depoliticising effects of approaches to improving governance that are aid agency-led, or participatory initiatives that are hosted and fostered by the state. Even where it is possible to discern certain social-capital-forming effects of accountability initiatives, there is no guarantee that civil societies so created will move beyond uncontroversial matters; their activities are unofficially circumscribed by the state’s proximity. There is no reason, Harriss argues, that statefostered civil society will necessarily take a depoliticised form. This will depend on the political soil in which such initiatives are planted. The People’s Plan campaign in the south Indian state of Kerala has, according to Harriss, ‘arguably … been responsible for “constructing social capital” ’, and of a substantial politically aware variety. The difference between the Kerala case and many others is that the former is situated amidst a ‘political process in which different groups of actors at different social levels are all involved’; this has directed the People’s Plan away from merely ‘ “consolidating civil society”, and towards politically directed state action.’2 Chandhoke, whose dissection of the pluralized state was discussed in Chapter 2, also pursues this line of criticism. She questions whether ‘governance’ reform, even when seeking to reengineer the relationships among key actors in public life, ‘intensifies [the] trend to stifle democracy’. Chandhoke concedes that certain actors ‘have initiated novel ways of resolving the problems of everyday existence of poor and impoverished people’, but asks whether such efforts can ‘substitute for an activity we call politics?’ The fear of depoliticization is framed by an understanding of what it replaces: To be politicised is to be made aware of the rights that accrue to every human being by virtue of being human. It means that people who have been constituted as subjects and not as citizens by the policies of the state rise to demand justice, equality, and freedom; to demand that the state delivers what it has promised in theory.3 For Chandhoke, ‘managerial activism is no substitute for self-determining and empowering action born out of specific experiences’. If we accept this premise, and the allied notion that often ‘skilled professionals not only save the state from being accountable, they are not accountable to the people themselves’, then the question arising is whether the new accountability agenda outlined in this book tends towards ‘managerial activism’ or ‘selfdetermining and empowering action’. The inescapable answer is ‘both’ – or,

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rather, that some elements do have the potential (perhaps even the natural inclination) to depoliticize, while others are nothing if not a ‘demand that the state delivers what it has promised in theory’. Further complicating matters is the fact that what starts as managerialism can catalyse something far more radical, just as the worst kind of bureaucratization can result from an initial act of political assertiveness. When agencies like the World Bank enter the ‘accountability sector’ in order to scale-up local initiatives there is every danger that the result will be not only depoliticization, but a rolling back of the conceptual scope of the ideas developed by earlier waves of experimentation. For instance, the Bank’s internal Community of Practice on Social Accountability, established in late 2003, defines ‘social accountability’ in ways that downplay enforcement, and all but ignore issues such as police brutality and corporate environmental abuses.4 Another example is the huge upsurge in citizen participation that arose in Montevideo (Uruguay) during the early 1990s under the auspices of the ruling Frente Amplio. Goldfrank found that in the process of institutionalizing these small-scale and often informal initiatives, executive agencies became privileged. This led political parties to dominate the process, with ordinary citizens and their local associations getting squeezed out.5 Initiatives that become routinized within state institutions – through, for instance, higher standards of transparency in local government bodies – are in one sense evidence of considerable accomplishment. Without legal codification of accountability procedures it is easy for impressive (and radical) experiments – often reliant on the charisma of a few individuals, or the capacity of an overstretched NGO – to wither after registering initial successes. But the opposite danger is that ‘state-backed’ mechanisms of accountability, which by their very nature must incorporate communitybased organizations and local movement groups, might ‘empty out forums of civil society’.6 Baiocchi, for example, argues that crowding out civil society could ‘ “balkanise” political life’ such that the capacity of activist groups to press forward on other aspects of their agendas is fatally undermined.7 These are legitimate concerns. But it would be a gross oversimplification to dismiss the full range of accountability initiatives surveyed in this book – or even the spirit underlying them – as an evasion of more fundamental political issues. To insist on the need for existing actors to be judged against new sets of norms is a fairly radical development, even when the mechanisms for achieving these objectives are, at this stage, less rigorous than one might have hoped. Accountability, as we argued in Chapter 1, is inseparable from the language of rights: it creates political entitlements (to obtain information, and to insist that officials engage in public reason-giving) and thus, by definition, imposes obligations on holders of power. Indeed, by taking part in experiments in operationalizing these ideas, there is every chance that the reverse direction of causality could be catalysed: non-political forms

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of association may well find themselves increasingly drawn into struggles based on the assertion of non-negotiable rights. Accountability-seeking, depending on the form it takes, can be politicizing as well as depoliticizing. But even to the extent this might be true it raises other criticisms. Moore’s study of ‘the drivers of pro-poor change’ in Bangladesh represents, in a sense, the mirror image of Baiocchi’s argument. Moore, like Baiocchi, worries about how the emerging accountability agenda will affect the civil society actors that are increasingly called upon to participate in it. But Moore’s fear is not that political activists will be co-opted, but that developmental NGOs will become too political, or at least will be perceived that way. By getting caught up in efforts to promote accountability, Bangladesh’s NGOs risk undermining their core competency – effective service delivery. In a highly polarized political environment, such as prevails in Bangladesh, NGOs that try to influence policy or seek to hold public agencies accountable for their failures can get labelled partisan. So while it is tempting for NGOs to assume additional responsibilities for improving governance, this also makes them vulnerable to political interference.8 While Moore usefully highlights an important constraint on this type of activity, the questions are, again, empirical. The degree of NGO vulnerability to this sort of government backlash varies substantially – from sector to sector, country to country, organization to organization. There can be no blanket statements about such matters.

Stunted institutional development The second avenue of criticism – that unconventional accountability experiments stunt the development of formal accountability institutions – also highlights the dangers of the new, more eclectic and dynamic approach to accountability-seeking. This category of concerns emphasises the new accountability agenda’s impact on states themselves, rather than on the political activity of the poor. Some critics of the policies pursued by the US-led occupying authority in Iraq argued that new, more exacting standards of accountability were applied to members of the country’s former ruling establishment, and that this undermined the reconstruction effort. A US Major General serving in Iraq stated in early 2004 that, by disqualifying from public office the top three tiers of the Baath Party hierarchy, as well as disbanding the entire Iraqi army, the Coalition Provisional Authority had effectively raised the standards of accountability so high – to include anyone with even a tenuous link to the former regime’s structures of power – that they had excluded from the new Iraq many of the administrators, professionals and potential leadership figures that the post-conflict Iraqi state desperately required. Another American officer outlined a more measured strategy: ‘We need to draw up a list of those Baathists who must be held accountable for their crimes, but let the rest of the Baathists have a future in the new Iraq.’9 The rather extreme accountability

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policy that the CPA followed, because it sought to hold so many people accountable, and for actions guided more by the desire for survival in Saddam Hussein’s Iraq than out of loyalty to his regime, ended up harming the institutional capacity of the post-Saddam government machinery. While the Iraq case highlights the downside of new standards running ahead of practical realities – making it the reverse image of the idea, introduced in Chapter 6, that formal rules often lag behind shifts in popular expectations – a related critique focuses on problems with new methods for making the powerful answerable for their actions. The charge is that proponents of experimental techniques have been seduced by their own rhetoric about the reconfigured state. So in the thrall of the ‘network governance’ paradigm are these advocates that their accountability innovations frequently bypass the state, treating it as just one among many actors, when in fact it is the one agency that has the potential to provide credible guarantees to promote human development. From this perspective, doing an end-run around state institutions amounts to giving up on the possibility of improving them. When parliaments do not represent interests effectively, do not actively scrutinize legislative proposals and do not organize themselves in ways that can draw on the expertise supplied by civic associations – under such circumstances it is always tempting to create parallel structures that can channel at least some of the energy of civil society into deliberative processes. The formulation of Poverty Reduction Strategy Papers (PRSPs) in low-income countries – now a requirement for continued access to concessional finance from the Bretton Woods Institutions (and, increasingly, from bilateral donors) – has followed just such a logic. During 2000–2002, Malawi’s compromised and dysfunctional parliament was effectively bypassed in the consultation process that produced the country’s PRSP.10 Individual parliamentarians were invited to participate in various stakeholder forums, but parliament as an institution was considered incapable of organizing an effective process, even though in theory parliament would be expected to hold the government accountable for the policy and spending commitments outlined in Malawi’s PRSP. Arguably, this approach triggers a form of ‘path dependence’, whereby the failure to work through parliament further ossifies this key institution, in the process increasing the necessity of constructing alternative non-state (or quasi-state) mechanisms – such as civil society monitoring committees – to perform the accountability functions that parliament has proven incapable of fulfilling. Predictions of institutional incapacity become self-fulfilling prophesies, placing an intolerable burden on underfunded, unelected, donor-reliant civil society organizations to undertake what should be one of the state’s core responsibilities. Divested of its accountability function, parliament then becomes even less able to perform its rulemaking function effectively. The further erosion of parliament’s legitimacy increases the likelihood that the executive will bypass it in the future.

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There is much truth in this line of criticism. But it must be placed in historical perspective. Innovations in the machinery for ensuring accountability have always been subjected to charges that they sideline basic democratic institutions. The creation of the Ombudsman’s office in New Zealand in 1962 led to complaints that ‘the adoption of an Ombudsman system will result in a loss of efficiency and a diminished sense of responsibility to the Minister’.11 Three and a half decades later, it was fairly apparent that this particular prophesy had not come to pass.12 Ministers may have become less responsible, but not because of the Ombudsman. Perhaps the most common criticism of this genus is that, in the drive to exploit any opportunity to restrain the powerful, existing accountability institutions – rather than those newly minted to address emergent problems – tend to stray from their original mandates, warping the balanced development of democratic political systems. Ferejohn, for instance, has observed that the ‘judicialization of politics’ – a consequence of the failure of representative politics to provide clear direction for legislative rule-making – results in the ‘politicisation of law’.13 This echoes the longstanding complaint of American conservatives that socially liberal judges, in order to achieve their policy objectives, end up ‘legislating from the bench’. Consequently, political energies are diverted from the hard work of building electoral support, and the impartiality of the judiciary becomes suspect. Similar complaints have been found in a range of poor countries. One critique of ‘judicial activism’ in India took particular umbrage at a court order requiring vehicles in Delhi to convert to less-polluting fuels: The persistent justification of the [Indian] courts … has been that the courts have been forced to take an activist stance precisely because of executive or legislative failures. However this activism cannot substitute for the failed institutions … If indeed the executive or the legislature has become dysfunctional … the solution is not in expanding the judicial enterprise, but in restructuring the dysfunctional institutions … It could be argued that our critique of activism can be countered by a call to refashion the activist institution so that it is formulated as a hybrid institution, incorporating the functional characteristics of the institution it seeks to substitute. The courts could resort to … referendums to elicit popular preferences or create subordinate executive bodies, as is implicit in the offices of amicus and judicial commissioners. However, it needs to be noted that this type of hybridisation is the analogue of a constitutional coup where one institution seeks to replace another. Functionally it may promote efficiency, but this is potentially at the cost of liberty, a price that may become insupportable.14 The notion of a trade-off between liberty and hybridized forms of accountability mirrors, to an extent, Fareed Zakaria’s conception of ‘illiberal

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democracy’.15 Zakaria’s fear is that the current emphasis on democratizing all aspects of political life is wreaking havoc with the mechanisms through which the rule of law is maintained. The implications of Zakaria’s argument for the kinds of experiments outlined in this book are ambiguous. On the one hand, it is possible to interpret the new agenda as an attempt to democratize accountability institutions – that is, to bring people and their associations directly into formerly closed state-to-state channels of horizontal accountability. This could be seen as undermining those organs of the state that enforce the rule of law – courts, auditors-general, regulatory agencies. The daily grind of political activism, according to this view, can all too easily overwhelm the fragile structures of deliberative impartiality.16 On the other hand, most of the experiments reviewed in Chapters 4 through 6 – which, we must emphasise, are not a random sample, but were selected to illustrate features of an emerging agenda – are not, in fact, seeking to impose a tyranny of the majority, to settle partisan scores at the expense of the state’s institutional inheritance. On the contrary: those promoting new approaches to checking the power of states, firms and other actors are acutely aware of the functions accountability institutions are supposed to perform, and yet do not. Hybrid forms of accountability seek not to override the rule of law, but to invest the process of rule-bound deliberation with additional checks, beyond those that exist. The focus is on institutions that should, in theory, be insulated from elite power, but that have in reality been either captured by elites, or else compromised by prevailing social biases. In other words, the goal is to make these institutions genuinely liberal, rather than liberal in name alone. A subset of the accountability experiments reviewed in this book – particularly those discussed in Chapter 5 – are open to a related complaint: that the new agenda fails to place the nation state centre stage. This, in turn, stunts the growth of effective domestic institutions of accountability. Paul Hirst has argued that Really the question is: as the division of labour [between national, regional and global levels of governance] becomes all the more complex, how do you make the different levels answerable? I still think that the best chance we have is through democratic nation-states. At least with them we know what we are dealing with.17 Hirst’s response sidesteps the profound difficulties (outlined in Chapter 2) of ensuring that elected representatives do what they promise. As Hirst puts it, ‘[d]emocracy at the crudest level means that you know who has made a decision, and the next time around you have a chance to throw him or her out if you don’t like it’.18 The problem is that a crude view of democracy is insufficient for the complex analytical task at hand. A more fine-grained analysis demonstrates how little resemblance there is between the purist vision of

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electoral accountability and the concrete reality of democratic politics. Hirst’s focus on national political systems implies that some of the accountability experiments outlined in this book would be an unnecessary distraction from the key element – the domestic arena. His argument is based on the somewhat optimistic assumption that ‘we understand the national mechanisms of democratic accountability, and how to improve them. …’ But this need not preclude the reinvention of domestic accountability institutions. Ironically, Hirst’s own model of ‘associative democracy’ provides an unusually well-elaborated model for how such a rethinking might work in practice.19 To insist, as Hirst does, that transnational civil society is less effective than its advocates might wish, or that a more direct form of global governance is impracticable, is not the same as concluding that a centralized state, based on classically democratic institutions, is the only way – or indeed the most effective way – of increasing the accountability of power holders to the public. Moreover, for the reasons outlined in Chapter 2, focussing accountability reform on state institutions and processes does not guarantee success. Where accountability experiments have demonstrably failed, it is not always because they have been lacking in the trappings of democratic legitimacy. New York City’s system of ‘community school boards’ was established in 1969 as part of the wave of citizen engagement that swept American urban government during the late 1960s and early 1970s. By 2003 the boards had become, according to Samuel Freedman of Columbia University, ‘wholly discredited’ and ‘largely disastrous’. This was despite the fact that they were elected bodies: ‘The truth is that elections for the boards brought out less than 10 per cent of eligible voters. It would be surprising if more than a handful of parents could even give the address of their local board office.’20 Freedman’s proposed answer – ‘recentralizing control … from neighbourhood bosses to accountable leaders’ – does not appear to address the source of the complaint. It is unclear why higher-level politicians, responsible for any number of other issues besides school performance, would be any less likely to use the schools as ‘a reservoir of patronage jobs’. The problem of inadequately informed, or motivated, voters would remain. Another variety of criticism in this category is the complaint that the new accountability agenda is too ad hoc and fragmented to provide the unified, comprehensive coverage that all-encompassing state systems used to provide. There is no fixed point of reference, no foundational source of authority from which standards can be derived or procedures harmonized. Accountability gaps will thus remain unfilled. As with the other critiques outlined in this chapter, this line of argument is not without merit. The problem, however, is that there is little grounds for expecting a return to a neatly ordered, fully integrated, functionally differentiated system of accountability – if one ever existed. Just as systems of economic production have been revolutionized by information technology, closer relations

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between manufacturing and marketing firms and the widespread availability of consumer finance, so have systems of accountability been subjected to radical transformations in the governance climate. In fact, the transition from conventional state-dominated accountability systems to an uncoordinated set of overlapping initiatives involving a wider array of actors – each of which now plays several roles – parallels some of the changes that have characterized the behaviour of firms in recent years. The analogy is not as far-fetched as it sounds. Where manufacturers once themselves fabricated almost all of the parts of which their products were made, delivering to clients a complete system, they now increasingly assemble products from readily available components, supplied by a wide range of firms, each with its own specialized niche. Accountability, similarly, used to be something delivered, fully assembled, by the state – through its regulatory agencies, courts, bureaucratic reporting systems and so forth. The functions of answerability and enforcement came from the same supplier, so to speak, even if through different subsidiaries. But these days the components of accountability systems are contracted out to different actors altogether: one getting the contract for enforcement, another for answerability; one responsible for ex ante accountability, another charged with the provision of ex post services. The old anti-trust regulations separating suppliers in the horizontal and vertical sectors of the accountability industry have been effectively abolished. And the cross-border restrictions to the promotion of accountability are being lifted progressively, just as they are in international trade. While it would be foolish not to recognize the extent to which all this functional differentiation and flexible specialization can increase the productivity of accountability institutions, neither can we downplay the risks. Just as when a computer-buyer purchases her laptop, printer, scanner, modem, digital camera and mouse from different suppliers, and finds that they are not fully compatible – and even worse, the support contract does not extend to the essential task of making the components work together – so do people in the new world of dispersed accountability-provision find themselves caught in situations where it is difficult to know where to point the finger of blame, or where to go for redress. As one critique of the operational implications of multi-level governance in the European Union put it: A further challenge to some applications of subsidiarity stems from the requirement of accountability. Subsidiarity can prevent the public from placing responsibility for actions on particular officials, who may appeal to vague and complex notions of comparative effectiveness and limited room for independent action. Such responses hinder accountable government.21 Moreover, the fragmented nature of today’s accountability systems makes them even more prone to ‘market failure’ than private-sector activity is.

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Where business suppliers will normally step in to fill an under-served market, responding to the price signals that accompany increased demand, there is in the process of producing accountability little to prevent an oversupply of voice-related initiatives, and an undersupply of enforcement. Accountability demand goes unfulfilled. Above all, just as the global market provides almost unlimited consumer choice for those with disposable incomes, and not nearly enough drinking water for those without, it will take conscious interventions – by the state as well as other actors – to correct for the failure of new modes of accountability provision to work for the poor. It is not enough to expect the promising but incomplete profusion of initiatives surveyed in this book to reach a propoor equilibrium. The emerging agenda must be actively shaped if it is to have a positive impact on human development. Perhaps the strongest argument against the ‘dangers of institutional bypass’ criticism is that it creates a false choice. Whether to seek accountability through state or non-state agencies is not an either/or question: pursuing nonconventional approaches to correcting institutional failures need not prevent governments, aid agencies, civic organizations or other actors from continuing the process of improving conventional mechanisms associated with democratic states. Experimentation with new modes of accountability has not led to an abandonment of efforts to redesign conventional institutions such as electoral systems, courts, bureaucracies and auditing agencies. Arguably, the bulk of the world’s efforts to improve accountability consist of what are by now fairly mainstream initiatives that attempt to repair these traditional pillars of accountability. Electoral reforms, such as variants of proportional representation systems and ‘reserved constituencies’ for disadvantaged groups, seek to remedy the defects found in existing voter– legislator relationships. Legal and judicial reforms, such as the creation of human rights commissions or specialized bodies for the promotion of women’s interests, are state-led initiatives geared towards poor and vulnerable groups. Civil service reforms, such as results-oriented management schemes and market-based approaches to service delivery, continue to be undertaken in a huge range of countries. Finally, there is widespread investment in reforming formal oversight institutions, reflected in the worldwide spread of anti-corruption commissions, ombudsmen offices and auditorsgeneral, and the proliferation of programs designed to increase the technical capacity of those that already exist. The old accountability agenda is alive and well and very much a majority taste. Given all of this activity, surely the onus must be on the critics of the new agenda to demonstrate with empirical evidence how specific innovations (particularly those that involve the entry of citizens directly into what were once purely state-to-state avenues of horizontal accountability) necessarily undermine either the traditional public-sector reform approach or those based on market principles. In other words, there is no reason why we

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should assume a zero–sum equilibrium in which any reform impulse must, of necessity, ‘crowd out’, others. At the very least, critics must consider the possibility that – in any given instance – the tendency towards crowding out could be offset, if not exceeded, by a countervailing ‘crowding in’ effect, through which non-traditional approaches to accountability-provision raise expectations among people and their associations – in the process holding conventional accountability institutions to a higher standard. It is fashionable for criticisms of new accountability experiments – especially those that blur the distinction between vertical and horizontal forms of accountability – to refer to Samuel Huntington’s long-held view that a ‘surge of participatory democracy’ can weaken government by overloading political systems with demands that make effective governance impossible.22 While Huntington clearly highlighted an important and widespread phenomenon, his was not a statement meant to be applicable uniformly across space and time. In fact, Huntington’s classic formulation of this dictum contains an important caveat: so long as increasing political mobilization and participation was accompanied by the creation of new institutions to channel and contain the resultant demands – whether for greater subsidies or for enhanced accountability – then increased participation in and of itself could not be considered a cause of system overload.23 Moreover, Huntington explicitly stated that the institutions concerned need not be state institutions – but could in fact be quasi-state institutions. (India’s Congress Party was one of the examples cited.) To the extent that new methods of seeking accountability develop into institutions – involving rules that shape the expectations of key actors in the oversight process – they therefore help to reduce the scope for the sort of negative side-effects highlighted in this stream of criticism.

Erosion of trust, initiative and professional ethos There has been a backlash against the proliferation of information and reporting requirements in public administration: output targets, performance indicators, service charters and so forth. Critics complain that they are overly bureaucratic, excessively costly and infinitely manipulable.24 As one study put it, ‘what gets measured, gets done’.25 These intrusive oversight methods reflect a loss of trust in the ability of officials to apply their professional judgement when responding to clients’ complex needs. When the understandable desire to impose safeguards on the use of discretion begins to shade into systematic surveillance of all aspects of official work, the sense of lost public trust can produce a workforce unwilling to take initiative. The fear of lawsuits or of being transferred by a superior to a punishment post has thwarted many a creative official. O’Neill argues that ‘new conceptions of accountability … superimpose managerial targets on bureaucratic process, burdening and even paralysing many of those who have to comply’.26

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Michael Power pursues an even larger claim, arguing that the emergence of what he calls ‘the audit society’ – a phenomenon that has arisen mainly in the United Kingdom and North America – has entrenched the idea of the audit as the primary ‘principle of social organization and control’.27 Arguing, uncontroversially, that ‘the rise of auditing has its roots in political demands for accountability and control’, Power then goes on to make the stronger assertion that ‘by imposing their own values, audits often have unintended and dysfunctional consequences for the audited organization’. Among these is a loss of trust – and therefore investment – in individual competence and probity. Power makes a convincing case that the audit culture imposes serious costs for the functioning of economic and political organizations, and for society more generally. A variation on this theme is the argument that the direct incorporation of citizens into accountability mechanisms reduces the effectiveness of public servants because of their reaction to the measures introduced to compensate for the lack of public trust.28 Having had their integrity called into question through the imposition of micro-managerial forms of oversight, officials often respond by reducing their exposure to potential charges of impropriety. Prendergast found that when the Los Angeles Police Department was forced to investigate all complaints from the public – concerning alleged police brutality and violation of norms for conducting stop-and-search operations – officers, fearful of potential investigations, became less aggressive in the methods they used to combat crime. This may, or may not, have reduced the prevalence of police abuses, though the statistics did show a reduction in the number of incidents in which police officers used force or were involved in shootings. But where the system of automatic complaintinvestigation was in effect, the number of arrests for serious crimes (especially those for narcotics-related offences) also declined, despite increases in these indicators in other cities, suggesting that it was not the incidence of the underlying criminal activity that declined, but simply the rate of enforcement. Particularly notable for this book’s focus on vulnerable groups (who may not be in a position to hold the police accountable for not taking action to ensure their physical security) is the finding that police officers become especially timid in combating crime ‘in cases where the victims of crime are diffuse, and are unlikely to complain about a particular officer’s action’.29 This outcome highlights the perennial tension between wanting to make front-line service providers accountable to their hierarchical superiors, who remain responsible for enforcing standards, and wanting to furnish these outreach agents with the discretion they need in order to react creatively to client needs, which can vary enormously between localities and client groups. Because discretion can also provide cover for opportunistic rentseeking by officials,30 the ‘New Public Management’ has emphasized, wherever possible, competition with private sector providers,31 complemented by

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strict monitoring of quantifiable performance indicators and more minutely detailed systems of hierarchical accountability.32 All the emphasis on surveillance – whether through citizen oversight, new monitoring technologies, public–private partnerships or market-based mechanisms – downplays the importance of building cultures of probity and trusteeship in the public service.33 While checks and constraints on discretion can, under certain conditions, minimize the scope for corruption, their controlling and punitive nature discourages public officials from using their moral agency in ambiguous situations, or building their personal and institutional resources to behave with probity when faced with ethical challenges. An example of the ‘controlling’ impulse in public sector management, and its shortcomings, is the imposition of increasingly stiff constraints on the work of rural public health nurses in the south Indian state of Andhra Pradesh. Auxiliary Nurse-Midwives (ANMs) are a key part of India’s public health service. They perform an outreach function to poor rural communities, and in the tribal areas of Andhra Pradesh’s Visakhapatnam district they are essential for linking villagers to the health system. Their work is extremely demanding, requiring contact with and basic preventative and curative treatment of large numbers of people: each ANM must cover a population of 6000 people and visit 25 hamlets twice a month. These remote communities are scattered across inhospitable terrain that is ill-served by roads. Simply reaching them presents many dangers to women travelling alone. Pay is low, and money for travel expenses is inadequate. For these and other reasons, including low expectations and limited opportunities for client complaint, there are extremely high rates of absenteeism, sickness and under-performance among ANMs. Clients report brusque and dismissive behaviour by the ANMs. There are also frequent allegations that bribes are demanded for treatment, and that ANMs routinely sell their medicines, though they are supposed to be supplied free of charge. To ensure that ANMs actually visited villages, a performance-related reform introduced in the 1990s required ANMs to keep records of local illnesses and to demonstrate public-health improvements. The idea was that the need to maintain records would at least force ANMs to visit the villages. It was subsequently reported that ANMs evaded this requirement by fabricating data or by gathering information from villagers who came to weekly markets in towns, rather than visiting them in their distant homes. In 2003, the District Health and Medical Officer (DHMO), the line manager of the ANMs, proposed a punch-card system at remote medical sub-centres to record the ANMs’ visits and to measure the time they spent in the field. The DHMO proposed using new technology to scan the fingerprints of ANMs to make sure they did not send a proxy to punch their cards at the sub-centres; their salaries were to be cut if they did so. While the motivation for this proposal is understandable, it is based entirely on controlling and punishing

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errant front-line worker, rather than sympathetically examining the practical constraints they face. It stood little chance of improving the quality of their engagement with clients.34 In this case, attendance was to become the crude proxy measure of accountable behavior. This kind of reform is only likely to succeed for logistical tasks, not for actions that require the exercise of professional judgment. These objections, as well as others based on an assessment of additional costs involved in the process of seeking accountability,35 are valid. But just as it is important not to jettison the concept of voice in the rush to embrace the hard-edged certainties of accountability, it is also necessary not to abandon the instruments with which a more evidence-based approach to reason-giving and explanation-demanding can be constructed. More importantly, the practice of governance reform in many poor countries indicates an increasing awareness of the need to strike a balance between surveillance and relying on the professional discretion of state employees. In contrast to the harsh dictates of the New Public Management approach there is a competing view that holds that a bureaucratic culture that respects the professional autonomy of bureaucrats and front-line service providers, giving them space to exercise discretion in their reactions to the needs of clients, serves the interests of democratic accountability better than one that stresses strict central control.36 In the field of public service delivery, a few contemporary efforts to elicit a responsible use of discretion by front-line service providers are producing new standards of service provision and a new type of government worker, closer in training, character and commitment to the NGO workers with whom they have so often been unfavourably compared. One example is the set of reforms designed to improve the responsiveness of public health service providers to their poorest clients in the Brazilian state of Ceara, where the standards of service delivery in a range of sectors improved dramatically during the late 1980s and early 1990s. Tendler documents the process by which reformist state governors turned around mediocre public agencies in the areas of health, agriculture, public works and small enterprise development. The result was more responsive and effective public services and better human development indicators in one of Brazil’s poorest states. Most impressive of all were the reforms to a rural preventative health service, which in the space of five years increased preventative health coverage from 30 to 65 per cent of the state’s population and contributed to a 36 per cent drop in infant mortality.37 This programme required the recruitment of thousands of new basic community health workers (mainly women) and hundreds of nursesupervisors to carry out infant vaccinations and child preventative health campaigns. Recruitment of these non-tenured, low-skilled field workers from the same communities in which they were to work was conducted centrally by the office of the state governor. This bypassed the patronage systems of

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the local mayor, and even the control of the health department. Not only was merit-based recruitment emphasized in the widespread publicity campaign that accompanied the programme’s launch; unsuccessful applicants and community members were encouraged from the start to act as unofficial monitors of the programme and to report both poor performance and success stories. Non-material incentives helped to develop job commitment and responsible use of discretion. The three-month training was more than tenured public-sector workers normally received. Health agents were immediately recognizable, thanks to their highly visible uniforms, and blue backpacks filled with supplies. The esprit de corps surrounding the health workers’ ‘social mission’ earned them the respect of ordinary people, which in turn further contributed to their job satisfaction. Together, these elements produced an unusual sense of ‘calling’ in the health agents. The need to establish trust with clients prompted an expansion of the job into simple curative interventions such as removing stitches, treating wounds and taking sick children to hospital, as well as a range of socially supportive tasks such as cutting children’s hair, helping with childcare or assisting with cooking or cleaning. By instilling a sense of public ownership of the programme, the state government generated a willingness on the part of ordinary people to act as informal agents of accountability. Poor performance or rule-subverting behaviour by programme workers was exposed in public – a severe form of social sanction – the flip side of which were public prizes and celebrations reserved for particularly dedicated individuals or teams. Health agents were, over time, held accountable for higher standards of care: front-line workers were expected to demonstrate empathy, responsiveness and integrity. Field workers did not use their expanded discretion to limit their workload and constrain client demands, as is so often the pattern where service providers are over-worked and under-motivated.38 In this and other public services, the key to reforms was not, as in so many public-sector reforms, a standardization of tasks and a multiplication of reporting requirements upwards in the chain of command. Far more important were measures to build an ethos that prized probity and higher standards of care towards the programme’s poorer clients. This was achieved in part through non-material status-linked incentives, and in part by rupturing the control of local politicians over budgets and personnel, through transparent recruiting, monitoring and rewards systems. The notion that self- and peer-imposed constraints and a sense of ‘organisational mystique’ should act as an informal accountability mechanism that can raise standards is not new.39 It is the basic rationale for the cultivation of elite work cultures in the civil service and other professions (such as law or medicine), where extremely difficult entry-level qualification tests, extended apprenticeships and peer review of performance are intended to promote high performance standards. What is new about cases such as

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Ceara’s health agents is the inclusion of lower-level bureaucrats or front-line workers into the public-service meritocracy, rather than relying on the more conventional top-down accountability tools usually deployed to control this category of staff. Although they may seem to foster mistrust between public-sector actors, ‘whistle blower’ protection measures also seek to reward the exercise of a sense of trusteeship and responsibility. An example of this is the 1989 US Whistle Blower Protection Act, which protects those who make ‘disclosures regarding illegality, abuse of authority, gross waste, gross mismanagement or substantial and specific danger to public health or safety’.40 Though not especially new, the idea behind the Act reflects at least four of the concerns driving more recent concerns with accountability. First, it conveys the message that public servants are expected to conform to high standards of probity, including intolerance for malpractice in their midst. Second, it opens to public scrutiny accountability relationships within the state, particularly the bureaucratic chains of command that can, in the name of administrative accountability, actually subvert the larger aim of making the state accountable to ordinary citizens. Third, though a piece of government legislation, the US’s whistle-blower legislation has catalysed civil society activism. One example is the Government Accountability Project, or GAP, a US-based ‘non-profit, non-partisan public interest group’ that defends the rights of employees who ‘blow the whistle’ on illegal or potentially harmful activities of government agencies. Its main focus is on implementing the law in the United States, defending those punished for whistle-blowing and disseminating the idea internationally. And, fourth, whistle-blowing is embedded in the idea of international human rights. The GAP is in fact looking for test cases to develop precedents of whistle-blower protection as a human right in tribunals such as the Inter-American Commission on Human Rights and the European Court of Human Rights. There are a wide variety of ways in which the legislation has been used. Whistle-blowers at a nuclear facility in Ohio alerted regulatory authorities to environmental and safety standards violations, and the resulting investigation helped to prevent the completion of a similar plant.41 In South Africa, a whistle-blower act – the Protected Disclosures Act of February 2001 – has been particularly effective in encouraging employees to report fraud in the private sector.42 Legal provisions that protect whistle-blowers cannot on their own create an ethos of public service, and arguably represent a form of additional, internal, surveillance over government servants. But they do represent a means for catalysing or drawing out an inchoate public-service ethos.

By way of conclusion The criticisms outlined in this chapter are in some cases compelling. But whether the shortcomings of the new accountability agenda outweigh its

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advantages in practice is something that is impossible to judge at a high level of abstraction. Local circumstances matter. It is an empirical, case-by-case question. Many criticisms of new experiments, even when based on a valid theoretical claim, derive their political power from the fact that they serve narrower interests. The heartfelt insistence that accountability should be undertaken through domestic institutions, for instance – based on the finesounding ideal that nations must determine their own fates – often conceal less noble motivations. It is, for example, plausible to argue that allowing claimants outside the United States to use the US Alien Torts Act to hold (even non-American) power-holders accountable risks stunting the development of institutions of democratic accountability elsewhere in the world. How will Venezuela ever strengthen its own judicial system when Miamibased relatives of people killed in anti-government rallies in Caracas find it easier to sue in US courts than to pursue actions in Venezuela itself? And yet institutional capacity-building arguments mask other, less disinterested objections. William Taft, a US State Department legal advisor, told a congressional committee in July 2003 that the use of US courts for such purposes was ‘costly to the U.S. taxpayer and damaging to foreign policy and national security goals of this country’.43 Taft himself had in 2002 argued – to a judge hearing a case in which ExxonMobil was accused of complicity in human rights abuses by Indonesia’s military – that using the US courts to pursue this type of claim would hinder the US government’s objective of fighting terrorism.44 It is important to retain a healthy scepticism about what motivates critics of new accountability mechanisms: some genuinely seek to promote justice; others are more concerned with expediency. As the backlash against an ever-expanding zone of accountability has intensified, it can be heard in sometimes surprising quarters. Civil society organizations, as we pointed out in Chapter 4, had found themselves in a role reversal in recent years: accustomed to being the demanders of accountability, NGOs had found themselves increasingly the targets. This element of the new accountability agenda – one of the ‘new roles’ for accountability actors – has triggered its own form of backlash. Perhaps the most outspoken is Stephen Tindale of Greenpeace UK, who according to a UNEP-backed study, ‘argues that membership organisations that operate in democracies, where the right to protest and to free speech are protected, are entitled to do what they want so long as they do not break the law’.45 * * * We cannot stress strongly enough that what we have termed the new accountability agenda is not a coordinated, complete or even internally consistent programme of action. It is emerging from a wide variety of spontaneous initiatives the world over. It has dramatic implications both for the way we think about accountability, and for contemporary approaches to promoting good governance.

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The initiatives described in this book considerably challenge the classic distinctions through which accountability is defined. Citizen engagement in formerly closed state institutions of oversight, for instance, is blurring the conventional distinction between vertical and horizontal accountability mechanisms. Efforts to augment citizen voice in planning, auditing or determining service delivery standards are expanding space for ex ante accountability rather than confining them to ex post accountability. And new, more exacting standards of accountability, combined with a decreasing pubic tolerance for weak enforceability, are raising awareness (if not yet closing the gap) between de jure and de facto accountability. For accountability to be truly reinvented – such that it revives ordinary people’s belief that democracy can improve human development – both procedural and normative changes in the institutions of accountability are needed. Procedural changes would improve the access and voice of the poor within these institutions. Normative changes would require shifting attitudes about the ultimate measures and objectives of accountable public action. In other words, the standards of good practice in the work of public authorities must be measured in terms of their contribution to human development – not just efficiency or procedural correctness. Public actors must be accountable not just to the poor, but for human development. Since accountability is about power (both limiting the arbitrary exercise of power and increasing the state’s capacity to produce public goods), development agencies must examine accountability relationships beyond the citizen–state dyad. Efforts to improve accountability must incorporate an understanding of the multiple institutional arenas in which such relationships take place, as well as the potential for positive or negative spillovers (sometimes simultaneously) between them. They must also accept that the failure of existing accountability mechanisms stems not just from corruption, but from various forms of elite bias as well. Finally, the focus on accountability cannot fully supplant the concern with voice. As we noted earlier, the provision of a greater quantity (or even quality) of voice will be insufficient on its own to rectify accountability failures, especially those that afflict the poor. But neither can the notion of voice simply be discarded. Accountability, by definition, implies voice – the accountable agency is ‘answering to’ an articulated question, traceable ultimately to a voice. It is also vulnerable to sanction, which must be ordered through the exercise of voice. The voices might not be directly those of ‘the people’, conceived collectively, but instead those ‘representatives’ who operate on the people’s behalf, whether they are elected or not. That such actors will themselves need to be subjected to scrutiny and restraint underscores the extent to which accountability must be continually reinvented.

Notes 1

Introduction

1. ‘Firms Face Corporate Killing Law’, The Guardian, 19 May 2003. 2. Joseph Nye, The Paradox of American Power: Why the World’s Only Superpower Can’t Go It Alone (Oxford: Oxford University Press, 2002), p. 78. 3. Amartya Sen, ‘Democracy as a Universal Value’, Journal of Democracy, vol. 10, no. 3 (1999). 4. The basic components of this definition are drawn from Andreas Schedler, ‘Conceptualizing Accountability’, in A. Schedler, Larry Diamond and Marc F. Plattner (eds), The Self-Restraining State: Power and Accountability in New Democracies (Boulder and London: Lynne Rienner, 1999), pp. 14–17. 5. Ibid., pp. 14–15. 6. Guillermo O’Donnell, ‘Delegative Democracy’, Journal of Democracy, vol. 5, no. 1 (1994), pp. 55–69. 7. Robert S. Barker, ‘Government Accountability and its Limits’, Issues of Democracy, vol. 5, no. 2 (2000). 8. The study of financial regulation in the south includes similar attention to sequencing and periodization. Brownbridge, for instance, argues that a reform priority should be introducing ‘prompt corrective action rules’ for banks that fail to meet prudential norms, lest the exposure of a few risk the well-being of the many. This, it was felt, would help by ‘enhancing the regulators’ independence from political interference in operational issues’, while still ‘making them more accountable ex-post’. M. Brownbridge, ‘Policy Lessons for Prudential Regulation in Developing Countries’, Development Policy Review, vol. 20, no. 3 (2002), pp. 305–16. 9. Pratap Bhanu Mehta, ‘Is Electoral and Institutional Reform the Answer?’ Seminar 506 (‘Reforming Politics: A Symposium on Rethinking Democratic Institutions and Practice’), October 2001. 10. Harry Blair, ‘Participation and Accountability at the Periphery: Democratic Local Governance in Six Countries’, World Development, vol. 28, no. 1 (2000), p. 24. 11. John Lonsdale, ‘Political Accountability in African History’, in Patrick Chabal (ed.), Political Domination in Africa: Reflections on the Limits of Power (Cambridge: Cambridge University Press, 1986), pp. 126–87. 12. In many developing countries dual legal systems give customary and religious law dominion over certain social affairs, most typically familial relationships (marriage, inheritance, child custody) and the use of common property (such as tribal lands). Such systems tend to lock less powerful plaintiffs into legal forums where they have reduced rights, allowing more powerful plaintiffs or defendants to ‘forum-shop to find an avenue for evading a duty’. Doris M. Martin, ‘Women in Development: The Legal Issues in Sub-Saharan Africa Today’, Working Paper No. 4, Poverty and Social Policy Division, Africa Region (Washington, DC: World Bank, 1992), p. 17.

198

Notes 199

2 Where Accountability Meets Governance: Globalization, Participation and Corruption 1. Michael Johnston, ‘Cross-Border Corruption: Points of Vulnerability and Challenges for Reform’, in Corruption and Integrity Improvement Initiatives in Developing Countries (New York: United Nations Development Program/ Transparency International, 1998), p. 1. 2. Pratap Bhanu Mehta, ‘Is Electoral and Institutional Reform the Answer?’, Seminar 506 (‘Reforming Politics: A Symposium on Rethinking Democratic Institutions and Practice’), October 2001. 3. Adam Przeworski, Susan C. Stokes and Bernard Manin (eds), Democracy, Accountability and Representation (Cambridge: Cambridge University Press, 1999). 4. P. Taylor-Gooby, C. Hastie and C. Bromley, ‘Querulous Citizens: Welfare Knowledge and the Limits to Welfare Reform’, Social Policy and Administration, vol. 37, no. 1 (2003), pp. 1–20. 5. James D. Fearon, ‘Electoral Accountability and the Control of Politicians: Selecting Good Types versus Sanctioning Poor Performance’, in Przeworski et al. (eds), Democracy, Accountability and Representation, pp. 55–97. 6. This point finds confirmation in a study of the Czech parliament, which highlights the difficulties of furnishing vertical accountability in an emerging democracy. The study found that who legislators feel accountable to (the ‘principal’ for whom they are acting as ‘agent’) is determined by a number of complex factors, many of which shift with changing circumstances. Using longitudinal data, the study found that voters are becoming more likely over time to anticipate an increasing velocity of contextual change in shaping the behaviour of politicians. L. Brokl, Z. Mansfeldová, and A. Seidlová, ‘Vztah Poslancu Ceského Parlamentu k Volicum Jako Problém Vertikální Odpovednosti’ (‘The Relationship of Members of the Czech Parliament to Voters as a Matter of Vertical Accountability’), Sociologick´y Casopis (Czech Republic), vol. 37, no. 3 (2001), pp. 297–312. 7. Jane Mansbridge, ‘The Many Faces of Representation’, Politics Research Group Working Paper 98–17 (Cambridge, Mass: John F. Kennedy School of Government, 1998), p. 5. 8. For an explanation of why this is the case, using the example of the United States Agency for International Development, see Rob Jenkins, ‘Mistaking “Governance” for “Politics”: Foreign Aid, Democracy and the Construction of Civil Society’, in Sudipta Kaviraj and Sunil Khilnani (eds), Civil Society: History and Possibilities (Cambridge: Cambridge University Press, 2001), pp. 250–68. 9. A. Beard-Liikala, ‘Grassroots Civil Groups: The Potential and Limits of Democratic Change in Argentina’s Interior Provinces’, Cambridge Review of International Affairs, vol. 15, no. 3 (2002), pp. 515–30. 10. See Sue Unsworth, ‘Understanding Pro-Poor Change: A Discussion Paper’ (London: Department for International Development, 2001); and Sue Unsworth, ‘The Significance of Understanding Political Capacity for Reducing Poverty’ (London: Department for International Development, 2002). 11. This more general process of ‘authorizing rule’ is the true function of elections, according to the political philosopher John Dunn, who argues that ‘the idea of well-calibrated instrumental sanctions has had a very good run for its money in modern political thinking and has an evident role in prudent institutional design. But in epistemic terms it is an astonishingly optimistic way of envisaging political

200 Notes

12.

13. 14. 15. 16. 17. 18.

19.

20. 21.

22.

23. 24. 25. 26. 27.

28.

29. 30. 31. 32. 33.

relations’. John Dunn, ‘Situating Political Accountability’, in Przeworski et al. (eds), Democracy, Accountability and Representation, p. 335. Neera Chandhoke, ‘Governance and the Pluralisation of the State: Implications for Democratic Citizenship’, Economic and Political Weekly, 12 July 2003, pp. 2957–68. Ibid., p. 2959. Ibid., p. 2965. Ibid., p. 2961. See Atul Kohli, Democracy and Discontent: India’s Growing Crisis of Governability (Princeton: Princeton University Press, 1990). See Christophe Jaffrelot, India’s Silent Revolution: The Rise of the Lower Castes in North India (London: Hurst, 2003). See Rob Jenkins, ‘The Continued Democratization of Indian Democracy: Regionalization, Social Change, and the 1996 General Election’, Democratization, vol. 4, no. 1 (1996), pp. 57–72. Hirst and Thompson refer to proponents of this view as ‘extreme globalisation theorists’. See Paul Hirst and Grahame Thompson, Globalization in Question, 2nd edn (Cambridge: Polity Press, 1999). Thomas Friedman, The Lexus and the Olive Tree: Understanding Globalization (New York: Farrar, Straus and Giroux, 1999). OpenDemocracy.net, ‘Globalization: The Argument of Our Time’, an online debate between Paul Hirst and David Held, 2002, http://www. opendemocracy.net/debates/article.jsp?id ⫽ 6&debateId ⫽ 28&articleId ⫽ 637#one. Elke Krahmann, ‘Private Actors and the New Security Governance: Understanding the Emergence, Problems and Options for the Privatization of Security in North America and Europe’, paper prepared for the CPOGG Workshop at Schloss Amerang, 1–3 November 2002, p. 19. This is also a theme discussed in Peter Singer, Corporate Warriors: The Rise of the Privatized Military Industry (Ithaca, NY: Cornell University Press, 2003). See ‘The Privatisation of War’, The Guardian, 10 December 2003. George Monbiot, ‘Poisoned Chalice’, The Guardian, 19 August 2003. Samuel P. Huntington, Democracy’s Third Wave (London: University of Oklahoma Press, 1991). Whether the intervention should have been conducted through the UN rather than through NATO, whether it should have come sooner, or whether the United States equivocation on the use of ground troops may have cost unnecessary lives – these and other questions are separate issues from the broader point assessed here. Simon Chesterman, ‘The United Nations as Government: Accountability Mechanisms for Territories Under UN Administration’, paper delivered at the conference ‘Fighting Corruption in Kosovo: Lessons From the Region’, Pristina, Kosovo, 4–5 March 2002. Kenneth Good, ‘Accountable to Themselves: Predominance in Southern Africa’, Journal of Modern African Studies, vol. 35, no. 4 (1997), pp. 547–73. Ibid., p. 556. Ibid., p. 547. Ibid., p. 558. Ibid., p. 563.

Notes 201 34. Andrew Moravcsik, ‘Reassessing Legitimacy in the European Union’, in Joseph Weiler, Iain Begg and John Peterson (eds), Integration in an Expanding European Union: Reassessing the Fundamentals (London: Blackwell, 2003). 35. ‘The Myth of the Democratic Deficit in Europe’ was the title of a public lecture Moravcsik delivered at the London School of Economics, 20 February 2003. 36. Ayesha Jalal, Democracy and Authoritarianism in South Asia: A Comparative and Historical Perspective (Cambridge: Cambridge University Press, 1995). 37. Daniel Kauffman, Aart Kraay and Massimo Mastruzzi, ‘Governance Matters III: Governance Indicators for 1996–2002’, World Bank Institute (Washington, DC: World Bank, 2002) www.worldbank.org/wbi/governance/govdata2002/. The ‘voice and accountability’ index measures levels of state repression of citizens, orderly transfers of power, human rights observance, levels of trust in government, civil liberties, transparency of decision-making and public information flows. Other World Bank governance indicators include: political stability, government effectiveness, regulatory quality, rule of law and control of corruption. 38. Cambridge, MA: Harvard University Press, 1970. 39. Ariel Fiszbein, ‘The Emergence of Local Capacity: Lessons from Colombia’, World Development, vol. 25, no. 7 (1997), pp. 1029–43. 40. For instance, the World Bank’s ‘Voices of the Poor’ exercise in the late 1990s, in which tens of thousands of poor people participated in discussions about their experience of poverty. Deepa Narayan, Raj Patel, Kai Schafft, Anne Rademacher, and Sarah Koch-Schult. Voices of the Poor: Can Anyone Hear Us? (Oxford: Oxford University Press, 2000). 41. See Bill Cooke and Uma Kothari (eds), Participation: The New Tyranny? (London: Zed Press, 2001). 42. Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999). 43. Amartya Sen, ‘Democracy as a Universal Value’, Journal of Democracy, vol. 10, no. 3 (1999), p. 11. 44. Rajeev Bhargava, ‘Poverty and Political Freedom’, Open Democracy (2003), http://www.opendemocracy.net/themes/article-3–1431.jsp. 45. Ibid. 46. Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Explorations in The Geographies of [In]justice’, in S.K. Verma and Kusum (eds), Fifty Years of the Supreme Court of India: Its Grasp and Reach (Delhi: Oxford University Press, 2000), pp. 157–58, emphasis in original. 47. Ibid., p. 158. 48. On Goa, see Rob Jenkins and Anne Marie Goetz, ‘Constraints on Civil Society’s Capacity to Curb Corruption’, IDS Bulletin, vol. 29, no. 4 (1999), pp. 39–49. The relationship between accountability demand and supply is discussed in Mirza M. Hassan, ‘Supply of and Demand for Second Generation Reform: The Case of Bangladesh’, unpublished PhD thesis, Institute of Commonwealth Studies, University of London, 2002. 49. Jonathan Caseley, ‘Bringing Citizens Back In: Public Sector Reform, Service Delivery Performance, and Accountability’, unpublished PhD thesis, Institute of Development Studies, University of Sussex, 2004. 50. Kathleen Staudt, ‘Agricultural Productivity Gaps: A Case Study of Male Preference in Government Policy Implementation’, Development and Change, vol. 9, no. 3 (1978), pp. 439–58.

202 Notes 51. Joseph Stiglitz, ‘Globalization and the Logic of Collective Action’, in Deepak Nayyar (ed.), Governing Globalization: Issues and Institutions (New York: Oxford University Press, 2002), p. 249. 52. This case was reported in Deepak Verma, ‘A Dalit’s Caste: Between Law and Society’, Economic and Political Weekly, 21 June 2003, p. 2474. 53. Niraja Gopal Jayal, ‘Social Inequality and Institutional Remedies: A Study of the National Commission for Scheduled Castes and Scheduled Tribes’, paper presented at the Annual Meeting of the Network on South Asian Politics and Political Economy, Bangalore, 30 June–2 July 2003, p. 4. 54. Ibid., p. 13. 55. Ibid., p. 14. 56. Ibid., p. 21 (emphasis added). 57. Naila Kabeer, ‘Citizenship and the Boundaries of the Acknowledged Community: Identity, Affiliation and Exclusion’, IDS Working Paper 171 (Brighton, UK: Institute of Development Studies, October 2002). 58. For an insightful discussion of the uneven transitions from ‘acknowledged’ communities of the family, tribe and religious group, to the ‘imagined’ community of the state, see Nancy Fraser and Linda Gordon, ‘Civil Citizenship Against Social Citizenship? On the Ideology of Charity’, in B.V. Steenbergen (ed.), The Condition of Citizenship (London: Sage, 1994), pp. 90–106. 59. Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Colonialism (Princeton: Princeton University Press, 1996), p. 50. 60. Ronald Bullis, Sacred Calling, Secular Accountability: Law and Ethics in Complementary and Spiritual Counselling (New York: Brunner-Routledge, 2001).

3

Accountability Failures and Human Development

1. For instance, International Fund for Agricultural Development, Rural Poverty Report 2001: The Challenge of Ending Rural Poverty (Rome, 2001); Asian Development Bank, Fighting Poverty in Asia and the Pacific: The Poverty Reduction Strategy of the Asian Development Bank (Manila, 2000); and UNDP, Overcoming Human Poverty (New York, 2000). 2. Discussions of this problem can be found in: Kurt Weyland, Democracy Without Equity: Failures of Reform in Brazil (Pittsburgh, Pa: University of Pittsburgh Press, 1996); and Luis Fernando Medina and Susan Stokes, ‘Clientelism as Political Monopoly’, Chicago Center on Democracy Working Paper No. 25 (Chicago: 2002). 3. Philip Keefer, ‘Clientelism, Credibility and Democracy’, Background Paper to World Development Report 2004 (Washington, DC: World Bank, 2002). 4. S. Block, ‘Political Business Cycles, Democratization, and Economic Reform: The Case of Africa’, Journal of Development Economics, vol. 67, no. 1 (2002), pp. 205–28; Stuti Khemani, ‘Political Cycles in a Developing Economy: Effect of Elections in Indian States’, Governance, Corruption, and Legal Reform Working Paper No. 2454 (Washington, DC: World Bank, 2000). 5. For a detailed account of how such systems work in the Indian rural irrigation bureaucracy, see Robert Wade, ‘The Market for Public Office: Why the Indian State is Not Better at Development’, World Development, vol. 13, no. 4 (1985), pp. 467–97. 6. Klaus Deininger, ‘Making Negotiated Land Reform Work: Initial Experience from Colombia, Brazil, and South Africa’, Land Policy Network Working Paper (Washington, DC: World Bank, June 1998).

Notes 203 7. P. Kimuyu and J. Omiti, ‘Institutional Impediments to Access to Credit by Micro and Small Scale Enterprises in Kenya’, IPAR Discussion Paper 26 (Nairobi: Institute of Policy Analysis and Research, 2000). 8. Imran Matin, ‘Mis-Targeting by the Grameen Bank: A Possible Explanation’, IDS Bulletin, vol. 29, no. 4 (1998), pp. 51–8; R.D. Montgomery, D. Bhattacharya and D. Hulme, ‘Credit for the Poor in Bangladesh: The BRAC Rural Development Programme and the Government Thana Resource Development and Employment Programme’, in D. Hulme and P. Mosley (eds), Finance Against Poverty (London: Routledge, 1996); and Anne Marie Goetz and Rina Sen Gupta, ‘Who Takes the Credit? Gender and Power in Rural Credit Programs’, World Development, vol. 27, no. 1 (1996), pp. 45–63. 9. Manash Ranjan Gupta and Sarbajit Chaudhuri, ‘Formal Credit, Corruption and the Informal Credit Market in Agriculture: A Theoretical Analysis’, Economica, no. 254 (1997), pp. 331–43. 10. Jamal Munshi, ‘Corruption in the Banking Industry in Bangladesh’ (Dhaka: Transparency International Bangladesh, March 2000). 11. Ibid. 12. ‘In the Beggars’ Court’, The Economist, 17 August 2002. 13. Madhu Kishwar, ‘A Half Step Forward: The Thwarting of Economic Reforms in India’, Manushi, nos. 92/93 (1996), pp. 58–9. 14. Far Eastern Economic Review, 9 June 2001. 15. Washington Post, 31 July 2001. 16. Philippines Human Rights Update, vol. 13, nos. 3–4 (1999). 17. For more detail on the BIFR see Rob Jenkins, Democratic Politics and Economic Reform in India (Cambridge: Cambridge University Press, 1999). For detail on a trade union that has tried to obtain information from the BIFR so that workers can monitor sales of industrial plant and secure payment of back wages, see Rob Jenkins and Anne Marie Goetz, ‘Constraints on Civil Society’s Capacity to Curb Corruption: Lessons from the Indian Experience’, IDS Bulletin, vol. 29, no. 4 (1999), pp. 39–49. 18. Human Rights Watch, Underage and Uprotected: Child Labor in Egypt’s Cotton Fields (New York, January 2001), http://www.hrw.org/reports/2001/egypt/Egypt01.PDF. 19. M. Beier, K. Upadhyaya and H. Achanga, ‘Using Food-for-Work to Promote SelfHelp and Participation: Experiences form a Nepalese Emergency Project with Long-Term Benefits’, Mid-Term Evaluation for the Ministry of Forestry (Kathmandu: The Ministry of Forestry, 1993). 20. Edward Clay, ‘Rural Public Works and Food-for-Work: A Survey’, World Development, vol. 14, nos. 10/11 (1986), pp. 1237–52. 21. Patrick Meagher, ‘Roads Without Destinations: A Case Study of Governance and Rural Infrastructure in Nepal’, Working Paper No. 246 (College Park, Maryland: Center for Institutional Reform and the Informal Sector, January 2000), pp. 4–5 and 15–7. 22. There is much experimentation in both developed and developing countries with privatization of public services and public–private partnerships in service delivery. Private-sector engagement in the provision of basic pubic services is supposed to increase efficiency through competition, to increase consumer choice and therefore the responsiveness of providers. It also, in principle, distances political considerations from decisions on service design and delivery. See for instance, Richard Batley, ‘Public–Private Relationships and Performance in Service Provision’, Urban Studies, vol. 33, nos. 4–5 (1996), pp. 723–51; or the discussions of this issue in

204 Notes

23.

24.

25.

26.

27. 28.

29. 30. 31. 32.

33.

World Bank, The State in a Changing World: World Development Report 1997 (New York: Oxford University Press, 1997) and Making Services Work for Poor People: World Development Report 2004 (New York: Oxford University Press, 2004). There is some evidence that private-sector service providers are neither immune from problems of corruption nor more effective at reaching the poor than is the state. See Pauline Rose, ‘Is the Non-State Education Sector Serving the Needs of the Poor? Evidence from East and Southern Africa’, Background Paper to World Development Report 2004 (London: Department for International Development, 2002). Paulo Mauro, ‘The Effects of Corruption on Growth, Investment, and Government Expenditure’, IMF Working Paper WP/96/98 (Washington, DC: International Monetary Fund, 1996). This account draws on Abhay Mehta, Power Play: A Study of the Enron Project (New Delhi: Orient Longman, 2000); as well as John Vidal, ‘A Bad Business’, and Arundhati Roy, ‘The Biggest Fraud in India’s History’, The Guardian, 30 November 2001. Nazmul Chaudhury, Jeffrey S. Hammer, Michael Kremer, Karthik Muralidharan and F. Halsey Rogers, ‘Teacher and Health Care Provider Absenteeism: A MultiCountry Study’ (Washington, DC: World Bank, 2003). The World Bank’s World Development Report 2004 cites studies showing that 30 per cent of clinics in Ghana and Nigeria lack drugs, while a quarter of rural clinics in Cote d’Ivoire lack antibiotics. Making Services Work …, section 1.12. See the study by the PROBE Team, Public Report on Basic Education in India (New Delhi: Oxford University Press, 1999). A number of recent surveys of clients’ perspectives on public services reveal that in many countries health services are seen as the most corrupt. See, for instance, the study of 11 East European countries in GfK Praha/Institute for Market Research, Corruption Climate – Central and Eastern Europe: Results of an International Research Project on Corruption in 11 Central and Eastern European Countries (Prague: GfK Praha, 2001); Barbara McPake, Delius Asiimwe, Francis Mwesigye, Matthius Ofumbi, Pieter Streefland and Asaph Turinde, ‘Coping Strategies of Health Workers in Uganda’, in Paulo Ferrinho and Wim Van Lerberghe (eds), Providing Health Care Under Adverse Conditions: Health Personnel Performance and Individual Coping Strategies (Antwerp: ITG Press, 2000); Deepa Narayan, Robert Chambers, Meera Kaul Shah and Patti Petesch, Voices of the Poor: Crying Out for Change (New York: Oxford University Press, 2000). ‘Development Workshop–Angola’, in One World Action, Influence and Access – Local Democracy and Basic Service Provision (London, 1999), p. 23. Madhu Kishwar, ‘ “Naukri” as Property: Causes and Cures for Corruption in Government’, Manushi, no. 100 (1997), p. 16. Paulo Mauro, ‘Corruption and the Composition of Government Expenditures’, Journal of Public Economics, vol. 69 (1998), pp. 263–79. K.S. Yap (ed.), Low-income Housing in Bangkok: A Review of Some Housing SubMarkets, cited in Yok-Shiu Lee, ‘Intermediary Institutions, Community Organisations, and Urban Environmental Management: The Case of Three Bangkok Slums’, World Development, vol. 26, no. 6 (1998), p. 1004. Mayank Bhatt, ‘Report on RKS Activities for July-Sept 2000’, unpublished mimeo, background paper for the research project: ‘Grassroots Anti-Corruption Movements and the Right to Information in India’ (Brighton UK: Institute of Development Studies, 2000).

Notes 205 34. For a detailed account of this and other forms of dysfunction in India’s public school system, see PROBE Team, Public Report on Basic Education. 35. Fiona and Pamela Machakanja, with Jennifer Mandoga, Preliminary Investigation of the Abuse of Girls in Zimbabwean Junior Secondary Schools, UK Department for International Development, Education Division, Serial No. 39 (London, 2000), pp. 17–20. 36. N. Murthy, ‘The Quality of Family Welfare Services in Rural Maharashtra: Insights from a Client Survey’, in M. Koenig and M.E. Khan (eds), Improving Quality of Care in India’s Family Welfare Programme: The Challenge Ahead (New York: Population Council, 1999). 37. C. Sargent, Maternity, Medicine, and Power: Reproductive Decisions in Urban Benin (Berkeley: University of California Press, 1989). 38. This case study from the Western Cape draws on Rachel Jewkes, Naeemah Abrahams and Zodumo Mvo, 1998, ‘Why Do Nurses Abuse Patients? Reflections from South African Obstetric Services’, Social Science and Medicine, vol. 47, no. 11. 39. There are reports of women being exposed to similar types of abuse by obstetric services elsewhere in Africa. See, for instance, the account by DN. Mtemeli, ‘An Investigation into Why Women in Mutasa District Prefer to Deliver at Home and Not in Health Institutions’ (Manicaland, Zimbabwe: Provincial Medical Directorate, 1994). 40. Jewkes et al. (1998) ‘Why do Nurses Abuse Patients?’ … p. 1790. 41. Ibid., p. 1791. 42. These routines of social distancing and limiting demand were observed by Michael Lipsky in his study of ‘street-level bureaucrats’ in the United States in the 1970s: Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation, 1980). 43. Brooke Grundfest Schoepf, ‘AIDS Action-Research With Women in Kinshasa, Zaire’, Social Science and Medicine, vol. 37, no. 11 (1993), pp. 1401–13. 44. Steven Robins and Bettine von Lieres, ‘Governance from Below: Rights, Global Citizens and Local Spaces of Participation’, paper presented to the Institute of Development Studies Workshop, Development Resource Centre on Citizenship and Accountability (Brighton UK, 2002), p. 15. 45. For instance, even though the AIDS drug Nevirapine (which reduces motherto-child transmission of HIV) had been registered in April 2001 by the MCC, the government stalled in distributing it to clinics, stating that a national programme could not be countenanced before trials in 18 locations had been completed and a host of other logistical, managerial and infrastructure problems addressed. 46. For more detail on the PDS see UNRISD, ‘For A Handful of Grain: A Case Study by YUVA and the Action Committee for Rationing’ (Geneva: UNRISD, 1998), or the website of India’s Right to Food Campaign, http://www.righttofoodindia.com. See also Rob Jenkins and Anne Marie Goetz, ‘Civil Society, Food Security and Accountability: Lessons from the Rationing Kruti Samiti’s Engagement with the Public Distribution System in Mumbai’, Background Paper for the World Bank’s World Development Report 2004 (November 2002). 47. N. Vittal, Central Vigilance Commissioner, Government of India, ‘Corruption in Public Life: Steps to Improve India’s Image’, public address, Mumbai, 14 February 2002, http://cvc.nic.in/vscvc/cvcspeeches/sp5feb02.pdf. 48. We are grateful to Lyla Mehta, who supplied many of these examples as well as reflections on their significance for accountability. 49. ‘Lesotho Takes on Corruption’, Mail and Guardian (South Africa), 7–13 June 2002.

206 Notes 50. Lyla Mehta, ‘Beyond the World Commission on Dams’, Science and Public Affairs (February 2001). 51. World Commission on Dams, Dams and Development: A New Framework for Decision-making (London: Earthscan, 2001). 52. Corner House Research, Resettlement: Review of EIAR for the Ilisu Dam and HEPP (London: Corner House, 2001) http://www.foe.co.uk/resource/reports/ilisu_eia_ resettle.pdf. 53. Far Eastern Economic Review, 2 October 1997. 54. Down to Earth (New Delhi), 15 August 2001. 55. We are grateful to Aaron Griffiths for research assistance that supplied the relevant information about this case. 56. http://www.hrw.org/reports/1999/cambotox. 57. ‘Poisoned Tube Wells Built by NGOs in Bangladesh’, New Internationalist 332, March 2001. 58. Liz Mantell, ‘Millions in Bangladesh Face Slow Poisoning from ArsenicContaminated Water’, World Socialist, 2 December 1998, http://www.wsws. org/news/1998/dec1998/bang-d02.shtml. 59. Hans Dembowski, Taking the State to Court: Public Interest Litigation and the Public Sphere in Metropolitan India (Delhi: Oxford University Press, 2001). 60. J.G. Frynas, ‘Environmental and Social Impact of the Nigerian Oil Industry: Evidence from Nigerian Court Cases’, University of Leipzig Papers on Africa, Politics and Economics, no. 33, (2000). 61. Estimates of the numbers killed and permanently disabled vary. These figures come from ‘Courts Uphold Bhopal Charge’, Financial Times, 20 August 2002. The office of Bhopal’s medical commissioner registered 22,149 directly related deaths up to December 1999. Anywhere between 200,000 to 500,000 people continue to suffer from disabilities or personal losses related to the incident (‘The Dead Zone’, The Guardian, 21 September 2002). 62. As of March 2002 some of the claims by private parties were still being litigated and remained unresolved. See Exxon Valdez Oil Spill Trustee Council, ‘Settlement’, http://www.oilspill.state.ak.us/facts/settlement.html. 63. Deepa Narayan, Robert Chambers, Meera Kaul Shah and Patti Petesch, Voices of the Poor: Crying Out for Change (New York: Oxford University Press, 2000). 64. Ibid., p. 172. 65. US Department of State, Country Reports of Human Rights Practices (Washington, DC, 1995). 66. Paul Chevigny, ‘Defining the Role of the Police in Latin America’, in Juan E. Mendez, Guillermo O’Donnell and Paulo Sergio Pinheiro (eds), The (Un)Rule of Law and the Underprivileged in Latin America (Notre Dame, Indiana: University of Notre Dame Press, 1999), p. 55; and Caco Barcellos, ROTA 66: A Historia De Policia Que Mata (Globo: Sao Paulo, 1992). 67. US Department of State, Country Reports of Human Rights Practices (Washington, DC, 1995), p. 345. 68. Paul Chevigny, ‘Defining the Role of the Police in Latin America’, in Mendez et al. (eds), The (Un)Rule of Law …, p. 61. 69. Human Rights Watch, World Report (New York, 1996). 70. Ibid., p. 57. 71. Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States (New York, 1998), http://www.hrw.org/reports98/police/ uspo14.htm. 72. Cited in Pinheiro, ‘The Rule of Law and the Underprivileged in Latin America: Introduction’, in Mendez et al. (eds), The (Un)Rule of Law …, p. 7.

Notes 207 73. Paul Chevigny, Edge of the Knife: Police Violence in the Americas (New York: The New Press, 1995). 74. US Department of State, Country Reports of Human Rights Practices (Washington, DC, 1993), cited in Chevigny, Edge of the Knife, p. 62. 75. Michael Dodson, Donald W. Jackson and Laura O’Shaughnessy, ‘Political Will and Public Trust: El Salvador’s Procurator for the Defence of Human Rights and the Dilemmas of Institution-Building’, Human Rights Review, vol. 2, no. 3 (2001), 51–75. 76. Ligia O. Bolivar, ‘Comments’, in Mendez et al. (eds), The (Un)Rule of Law …, p. 43. 77. Paulo Sergio Pinheiro, ‘The Rule of Law and the Underprivileged in Latin America: Introduction’, in Mendez et al. (eds), The (Un)Rule of Law …, p. 7.

4

New Roles for Accountability Actors

1. Marcia Angell, ‘The Pharmaceutical Industry – To Whom is It Accountable?’ New England Journal of Medicine, vol. 342, no. 25 (2000), pp. 1902–04. 2. Ibid., p. 1902. 3. Anne Marie Goetz and Rob Jenkins, ‘Hybrid Forms of Accountability: Citizen Engagement in Institutions of Public-Sector Oversight in India’, Public Management Review, vol. 3, no. 3 (2001), pp. 363–84. 4. Luigi Manzetti, ‘Keeping Accounts: A Case Study of Civic Initiatives and Campaign Finance Oversight in Argentina’, IRIS Working Paper No. 248 (College Park, Maryland: Centre for Institutional Reform and the Informal Sector, 2000), p. 35. 5. Ibid., p. 36. 6. Ibid., p. 37. 7. Ibid., p. 35. 8. B.S. Steel, J.C. Pierce and N.P. Lovrich, ‘Public Information Campaigns and “At Risk” Voters’, Political Communication, vol. 15, no. 1 (1998), pp. 117–33. 9. S. Pharr and R. Putnam, Disaffected Democracies: What’s Troubling the Trilateral Countries (Princeton: Princeton University Press, 2000). 10. Warren Krafchik, ‘Can Civil Society Add Value to Budget Decision-Making? A Description of Civil Society Budget Work’, Background Paper for the Exploratory Dialogue on Applied Budget Analysis as a Tool for the Advancement of Economic, Social and Cultural Rights, International Budget Project (Washington, DC: World Bank, 2001), p. 41. 11. Mail and Guardian (Johannesburg), 4 October 2002. 12. For a review see Andy Norton, and Diane Elson, What’s Behind the Budget? Politics, Rights and Accountability in the Budget Process (London: Overseas Development Institute, June 2002). The International Budget Project links over 25 civil society initiatives that analyse public spending from the perspective of its impact on a range of social categories: women, children, the poor and certain ethnic groups. See www.international.budget.org. 13. Rebecca Abers, ‘From Clientalism to Cooperation: Local Government, Participatory Policy, and Civic Organizing in Porto Alegre, Brazil’, Politics and Society, vol. 26, no. 4 (1998), pp. 511–38. 14. The participatory budgeting process has not, however, been completely hostage to the electoral fortunes of the PT. In Belo Horizonte the process was fully sustained after 1996, when the city government was captured by the Brazilian Socialist Party. For a discussion of this city’s experience see Leonardo Avritzer,

208 Notes

15. 16. 17. 18. 19.

20. 21. 22.

23

24. 25.

26. 27.

28. 29.

30.

‘Civil Society, Public Space and Local Power: A Study of the Participatory Budget in Belo Horizonte and Porto Alegre’, report for the IDS/Ford Foundation project: ‘Civil Society and Democratic Governance’ (Brighton UK: Institute of Development Studies, 2000). Ibid., p. 9. Ibid. Boaventura de Sousa Santos, ‘Participatory Budgeting in Porto Alegre: Toward a Redistributive Democracy’, Politics & Society (1998), p. 467. Avritzer, ‘Civil Society, Public Space and Local Power …’, p. 19. World Bank, ‘Participatory Approaches in Budgeting and Public Expenditure Management: Case Study 2: Porto Alegre, Brazil’, World Bank Participation Sourcebook (Washington, DC, 2001), http://www.worldbank.org/participation/ webfiles/PEM2Brazil.pdf. Ibid. Abers, ‘From Clientelism to Cooperation …’, p. 530; Avritzer, ‘Civil Society, Public Space and Local Power …’, pp. 14–15. Zander Navarro, ‘Participation, Democratizing Practices and the Formation of a Modern Polity – The Case of Participatory Budgeting in Porto Alegre, Brazil (1989–98)’ (Federal University of Rio Grande do Sul, Brazil, 1998), cited in Avritzer, ‘Civil Society, Public Space and Local Power …’. The authors have researched the case of the MKSS through intermittent periods of fieldwork since 1997, and have analysed various aspects of the MKSS’s evolving work in a number of publications, including: Rob Jenkins and Anne Marie Goetz, ‘Accounts and Accountability: Theoretical Implications of the Right-toInformation Movement in India’, Third World Quarterly, vol. 20, no. 3 (1999), pp. 603–22; Rob Jenkins and Anne Marie Goetz, ‘Constraints on Civil Society's Capacity to Curb Corruption: Lessons from the Indian Experience’, IDS Bulletin, vol. 29, no. 4 (October 1999), pp. 39–49; and Rob Jenkins, ‘In Varying States of Decay: The Politics of Anti-Corruption in Maharashtra and Rajasthan’, in Rob Jenkins (ed.), Regional Reflections: Comparing Politics Across India's States (Oxford University Press, 2004), pp. 219–52. See ‘The Seal of the Sarpanch’, in Harsh Mander, Unheard Voices: Stories of Forgotten Lives (New Delhi: Penguin, 2001), pp. 137–48. Harsh Mander, ‘Towards Direct Democracy: Gram Sabhas and the Law’, National Society for the Promotion of Development Administration, Research and Training, Mussoorie, India (April 1999), p. 27. ActionAid India, ‘Social Audit Update’, Super Cyclone Social Reconstruction Project, Kherasa, Jagatsinghur, Orissa (18 February 2002). ‘Poder Ciudadano Combats Corruption at Home’, Democracy Dialogue: Technical Notes from USAID’s Office of Democracy and Governance (Washington, DC: United States Agency for International Development, July 1998). Nilufer Cagatay, Mumtaz Keklik, Radhika Lal and James Lang, Budgets as if People Mattered: Democratizing Macroeconomic Policies (New York: UNDP/SEPED, 2000). Interview with Ram Karan, 17 March 1999, Tilonia, Rajasthan, India; and Rajasthan Mazdoor Kisan Morcha documents relating to efforts to obtain information about local spending in Harmara Panchayat, Silora Block, available from the Social Work Resource Centre (Tilonia 1998). Uganda Debt Network, ‘Civil Society Participation in Uganda’s Poverty Monitoring System’ (Kampala: Uganda Debt Network, 2001); Uganda Debt Network, ‘Monitoring the Implementation and Utilisation of Poverty Action Fund’ (Kampala: Uganda Debt Network, 2001).

Notes 209 31. ‘Canada’s Tribal Women Fight (Mostly Male) Graft’, New York Times, 1 January 2001. 32. Government of Uganda (Ministry of Finance, Planning and Economic Development), ‘Poverty Monitoring Strategy for Uganda’ (Kampala, October 2000). 33. Malawi Economic Justice Network, ‘Outline of Proposal to Monitor Priority Poverty Expenditures’ (Lilongwe, August 2001), p. 18. 34. D.S. Grant, ‘Allowing Citizen Participation in Environmental Regulation: An Empirical Analysis of the Effects of Right-to-Sue and Right-to-Know Provisions on Industry’s Toxic Emissions’, Social Science Quarterly, vol. 78, no. 4 (1997), pp. 859–73. 35. Claude Alvarez and Ecoforum, Fish Curry and Rice: A Citizens’ Report on the State of the Goan Environment (Mapusa, Other India Press, 1995). 36. John Samuel, ‘Public Advocacy in the Indian Context’ (Pune, India: National Centre for Advocacy Studies, n.d.) http://www.sristi.org/ispe/publico advocacy.pdf. 37. Samuel Paul ‘Does Voice Matter? For Public Accountability, Yes’, IBRD Policy Working Paper 1388 (Washington, DC: World Bank Finance and Private Sector Division, 1994), p. 6. 38. Robins and von Lieres, ‘Governance from Below …’, p. 17. 39. These categories correspond to what some economists call ‘corruption without theft’ and ‘corruption with theft’. See A. Shleifer and R. Vishny, ‘Corruption’, Quarterly Journal of Economics, vol. 108, no. 3 (1993), pp. 599–612. 40. Interview, Arvind Kumar, Parivartan founder, 8 March 2002, New Delhi. 41. ‘Rs. 70 Lakh in Rs 1.3 Cr. Just Vanishes: The First Public Hearing of its Kind in East Delhi Had Officials Running for Cover’, Times of India, 24 January 2003. 42. Elinor Ostrom, ‘Crossing the Great Divide: Co-production, Synergy, and Development’, World Development, vol. 24, no. 6 (1996). 43. Peter Evans, Embedded Autonomy: States and Industrial Transformation (Princeton, NJ: Princeton University Press, 1995); and Peter Evans, ‘Government Action, Social Capital and Development: Reviewing the Evidence on Synergy’, World Development, vol. 24, no. 6 (1996). 44. M.E. Keck and K. Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, NY: Cornell University Press, 1998). 45. http://www.globalpolicy.org/ngos/analysis/anal00.htm. 46. R. Price, ‘Reversing the Gun Sights: Transnational Civil Society Targets Land Mines’, International Organization, vol. 52, no. 3 (1998), pp. 613–44. 47. K.R. Rutherford, ‘The Evolving Arms Control Agenda: Implications of the Role of NGOs in Banning Antipersonnel Landmines’, World Politics, vol. 53, no. 1 (2000), pp. 74–114. We discuss more fully in Chapter 6 the role of civil society in changing the norms against which the actions of policy-makers are assessed. 48. Ibid. 49. Price, ‘Reversing the Gun Sights’. 50. Human Rights Watch, World Report (New York, 1999). 51. Rules 69 and 75 of the Statute’s Rules of Procedure and Evidence require protective measures such as the use of pseudonyms, the deletion of references to the victim’s identity in court transcripts, the giving of testimony in camera and by one-way closed-circuit television, the scrambling of victim’s voices and images and the prohibition of photographs, sketches or videotapes of witnesses or victims. For more detail on the impact of these measures see Francine Pickup with Suzanne Williams and Caroline Sweetman, Ending Violence Against Women (Oxford: Oxfam, 2001), p. 271. 52. Pickup et al., Ending Violence Against Women, p. 56.

210 Notes 53. http://www.un.org/womenwatch/daw/csw/ecn6-2000-pc2.pdf. 54. This idea is developed further in Rob Jenkins, ‘Accountability and the WTO Dispute-Settlement System’, in Arthur Benz and Yannis Papadopoulos, Governance and Democratic Legitimacy: Transnational, European and Multilevel Issues (London: Routledge, 2004). 55. Most of the details of this case study are drawn from Mohammad O. Masud, ‘Co-Producing Citizen Security: The Citizen – Police Liaison Committee in Karachi’, IDS Working Paper 172 (Brighton, UK: Institute of Development Studies, 2002). 56. The FIR triggers an investigative process, but the police may (illegally) refuse to register an FIR unless paid a bribe, usually at a level beyond the means of poor people. 57. These functions differ radically from those assigned to ‘neighbourhood watch committees’, which are expected to be the eyes and ears of the police by reporting suspicious incidents. 58. According to the Access to Justice programme of the Asian Development Bank, the average police station in Pakistan has an annual recurrent budget, after salary costs, of just 8000 Pakistani rupees (roughly $120). See Masud, ‘Co-Producing Citizen Security …’, p. 4, fn. 6. 59. Michael Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York, Russell Sage Foundation, 1980); A. Collins, Shielded from Justice: Police Brutality and Accountability in the United States (New York: Human Rights Watch, 1998). 60. Masud, ‘Co-Producing citizen Security …’, p. 24. 61. James A. Paul and Jason Garred, ‘Making Corporations Accountable’, Background Paper for the United Nations Financing for Development Conference, March 2002, www.globalpolicy.org/socecon/ffd/2000papr.htm. 62. See Barbara Evers, ‘Linking Trade and Poverty: Reinventing the Trade Policy Review Mechanism’, Working Paper of the UK Department for International Development Globalization and Poverty Research Programme (n.d.), http://www.gapresearch.org/governance/wto.html. 63. Alejandro Colas, International Civil Society (Cambridge: Polity Press, 2002), Chapter 5. 64. Ibid. 65. SustainAbility Inc., The 21st Century NGO: In the Market for Change (Washington DC, 2003). 66. Michael Edwards and David Hulme (eds), Non-Governmental Organisations – Performance and Accountability: Beyond the Magic Bullet (London: Earthscan Publications, 1995). 67. ‘The Rot Within: Junior Workers are Harassed by their Seniors and Toothless Laws Fail to Protect Them’, India Today, 8 January 1999, p. 41. 68. Aili Mari Tripp, Women and Politics in Uganda (Oxford: James Currey, 2000), p. 117. 69. Details on the SWRC and other self-scrutinizing public hearings among Indian NGOs come from Kavita Srivastava, ‘URMUL – An Introspection with Advocacy and Transparency’, Transparency (Delhi) vol. 1, no. 9 (1999), p. 4, http://www. righttoinformation.info/transparencyi_ix_volII.htm. 70. http://www.calltoaccountability.org. 71. Dated 16 March 2001. 72. http://www.8thdaycenter.org/AccPetit.htm. 73. http://www.truthorfables.com/Members_for_Church_Accountabilty.htm. 74. http://members.aol.com/advmca/home.htm.

Notes 211 75. World Bank, ‘Participatory Approaches in Budgeting …’ 76. Into A. Goudsmit and James Blackburn ‘Participatory Municipal Planning in Bolivia: An Ambiguous Experience’, Development in Practice, vol. 11, no. 5 (2001), pp. 587–96. 77. Interview, Arvind Kumar, Parivartan founder, 8 March 2002, New Delhi.

5

New Methods and Shifting Accountability Jurisdictions

1. Other initiatives are somewhat less adversarial, and involve controlling large corporations through new regulatory devices (process standards) monitored through self-governing structures that involve states, international agencies, private firms and NGOs. These are discussed in Chapter 6. 2. Marguerite Feitlowitz, ‘The Pinochet Prosecution: The Genocide Controversy’, Crimes of War Project (May 2001), www.crimesofwar.org/archive/archiveformat.html. 3. The sources for this case study are: Marguerite Feitlowitz, ‘The Pinochet Prosecution …’; R. Lagos and M. Munoz, ‘The Pinochet Dilemma’, Foreign Policy, vol. 114 (1999); and R.J. Wilson, ‘Prosecuting Pinochet: International Crimes in Spanish Domestic Law’, Human Rights Quarterly, vol. 21, no. 4 (1999). 4. The Economist, 16 June 2001. 5. Claims from as far afield as Paraguay have been filed in the United States – under America’s eighteenth-century Alien Torts Act – seeking to bring tyrants to justice. This has created tensions within the US government. See Dolly Filartiga ‘American Courts, Global Justice’, New York Times, 30 March 2004. 6. D. Woodhouse, ‘The Law and Politics: More Power to the Judges – and to the People?’ Parliamentary Affairs, vol. 54 (2001), pp. 223–37. 7. Daniel Shek, quoted in ‘Belgian Court Rejects Suit against Sharon’, International Herald Tribune, 27 June 2002. 8. Mary McClymont and Stephen Golub, Many Roads to Justice (New York: The Ford Foundation, 2000), pp. 293–4. 9. ‘U.S. Backs Odd Immunity Fight Involving Court’, New York Times, 11 July 2002. 10. Ibid. 11. The United States also undermined another global human rights treaty in its anxiety to keep its detention camp for al-Qaida suspects away from outside scrutiny. In July 2002 the United States blocked an optional protocol to the landmark 1989 UN anti-torture convention that would have enabled international observers to inspect the camp. ‘US Threatens To Block Torture Convention’, The Guardian, 25 July 2002. 12. ‘Argentine Charges ex-Dictator and Others in “Dirty War” Deaths’, New York Times, 11 July 2002. 13. For instance the UN Commission on Human Rights or the African Commission on Human and People’s Rights. 14. For instance the Universal Declaration of Human Rights (1948) or the International Covenant on Civil and Political Rights (adopted 1966, entered into force 1976), as well as regional and group-specific covenants such as the African Charter on Human and People’s Rights (adopted 1981, entered into force 1986) or the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (1994). 15. K.P. Prakash, ‘International Criminal Court: A Review’, Economic and Political Weekly, 5 October 2002, p. 4115. 16. CEDAW, ‘Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women’ (New York: United Nations, 1999), Article 4.

212 Notes 17. Ibid. 18. Ibid., Article 8. 19. Press release issued by the office of the UN High Commissioner for Human Rights, 22 December 2000, http://www.unhcr.ch, cited in Francine Pickup with Suzanne Williams and Caroline Sweetman, Ending Violence Against Women (Oxford: Oxfam, 2001), p. 195. 20. F. Kathree, ‘Convention on the Elimination of All Forms of Discrimmination Against Women’, South African Journal on Human Rights, vol. 11, no. 3 (1995). 21. UNCTAD, ‘Foreign Direct Investment and the Challenge of Development’, World Investment Report (Geneva: United Nations, 1999). 22. OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Paris, 1997), http://www.oecd.org/daf/cmis/bribery/20 nov1e.htm. 23. ‘Soros Aims to Stop Graft in Energy Projects’, Financial Times, 12 June 2002. 24. ‘The Devil’s Excrement’, The Economist, 24 May 2003. 25. Ibid. 26. Halina Ward, ‘Securing Transnational Corporate Accountability through National Courts: Implications and Policy Options’, Hastings Comparative and International Law Review, vol. 24, no. 2 (2001), pp. 451–74. 27. In the Bhopal case, the decision of the lower court in the United States was that the United States was not the appropriate legal forum and the case was sent back to Indian courts. See Upendra Baxi and Amita Dhanda, Valiant Victims and Lethal Litigation: The Bhopal Case (Bombay: N.M. Tripathi Pvt Ltd, 1990). 28. Multinational Monitor, vol. 21, no. 9 (September 2000). 29. http://www.whitelung.org/alerts/cape.html. 30. This is the charge made by Dame Judith Mayhew, chairperson of the Corporation of London’s policy and resources committee. The European Commission has objected strongly to the extra-territorial impact of the Act. ‘In Search of Honesty’, The Economist, 17 August 2002. 31. Decentralization enthusiasts do worry that local control over resources will translate in practice into local elites cornering an undue share of public funds. Specific pitfalls related to both equity and efficiency are highlighted in World Bank, World Development Report 1997: The State in a Changing World (Washington, DC, 1997), pp. 124–9. See also Remy Prud’homme, ‘The Dangers of Decentralization’, World Bank Research Observer, vol. 10, no. 2 (1997), pp. 201–20; and Richard Crook and Alan Sverrisson, ‘To What Extent Can Decentralized Forms of Governance Enhance the Development of Pro-Poor Policies and Improve Poverty-Alleviation Outcomes?’ IDS Working Paper 129 (Brighton, UK: Institute of Development Studies, 1999). 32. Mauro Cappelletti, ‘Alternative Dispute Resolution Processes within the Framework of the World-Wide Access to Justice Movement’, Modern Law Review, vol. 56, no. 3 (1993), pp. 282–96. 33. Jorge Corra Sutil, ‘Judicial Reforms in Latin America: Good News for the Underprivileged’, in Mendez et al. (eds), The (Un)rule of Law …, pp. 255–77. 34. International Crisis Group, ‘International Criminal Tribunal for Rwanda: Justice Delayed’, ICG Africa Report no. 30 (7 June 2001), http://www.crisisweb. org/home/index.cfm?id⫽1649&l⫽1. 35. ‘Rwanda’s Genocide: Search for Speed and Reconciliation’, The Economist, 6 October 2001. 36. Mahmood Mamdani, Citizenship and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, NJ: Princeton University Press, 1999), p. 110.

Notes 213 37. James Blackburn and Jeremy Holland, Whose Voice?: Participatory Research and Policy Change (London: Intermediate Technology, 1998). 38. Harsh Mander, ‘Towards Direct Democracy: Gram Sabhas and the Law’, National Society for the Promotion of Development Administration, Research and Training, Mussoorie, India (April 1999), p. 9. 39. Ibid. 40. Government of Kerala, ‘Procedure for Selection of Beneficiaries’, Appendix to Government Order (P) No. 181/98/LAD DT. 02/09/98 (Thiruvananthapuram: Local Administration Department, 1998). 41. Centre for Rural Management, ‘Institutional Reform and Movements for Right to Information and Anti-Corruption: The Kerala Situation’, Report No. 5 (Kottayam, Kerala, mimeo, October 2001), prepared for the research project ‘Grassroots AntiCorruption Movements and the Right to Information in India’, Institute of Development Studies, University of Sussex. 42. Centre for Rural Management, ‘Institutional Reform and Movements for Right to Information and Anti-Corruption: The Kerala Situation’, Report Nos. 1–3 (Kottayam, Kerala, mimeo, October 2001), prepared for the research project ‘Grassroots Anti-Corruption Movements and the Right to Information in India’, Institute of Development Studies, University of Sussex. 43. See Remy Prud’homme, ‘The Dangers of Decentralization’. For a review of the dangers of localism and the liabilities of small-group deliberation, see John Gastill, Democracy in Small Groups: Participation, Decision-Making, and Communication (Philadelphia: New Society Publishers, 1993). 44. John Harriss, ‘The Dialectics of Decentralization’, Frontline (Chennai, India), vol. 17, no. 13, 24 June–7 July 2000. 45. Archon Fung, ‘Accountable Autonomy: Toward Empowered Deliberation in Chicago Schools and Policing’, Politics and Society, vol. 29, no. 1 (March 2001), pp. 73–103. 46. This case study is drawn from Fung, ‘Accountable Autonomy’. 47. T. Beierle and S. Cahill, ‘Electronic Democracy and Environmental Governance: A Survey of the States’, Discussion Paper 00-42 (Washington, DC: Resources for the Future, October 2000), www.rff.org/CFDOCS/disc_papers/PDF_files/0042.pdf. 48. http://www.independentsector.org/pdfs/srf01/kim.pdf. 49. ‘The Sting that has India Writing: The Great Graft Expose’, New York Times, 15 March 2001. 50. Unfortunately the impact of ‘Operation West End’, Tehelka’s sting, was shortlived. A government commission set up to investigate Tehelka’s revelations failed to cross-examine a single person accused of corruption and instead focused on discrediting Tehelka’s investigative methods. The central government meanwhile unleashed the revenue service, the enforcement directorate and the intelligence bureau not just on Tehelka but on its financial backers as well. Meanwhile, the BJP government bounced back from the scandal and Defence Minister George Fernandes was reinstated. See ‘Website Pays Price for Indian Bribery Expose’, The Guardian, 6 January 2003. 51. Allen Hammond and Jonathan Lash, ‘Cyber-Activism: The Rise of Civil Accountability and Its Consequences for Governance’, Information Impact (May 2000), http://www.cisp.org/imp/may_2000/05_00hammond.htm. 52. David Ignatius, ‘A Global Marketplace Means Global Vulnerability’, Washington Post, 21 June 1999. 53. Ibid. 54. Hammond and Lash, ‘Cyber-Activism …’.

214 Notes 55. Much of the information on this case is drawn from background documents and case material posted at http://psam.ru.ac.za. 56. Colm Allan, ‘Civil Society and Public Accountability: The Need for Active Monitoring’, presentation to the 9th International Anti-Corruption Conference, 10–15 October 1999, Durban.

6

New Standards of Accountability

1. ‘NGO to Act as “Independent Observer” in Polls’, The Hindu, 7 March 2004. 2. Walter Kirn, ‘Acceptance’, New York Times, 25 August 2002. 3. Alex de Waal, ‘The African State and Global Governance’, in Phoebe Griffith (ed.), Unbinding Africa: Making Globalisation Work for Good Governance (London: Foreign Policy Centre, 2004). 4. David Held, Anthony McGrew, David Goldblatt and Jonathan Perraton, Global Tranformations: Politics, Economics and Culture (Cambridge: Polity, 1999), p. 444 (from the subsection on ‘New Limits to Politics? Civilizing and Democratizing Globalization’). 5. Patrick Chabal and Jean-Pascal Daloz, Africa Works: Disorder as Political Instrument (Bloomington, IN: Indiana University Press, 1999). 6. Shiv Visvanathan and Harsh Sethi, Foul Play: Chronicles of Corruption, 1947–97 (New Delhi: Banyan Books, 1998), p. 5. 7. Jonathan Parry, ‘The “Crisis of Corruption” and “The Idea of India”: A Worm’s Eye View’, in Italo Pardo (ed.), Morals of Legitimacy: Between Agency and System (New York: Berghahn Books, 2000), p. 45. 8. Michael Herzfeld, The Social Production of Indifference: Exploring the Symbolic Roots of Western Bureaucracy (New York: Berg, 1992), p. 47, cited in Akhil Gupta, ‘Blurred Boundaries: The Discourse of Corruption, the Culture of Politics, and the Imagined State’, American Ethnologist, vol. 22, no. 2 (1995), p. 38. 9. Christopher Clapham, ‘Governmentality in Africa’, Third World Quarterly, vol. 17, no. 4 (1996), p. 823. 10. See Gupta, ‘Blurred Boundaries …’, pp. 388–9; and Cynthia Werner, ‘Gifts, Bribes, and Development in Post-Soviet Kazakhstan’, Human Organisation, vol. 59, no. 1 (2000), pp. 11–22. 11. It has been convenient for some observers of government failure in developing countries to blame this on corruption and mismanagement, rather than other problems such as resource scarcity or unfavourable physical or trade environments. A former director of health, nutrition and population at the World Bank said of Africa’s HIV/AIDS pandemic: ‘Myth: If Africans would only get a grip on their political and economic systems they could sort [AIDS] out … as we have. Fact: even a well-governed African country would be unable, if unassisted, to mount the scale of response necessary’. See ‘Aids Hasn’t Peaked Yet – and That’s Not the Worst of It’, Washington Post, 12 January 2003. 12. Parry, ‘The “Crisis of Corruption” …’, p. 53. 13. See Timothy Garton Ash, ‘The Truth about Dictatorship’, New York Review of Books, 19 February 1998, pp. 35–40; Priscilla B. Hayner, ‘Fifteen Truth Commissions – 1974 to 1994: A Comparative Study’, Human Rights Quarterly, vol. 16 (1994), pp. 597–655. 14. Richard Wilson, ‘Challenging Restorative Justice’, Human Rights Dialogue, vol. 2, no. 7 (2002), p. 16. 15. Brandon Hamber and Richard A. Wilson, ‘Trauma, Liminality and Symbolic Closure: The Legacy of Political Violence in South Africa’, in Edward Cairns (ed.),

Notes 215

16.

17.

18.

19. 20. 21.

22.

23. 24. 25. 26.

27. 28. 29.

30.

31. 32. 33. 34.

35. 36.

Memory in Conflict: Social Memory in Post-Conflict Situations (London: Palgrave, 2002). Nesiah, Vasuki and Paul van Zyl, ‘Vasuki Nesiah and Paul van Zyl Respond to Richard Wilson: Challenging Restorative Justice’, Human Rights Dialogue, vol. 2, no. 7 (2002). Amnesty International and Human Rights Watch, ‘Truth and Justice: Unfinished Business in South Africa’, available at: http://www.hrw.org/backgrounder/ africa/truth and justice.htm. Rhadika Coomaraswamy, ‘Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences’, Commission on Human Rights, 54th session, E/CN.4/1998/54, 26 (January 1998), p. 60. Andrew Osborn, ‘British Oil Firms Accused of Burma Abuses’, The Guardian, 12 October 2001. http://www.agribusinessaccountability.org/page/responses/. www.agribusinessaccountability.org, referring to Jean Ziegler, Third Annual Report to the United Nations General Assembly by the United Nations Special Rapporteur on the Right to Food (New York: United Nations, 5 August 2003). For a range of critiques of the World Bank and the IMF – concerning uneven representation of poor countries, narrow and insular policy-making and uneven risks associated with policy advice – see UNDP, Human Development Report 2002: Deepening Democracy in a Fragmented World (New York: Oxford University Press, 2002), pp. 112–17. The Economist, 14 September 2002, p. 59. ‘Chad’s Poll Worries US Investors’, BBCi News, 22 April 2002, http://news. bbc.co.uk/1/hi/business/1943829.stm. Ibid. ‘Corruption in Chad-Cameroon pipeline to be monitored by TI and NonProfit Body’, Transparency International Press Release, 10 March 2003, www. transparency.org/pressreleases_archive/2003/2003.03.10.chad_cameroon.html. ‘Trouble in Chad’ (Letters), The Economist, 6 September 2003. http://www.advocacynet.org/pdf/resource/Report-Princeton-Chixoy-ExecutiveSummary.pdf Sources for these cases are: ‘Chad’s Wait for Its Oil Riches May Be Long’, New York Times, 16 May 2001; World Bank documents located on www.worldbank.org; and http://www.advocacynet.org/pdf/resource/Report-Princeton-Chixoy-ExecutiveSummary.pdf. D.S. Grant, ‘Allowing Citizen Participation in Environmental Regulation: An Empirical Analysis of the Effects of Right-to-Sue and Right-to-Know Provisions on Industry’s Toxic Emissions’, Social Science Quarterly, vol. 78, no. 4 (1997), pp. 859–73. This case is discussed in Chapter 3. Charles Sabel, Archon Fung, and Bradley Karkkainen, Beyond Backyard Environmentalism: A New Democracy Forum (Boston: Beacon Press, 2000). Ibid. This policy was put in place after expenditure-tracking surveys revealed that almost 90 per cent of funds budgeted for schools ‘leaked’ out of the system before reaching the school building. See Jan Dehn, Ritva Reinikka and Jakob Svensson, ‘Survey Tools for Assessing Service Delivery’ (Washington, DC: World Bank, 2004). Interview with human rights lawyer Colin Gonzalvez, Mumbai, 26 March 1998. Anu Joshi and Mick Moore, ‘Enabling Environments: Do Anti-Poverty Programs Mobilize the Poor?’, Journal of Development Studies, vol. 37, no. 1 (2000), pp. 25–56. The neighbouring state of Madhya Pradesh used a similar demand-based model for

216 Notes

37. 38. 39.

40.

41.

42.

43. 44.

45. 46. 47. 48.

49.

50. 51.

its Education Guarantee Scheme, reportedly with great success: the scheme has already been credited with improving test scores and student attendance rates, partly because it has galvanized parental engagement in both selecting and monitoring local primary school teachers. See Elena Glinskaya and Jyotsna Jalan, ‘Improving Primary School Education in India: An Impact Assessment of DPEP – Phase I’ (New Delhi: World Bank, mimeo, 2003). Harsh Mander, interview, 16 December 1998, New Delhi. Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, NH: Butterworth Legal Publishers, 1993), p. 353. Peter Holmes, Jim Rollo and Alasdair R. Young, ‘Emerging Trends in WTO Dispute Settlement: Back to the GATT?’, Policy Research Working Paper 3133 (Washington, DC: World Bank, September 2003). G.P. Sampson, ‘WTO Rules and Climate Change: The Need for Policy Coherence’, in W.B. Chambers (ed.), Inter-linkages: The Kyoto Protocol and the International Trade and Investment Regimes (Tokyo: United Nations University Press, 2001), pp. 69–85. This has been analysed in G.C. Umbricht, ‘An “Amicus Curiae Brief” on Amicus Curiae Briefs at the WTO’, The Journal of International Economic Law, vol. 4, no. 4 (2001), pp. 773–94. Sara Marsden, ‘Dispute Resolution at the World Trade Organization and the Action and Influence of Transnational Advocacy Actors: A Case Study of WTO Dispute DS/135 Asbestos, EC vs Canada’, dissertation submitted for the MSc Programme in Global Politics, Birkbeck College, University of London, September 2003. South Centre, Issues Regarding the Review of the WTO Dispute Settlement Mechanism, T.R.A.D.E. Working Papers (Geneva, February 1999). Gregory Shaffer, ‘How to Make the WTO Dispute Settlement System Work for Developing Countries: Some Proactive Developing Country Strategies’, paper presented at a meeting organized by the International Centre for Trade and Sustainable Development, ‘Making the WTO Dispute Settlement System Work for Developing and Least Developed Countries’, Geneva, 7 February 2003, pp. 5–6, fn 5. World Trade Organization, Contribution of Ecuador to the Improvement of the Dispute Settlement Understanding of the WTO, TN/DS/W/9, 8 July 2002. World Trade Organization, Negotiations on the Dispute Settlement Understanding, TN/DS/W/19, 9 October 2002. ‘The Oil Company the Greens Love to Hate’, Financial Times, 11 June 2003. J. Hilwitz, ‘Social Labelling to Combat Child Labour: Some Considerations’, International Labour Review, vol. 136, no. 2 (1997); and UNICEF, State of the World’s Children 1997 (New York: Oxford University Press, 1997); M. Sharma, ‘Marked for Life’, New Internationalist, no. 292 (July 1997), p. 29. Commonwealth of Australia Party on Labor Standards, Report on Labor Standards in the Asia-Pacific Region (Canberra, 1996); CUTS, ‘Eradicating child-labour while saving the child – who will pay the costs?’, CUTS Briefing Paper No.5 ( Jaipur, India: CUTS Centre for International Trade, Economics and Environment, 1999). ILO, IPEC Action Against Child Labour: Achievements, Lessons Learned and Indications for the Future (Geneva: ILO, 1999). Sources for this account of child labour in Bangladesh include: R. Rothstein, ‘The Starbucks Solution: Can Voluntary Codes Raise Global Living Standards?’, The American Prospect, vol. 7 no. 27 (1996); CUTS, ‘Eradicating Child Labor …’; ILO, ‘Action Against Child Labor …’; and Commonwealth of Australia Party on Labor Standards, ‘Report on Labour Standards …’

Notes 217 52. Khalid Nadvi and Frank Waltrung, ‘Making Sense of Global Standards’, IDS Working Paper (Brighton, UK, 2001). 53. ‘Sweating it Out’, Far Eastern Economic Review, 10 May 2001. 54. Khalid Nadvi (ed.), ‘The Cost of Compliance: Global Standards for Small-Scale Firms and Workers’, IDS Policy Briefing, Issue 18, Institute of Development Studies/Overseas Development Group, May 2003, p. 3. 55. Ibid. 56. Ibid. 57. OECD, OECD Observer Policy Brief: The OECD Guidelines for Multinational Enterprises, Paris ( June 2001), www.oecd.org. 58. OECD, ‘Summary Report of the Chair of the Meeting on the Activities of National Contact Points’, Paris (21 September 2001). 59. ‘Chirac Ruled Immune to Prosecution’, The Guardian, 11 October 2001.

7

Gender and Accountability

1. Fear that women might vote as a bloc and differently from men was one of the reasons that political parties in Britain opposed women’s suffrage during the nineteenth and early twentieth centuries. See Anne Phillips, Engendering Democracy (Cambridge: Polity Press, 1991), p. 78. In practice, it is not until very recently in the United Kingdom and the United States that a gender gap has emerged in voting, with women appearing more inclined to select liberal or left-of-centre positions. See Carol Mueller, The Politics of the Gender Gap: The Social Construction of Political Influence (London: Sage, 1988). 2. One of the best known and most forceful statements of this comes from Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982), who goes so far as to say that women’s socialization produces an ethical position favouring nurturance and care for particular others, distinct from the remote and abstract impartiality valued in liberal ethical reasoning. But women develop interests based not just on their immediate needs in gender-stereotyped roles (e.g. wives), but also on their need to overcome oppressive gender-based social practices, such as domestic violence or inadequate property rights. The classic statement of this view is Maxine Molyneux, ‘Mobilisation without Emancipation? Women’s Interests, the State, and Revolution in Nicaragua’, Feminist Studies, vol. 11, no. 2 (1985), pp. 227–54. For a discussion of how these interests are expressed in voting behaviour, policy priorities and leadership styles, see Georgia Duerst-Lahti and Rita Mae Kelly (eds), Gender, Power, Leadership, and Governance (Ann Arbor, MI: University of Michigan Press, 1995); or Sue Thomas, How Women Legislate (Oxford: Oxford University Press, 1994). 3. Anne Phillips, The Politics of Presence (Oxford: Clarendon Press, 1995), p. 90 (emphasis in original). 4. A statistical review of the impact of government institutions, state policies and demographic characteristics on proportions of women in national office in 190 countries found that variables positively associated with a higher proportion of women holding national office were: (1) the percentage of women in the labour force, (2) the percentage of women in the professions and (3) gross domestic product. The effect of these variables, however, pales in comparison to institutional variables such as an electoral system based on proportional representation, or state responsibility for social welfare. Levels of education and urbanization had

218 Notes

5. 6.

7.

8.

9. 10.

11.

12.

13.

14.

15. 16.

no significant statistical correlation with the proportion of elected office-holders who are women. See Eileen McDonagh, ‘Political Citizenship and Democratization: The Gender Paradox’, American Political Science Review, vol. 96, no. 3 (2002), pp. 535–52. See also Richard E. Matland, ‘Women’s Representation in National Legislatures: Developed and Developing Countries’, Legislative Studies Quarterly, vol. 3, no. 1 (1998), pp. 109–25. Situation as of 31 March 2003, Inter-Parliamentary Union, ‘Women in National Parliaments’, www.ipu.org/wmn-e/world.htm. According to Carole Pateman, ‘Natural sexual dominion is excluded from the conventional relations studied in political theory. Patriarchal government requires no justification’. The Sexual Contract (Stanford: Stanford University Press, 1988), p. 11. A few studies suggest that women are less inclined than men to engage in corrupt acts. See Anand Swamy, Steve Knack, Young Lee and Omar Azfar, ‘Gender and Corruption’, University of Maryland, The IRIS Centre, mimeo, 1999; and David Dollar, Raymond Fisman and Roberta Gatti, ‘Are Women Really the “Fairer” Sex? Corruption and Women in Government’, Policy Research Report Working Paper Series no. 4 (Washington, DC: World Bank Development Research Group, 1999). These studies measured popular perceptions of propensities for corruption, and therefore tend to reflect essentialist constructions of gender. See Anne Marie Goetz, ‘Political Cleaners: Are Women the New Anti-Corruption Force?’, mimeo, 2003, available at: http://www.siyanda.org. Pippa Norris, ‘Breaking the Barriers: Positive Discrimination Policies for Women’, In J. Klausen and C.S. Maier (eds), Has Liberalism Failed Women? Parity, Quotas and Political Representation (New York: St. Martin’s Press, 2000). For studies showing similar results for different periods and countries, see A. Reynolds, Women in African Legislatures and Executives: The Slow Climb to Power (Cape Town: Electoral Institute of South Africa, 1999); Judith Squires and M. Wickham-Jones, Women in Parliament: A Comparative Analysis (Manchester: Equal Opportunities Commission, Research Discussion Series, 2001). R. Darcy, Susan Welch and Janet Clark, Women, Elections and Representation (Lincoln: University of Nebraska Press, 1994), p. 141. Mi Ming Yoon, ‘Democratization and Women’s Legislative Representation in SubSaharan Africa’, Democratization, vol. 8, no. 2 (2001), p. 181. These figures hold for elections in 2000 or the closest election prior to that. P. Norris and J. Lovenduski, Political Recruitment (Cambridge: Cambridge University Press, 1995); Inter-Parliamentary Union, Democracy Still in the Making: Men and Women in Politics (Geneva: Inter-Parliamentary Union, 1997). This electoral college system has not, however, weeded out the likes of Miria Matembe, who has held her district’s ‘woman representative’ seat through three parliamentary elections and who is the most outspoken feminist in the Ugandan Parliament. V. Vijayalakshmi, ‘Gender, Accountability, and Political Representation in Local Government’, Working Paper 102 (Bangalore: Institute for Social and Economic Change, 2002), p. 18. V. Vijayalakshmi and B.K. Chandrashekar, ‘Authority, Powerlessness and Dependence: Women and Political Participation’, Working Paper 106 (Bangalore: Institute for Social and Economic Change, 2001). Jane Mansbridge, ‘Should Blacks Represent Blacks and Women Represent Women? A Contingent “Yes” ’, Journal of Politics, vol. 61, no. 3 (1999), p. 21. Joni Lovenduski and Pippa Norris (eds), Gender and Party Politics (London: Sage, 1993).

Notes 219 17. Georgina Waylen, ‘Gender and Democratic Politics: A Comparative Analysis of Consolidation in Argentina and Chile’, Journal of Latin American Studies, vol. 32, no. 3 (2000), p. 790. 18. Ibid., pp. 790–1. 19. Ibid., p. 791. 20. Mick Moore, ‘Elites Oppose the Development of Political Parties (Russia)’, Governance and Development Review, January 2002, www.ids.ac.uk/gdr/reviews/ review-01.html. 21. Pippa Norris, ‘Conclusion: Comparing Legislative Recruitment’, in Lovenduski and Norris (eds), Gender and Party Politics, p. 323. 22. K. Ilaiah, ‘Andhra Pradesh’s Anti-Liquor Movement’, in B.S. Rao and G. Parthasarathy (eds), Anti-Arrack Movement of Women in Andhra Pradesh and Prohibition Policy (New Delhi: Har-Anand Publications Pvt. Ltd, 1997). 23. Statistics on numbers of women in local councils in developing countries are very poor. However, available figures show generally lower levels of women in local than in national government. See for instance UNESCAP, ‘Women in Local Government’, http://www.Unescap.org/huset/women/reports/comparative_report.pdf. 24. Lynn S. Khadiagala, ‘The Failure of Popular Justice in Uganda: Local Councils and Women’s Property Rights’, Development and Change, vol. 32, no. 1 (2001), pp. 55–76. 25. Ibid. 26. Margaret Schuler (ed.), Freedom From Violence: Women’s Strategies from Around the Word (New York: UNIFEM, 1982), cited in Sheelagh Stewart, ‘Women and a Radical Agenda for Change in Zimbabwe – the Musasa Project’, Gender and Development – Oxfam, vol. 3, no. 1 (1995). 27. Francine Pickup, with Suzanne Williams and Caroline Sweetman, Ending Violence Against Women (Oxford: Oxfam, 2001), p. 265. 28. D.Q. Thomas, ‘Comments on Acosta’, in J.E. Mendez, G. O’Donnell and P.S. Pinheiro (eds), The (Un)Rule of Law and the Underprivileged in Latin America (South Bend, IN: University of Notre Dame Press, 1999), p. 183. 29. Human Rights Watch, Shattered Lives: Sexual Violence During the Rwandan Genocide and its Aftermath (Human Rights Watch/Africa, September 1996), http:// www.hrw.org/reports/1996/Rwanda.htm. 30. P. Gonzalez-Sanchez, ‘Violence and Gender in Colombia: Community Based Options for its Eradication’, paper presented at an Oxfam International Workshop on Violence Against Women, Sarajevo (November 1998). 31. Ibid. 32. Alison Lochhead, ‘Gender Violence in Pakistan: Breaking the Cycle’, Insights: Development Research (Brighton, UK: Institute of Development Studies, 2002). 33. Rhadika Coomaraswamy, ‘Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences: Addendum Report on the Mission (11–18 October 1996) of the Special Rapporteur to South Africa on the Issue of Rape in the Community’, Commission on Human Rights, 53rd session, item 9(a) of the provisional agenda, E/CN.4/1997/47/Add, 3 February 1997. 34. Rhadika Coomaraswamy, ‘Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences’, Commission on Human Rights, 52nd session, item 9, E/CN.4/1996/53, 6 February 1996. 35. Pickup et al., Ending Violence …, p. 266. 36. Ibid., pp. 288–9. 37. D. Thomas, ‘In Search of Solutions: Women’s Police Stations in Brazil’, in M. Davies (ed.), Women and Violence: Realities and Responses Worldwide (London: Zed Books, 1994).

220 Notes 38. S. Chiarotti, ‘Violence Against Women in the Private Sphere in the Latin American and Caribbean Region’, paper presented at an Oxfam International Workshop on Violence Against Women, Sarajevo (November 1998). 39. Rules of Procedure and Evidence (IT/32/REV.19), Rule 96: Evidence in Cases of Sexual Assault, http://www.un.org/idty/basic/rpe/IT32_rev20.htm#Rule%2096. 40. Sheelagh Stewart, ‘Working the System: Sensitizing the Police to the Plight of Women in Zimbabwe’, in Schuler (ed.), Freedom from Violence… 41. Rhadkia Coomaraswamy, ‘Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences’, Commission on Human Rights, 54th session, E/CN.4/1998/54, 26 January 1998, Section C paragraph 4. 42. Iman Bibars, Victims and Heroines: Women, Welfare and the Egyptian State (London: Zed Press, 2001). 43. Gregory S. Thielman and Joseph Stewart Jr., ‘A Demand-Side Perspective on the Importance of Representative Bureaucracy: AIDS, Ethnicity, Gender and Sexual Orientation’, Public Administration Review, vol. 56, no. 2 (1996), pp. 168–73; Lael R. Keiser, Vicky M. Wilkins, Kenneth J. Meier and Catherine A. Holland, ‘Lipstick and Logarithms: Gender, Institutional Context, and Representative Bureaucracy’, American Political Science Review, vol. 96, no. 3 (2002), p. 553; and Anne Marie Goetz, Women Development Workers: Implementing Rural Credit Programmes in Bangladesh (New Delhi: Sage, 2001). 44. Drude Dahlerup, ‘From a Small to a Large Minority: Women in Scandinavian Politics’, Scandinavian Political Studies, vol. 11, no. 4 (1989), pp. 275–93. This effect may depend entirely on incentive systems, however. Some workplaces where women exceed 50 per cent of staff show the opposite effect – extremely antagonistic relationships between women service providers and women clients. 45. World Bank, Gender and Development Group, Gender in the PRSPs: A Stocktaking (Washington, DC, August 2001). 46. Squires and Wickham-Jones, Women in Parliament …, p. 14. 47. Anne Marie Goetz, ‘The Politics of Integrating Gender to State Development Processes: Trends, Opportunities and Constraints in Bangladesh, Chile, Jamaica, Mali, Morocco, and Uganda’, Occasional Paper No. 2 (Geneva: United Nations Research Institute for Social Development, 1995). 48. Waylen, ‘Gender and Democratic Politics …’, p. 787. 49. Ibid. 50. Goetz, ‘The Politics of Integrating Gender …’, p. 27. 51. UNIFEM, Gender Budget Initiatives: Strategies, Concepts, and Experiences (New York: UNIFEM, April 2002). 52. Nilufer Cagatay, Diane Elson and Caren Grown, ‘Introduction’, special issue of World Development on ‘Gender and Macroeconomics’, vol 23, no. 11 (1995), pp. 1827–36; Simel Esim, ‘Engendering Macroeconomic Policy in Budgets, Unpaid and Informal Work’, Annex to Gender, Growth, and Poverty Reduction in Sub-Saharan Africa (Washington, DC: World Bank, 1998). 53. Cagatay et al., ‘Introduction. …’ 54. Simel Esim, ‘Gender Equity Concerns in Public Expenditure: Methodologies and Country Summaries’, paper prepared for the Annual Meeting of the Special Program of Assistance for Africa (SPA) Working Group on Poverty and Social Policy, Ottawa (1995). 55. Andy Norton and Diane Elson, What’s Behind the Budget? Politics, Rights and Accountability in the Budget Process (London: Overseas Development Institute, June 2002), p. 37; and UNIFEM, Gender Budget Initiatives …, p. 29.

Notes 221

8

The Politics of Backlash

1. Pratap Bhanu Mehta, ‘Is Electoral and Institutional Reform the Answer?’ Seminar 506 (‘Reforming Politics: A Symposium on Rethinking Democratic Institutions and Practice’), October 2001, emphasis added. 2. John Harriss, Depoliticizing Development: The World Bank and Social Capital (Delhi: LeftWord Books, 2001), pp. 124–5. 3. Neera Chandhoke, ‘Governance and the Pluralisation of the State: Implications for Democratic Citizenship’, Economic and Political Weekly, 12 July 2003, p. 2966. 4. World Bank, Participation and Civic Engagement Team, ‘The Role of Civic Engagement and Social Accountability in the Governance Equation’ (Washington, DC, 2003). 5. Benjamin Goldfrank, ‘The Fragile Flower of Local Democracy: A Case Study of Decentralization/Participation in Montevideo’, Politics and Society, vol. 30, no. 1 (March 2002), pp. 51–83. 6. Gianpaolo Baiocchi, ‘Participation, Activism, and Politics: The Porto Alegre Expermiment and Deliberative Democratic Theory’, Politics and Society, vol. 29, no. 1 (2001), p. 54. 7. Ibid., p. 54. 8. Mick Moore, ‘Politics and the Drivers of Pro-Poor Change in Bangladesh’, Report to the UK Department for International Development, Dhaka, 28 February 2003, p. 17. 9. ‘U.S. Generals Fault Ban on Hussein’s Party’, New York Times, 21 April 2004. 10. See Rob Jenkins and Maxton Tsoka, ‘Institutionalisation and Malawi’s PRSP’, Development Policy Review, vol. 21, no. 3 (2003), pp. 197–215. Almost all of the seven other country cases covered in this special issue of the DPR revealed their parliaments to have played, at best, a secondary role. 11. This was how the arguments were reported by J.F. Northey in a contribution to Donald Rowat, The Ombudsman: Citizen’s Defender (London: Allen and Unwin, 1968), p. 142. 12. B. Gilling, The Ombudsman in New Zealand (Palmerston North, NZ: Dunmore Press, 1998). This and the Rowat volume cited above were discussed in John Martin’s review in the Journal of Commonwealth and Comparative Politics, vol. 38, no. 1 (2000), p. 115. 13. John Ferejohn, ‘The Law of Politics: Judicializing Politics, Politicizing Law’, Law and Contemporary Problems, vol. 65, no. 3 (2002), pp. 41–68. See also Charles Epp, The Rights Revolution (Chicago: University of Chicago Press, 1998). 14. T.C.A. Anant and Jaivir Singh, ‘An Economic Analysis of Judicial Activism’, Economic and Political Weekly, 26 October 2002, pp. 4438–9. 15. Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: W.W. Norton, 2003). 16. To take another example, Jackson’s overview of how juries can be made more accountable is both an instance of, and a rebuke to, the democratization of accountability. J.D. Jackson, ‘Making Juries Accountable’, American Journal of Comparative Law, vol. 50, no. 3 (2002), pp. 477–530. 17. ‘Globalisation: The Argument of Our Time’, an OpenDemocracy.net debate between Paul Hirst and David Held, 2002, http://www.opendemocracy. net/debates/article.jsp?id⫽6&debateId⫽28&articleId⫽637#one. 18. Ibid. 19. Paul Hirst, Associative Democracy (Oxford: Blackwell, 1993). 20. Samuel G. Freedman, ‘Good Riddance to the School Boards’, New York Times, 15 April 2003.

222 Notes 21. http://www.arena.uio.no/publications/wp99_21.htm. 22. Samuel P. Huntington, American Politics: The Promise of Disharmony (Cambridge, Mass: Harvard University Press, 1981), p. 210. This view was expressed in a number of forums at which earlier versions of this book were presented, in particular in workshops conducted by the UNDP Human Development Report Office in preparation for the UNDP Human Development Report 2002: Deepening Democracy in a Fragmented World (Oxford: Oxford University Press, 2002). 23. Samuel P. Huntington, Political Order in Changing Societies (New Haven, Conn.: Yale University Press, 1968). 24. Information used for performance contracts can easily be distorted. For instance, when stricter measures of school performance were introduced in the 1990s in the United Kingdom, head teachers redefined truancies as ‘excused absences’, rendering one performance measure utterly inaccurate. See C.T. Fitz-Gibbon, Monitoring Education: Indicators, Quality and Effectiveness (London: Cassell, 1996). See also Simon Burgess, Carol Propper and Deborah Wilson, ‘Does Performance Monitoring Work? A Review of the Evidence from the UK Public Sector, Excluding Health Care’, CMPO Working Paper Series 02/49 (Bristol: University of Bristol, Department of Economics, 2002). 25. David Osborne and Ted Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (Boston: Addison-Wesley Publishing Company, 1992). 26. Onora O’Neill, A Question of Trust: The BBC Reith Lectures 2002 (Cambridge: Cambridge University Press, 2002). 27. Michael Power, The Audit Society: Rituals of Verification (Oxford: Oxford University Press, 1999). 28. There is a large and varied literature on the costs of declining trust – whether in economic transactions, or in social relations more generally. For reasonably accessible accounts, see Barbara A. Misztal, Trust in Modern Societies: The Search for the Bases of Social Order (Cambridge: Polity Press, 1996); and Francis Fukuyama, Trust: The Social Virtues and The Creation of Prosperity (New York: Macmillan, 1995). 29. Canice Prendergast, ‘Selection and Oversight in the Public Sector, with the Los Angeles Police Department as an Example’, paper presented at the ‘Development Economics Conference on Social Service Delivery’, World Bank, 21–22 February 2002. 30. Robert Klitgaard, ‘Incentive Myopia’, World Development, vol. 17, no. 4 (1989), pp. 447–59. 31. A. Gelb, J.B. Knight, and R.H. Sabot, ‘Public Sector Employment, Rent Seeking, and Economic Growth’, The Economic Journal, vol. 101, no. 418 (1991), pp. 1186–99. 32. Osbourne and Gaebler, Reinventing Government… 33. Colin Campbell, ‘Turning Full-Circle? Public Choice, Problems with Implementation and the Return to Trusteeship in Public Service’, paper presented at the 18th World Congress of the International Political Science Association, Quebec City, Canada, 1–6 August 2000. 34. K. Jayalakshmi, Tasnim Khorakiwala, Gopinath Reddy, Ratna Reddy, Vikas Singh, Anne Marie Goetz and Rob Jenkins, ‘State Responsiveness to Poverty: A Comparative Study of Development Interventions in the Indian States of Andhra Pradesh and Madhya Pradesh’ (London: Department for International Development/Social Science Research Unit, mimeo, 2003). At the time of writing, the draconian punch-card system still had the status of a proposal, and had not yet been enacted.

Notes 223 35. Ngaire Woods and Amrita Narlikar, ‘Governance and the Limits of Accountability: The WTO, the IMF and the World Bank’, International Social Science Journal, no. 170 (November 2001). 36. Judith Tendler, Good Governance in the Tropics (Baltimore: Johns Hopkins University Press, 1997). 37. The source for these statistics and the case study that follows is J. Tendler and S. Freedheim, ‘Trust in a Rent-Seeking World: Health and Government Transformed in Northeast Brazil’, World Development, vol. 22, no. 12 (1994), pp. 1771–91. 38. See Michael Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation, 1980). 39. Merilee S. Grindle and Mary E. Hilderbrand, ‘Building Sustainable Capacity in the Public Sector: What Can Be Done?’ Public Administration and Development, vol. 15, no. 5 (1995), pp. 442–63. 40. http://usinfo.state.gov/journals/itdhr/0800/ijde/devine.htm. 41. For details on this and other cases see http://usinfo.state.gov/journals/itdhr/0800/ ijde/devine.htm. 42. ‘Corruption: Calls to Protect Whistleblowers’, Financial Standard (South Africa), 4 March 2003. 43. ‘US Courts’ Role in Foreign Feuds is Under Fire’, New York Times, 4 August 2003. 44. Ibid. 45. ‘Accountability “Vital” if NGOs are to Retain Trust’, Financial Times, 26 June 2003.

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Index absenteeism 57 accountability administrative 93–97 answerability and enforcement 9, 81, 83, 96, 103, 106, 139 de jure and de facto 10, 142, 197 definitions of 8–14 ex ante and ex post 12, 36, 64, 80, 83, 128, 197 failures and poverty 6, 25, 45–76, 133, 189 horizontal and vertical 11–12, 18, 79–80, 91, 96, 103, 107, 197 informal and formal 13–14, 61, 139 jurisdictions 4, 79, 110–123, 139 methods 5, 79, 110–133, 139, 150, 184 moral-procedural accountability gaps in 138–141 new agenda 3–7, 18 political 11, 80–82 seeking 2, 6, 8, 27, 77–9, 103 standards 4, 7, 24, 38, 43, 78, 110, 133, 134–157, 187 accounting practices 122 Acres 65 ActionAid India 88–89, 105–106 administrative devolution 123–128 affirmative action 164–167 Africa 25, 41 African National Congress (ANC) 26, 62–63 Agribusiness Accountability 142 aid donors 10, 20, 138 air pollution 66 Akayesu, Jean-Paul 173 al-Qaeda 116 Alien Tort Claims Act (USA) 120, 196 alternative dispute resolution 123–126, 140 Amnesty International 130, 140 amnesty laws 116 Anderson, Warren 70 Andhra Pradesh 35

ante-natal clinics 60–62 anti-alcohol campaign (India) 168 anti-corruption agencies 12, 139, 149, 189 anti-poverty programmes 45, 55–56, 126 apartheid 25, 140 Arafat, Yasser 114 armaments corporations 23 arsenic contamination 68 Argentina 20, 72, 116, 164, 167 Asia 25 Atrocities Act (India) 39 audit offices 49, 139 society 191 audits national 49, 82, 176–178 people’s 1, 83–90, 105–106, 108, 110 social 29, 106 Auxiliary Nurse-Midwives (India) 192–193 Avritzer, Leonardo 84 Ba’ath Party (Iraq) 183–184 backlash 7–8, 180, 196 Baiocchi, Gianpaolo 182, 183 Bangladesh 1530–155, 165, 176, 183 Bangladesh Garment Manufacturers and Exporters Association 153–154 Baxi, Upendra 34 beggars’ courts (India) 53 Beijing Platform for Action 99 Belgian courts 113, 114 Below Poverty Line (India) 60 Bennett, William 127 Bharatiya Janata Party (India) 60, 128 Bhargava, Rajeev 32 Bhopal gas disaster 69, 70, 120, 147 bias 6, 45 and capture 35–43, 45–50, 96 anti-poor bias Chapter 3 Blair, Tony 120

241

242 Index Board for Industrial and Financial Reconstruction (India) 54–55 Bolivia judicial system 38, 170 Law of Popular Participation 108, 125–126 Brazil 71, 72, 74, 83–86, 96, 108, 170 Bretton Woods system 21, 184 British Petroleum 119 budget analysis 83–86, 176–178 Bulgaria 115 bureaucracies 178, 190–195 reporting systems in 46, 48–49 performance measures in 37, 48, 50, 189, 191–195 and corruption 48–49, 137, 173 procedural correctness in 142 and gender 174–175 Burma 142 Bush, George W. 116 Cambior 120 Cambodia 68 campaign finance regulations 47, 80–81 Canada 120 Cape Asbestos plc 120 capture 6, 45–50, 96 and bias 35–43 care economy 176 Caseley, Jonathan 35 Castro, Fidel 114 Central Vigilance Commissioner (India) 63, 94 CEOs 122, 129 Chabal, Patrick 137 Chad oil 111, 144–146 Chandhoke, Neera 21, 22, 181 Chetna Andolan (India) 89 Chicago schools 127–128 child custody 141 child labour 55, 152–156 Chile 112–113, 167 China, labour standards in 154 Chirac, Jacques 156–157 Christian churches 106–107, 136 Chixoy Dam (Guatemala) 146 Citizen-Police Liaison Committee (Pakistan) 100–102, 108 citizens’ juries 29

Civic Alliance (Mexico) 82 civil liberties 116 civil society 18, 20–21, 79–109, 116, 145, 160, 169, 175, 187, 196 Clapham, Christopher 137, 138 Clean Air Action Plan (Malaysia) 67 clientelism 20 Coalition for the International Criminal Court 98–99 Coalition Provisional Authority (Iraq) 183–184 Colas, Alejandro 104 Colombia 29, 51, 71, 171 Comptroller and Auditor General (India) 40 constitutions 100 Convention for the Elimination of All Forms of Discrimination Against Women 117–118, 161, 168 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 119 corporate manslaughter 5 social responsibility 142, 152 Corporate Observer Europe 130 corporations accountability of 77–78, 111, 118–123, 141–149, 156 and pollution 69–70 corporatism 82 corruption 5, 17, 35–42, 81, 95, 108, and citizenship 35–37 and environmental damage 64–70, 119, 120, 147 and gender 162 culturally specific forms of 138 in anti-poverty programmes 87 in health services 57–64 in schools 58, 61, 95 in tax collection 94–95 in the private sector 118–122 credit in Bangladesh 51, 52 in Kenya 51 crime(s) against humanity 99, 112–118, 124 analysis 101 and poverty 70–74, 100–102

Index 243 criminal justice system 72 culture 135–141 customary dispute-resolution customary law 123 and gender 141, 162, 169 cyber accountability 130 space 1, 110, 128–133 activism 129

140

Dahbol Power Corporation (India) 57 Dalits 39 De Waal, Alex 136 Deby, Idriss 145 decentralization 34, 108, 123–128 Del Ponte, Carla 173 Delhi Electricity Board 94 Delhi Municipal Corporation 54 deliberation, public 20, 78, 127 democracy and accountability 1, 2, 186–187 and representation 109, 159, 163–167 associative 187 deficits of 2, 6, 18–26, 42 illiberal 27, 186 low intensity 27 semi-authoritarian 27 Third Wave of 24 democratization of personal relationships 137, 140 Department of Roads and Irrigation, Nepal 56 depoliticization 180–183 Doha Declaration 97 domestic violence 141, 170 Earth Rights International 142 Eastern Europe 25 Ecuador 72, 120 education 56 Egypt 173–174 El Salvador 73 Elections 18–20, 164–167 electoral commissions 49, 80, 81, 134 electoral systems 46–47, 164–167, 189 electricity connections (Thailand) 59 generation 57, 77

Elf Oil 156 Employment Guarantee Scheme (India) 148 employment-creation programmes in India 105 in Nepal 55–56 emergency relief programmes 106 Enron 57, 77, 121–122 environmental degradation and poverty 64–70 protection agencies 49, 128, 147 impact assessments 64, 66 regulation 110, 111, 147 standards 150–151 equal opportunities 49, 168, 178 commissions 100 European Commission 103 European Court of Human Rights 115, 195 European elections 26 European Human Rights Act 114 European Parliament 142 European Roma Rights Centre 115 European Social Charter 114 European Union 26 exit, voice and loyalty 29, 58, 85 Extractive Industries Transparency Initiative (UK) 120 extradition 112–113 Exxon Mobil 144, 146, 151–152 Exxon Valdez 70 faith-based organizations 106–107 Fearon, James 19 female genital mutilation 141 feminism 141, 159, 160 Ferejohn, John 185 Fiszbein, Ariel 29 food industry 142 forced abortion 141 forced sterilization 141 foreign direct liability 69, 120–122 Freedman, Samuel 187 Freeport McMoran 120 Friends of the Earth 146 Gacaca tribunals (Rwanda) 124–125 Galtieri, Leopoldo 116 Garzon, Baltasar 112–113 Gbagbo, Laurent 114

244 Index gender and accountability 7, 14, 140–141, 158–179 and local government 169 and the judicial system 170–173 bias 158, 160, 161–163, 179 budgets 176–178 equality 141 interests 159–160 norms 136–137 persecution 141 violence 172–173 General Agreement on Tariffs and Trade (GATT) 149 Geneva Conventions 99 Ghana 178 global economic institutions 104 Global Forest Watch 130–131 global trade regimes 27, 138, 149–151, 153 Global Witness 119 globalization 1, 6, 15–27, 110, 136 Goldfrank, Benjamin 34, 182 Good, Kenneth 25–26 good governance 2, 8, 181, 187 Government Accountability Project (USA) 195 grassroots organizations 20 Greenpeace 129 Guantanamo Bay 116 Guidelines for Multinational Enterprises 155 Gujarat 48 Guyana 120 Guzman, Juan 113 Habre, Hissene 113 Hammond, Allen 129 Harriss, John 181 Harvard University 135–136 Health Agent Program (Brazil) 127, 193–194 health care 56, 57–58, 60–64 Held, David 137 Herzfeld, Michael 137 Highly Indebted Poor Countries Initiative 90 Hirschman, Albert O. 29 Hirst, Paul 23, 186, 187

HIV/AIDS in South Africa 62–63, 93–94 Holmes, Peter 149 Home Depot 129 homosexuals violence against 72 honour killings 163 human development and accountability 6, 45, 146 deprivations 46, 50–76 human rights 24, 27, 133 abusers 110, 111–118, 170 and poverty 70–74 commissions 100, 116–117 Human Rights Watch 55, 68, 131, 140, 170 Huntington, Samuel 24, 190 Hussein, Saddam, 114, 184 identity politics 25, 47, 168 Ilisu Dam (Turkey) 66 immunity from prosecution 82, 116 incentives electoral 46–47, 159–160 in bureaucracies 48–49 Independent Accountability Board (Chad) 145 India Bhopal case 69–70, 120, 147 Central Bureau of Investigation 70 democracy in 22–23, 27, 165 ‘democratic authoritarianism’ 27 Government of 120 local government 166, 169–170 National Human Rights Commission 105 Supreme Court 33, 69 individual international responsibility 112–113, 118 Indonesia 120 informal justice institutions 116, 123–126, 169 informal sector 50, 153 information asymmetry 18, 47 right to 31, 35, 86–89, 95, 126, 146–148 in elections 47 Inter-American Development Bank 146

Index 245 Inter-American Commission on Human Rights 195 Inter-American Court of Human Rights 114 intergovernmental organizations 6, 17 international accountability 99, 110–123 agencies 21, 23, 103, 104 conventions 23 law (human rights) 24, 113–118, 141 International Campaign to Ban Land Mines 98 International Criminal Court 78, 98–99, 111, 115–117 International Crisis Group 124 International Labor Organization 153 IMF (International Monetary Fund) 17, 23, 38, 104 International Standards Organization 103 internet 128–133 Iraq 183–184 Israel 114 Jalal, Ayesha 27 Jayal, Niraja Gopal 40 Jewkes, Rachel 60 Johnston, Michael 17 Jubilee 2000 campaign 97 judicial activism 33, 185 judiciaries 12, 49–50, 73–74, 90–93, 114, 170–173, 189 Kambanda, Jean 124 Keck, M 97 Korea, civil society 128 Kosovo 27 Labour Party (UK) 5 labour standards 49, 52–53, 110, 111, 137, 150–156 in China 54 in the Philippines 54 in Mexico 54 in Sri Lanka 54 land alienation 169 restitution 158

large dams 64–66 Lash, Jonathan 129 Latin America 25 bureaucratic authoritarianism in 27 justice systems in 70–74 Law of Popular Participation (Bolivia) 108, 125–126 legislatures 46, 47–48, 82, 167–169 Lesotho Highlands Water Project 65 Liberal representative government 25 liberalism end of 21 liberalization economic 23 political 1 trade 21 litigation 139, 148 against corporations 118–122, 147 lobbying groups 47 local dispute resolution 123–126 Lonsdale, John 13 Lowi, Theodore 21 Mae Klong river pollution (Thailand) 67 Maharashtra State Electricity Board (India) 57 Mahaveli Dam (Sri Lanka) 65 Malawi 184 Malawi Economic Justice Network 90 managerialism 181–182 Manin, Bernard 18 Mansbridge, Jane 19, 20, 167 Mazdoor Kisan Shakti Sangathan (MKSS) 86–89, 106, 108 Mbeki, Thabo 62 media 23, 130 Medicines Control Council (South Africa) 62 Mehta, Pratap 12, 18, 180 Mexico 72, 73 military in Chad 146 in Guatemala 146 rule 71 Milosevic, Slobodan 116 Montevideo decentralization in 37 Montreal Protocol on Substances Depleting the Ozone Layer 97

246 Index Monbiot, George 24 Moore, Mick 183 Moravcsik, Andrew 26 multi-level governance 188 Multilateral Agreement on Investment 97 multilateral organizations 17 financial institutions 26, 28 multinational firms 28, 77–78, 104, 118–122 Myanmar 120 Naidu, Chandrababu 35 Namibia 120 National Commission for Scheduled Castes and Scheduled Tribes (India) 39–40 National Land Reform Institute (Colombia) 51 national women’s machinery 105, 175–176, 178 Negroponte, John D. 116 neighbourhood watch committees 100 network governance 21–22, 184 New Partnership for African Development 136 New Public Management 108, 191 New Zealand 185 Nigeria, oil industry 69, 119 Nike 129 NGOs 23, 41, 105, 111, 117, 145–147, 177, 182, 183, 193 accountability of 102–109 and environmental 97, 151 norms 135–141 Norris, Pippa 168 North American Free Trade Agreement 154 Obstetric services 60–62 OECD 119 oil industry and bribery 199 Angola 119 Chad 111, 144–146 Nigeria 69,119 oil spills, Alaska 70 ombudsperson 100, 185, 189

O’Neill, Onora 190 Optional Protocol (CEDAW) 117–118 Organization of American States 114 Ottawa Mine Ban Treaty 98 Oversight agencies 46, 49, 73–74, 75, 100, 158, 189 Pakistan 2, 27, 100–102, 163, 165 Paraguay 72 Parivartan (India) 94–95 Parliamentary committees 82, 168 Parliaments 139, 183 Parmalat 77, 121 Parry, Jonathan 138 participation 28–31, 34, 36, 190 participatory municipal budgeting 83–86, 96, 108 Partido dos Trabalhadores (PT, Brazil) 83 Pastoral Land Commission (Brazil) 73 patronage 20, 41, 85, 86, 108, 138, 193 Paul, Samuel 93, 94 Pearl, Daniel 100 People’s Dialogue (South Africa) 93 People’s Plan Campaign (Kerala, India) 123, 126–127, 181 Pfizer 62 pharmaceutical companies 62, 77–78 Phillips, Anne 160 Pillay, Navanethem 173 Pinochet, Augusto 112–113 Poder Ciudadano (Argentina) 80–81, 89 police corruption 100–102 violence 70–73, 191 political parties 25, 165, 167–169 Polonco, Eduardo Penate 73 Porto Alegre (Brazil) 83–86, 108 Poverty Action Fund (Uganda) 90 Poverty Reduction Strategy Papers 90, 175, 184 Power, Michael 191 Premier Oil 142 Prendergast, Canice 191 principal-agent theory 2, 8–10 private sector firms 43, 105, 141–149 Procurator for the Defence of Human Rights (El Salvador) 73 professional oversight bodies 49, 62

Index 247 Project Votesmart (Oregon, USA) 81–82 property rights 171 prosecuting human rights abusers 111–118 Przeworski, Adam 18 Public Affairs Centre (India) 94 Public Distribution System (India) 59–60, 63–64 public expenditure management 47 public goods 45, 138 public hearings 1, 106, 110 on environmental impacts 1, 67, 92 on corruption 87–89, 95–96 Public Interest Litigation 10, 30, 34, 69, 91–93, 95, 148 rules of standing in 91 public protector 100 Public Report on Basic Education (India) 58 public sector reform 2, 123, 173, 189, 194 Public Service Accountability Monitor (South Africa) 131–133 public services education and health 56–64 public works programmes in Brazil 84–86 in India 86–89 in Nepal 55–56 public-private divide 137–138 quotas 164–167 race 140–141 Rainforest Action Network 129 Ram, Shiv Bachan 39 ration cards (India) 60 refugees 141 regulatory agencies 49, 104 religion 41, 106–107 representation 19–20, 25, 28, 30 responsibility 12–13 responsiveness 12–13, 193–196 restorative justice 140 rickshaw-peddling (India) 53–54 rights 182 to food 142–144 to information 31, 35, 86–89, 95, 126, 146–148 to public goods 148–149

Right to Information Bill (Goa, India) 35 Robinson, Mary 117 Roman Catholic nuns and priests 107 Rome Statute 115 Rossing Uranium 120–121 Rugmark 152 Rwanda 113, 116, 171 Gacaca tribunals 123–125 genocide 124 Sarbanes-Oxley Act (USA) 122 Sardar Sarovar Project (India) 65 school management 127–128, 187 Schuler, Margaret 170 security policy 23 security physical 70–71 services 23, 43, 101 self-employment, and deprivation 53–57 self-help groups 30 Sen, Amartya 7, 31, 32, Senegal 113 service delivery 45, 56–67, 104, 127, 174, 177, 183 Servicio Nacional de la Mujer (Chile) 176 Sethi, Harsh 137 Seventh Day Adventist Church 107 sex workers 58–59 sexual harassment of girls 60, 70, 162 of NGO workers 105 sexual violence 107, 141 Shari’a legal systems 163 Sharon, Ariel 114 Shell Oil 129 Shaffer, Gregory 151 Shiv Sena (India) 60 Sierra Club 151 Sikkink, K 97 Slum Dwellers International 93 social accountability 182 Social Accountability Initiative (USA) 154 social audits 29 capital 181 clauses 151–156 justice 3, 8, 137, 140, 146

248 Index Social Work and Research Centre (India) 105–106 Society for the Promotion of Area Resource Centres 93 Soros, George 119, 120 South Africa apartheid era accountability in 25 and neoliberal economic policy 26 Auditor General 132 Commission for Gender Equality 176 constitution 11, 26, 131 corporations in 119–121 Dept of Agriculture 132 National Assembly 26 Truth and Reconciliation Commission 139–140 sovereignty 6, 17, 21, 22, 24, 26, 118 Spanish Penal Code 112 Staudt, Kathleen 37 Stiglitz, Joseph 38 Stokes, Susan 18 street children 72 supranational governance 21 sustainable development 150, 152 sustainable livelihoods 50–56 Swedish Ombudsmen 73 Taft, William 196 Tanzania 165 Tax Payer Protection Council (India) 108–109 Tendler, Judith 193 Tehelka.com (India) 128 terrorism 116, 118 Texaco 120 Texas, redistricting 48 Thompson, Grahame 23 Thor Chemicals 120–121 Tindale, Stephen 196 Toxic Release Inventory (USA) 147 trade liberalization 21 sanctions 153–154 trade union leaders 73 Trade Policy Review (WTO) 103 traditional communities 125 leaders (Africa) 41, 169 transnational accountability institutions 103

accountability jurisdictions 111–123 actors 17, 144 capital markets 24 justice 111 litigation 12–122 movements 6, 97–99, 111 religious movements 18 transparency in corporations 119–122, 130 in local government 126, 182 in NGOs 104–108 in policing 101–102 in service delivery 148–149 Transparency International 78, 145–146 Bangladesh 52 Cameroon and Chad 145–146 Treatment Action Campaign (South Africa) 63 trust 190–196 truth commissions 139–140 Tshabalala-Msimang, Manto 62 Uganda 120, 164–166, 169 Union Carbide 69, 120 United Democratic Front (South Africa) 25 United Kingdom House of Lords 48, 113, 121 litigation 120 United Nations Charter 103–104 Conference on Trade and Development 118 Criminal Tribunal for the former Yugoslavia 112, 172 Criminal Tribunal for Rwanda 112, 123–124, 172 Environment Program 104, 196 Fourth World Conference on Women 99 General Assembly 143 Global Compact 155 High Commission for Refugees 141 High Commissioner for Human Rights 117 Mission in Kosovo 24 peacekeeping 115–116 Special Rapporteur on the Right to Food 143

Index 249 United Nations – continued Special Rapporteur on Violence Against Women 171 Security Council 117 UNICEF 68, 152, 153 United States and corporate governance 122 and the ICC 115–118 and the occupation of Iraq 23 constitution 11 Generally Accepted Accounting Principles 122 House of Representatives Subcommittee on Africa 148 in Iraq 183–184 litigation in 120 Securities and Exchange Commission 122 Senate 48 universities in 135–136 universal crimes 112–118 universal jurisdiction 112–118 Unocal 120 Uruguay 182 Vatican 107 Venezuela 72, 196 Visvanathan, Shiv 137 voice 139 and human development 7, 31 as a metaphor 29 constructive value of 31–34 definitions of 27–32 exit, loyalty and 29, 58, 85 instrumental value of 32–34 of the poor 75 voluntary certification 152–156

voting and accountability 18–20, 28, 79–80 low turnout 25, 26, 81–82 war crimes 112–118 war on terror 115–116, 118 water contamination Bangladesh 68 Thailand 67 Waylen, Georgina 167 welfare reform (UK) 18 whistleblowers 100, 176, 195 Williams, Jody 98 women 126 and citizenship rights 140–141 Christian 107 violence against 107 Women’s Commission (Kerala, India) 176 women’s movement 161, 178 World Bank 17, 104, 111, 138, 175, 182 Operations and Evaluation Department 65 ‘Voice and Accountability’ index 27 World Development Report 2000–2001 45 World Commission on Dams 65 World Council of Churches 107 World Food Security 143 World Health Organisation 68 World Resources Institute 130–131 World Trade Organization 78, 97, 103, 135 Dispute Settlement System 149–151 World Wide Web 128 WorldCom 77, 121 Zakaria, Fareed

185–186