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Saturday, 25 October 2014

Eldis Governance Reporter - Focus on corruption

 

In this issue: drivers of corruption; corruption and REDD+: lessons from the Philippines; Guinea: anti-corruption institutions; fighting corruption in South Asia; Brazilian anti-corruption legislation and its enforcement; corruption risks and mitigating approaches in climate finance

 

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Eldis Governance Reporter

24 October 2014
www.eldis.org/go/topics/resource-guides/governance


This is our regular bulletin that highlights recent publications on governance issues.

The documents highlighted here are available to download online without charge. If you are unable to access any of these materials online and would like to receive a copy of a document as an email attachment, please contact our editor at the email address given below.


In this issue:

 

  1. Drivers of corruption: a brief review
  2. The political economy of corruption and REDD+: lessons from the Philippines' pilot sites
  3. Guinea: anti-corruption institutions
  4. Fighting corruption in South Asia: building accountability
  5. Brazilian anti-corruption legislation and its enforcement: potential lessons for institutional design
  6. Corruption risks and mitigating approaches in climate finance

Drivers of corruption: a brief review

Authors: Søreide,T.
Produced by: World Bank (2014)


For many years, corruption was seen as primarily, if not exclusively, a political problem with little or no relevance to economic development. Recently, however, the nexus between corruption and governance issues, on theone hand, and development, including economic development, on the other, has become clear.

Along with the evolution in their understanding of corruption as a development issue, the international financial institutions (IFIs), have developed legal and policy frameworks to deal with corruption in their operations. This paper provides an overview of scholarly literature explaining the risk of corruption, and looks at policy implications amd areas for further research.

The report concludes that:

  • anticorruption is now on the political agenda in most countries, formal and informal controls haveimproved, and the space for conducting corrupt acts has shrunk
  • however, corruption persists because actors with authority profit and the risks cannot be completely eradicated. Constant awareness of how strategies against corruption can be made more efficient is required, and governments, organisations, and state institutions should draw on the knowledge at hand
  • cross-disciplinary collaboration is needed to advance this agenda, because solutions require understanding of such topics as an individual's psychology, framework conditions, formal and informal structures andnorms, organizations in the private and public sector, and legal aspects



Available online at: http://www.eldis.org/cf/rdr/?doc=69498

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The political economy of corruption and REDD+: lessons from the Philippines' pilot sites

Authors: Mayo-Anda,G.; Torres,J.
Produced by: U4 Anti-Corruption Resource Centre (2014)


Corruption is a continuing feature of the Philippines' natural resource sectors. Given keen interest in the country's REDD+ potential, it is useful to consider corruption risks related to REDD+ from a political economy perspective.

This U4 Issue draws on fieldwork from two REDD+ pilot sites to assess current governance and anti-corruption safeguards related to benefit-sharing, land tenure rights for indigenous peoples, and private sector involvement. Many anti corruption actions are in place in the pilot sites, but they are weakly embedded in social relations at the local level. More work is required to raise awareness of the benefits of governance safeguards to livelihoods and security of land tenure. The lack of a national REDD+ coordinating body means that the collection and dissemination of relevant anti-corruption lessons for REDD+ nationally remains challenging. Existing anti-corruption initiatives require solid implementation strategies as well as adequate financial support.



Available online at: http://www.eldis.org/cf/rdr/?doc=69499

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Guinea: anti-corruption institutions

Produced by: Open Society Initiative for West Africa (2013)


After languishing for ten years or more, efforts to tackle corruption in Guinea received a serious crack of the whip immediately after the presidential elections of November 2010. The government relaunched systematic audits of public procurement, which were also carried out more professionally than they had been before. The new administration also brought more transparency to the governance of the mining sector and more rigour to the management of public finances.

Three years after the president took office, however, these efforts against corruption have stalled. This report explores the reasons they have become bogged down, through an examination of the operations and legal framework for the organs charged with the fight against corruption, as well as an evaluation of their work in practice. Rather than being a study of the extent of corruption in Guinea, the report is concerned with the bodies and mechanisms put in place to try to reduce it. It consists of a critical evaluation of the strategy and institutional framework for anti-corruption measures. It proposes simple, practical and coherent measures to breathe new life into the efforts to fight against corruption in Guinea.
[Summary taken from publisher]



Available online at: http://www.eldis.org/cf/rdr/?doc=69538

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Fighting corruption in South Asia: building accountability

Produced by: Transparency International (2014)


Hardly a speech is delivered in South Asia without mention of the need to fight corruption in the region. Yet despite the lofty promises, corruption is on the rise. This report shows how a serious lack of political will on the part of governments to make laws work, means that government action to fight corruption is largely ineffective.

The report draws on the findings of in-depth research on anti-corruption efforts in Bangladesh, India, Maldives, Nepal, Pakistan and Sri Lanka, which analysed almost 70 institutions across the six countries. While none of the institutions assessed were found to be free from corruption risks, this report focuses in particular on the judiciary and anti-corruption agencies as critical actors in the fight against corruption. It highlights common challenges in the region and presents the governments of South Asia with a clear set of urgent priorities which need to be addressed in order to translate their anti-corruption rhetoric into concrete action.

The key findings of the report are:

  1. Citizens find themselves unable to access key information on how their governments are performing in order to hold them to account.
  2. The lack of meaningful protection for whistleblowers means that the chances of detecting wrongdoing by those in positions of power are slim.
  3. Widespread political interference in the critical work of anti-corruption agencies and the judiciary makes them ineffective in keeping a check on government.

This situation presents serious challenges for the rule of law in the region. Some laws are inconsistent with international standards, while others are not equally enforced and independently adjudicated. As a result, corruption and other crimes are not effectively and impartially investigated or punished. This creates an atmosphere where the corrupt continue to get away with abusing their positions for their own personal gain at the public's expense.

Nevertheless, there have been some positive developments in the fight against corruption over the last 10 years. Most significantly, all six countries in this study have ratified the UN Convention against Corruption. However, there is still a long way to go to turn these commitments into meaningful action. The analysis presented here suggests a worrying reluctance on the part of the governments concerned to enable citizens to help shape the decisions that affect their daily lives.

[Summary taken from author]



Available online at: http://www.eldis.org/cf/rdr/?doc=69539

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Brazilian anti-corruption legislation and its enforcement: potential lessons for institutional design

Authors: Carson,L.; Mota Prado,M.
Produced by: International Research Initiative on Brazil and Africa (2014)


Over the past few decades corruption has emerged as a major issue in the global development discourse as policymakers and academics have increasingly focused on the political economy factors that promote or hinder inclusive, sustainable growth.

This paper investigates Brazil's struggle against corruption and the institutional lessons revealed therein. Since returning to a democratic system in 1985, enacting a new constitution in 1988, and holding direct elections in 1989, Brazil has been plagued by corruption scandals.

While the country outperforms many of its regional and developmental peers on various corruption-related indicators, corruption remains a problem in many areas of public life, most notably in regional and state governments, political parties, and parliament, as well as public procurement at all levels of government.

This paper examines those reforms and institutions that have, anecdotally and empirically, proven potent in combating corruption in Brazil. Specifically, there has been significant progress associated with the systems of oversight and investigation but very little progress associated with punishment. Highlighting the interrelationships among state accountability institutions in these arenas, the authors argue that the duplication of oversight and investigative functions among various governmental entities has strengthened their collective impact.



Available online at: http://www.eldis.org/cf/rdr/?doc=69288

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Corruption risks and mitigating approaches in climate finance

Authors: Chêne,M.
Produced by: U4 Anti-Corruption Resource Centre (2014)


There are major governance and corruption challenges associated with climate finance, with huge amounts of money from a wide variety of sources flowing through new, complex and relatively untested funding mechanisms at international, national and local levels.

Yet, as climate governance is still in a formative stage, research on the corruption risks associated with climate finance is nascent and represents a rapidly evolving field of investigation. An important stream of research focuses on understanding the complex web of actors and institutions involved in climate finance decisions, the scale and nature of money flows, as well as where the money is coming from and where it is going. While there is an emerging body of research on national and global mechanisms, it is also important to explore the risks and opportunities presented by local-level climate financing, and to gain a better understanding on how the global, national and local levels relate to each other, so that various interests can be better balanced, articulated and integrated to promote greater responsibility and accountability in climate finance.

Research into the governance and accountability frameworks of the various actors involved and how these are implemented at the international, national and local levels, is also important in gaining a clearer picture of how best to mitigate corruption risks and identify emerging good practice.

Lessons learnt on best practice from development assistance as well as other sectors can help inform the debate.



Available online at: http://www.eldis.org/cf/rdr/?doc=69381

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Thursday, 23 October 2014

Ebola, Human Rights and Health Discrimination

Ebola, Human Rights and Health Discrimination

JURIST Guest Columnist Stefan Kirchner, of the University of Lapland, discusses the possibility of global discrimination during the ongoing Ebola outbreak ...
The current Ebola outbreak has lead to discrimination against those infected with Ebola as well as against health care workers caring for those infected or suspected of being infected with Ebola. Discrimination based on health reasons is hardly a new phenomenon. It has culminated in countries, which do not allow at will abortion, to permit abortion in cases where the health of the child is only marginally affected. This discrimination is also present in the outright celebration of suicide as a form of self-determined approach to sickness, where there appears to be a greater expectation of health and a lack of acceptance of illness.
While nurses, physicians and others risk their lives to fight highly infectious diseases; elsewhere it is not the disease but those affected by it who are targeted. While there is not yet a cure for HIV/AIDS, at least some patients in developed countries (a small percentage of those infected with HIV globally) have access to the full range of medical options and may start to consider HIV to be a chronic disease. Essentially, it has become possible to delay the outbreak of AIDS after an HIV infection for many years. However, HIV/AIDS will continue to provide medical and legal challenges so long as a fast, effective treatment remains globally unavailable to all affected patients.
If HIV patients are enabled to live longer, healthier lives, they will be more likely to remain part of the workforce. If the search for a cure will take many years, HIV-positive employees will become a more common phenomenon. In many legal systems this already raises the question: Under which conditions do employees have a duty to inform their employers about their infection? While information about HIV is more easily available today than in the past, the stigmatization of HIV-positive persons continues.
In I.B v. Greece, decided late last year, the European Court of Human Rights heard the case of an applicant who had lost his job after his co-workers learned about his HIV-infection. Article 14 of the European Convention on Human Rights (ECHR) protects against discrimination. The right to a private life, protected under Article 8. Article 14 sets out a number of examples where discrimination will be found, but also includes what the Convention refers to as "other status" within its meaning. This includes a person's health status. Not providing the totality of rights established under the Convention due to the fact that somebody is HIV positive is discrimination under Article 14, as a person's health status is part of the right to private life under Article 8.
Infectious diseases also have wider legal implications. While it might be difficult to successfully litigate before the European Court of Human Rights for a state's failure to prevent infections, doing so remains a possibility. Especially when it comes to infections that occur while a state has control over an individual; for example, during a detention, military service or when medical staff works on behalf of the state. In the case of the current Ebola outbreak, the non-governmental organization Medecins Sans Frontieres/Doctors Without Borders (MSF) has taken the lead in the international effort to fight the disease and several nations are sending hundreds of experts to the affected countries. Under Article 2 of the ECHR, which protects the right to life, nations have an obligation to equip their staff, in the widest sense of the term, adequately with the required protective gear. The same principle applies to the deployment of armed forces in combat. Unlike a case under the UN's International Covenant on Economic, Social and Cultural Rights, the right to life is not a social human right that could be limited by the available resources. Rather, this is an immediate obligation regardless of a nation's financial possibilities. This does not mean that volunteers for MSF, the Red Cross or others are not protected in a similar way: Their employers or sending organizations have an obligation to equip them adequately and states have a duty under Article 2 of the ECHR to ensure that this happens.
Ebola differs significantly from HIV in that the risk of an infection with Ebola is present in day-to-day interaction; such as shaking hands, while becoming infected with HIV is much more difficult. It appears justifiable under the ECHR to limit the activities of persons infected with Ebola and those reasonably suspected of being infectious. In the context of the current outbreak, there have been calls for limitations on international travel, ranging from refusing to permit infected persons entry into countries where they could actually receive highly qualified medical treatment, to the idea of closing international borders completely. The latter possibility would not be compatible with the ECHR as, at the time of this writing, there have been only a few cases of secondary infections outside the most affected countries, which does not warrant a complete halt to international traffic.
In any case, the human dignity of all patients must be protected at all times. For Ebola patients, this is often set aside due to fears concerning Ebola. Here the state has a duty to create an environment in which discrimination is prevented. This includes an obligation to inform the general population, but to also extend legal protections to health care workers by private actors such as landlords, shop owners and others who may discriminate against them.
Attempts to curb Ebola include quarantining both patients and those suspected of being infected. In an HIV context, the European Court of Human Rights already dealt with quarantine for the purpose of preventing the spread of a viral disease: Detaining a person has to be the "last resort in order to prevent [them] from spreading the [disease and] less severe measures [must have] been considered and found to be insufficient to safeguard the public interest." Also, "a fair balance between the need to ensure that the [disease] did not spread and the applicant's right to liberty" is required by the European Court of Human Rights. In Enhorn v. Sweden, the manner and length of the detention were taken into account. Although the court found Sweden at fault for hospitalizing an HIV positive man for a year and a half, quarantining suspected carriers of the Ebola virus for the duration of the incubation period of 21 days would seem to be compatible with the ECHR, especially in light of the dangerous nature of Ebola.
Infectious diseases remain an important and often global health care challenge and in a globalized and highly mobile and interconnected world diseases like bird flu, swine flu, Ebola, HIV and other diseases are likely to be spread more quickly than in the past. At the same time globalization allows the world to react better to health emergencies. Rather than being split by fear of infection, such diseases should bring the world closer together in the fight against disease. Human rights norms, such as the European Convention on Human Rights, provide a legal obligation to take action and to protect the ill.

Stefan Kirchner is Associate Professor for Fundamental and Human Rights at the Faculty of Law of the University of Lapland in Rovaniemi, Finland. A former Rettungssanitäter (Emergency Medical Technician) with the German Red Cross, he wrote his Doctoral thesis in Social Sciences on Biolaw and the European Convention on Human Rights and his Master Thesis on pharmaceutical intellectual property rights. Dr. Kirchner is admitted to the bar in Germany (Rechtsanwalt) and specializes in proceedings before the European Court of Human Rights.
Suggested citation: Stefan Kirchner, Ebola, Human Rights and Health Discrimination , JURIST - Academic, October 20, 2014, http://jurist.org/academic/2014/10/stefan-kirchner-health-rights.php.
http://jurist.org/forum/2014/10/stefan-kirchner-health-rights.php

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