2013 – 2015 Review of the IRM’s Policy

During the review, Accountability Counsel, independently and jointly with other organizations, made several recommendations relating to accessibility, transparency, and effectiveness issues at the IRM.

The Result

On 28 January, 2015, the AfBD Board of Directors approved the revised versions of its governing policies. The updated documents were released in April 2015:

• Board’s 2015 Resolution on the Establishment of the IRM
• IRM’s 2015 Operating Rules and Procedures

Our Impact

Many of Accountability Counsel’s recommendations were adopted in the new 2015 operating rules and procedures. Some of these revisions include:

Accessibility

• Requests no longer need to provide causal descriptions of how the AfDB’s actions or omissions led to harm. By removing this requirement, the IRM has increased accessibility and lowered the burden on affected persons when filing a request.
• Affected persons are no longer required to attempt to resolve issues directly with AfDB management prior to utilizing the IRM. Requiring affected persons to first contact management can lead to intimidation or retaliation, which may prevent people from filing a complaint altogether.
• The IRM will now respect requests for confidentiality instead of merely using “reasonable efforts” to do so. This revision is especially important to protect requesters from retaliation.
• Restrictions placed on filing requests regarding private sector projects have been removed. This signifies that the IRM is authorized to receive requests for problem solving or compliance review on private sector as well as public sector projects.
• If requesters submit their request orally, the IRM will assist them in submitting the request in writing. This grants much needed flexibility to communities where resources to submit a complaint in a specific format are limited.
• Accountability Counsel commends the IRM for removing some provisions requiring affected persons to produce burdensome documentation when submitting their requests. To further increase accessibility, Accountability Counsel recommends making any supporting documentation optional.
• The time period to file a request has been extended from 12 to 24 months, providing more flexibility and access to the IRM for requesters who need more time.

Transparency and Independence

• Expertise needed to carry out the IRM’s services cannot be sought internally within the AfDB. This change is an improvement from the 2010 procedures, which required expertise to be first sought from within the bank.
• To preserve impartiality, lifelong post-employment bans have been implemented for the IRM director and the IRM’s roster experts. These bans are essential in ensuring the director and experts can carry out their roles independent of any influence from other bank offices. Accountability Counsel further recommends instituting lifelong post-employment bans for all IRM staff.

Effectiveness

• The 2015 procedures now require the IRM director to submit reports on advice and technical opinions to the president and/or the board. Accountability Counsel supports this change because it facilitates discourse on systemic and policy-based issues within the IRM and may generate necessary improvements.
• The IRM director must now respect the preference of the requesters when determining whether to initiate compliance review or problem solving. The 2010 procedures gave complete authority to the director to make this decision without taking into account the preference of the requesters. However, more direct language is needed here to ensure requester self-determination is preserved.
• Previously, requesters were excluded from post-problem solving monitoring. Now, when monitoring a problem-solving exercise, the IRM will facilitate meetings with affected communities to ensure the problem solving exercise is working as intended and the bank  is meeting its commitments. This language is a step in the right direction, but provisions detailing how frequently monitoring reports will be submitted or whether comments by affected persons will be incorporated into the final monitoring reports need to be added.

Remaining Issues

Regrettably, there are still recommendations that were not adopted in the new 2015 operating rules and procedures and, as such, several issues remain with the IRM. Some of the provisions with the most serious ramifications are:

• The 2015 operating rules and procedures now bar complaints related to human rights violations, other than violations of social and economic rights. Not only is this new provision inconsistent with the bank group’s own policies, but complaints often touch upon a variety of rights violations and this provision should not preclude their eligibility.
• Accessibility is still limited by provisions requiring requests to be submitted by two or more people, and by precluding requests that raise issues already under some type of judicial review. Furthermore, the new Rules and Procedures exclude language that would require translation of communications into the requesters’ language(s).
• A new provision gives the IRM the authority to perform “spot checks” on individual projects. Though in theory this function could help the IRM learn from issues arising in high-risk projects and assist in future compliance, the function should be conducted by a separate office in the bank  (or by an independent third party) to ensure independence. By involving the IRM in project-specific spot checks, serious conflicts of interest may arise if a selected spot check project is ever the subject of an IRM request.
• The director has the ability to extend any deadline listed in the rules and procedures and now can do so without providing clear justification for the extension. This gives the director an unnecessary amount of discretion and has the potential to slow down the process while projects and harm continue.
• Any legal information or advice needed during the IRM compliance review and problem solving exercises must be provided by the bank’s general counsel. This provision should be changed to ensure that the IRM can engage outside counsel to advise on IRM requests. This would guard against potential conflict of interest issues.

How the Review Process Worked

The IRM policy review process began with a draft review report from an independent consultant. The AfDB then invited public comments on the consultant’s report, which had included a limited number of recommended changes to the IRM policy.

Accountability Counsel authored comments, endorsed by 12 organizations, on the consultant’s report and the current IRM policy. We also endorsed additional comments prepared by the CSO coalition on the AfDB.

Unlike all of the other similar policy review processes at other international financial institutions, the AfDB did not indicate that it would provide an opportunity for public comment on a new draft policy. In September 2014, after pressure from civil society to allow an opportunity to comment on specific intended changes to the policy, the AfDB publicly posted its proposed amendments to the IRM policy and allowed a short one-week time frame for additional comments. Accountability Counsel joined with 42 other organizations to submit a letter criticizing the unreasonable timeframe for public comments and providing additional input on the planned changes.