The questioning and passing of judgment with possible consequences:

This last section regroups both the possibility of passing a judgment with that of bringing about consequences since it would seem futile, in this context, for a decision to be taken as a judgment without consequences ensuing. The possibility to ask questions, granted to the forum is inherent to the exercise of participation and scrutiny, which goes beyond the mere “reporting” process which lacks the active nature to qualify it as an accountability process under the Bovens definition. Clearly, accountability theorists are uncomfortable with the notion of a sanction and its legal overtones. This might also explain the lack of discussion on a mandate granted to the forum to pass such a judgment leading to consequences. Note that there is only a mere “possibility” for the forum to question the adequacy and legitimacy of the conduct and no “obligation”- whether formal or not – on the part of the forum to question and scrutinize. The all important elements of enforcement without which the effectiveness of the accountability process is undermined are not addressed in literature either, yet it is intrinsically linked to the fundamental issue of the mandate of the forum.

78 Bovens (2009 p.10) mentions that the inclusion of a sanction as a constitutive element of

accountability has been questioned. He settles therefore for the “possibility” of sanctions stating that this mere possibility “distinguishes the non committed provision of information and being held to account”. Again, though, it is more difficult to distinguish the “informal” obligation to account, included in the author’s definition, from “being held to account” which might imply the voluntary nature of the forum to seek that account or not.

The opting for the expression that the actor “may face consequences” as opposed to using the word “sanction” in the definition is explained by Bovens who argues that the latter would exclude the role of an ombudsman who merely seeks “redress” or “reparation”. It is also conceivable however that whoever has to carry out that redress or pay that reparation would define it as a “sanction”. In that sense it might have been more constructive to argue for a wider definition of “sanction”. This tentative approach contrasts starkly with the definition put forth by Pitkin of the institutional arrangements for formalistic representation; authorization and accountability, where accountability is described as the ability on the part of constituents to punish their representative.

Harlow and Rawlings (2008 p.313), also interpret the term “facing consequences”, as the possibility for sanctions to be imposed. The inclusion of this last element renders the accountability “thick”, whereas any mechanism which does not include this last element would be deemed “thin”. The authors discuss a case study of the European Ombudsman placed within the concept of “thin” accountability because he lacks the power to sanction administrations. On the one hand, whilst the office itself carries essential elements of independence and public investigation it appears to act more as an alternative dispute resolution mechanism than that of accountability. On the other hand, these techniques applied by the ombudsman of hearing from an independent and public status and then passing judgment display the elements of a non judicial accountability machinery. The authors however deplore the lack of “teeth” in the post, and point to “non contribution by the ombudsman in the major crisis of accountability – extending to issues of corruption – under the Santer Commission”.

Translating these characteristics into civil society discourse, Kohler Koch (2008 p.15) writes that, “European civil society organisations, for their part have to give account to their members or constituencies and have to face severe consequences, either through the mechanism of elections or through donations. This I call “material accountability””. Later, Altides and Kohler Koch (2009 p.3) further states that, “Civil Society Organisations (CSOs) can pose questions and pass judgment, but it cannot be taken for granted that CSOs can impose consequences on the responsible actor “to turn

79 matters right”. Furthermore, even if CSOs had the capacity to exert sanctions, it would constitute a case of accountability, but not necessarily of democratic accountability”.

In his description of accountability as responsiveness, Esmark (2008 p.290) provides yet more food for thought. He qualifies the relationship in question, and nature of the sanction; “Sanctions can generally be understood as the means of punishment. Or in other words, the relationship between the accountability holder and holdee, is also a relationship between punisher and punishee. Legitimately administering punishment requires a negative outcome of a comparison between a mandate already given and decisions made by the accountability holder.” He goes on to ask two vital questions; what is the legitimate mandate through which the accountability holder can specify the desired course of action to the accountability holdee? And, which sanction – or form of punishment – may legitimately be employed according to the accountability if the mandate is not followed? He says that for political accountability, sanctions means being voted out of office. Administrative accountability is (p. 291), “associated with mandates in the form of job descriptions and sanctions, such as warnings, being demoted, fired and the reorganisation of public administration units”. In his review of the International NGO Accountability Charter, a code of conduct signed by 11 international NGOs in June 2006, Vibert (2007) opens with a reference to the general nature of sanctions which can be defined as promoters of good behaviour and deterrents from bad behaviour. He mentions the requirement to disclose information as a form of discipline and the need to evaluate and monitor activities as another. He then argues that since the NGO world is voluntary in nature, a penalty based system should be avoided. He repeats that the Charter itself is voluntary. This raises the question as to what the purpose of the Charter itself is and to rationale. What was the real impetus for its existence and adoption? Similar to business standards, will the Charter give rise to a register of complying NGOs which will then be favoured by governments and individuals alike? Which independent body will audit compliance with the Charter’s provisions? If there is a gain, should there not be a correlated sanction? It is suggested for example, if the purpose is indeed to draw up a register of “respectable” and accountable NGOs, that any infraction of the rules be sanctioned by removal from the register.

In the absence of a sanction mechanism Vibert focuses on softer, more administrative means of redress such as disclosure (note that Ebrahim referred to disclosure as an accountability mechanism, tool or process and not as a sanction), monitoring or evaluation. On this last, Vibert states that a system of evaluation that is penalty based is “more likely to cover up what really happened rather than to reveal the lessons that need to be learnt”. One would submit that a penalty based system would not only ensure that the infringing behaviour does not happen again, it is also more likely to

80 lead to the necessary procedural changes to make that behaviour a thing of the past. An isolated lesson learning focus will not be effective in the NGO competitive environment of the future. The virtues of self assessment do not win the argument over the merits of independent external review, and sanctions for that matter.

It would appear that the weight of a sanction might vary according to the type of organization and relationship examined. In their study of multisectoral networks, that is, including both NGOs and multinational corporations, Benner et al focus on reputational accountability and point to “naming and shaming” as a key strategy in this context. They believe that (2004 p. 200), the “loss of credibility is one of the more effective negative sanctioning mechanisms, to further accountability in and of networks”. One might conclude that it is the impact and consequences of the sanction on the particular organisation at hand that should be a determining factor in the choice of sanction type. The importance of the role of civil society organisations and their fulfilling of their potential for lending greater legitimacy to EU decision making are conditional upon this assessment of the hard components of accountability. Internal accountability to the constituency duly represented might be addressed through strict internal procedures of consultation, representativeness, transparency and mandate giving. However, the prized external accountability to the public at large, the process of which is developed and examined herein calls for more direct linkage to the legitimisation theory, justifying the relationship to both input and output legitimacy.

Conclusion to 2.4:

The above discussion has identified the existing definitions of accountability, what role it carries out and in which context. This gave rise to setting out the constitutive components as well as

complementing the gaps noted from the analysis. Qualifying the nature of the relationship giving rise to accountability sheds light on the related social aspects but also points to a means of control or responsiveness and a right of authority of the holder of accountability over the holdee. The variety of definitions is discussed in how they construed the impetus leading to an account giving, ranging from a near compulsion on the part of the account giver, resting in personal responsibility, to a calling for an account practised by the holder. Indeed, the provision of an account itself, in the form of disclosure has even been equated to a sanction. The public nature of accountability is reflected in the choice of forum which in turn is often ascribed by the nature of the social relationship. Finally, the legal conundrum of the lack of mandate on the part of the forum to impose a sanction, or at the least to bring about the desired effects of redress is focused upon.

81 The careful approach of cited authors to this last vital component and the noted differentiation between civil society actors according to their voluntary status or not, points to the need for further empirical research in particular in relation to the use of codes of conduct as a soft law means for bringing about accountability.

Having examined and underpinned each component of accountability, I highlighted the missing considerations of the definitions. This led to a focus on the question of the origin of the mandates to act and to judge in particular. I have also questioned the inclusion of the term “obligation” on the part of the Actor to provide an account. The commonality between definitions used, coupled with above considerations lead to the proposed generic process as set out below, at Figure 2.

Figure 2. The proposed Generic Accountability Model:

This model, derived from the analysis of the authors’ conclusions and process components will be applied to the case studies at Chapter 3.

Forum m Principal mandates the Actor to undertake certain activities Actor Undertakes activities & has obligation to explain/just ify conduct Forum mm Pose questions and pass judgment. Actor r Will face conse- quences.

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