Holding the world bank accountable for leakage of funds from Africa's health sector

Health and Human Rights

Volumn 12, Issue 1, 2010, Pages 95-108

  Marouf, Fatma E ^a  

^a UNIVERSITY OF NEVADA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ACCOUNTABILITY; HEALTH SERVICES; HUMAN RIGHTS; PUBLIC SPENDING; WORLD BANK;

AFRICA; ARTICLE; ECONOMICS; ETHICS; FINANCIAL MANAGEMENT; HEALTH; HEALTH CARE COST; HEALTH CARE DELIVERY; HEALTH CARE QUALITY; HEALTH SERVICE; HUMAN; HUMAN RIGHTS; INFORMATION PROCESSING; LEGAL ASPECT; ORGANIZATION AND MANAGEMENT; POLICY; SOCIAL BEHAVIOR; STATISTICS; THEFT; UNITED NATIONS;

AFRICA; CLINICAL GOVERNANCE; DATA COLLECTION; DELIVERY OF HEALTH CARE; FINANCIAL MANAGEMENT; HEALTH EXPENDITURES; HEALTH SERVICES ACCESSIBILITY; HEALTH SERVICES NEEDS AND DEMAND; HUMAN RIGHTS; HUMANS; ORGANIZATIONAL POLICY; SOCIAL RESPONSIBILITY; THEFT; UNITED NATIONS; WORLD HEALTH;

SUB-SAHARAN AFRICA;

EID: 77957010552     PISSN: 10790969     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (85)

1. E. Suzuki and S. Nanwani, Responsibility of international organizations: The accountability mechanisms of multilateral development banks, Michigan Journal of International Law 27/1 (2005), pp. 177-225.
2. R. Reinikka and J. Svensson, Survey techniques to measure and explain corruption, World Bank Development Research Group, Policy Research Working Paper 3071 (Washington, DC: World Bank, 2003), p. 1. Available at http://siteresources. worldbank.org/INTPEAM/Resources/PETS2.pdf.
3. R. Reinikka and J. Svensson, Survey techniques to measure and explain corruption, World Bank Development Research Group, Policy Research Working Paper 3071 (Washington, DC: World Bank, 2003), p. 1. Available at http://siteresources. worldbank.org/INTPEAM/Resources/PETS2.pdf.
4. During the past decade PETS and QSDS have been implemented in approximately two dozen developing countries. See B. Gauthier, PETSQSDS in sub-Saharan Africa: A stocktaking study, (Washington, DC: World Bank, 2006), p. 1. Available at http://siteresources.worldbank.org/INTPRS1/ Resources/383606-1212502456058/061108_PETSQSDS_ Gauthier.pdf.
5. R. Reinikka and N. Smith, Public expenditure tracking surveys in education (Paris: UNESCO International Institute for Educational Planning, 2004), p. 33. Available at http://www.unesco.org/iiep/PDF/ pubs/Reinikka.pdf.
6. Gauthier (see note 4), p. 27. Strictly defined, leakage is the share not received by a facility with respect to the resources intended for the facility, whereas the more narrow definition of resource measures the share of resources received by a facility with respect to the resources disbursed to that facility by a higher level.
7. Using PETS to fight corruption (Bergen, Norway: U4 Anti-Corruption Resource Centre, n.d.). Available at http://www.u4.no/themes/pets/ petstool.cfm.
8. K. Kaiser, I. Kishnarova, and M. Lindelow, Measuring corruption in the health sector: What we can learn from public expenditure tracking and service delivery surveys in developing countries (Washington DC: World Bank, 2005); see also Gauthier (see note 4)
9. M. Lindelow, R. Reinikka and J. Svensson, Health care on the frontlines: Survey evidence on public and private providers in Uganda, Africa Region Human Development Working Paper 27212 (Washington, DC: World Bank, 2003). Available at http://www-wds.worldbank.org/external/ default/WDSContentServer/IW3P/IB/2003/1 1/11/000090341_20031111113920/Rendered/ PDF/272120PAPER0AFRHD0wp0no1038.pdf;
10. M. Lewis, Governance and corruption in public health systems, Working Paper 78 (Washington, DC: Center for Global Development, 2006), pp. 21, 30.
11. G. Sundet, Public expenditure tracking surveys: Lessons from Tanzania, U4 Brief 14 (Bergen, Norway: U4 Anti-Corruption Resource Centre, 2007). Available at http://www.cmi.no/publications/ file/2812-public-expenditure-tracking-surveys.pdf.
12. X.Ye and S. Canagarajah, Efficiency of public expenditure distribution and beyond: A report on Ghana's 2000 public expenditure tracking survey in the sectors of primary health and education, Africa Region Working Papers 31(Washington, DC: World Bank, 2002), pp. 5, 24. Available at http://www.worldbank.org/afr/ wps/wp31.pdf.
13. Ibid., p. 25, note 12.
14. Gauthier (see note 4).
15. Ibid., p. 39.
16. Republic of Kenya, Public expenditure tracking survey (PETS) 2004, Preliminary Report (Nairobi, Kenya: Ministry of Planning and National Development, Ministry of Finance, Ministry of Health, Ministry of Education Science and Technology, 2004).
17. O. Picazo, S. Kagulura, and the PET/QSDS Team of the Ministry of Health and the University of Zambia, State of human resources for health in Zambia: Findings from the public expenditure tracking and quality of service delivery survey, 2005/06 (presentation at the Human Resources for Health Research Conference, Mulungushi International Conference Center, Lusaka, Zambia, June 7-8, 2007). Available at http://www.hrhresourcecenter. org/hosted_docs/State_HRH_Zambia_PET_ QSDS.pdf; see also O. Picazo and F. Zhao, Zambia health sector public expenditure review: Accounting for resources to improve effective service coverage (Washington, DC: World Bank Publications, 2008).
18. Gauthier (see note 4), pp. 27-29.
19. IEG-World Bank, Public sector reform: What works and why? An IEG evaluation of World Bank support (Washington, DC: World Bank, 2008), p. 50. Available at http://siteresources.worldbank.org/ EXTPUBSECREF/Resources/psr_eval.pdf.
20. Gauthier (see note 4), p. 32; R. Reinikka and J. Svensson, Using micro-surveys to measure and explain corruption, World Development 34/2 (2006), pp. 359-370
21. For example, the World Bank's spending on health programs increased from US$6.8 billion in 1997 to US$16 billion in 2006 without much improvement in health outcomes. IEG-World Bank, Achieving sustainable development: Annual review of development effectiveness 2009 (Washington, DC: World Bank, 2009); see also L. Elliot, World bank admits most health aid fails, The Guardian (May 1, 2009). Available at http://www.guardian.co.uk/business/ 2009/may/01/world-bank-health-aid-poverty.
22. IEG-World Bank (see note 19); Elliot (see note 19).
23. IEG-World Bank, Review of IDA internal controls: An evaluation of management's assessment and the IAD review (Washington, DC: World Bank, 2009), p. 40. Available at http://siteresources.worldbank.org/ EXTOED/Resources/ida_controls_full.pdf.
24. Global Policy Forum, World bank health work flawed still pushing privatization of services (July 10, 2009). Available at http://www.globalpolicy.org/ social-and-economic-policy/the-three-sisters-andother- institutions/the-world-bank/47923.html.
25. IEG-World Bank (see note 17), pp. 12-17.
26. Ibid., p. 45.
27. Ibid., p. 60.
28. Ibid., pp. 62-63.
29. Ibid., p. 62.
30. Ibid., p. 36.
31. Ibid., p. 60.
32. Ibid., p. 73; Ibid., p. 53.
33. L. H. Piron, The right to development: Study on existing bilateral and multilateral programmes and policies for development partnership, Submission to the Commission on Human Rights, E/CN.4/Sub.2/2004/15 (2004).
34. IEG-World Bank (see note 17), p. 62.
35. Ibid., p. 63. Other examples of state-capture include corrupt awards of big contracts, kickbacks from big international corporations, and privatization to insiders at bargain prices.
36. Ibid.
37. IEG-World Bank (see note 21), p. xviii.
38. Ibid.
39. For example, the Maastricht Guidelines state that [i]t is crucial for the elimination of violations of economic, social and cultural rights for international organizations, including international financial institutions, to correct their policies and practices so that they do not result in deprivation of economic, social and cultural rights. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997, at para. 19 (emphasis added). Available at http://www. uu.nl/uupublish/content/20-01.pdf. See also Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. No. E/C.12/2000/4 (2000), para. 64 (stating that international financial institutions, notably the World Bank and International Monetary Fund, should pay greater attention to the protection of the right to health in their lending policies, credit agreements and structural adjustment program). Available at http://www.unhchr.ch/tbs/doc.nsf/0 /40d009901358b0e2c1256915005090be?Opendoc ument. Various scholars have also forcefully argued that the World Bank has at least some human rights obligations. See, for example, S. I. Skogly, The human rights obligations of the World Bank and the International Monetary Fund (London: Cavendish, 2001).
40. World Bank, International Bank for Reconstruction and Development: Articles of agreement (Washington D.C: World Bank, 1944), Section 3, Article VII(3), Position of the Bank With Regard to Judicial Process, and World Bank, International Development Association: Articles of agreement (Washington DC: World Bank: 1960), Article VII (3), Position of the Bank With Regard to Judicial Process; see also Mendaro v. World Bank, 717 F.2d 610, 617-18 (D.C. Cir. 1983) (interpreting the Bank's Articles of Agreement as waiving immunity from actions arising out of the Bank's external relations, but preserving immunity as to suits arising out of the Bank's internal operations, such as its relationships with its own employees, since the latter do not relate to the Bank's ability to fulfill its purpose).
41. See, for example, R. Hammonds and G. Ooms, World bank policies and the obligations of its members to respect, protect and fulfill the right to health, Health and Human Rights: An International Journal 8/1 (2004), pp. 26-60 (arguing that the World Bank should be held liable through its Member States).
42. See, for example, ILC 55th Sess. at para. 5 (2004), UN Doc. A/CN.4/541(noting that while the ARSIWA are not immediately relevant to international organizations, they have to be fully taken into account when discussing issues relating to the attribution to international organizations that are parallel to those concerning States).
43. In Behrami v. France and Others, 22 BHRC 477 at para. 133, (2007) Appl. No. 78166/01 & 71412/01, the European Court for Human Rights held that the detention of an individual by French forces, acting as part of the international force in Kosovo pursuant to a mandate from the United Nations Security Council, was attributable to the United Nations rather than to France, but this decision has been criticized for applying the wrong legal test and being driven primarily by policy concerns. See, for example, A. Sari, Jurisdiction and international responsibility in peace support operations: The Behrami and Saramit cases, Human Rights Law Review 8/1 (2008), 169-70. In Al-Jedda v. Secretary of State for Defence [2007] UKHL 58, the House of Lords applied the correct standard in assessing whether the actions of British troops operating as part of a multinational force in Iraq were attributable to the United Kingdom or to the United Nations. The Lords properly framed the legal issue in terms of whether the UN exercise effective control over the conduct of UK forces (Ibid., para. 22, emphasis added), concluding that the conduct was attributable to the United Kingdom since the coalition forces were not dispatched by the UN and had no UN mandate. Available at http://www.publications.parliament.uk/ pa/ld200708/ldjudgmt/jd071212/jedda.pdf.
44. See ILC, 61st Sess, para. 25 (2009), UN Doc. A/CN.4/610.
45. International Bank for Reconstruction and Development, International Development Association/The World Bank Inspection Panel, Resolution No. IDA 93-6 (Sept. 22, 1993), para. 12. Available at http://siteresources.worldbank. org/EXTINSPECTIONPANEL/Resources/ ResolutionMarch2005.pdf.
46. World Bank, The Inspection Panel: Cases - by country. Available at http://web.worldbank.org/ WBSITE/EXTERNAL/EXTINSPECTIONPA NEL/0 contentMDK:21680496~menuPK:64129 250~pagePK:64129751~piPK:64128378~theSite PK:380794,00.html.
47. World Bank, International Development Association Articles of Agreement, Article III, Section 5(b). Available at http://siteresources.worldbank.org/ IDA/Resources/ida-articlesofagreement.pdf.
48. World Bank, World Bank Operations Manual, OP 13.05 - Project Supervision (Washington, DC: World Bank, 2001) and World Bank, World Bank Operational Manual, OP 10.02 - Financial Management (Washington, DC: World Bank, 1997). The Bank's Operational Policy on Monitoring and Evaluation (OP 13.60) would also be relevant in requesting an inspection based on leakage of health sector funds, as it requires the Bank to evaluate the relevance, efficacy and efficiency of its loans. An online index to all World Bank Operations Policies is available at http://web.worldbank.org/WBSITE/ EXTERNAL/PROJECTS/EXTPOLICIES/EXT OPMANUAL/0 menuPK:4564185~pagePK:64719 906~piPK:64710996~theSitePK:502184,00.html.
49. Republic of Kenya (see note 14).
50. Gauthier (see note 4), p. 37.
51. For the World Bank's new access to information policy, see Operations Policy and Country Services, Toward greater transparency through access to information: The World Bank's disclosure policy (Washington, DC: World Bank, 2009. Available at <>http://siteresources. worldbank.org/EXTINFODISCLOSURE/ Resources/R2009-0259-2.pdf?&resourceurlname
52. R2009-0259-2.pdf.
53. N. Roht-Arriaza, Special problems of a duty to prosecute: Derogation, amnesties, statutes of limitation and superior orders, in N. Roht-Arriaza (ed), Impunity and human rights in international law and practice 29 (1995), p. 29.
54. Ibid.
55. Rodríguez v. Uruguay, Comm. No. 322/1988, 9.8.1994, CCPR/C/51/D/322/1988 (1994), para. 12.3.
56. Bautista de Arellana v. Colombia, Comm. No. 563/1993, 10/27/1995, CCPR/C/55/D/563/1993 (1995), para. 8.6. Likewise, in a murder case, the European Commission of Human Rights (European Commission) found that Article 2, protecting the right to life, created positive obligations to investigate and prosecute the offenders. Roht-Arriaza (see note 50), p. 32. Such cases also reinforce the right to a remedy set forth in various human rights treaties. See, for example, Universal Declaration of Human Rights (UDHR), G.A. Res. 217A (III) (1948), Art. 9. Available at http://www. un.org/Overview/rights.html. See also International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI) (1966), Art. 2(3). Available at http://www2.ohchr.org/english/law/ccpr.htm.
57. Association X v. United Kingdom, (7154/75) DR 14, 31.
58. See, for example, Savage v. South Essex Partnership NHS Foundation Trust [2008] UKHL 74 (December 10, 2008) (holding that, pursuant to the right to life, health authorities have an overarching obligation to protect the lives of patients in their hospitals, including a duty to ensure that staff are highly trained, professional and competent, and that the policies, procedures and systems in place at the hospital adequately safeguard life).
59. See, for example, I. Byrne, Enforcing the right to health: Innovative lessons from domestic courts, in A. Clapham and M. Robinson (eds), Strategies for realizing the right to health, Swiss Human Rights Book 3 (Zurich: Rüffer & Rub, 2009), pp. 525-557. Available at http://www.swisshumanrightsbook. com/SHRB/shrb_03_files/37_453_Byrne.pdf. Byrne notes (p. 525) that courts have attempted to give practical meaning to notions of indivisibility and interdependence of rights recognizing that the right to health has clear links to many other rights, not just economic and social but also civil and political rights - e.g. the right to life and, the right not to be subjected to torture or cruel, inhuman or degrading treatment, and the right to information.
60. The UN General Assembly has long recognized that [f]reedom of Information is a fundamental human right and the touchstone of all the freedoms to which the United Nations is consecrated. Calling of an International Conference on Freedom of Information, G.A. Res. 59(I) (1946); see also ICCPR (see note 53), Art. 19: [e]veryone shall have the right to. seek, receive and impart information and ideas of all kinds). See also the African Charter on Human and Peoples' Rights, OAU Doc. No. CAB/LEG/67/3 rev. 5 (1981), Art. 9 ([e]very individual shall have the right to receive information), rreprinted in International Legal Materials 21 (1982), p.
61. Available at http://www1.umn.edu/humanrts/instree/z1afchar.htm.
62. Global Transparency Initiative, Comments on the World Bank's approach paper 'Toward greater transparency: Rethinking the World Bank's disclosure policy (Washington, DC: Global Transparency Initiative, 2009). Available at http://www.ifitransparency. org/uploads/7f12423bd48c10f788a1abf3 7ccfae2b/GTI_Comments_on_WB_Disclosure_ Approach_Paper_final.pdf.
63. IEG-World Bank (see note 17), p. 75.
64. D. Kaufman, The World Bank, Rethinking governance: Empirical lessons challenge orthodoxy, unpublished discussion draft (March 11, 2003). Available at http://129.3.20.41/eps/mac/ papers/0308/0308007.pdf.
65. IEG-World Bank (see note 17), p. 64.
66. Ibid., p. 63. One example is Ghana, where reforms to strengthen good governance and social accountability have to an important extent been demand driven from civil society. Ibid., p. 63.
67. Uganda provides a classic example of how participation, combined with access to information, can effectively stop the leakage of funds. Uganda's 1996 PETS revealed that between 1991 and 1995, 87% of the annual capitation grant (per student) never reached the schools. The Ugandan government responded to these grim statistics by publicizing transfers of funds from the central government to the districts in newspapers and on the radio, requiring primary schools and district offices to post transfer information for everyone to see, and training school committees about how to use the information to hold the government accountable. By 2001, schools received 82% of non-wage funds. The information campaign explained two-thirds of this huge drop in leakage. Thus, the extent to which funding reached the intended beneficiaries depended heavily on schools' opportunity to voice their claims for the funds. See Reinikka and Svensson (see note 2), pp. 3, 6, and 13. By comparison, Tanzania's experience shows that information alone, without active participation by civil society, does not produce the same results. See G. Sundet, Public expenditure and service delivery monitoring in Tanzania: Some international best practices and a discussion of present and planned Tanzanian initiatives (Washington, DC: USAID, March 2004), p. 4. Available at http:// www.worldbank.org/socialaccountability_sourcebook/ Regional%20database/Case%20studies/ Africa/Tanzania%20-%20PETS.pdf.
68. World Bank (see note 45), Article IV, Section 10; see also I. Shihata, Prohibition of political activities in the bank's work Legal opinion of the General Counsel (July 11, 1995), later published and expanded in I. F. I. Shihata, The World Bank legal papers (The Hague, Netherlands: Martinus Nijhoff Publishers, 2000), pp. 219-244, with further elaboration in I. Shihata, The World Bank in a changing world: Selected essays and lectures, vol. 3 (The Hague, Netherlands: Martinus Nijhoff Publishers, 2000), pp. 156-187.
69. R. Danino, Senior Vice-President and General Counsel, The World Bank, Legal Opinion on Human Rights and the Work of the World Bank (January 27, 2006). Available at http://www. ifiwatchnet.org/sites/ifiwatchnet.org/files/ DaninoLegalOpinion0106.pdf.
70. A. Palacio, The way forward: Human rights and the world bank: Special report, Development Outreach (October 2006), pp. 35-37. Available at http:// siteresources.worldbank.org/EXTSITETOOLS/ Resources/PalacioDevtOutreach.pdf.
71. Ibid.
72. S. Herz and A. Perrault, Bringing human rights claims to the World Bank inspection panel (Washington, DC: Center for International and Environmental Law/Bank Information Center and San Francisco: International Accountability Project, 2009). Available at www.bicusa.org/admin/ Document.101841.aspx.
73. World Bank Inspection Panel (see note 43), p. 9; E. Ayensu, Remarks of the Chairman of the Inspection Panel to the Board of Executive Directors on the Chad-Cameroon Pipeline projects (Washington, DC: World Bank Inspection Panel, September 12, 2002). Available at http://web.worldbank. org/WBSITE/EXTERNAL/EXTINSPECTI ONPANEL/0 contentMDK:20227264~menuPK:6 4129469~pagePK:64129751~piP:64128378~theSite PK:380794,00.html.
74. World Bank Inspection Panel (see note 43), p. 74.
75. World Bank Inspection Panel, Investigation report: Chad-Cameroon petroleum and pipeline project (Loan No. 4558-CD); Petroleum sector management capacity building project (Credit No. 3373-CD); and Management of the petroleum economy (Credit No. 3316-CD) (Washington, DC: World Bank, 2002), para. 215 on pp. 62-63. Available at http://siteresources.worldbank. org/EXTINSPECTIONPANEL/Resources/ ChadInvestigationReporFinal.pdf.
76. World Bank Inspection Panel (see note 43), pp. 74-75.
77. Ibid., p. 56.
78. Ibid.
79. Ibid, p. 57.
80. World Bank Board of Directors, BP 17.55, Annex C: Conclusions of the board's second review of the inspection panel (1999 Clarifications) (Washington, DC: World Bank, (April 20, 1999), para. 13, emphasis added. Available at http://web.worldbank.org/WBSITE/ EXTERNAL/PROJECTS/EXTPOLICIES/EXT OPMANUAL/0 contentMDK:20065440~menuP K:64701771~pagePK:64709096~piPK:64709108~ theSitePK:502184,00.html. Also cited in Suzuki and Nanwani (see note 1), pp. 213-214.
81. World Bank Inspection Panel (see note 43), para. 14(c).
82. Herz and Perrault (see note 68), p. 2.
83. E. Suzuki and S. Nanwani (see note 1), p. 219.
84. World Bank Inspection Panel (see note 43), pp.57-59.
85. But see Transparency International, Poverty, aid and corruption, Policy Paper No. 1 (2007), p. 4. Available at http://www.reliefweb.int/rw/lib nsf/db900sid/ASAZ-7HEDBS/$file/TI_Apr2008. pdf?openelement (asserting that general budget support can curb corruption by aligning aid with national development plans and helping ensure that aid priorities are actually based on the needs of the poor); See also C. Dom, The Joint Evaluation of General Budget Support 1994-2004: Thematic Briefing Paper 1: What are the effects of General Budget Support? (Glasgow: Department for International Development (DFID), and Paris: Organisation for Economic Co-operation and Development (OECD), 2007). Available at http:// www.oecd.org/dataoecd/14/35/38339258.pdf; this document reported that general budget support can increase aid effectiveness by making public expenditure more efficient.