2013 – 2014 MICI Policy Review

The Result

In December 2014, the IDB released an updated policy. This new policy replaced the original “Policy Establishing the Independent Consultation and Investigation Mechanism” that had taken effect in February 2010.

Our Impact

Accountability Counsel and a coalition of other organizations submitted comments on September 15, 2014 addressing the latest revision of MICI’s new draft policy. We gathered and compiled suggestions from several groups in the region to inform our comments. Our final submission received endorsement from many organizations throughout Latin America and beyond.

In accordance with Accountability Counsel’s recommendations, the new policy clarified the standards for its registration process, tightened timelines, and included the ability of MICI to extend pre-approved timeframes, along with other improvements. Key among them are:

Accessibility, Transparency & Efficiency

• Revised the MICI structure to consist of a Director, Consultation Phase Coordinator, and Compliance Review Phase Coordinator. MICI will be independent from Management, and (non-MICI) Bank staff will not be eligible to serve in these roles until three years have lapsed since the end of their employment with the Bank;
• Requesters are allowed to choose whether to opt-in to both the Consultation and Compliance Review phases, or just one (note that the requester must clearly indicate if both are desired to preserve both options);
• Created a tri-part registry pathway that requires the MICI Director to make one of the following decisions within five business days of receipt of a Request: (1) allow the Requesters to be given a maximum of 10 business days to provide for any missing information, (2) register the request if it is not “clearly linked” with any exclusions, (3) or if it is clearly linked with any exclusionary requirement, the Director must inform the Requesters and forward the request to the relevant unit; and
• Requesters are to explicitly reference policy violations only “if known.”

Independence & Effectiveness

• The policy now allows for the creation of a roster of experts for service on the Compliance Review Panel;
• Mandated a permanent ban on Bank employment for the MICI Director, Compliance Review Coordinator, and Consultation Phase Coordinator;
• Set a 21-day maximum term for the Compliance Review Phase Coordinator to prepare a recommendation and Terms of Reference for the investigation. Set a 21-business day maximum term between receipt of comments by Management and Requesters on the Compliance Review Report and MICI’s submission of the final report to the Board; and
• Removed country approval for site visits during Compliance Review.

Remaining Issues

However, many of our recommendations were not incorporated into the new policy. Troubling provisions continue to undermine the MICI’s fundamental goal of providing Requesters adequate access to the mechanism and serving as an effective dispute resolution system. For example:

Accessibility, Transparency & Efficiency

• The MICI process is only available to projects that have been approved by the Board or within 24 months after the last disbursement;
• Did not eliminate the provision allowing Management to temporarily suspend MICI’s eligibility determination process following the registration of a Request;
• Did not eliminate the prohibition of individuals or affected people who do not reside in the country of project implementation from submitting a Request; and
• Did not extend the window for eligibility to allow MICI to address the practical reality that some of its projects may create long-term adverse impacts, such as health or environmental issues, that only become apparent many years after a project is completed.

Clarity of Mandate

• Preserves the limited definition of harm as “[a]ny direct, material damage, or loss” which may unduly exclude certain requests that do not fulfill this standard;
• Remains vague as to whether the Requester is an “essential person” and therefore whether the Consultation Phase can continue without their participation;
• Permits the Board to waive the application of specific Operational Policies to a particular project; and
• Remains unclear as to when, and under what circumstances, MICI will develop a monitoring plan following a Consultation Phase report.

Independence & Effectiveness

• Requires Board approval for the Recommendation for Compliance Review to proceed;
• Mandates that the Consultation Phase Report be distributed to the Board for consideration; and
• Subjects the development of an action plan following Compliance Review findings to the discretion of the Board.

In many respects, the new policy is a step in the wrong direction. It reflects a shift in MICI’s focus toward assessing policy compliance and away from providing a forum and process to address complaints. Although policy compliance is an essential part of accountability, MICI should also serve as a principal avenue to address the harms Requesters experience as a consequence of Bank activity. According to the new policy, the “MICI Objectives” are now to provide a mechanism to address the Bank’s failure to comply with relevant operation policies and be only a last-resort mechanism for addressing the concerns of Requesters.

Under the original policy, Requests could be filed with respect to projects “not yet approved by the Board” if either a mandate letter had been signed or the project number had been issued. However, presently, MICI limited its scope to cover only projects that have been approved by the Board. Additionally, pursuant to the original policy, prior to a determination of ineligibility for either the Consultation Phase or Compliance Review Phase, Requesters were given a “reasonable opportunity” to correct or complete their Requests. This language has been removed from the eligibility determination section of the new policy and no parallel language exists.

We will continue to advocate for a more robust mechanism for communities that have been negatively affected by IDB projects.

About the Review Process

First Phase

During the first phase of the review process, Accountability Counsel submitted comments on September 30, 2013. Based on our own experience using the accountability office, research and experience regarding best practice at other similar offices, and feedback from our colleagues, we authored comments endorsed by 20 other civil society organizations around the world, and in particular, from Latin America. Accountability Counsel’s joint comments to MICI are available here in English and Español.

Almost a year after our first submission, on July 7, 2014, Accountability Counsel and 22 other civil society organizations sent a letter (Spanish only) to the IDB demanding a more robust public consultation period of no less than 60 days regarding the draft revisions to MICI’s policy. We sent the letter in response to rumors that the Bank was intending to conduct an abbreviated public consultation process on the draft. The letter called on the IDB to organize in-person or videoconference meetings across the region and to take measures to ensure the participation of past and potential future complainants.

On July 15, 2014, the IDB President’s office responded, assuring us that the President and Board shared our commitment to making MICI an effective mechanism for both the institution and affected communities.

Second Phase

On September 15, 2014, upon reviewing the draft revised policy, Accountability Counsel and a coalition of other organizations submitted comments on these revisions. We gathered and compiled suggestions from several groups in the region to inform our comments. Our final submission received endorsement from many organizations throughout Latin America and beyond.

Read our complete joint submission in English and Español.

The final policy was released in December 2014.