Forum: Disaster Risk Governance and COVID-19 – Accountability, Transparency, and Corruption

Written by Hugo Cahueñas*

With devastating effects across the globe, the COVID-19 pandemic constitutes a “slow-onset disaster” [1] and warrants analysis through a disaster risk reduction framework. [2]  Several countries, including Ecuador, have already recognized the need to use a disaster risk reduction lens, having responded to the pandemic through their disaster risk management systems. [3] To reduce the risk of disasters, the United Nations General Assembly has adopted the Sendai Framework, which lists among its priorities “strengthen[ing] disaster risk governance to manage disaster risk,” [4] thus reducing vulnerabilities and underdevelopment. [5]

Governance is also used here in a broad sense, comprising all formal governmental institutions and all stakeholders, including networks and markets.[6] Disaster governance under the Sendai Framework includes three main components: a) authority; b) decision-making; and c) accountability.[7] Accountability refers to the idea of calling someone to account for their actions.[8] Moreover, corruption and a lack of transparency reduce people’s trust in a government, which consequently inhibits effective disaster governance.[9] This piece will discuss these three related elements of disaster risk governance: accountability, transparency, and corruption. I will also provide examples of disaster risk governance in response to COVID-19 that illustrate these themes. Recent research focused on the response to the COVID-19 pandemic in Nigeria, for instance, has found that the absence of accountability and transparency measures creates a trust issue between the governed and the government. [10] Citizens will be more trusting of a government with improved disclosure and impact reporting, and any effective anti-corruption strategy needs to enforce sanctions against government institutions that do not report.[11] Ultimately, the handling of the COVID-19 pandemic demonstrates the need for updating the accountability and transparency standards for Disaster Risk Reduction (DRR), with a particular emphasis on the health-systems approach to preparedness and response.

Accountability

While hazards are unpredictable and uncontrollable, government actions and responsibilities are not. [12] It is crucial to enhance accountability for disasters by establishing institutional and technical mechanisms to address risk. [13] To reinforce disaster risk governance at the global and regional levels, the Sendai Framework recommends strengthening international voluntary mechanisms to monitor and assess disaster risks, including mechanisms that promote the exchange of non-sensitive information to the relevant national governing bodies and stakeholders in the interest of sustainable social and economic development. [14]

Regretfully, the Sendai Framework is a soft law instrument, thus its “focus is on voluntary, rather than compulsory mechanisms coupled with sanctions.” [15] Consequently, consensus and broad incentives are the pathways available for improving governance accountability for DRR globally. [16]

Accountability requires “[…] the definition of roles and responsibilities, the granting of adequate powers to discharge such responsibilities, the existence of adequate means and resources and, finally, relevant mechanisms which can bring people and institutions to account.” [17] Such mechanisms can be judicial, quasi-judicial, administrative, political or social and may perform both prescriptive—focusing on the internalization of norms and adjustment of conduct through continual dialogue and policy—and retrospective—assessing conduct after the fact to obtain reparations—functions. [18]

The Sendai Framework acknowledges the need for enhanced accountability for reducing existing risks and preventing new ones.[19] This framework, however, only refers to accountability, but does not intend to guarantee accountability. [20] Therefore, implementation of the Sendai requires taking meaningful actions to ensure accountability. [21] As such, it is necessary to look beyond the Sendai to see what actions have been taken to hold states responsible for disaster risk management (DRM.) In a few disaster-related cases, for instance, the European Court of Human Rights (ECtHR), held that states which did not undertake preventive measures in DRM were accountable for violating rights recognized in the European Convention on Human Rights (ECHR), a legally binding treaty. [22]

States also need to take steps to enhance individual accountability by government officials in disasters. [23] At the national level, criminal and civil courts have already resolved cases relating to individual negligence linked to disasters. In one case in Italy, seven scientists were held criminally liable for erroneously downplaying the risks related to the seismic developments in a town just days before the 2009 L’Aquila earthquake. [24] Similarly, in Chile, four government officials stand accused of failing to issue a timely tsunami alert following the country’s 2010 earthquake. [25]

Disaster risk governance requires new accountability structures and frameworks, including explicit measures  that contemplate and redefine questions about “to whom” accountability is owed and “from whom” accountability stems. [26] Redefining these questions is necessary in order to properly evaluate the performance and effectiveness of those laws, regulations, and procedures. Critical to this reconceptualization is holding all stakeholders accountable, not only governmental entities, [27] which can be achieved through clear institutional rules and demarcation of roles. [28]

The COVID-19 pandemic has had implications for this understanding of accountability in DRM, ” underscor[ing] the need for governments to improve their outbreak preparedness and response by incorporating a health-systems approach.” [29] For instance, following recommendations from the WHO’s health systems framework and other national and international public-health guidance, every country should:

  1. Improve public health communication and health literacy.
  2. Facilitate robust surveillance and reporting.
  3. Develop pandemic preparedness, with an emphasis on maintaining sufficient qualified healthcare workers and medical equipment.
  4. Strengthen health systems through widespread funding increases.
  5. Ensure health and social equity.
  6. Ensure that strategies to restrict people’s movement take into account health and socioeconomic effects. [30]

In Ecuador, the Constitutional Court has stated that the National Assembly must assume a proactive role in this health crisis by adopting special regulations based on technical criteria coordinated with health and risk institutions. [31] The delay in taking these essential measures to tackle the pandemic and its economic consequences exemplifies that public authorities are “not exercising, with adequate seriousness, their duty to coordinate actions to fulfill their purposes and to make effective the exercise of constitutional rights that are being threatened[…].” [32]  Consequently, the lack of an institutional response “is not attributable only to the harmful and unpredictable consequences of the pandemic caused by COVID-19, but also is direct responsibility of the State […].” [33]  Under DRR standards, this lack of an adequate response at the different levels of Ecuadorian government would need to be addressed through accountability mechanisms. As Ecuador’s case shows, the demarcation of roles and responsibilities in government actions is fundamental to risk reduction. Moreover, DRR accountability requires effective mechanisms and compulsory rules applicable to all stakeholders.

Transparency

Transparency plays a vital role in promoting accountability by allowing actors to employ markets, discourses, and norms against various global institutions, including states, international organizations, and transnational corporations. [34] In order to ensure a transparent assignment of tasks and make policy action predictable, a disaster risk governance approach would take into account the broader framework of public policymaking, which encompasses the executive branch of government at the national and local levels, the interface of the public and the private sector, and the actors who may be directly or indirectly affected by disasters. [35] Disaster risk governance requires improving “relevant mechanisms and initiatives for disaster risk transparency, which may include […among others…] reporting requirements and legal and administrative measures.” [36]

In the context of the COVID-19 pandemic, Transparency International has called on “governments to act with greater transparency to improve the procurement of lifesaving medicines and vaccines, promote open and transparent contracts, prevent price gouging of drugs and medical supplies[…].” [37] The Ecuadorian Constitutional Court has expressed a similar idea in its recent rulings, noting that  “authorities in charge of public procurement must guarantee transparency, render accounts, inform, promote, publicize the entire cycle of public procurement, and inform the State Comptroller General about the anomalies found.” [38] Transparency in government actions during the pandemic is crucial to reducing disaster risk.

Corruption

Besides accountability and transparency, corruption is also a challenge for effective disaster risk governance. [39] Regretfully, the Sendai Framework does not meaningfully confront the problem of corruption. In discussing the aftermath of a disaster and the “Build Back Better” [40] approach during the phases of recovery, rehabilitation and reconstruction, however, Sendai’s Priority 4 mentions that the “construction industry […]  is one of the sectors most susceptible to corruption.” [41] Corruption exacerbates disaster vulnerability, [42] thus it is a crucial part of disaster risk governance that should no longer be ignored. [43] The aftermath of the 2008 Sichuan earthquake in China illustrates the centrality of corruption to a disaster risk governance analysis. School buildings in the affected area were severely impacted by the earthquake because these constructions did not meet regulatory standards as a result of the mismanagement of public funds. [44] Similarly, the Turkish earthquake disasters of 1999 and 2003 that claimed over 40,000 lives and destroyed over 300,000 homes can be “attributed in large part to government and industry corruption, gross negligence and state links to organized crime, [including corruption] in the form of privileged access to public procurement, unwarranted loans and bribes for politicians.” [45] Finally, research on the transfers from Bulgaria’s central government to municipalities intended to aid reconstruction following torrential rain in 2004 and 2005 concluded that “increased disaster aid led to more corrupt spending by local governments.” [46]

This risk of corruption has increased during the COVID-19 pandemic. In Colombia, a study [47] concluded that “the pandemic increased the incidence and the value of discretionary contracts, especially in places that have traditionally had low levels of state capacity and high levels of corruption.” [48] The simplification of procurement rules “increases the discretion of public officials, [which] may create corruption opportunities that could offset the full potential benefits of the policies aimed at promoting short-term relief spending in the face of large negative shocks.” [49]

In Ecuador, the Constitutional Court has highlighted every citizen’s constitutional duty to denounce and combat acts of corruption. The Ecuadorian Attorney General’s Office is tasked with investigating alleged corruption, while judges and courts must do their part by sanctioning those who commit corruption-related offenses. [50] The Attorney General’s Office has created a “task force” specifically aimed at fighting against corruption during the pandemic. [51] As of September 2020, this office has already investigated 95 corruption cases . [52] Similarly, in Bulgaria, the Prosecutor General has set up a organization for combatting crime during the state of emergency that was imposed in response to COVID‑19.[53] Corruption undermines all institutions, thereby increasing the risk of disasters.

Conclusion

The COVID-19 pandemic has highlighted the need for updating the accountability and transparency standards for DRR, with a particular emphasis on a health-systems approach to preparedness and response. DRR accountability and transparency mechanisms should be mandatory, not only voluntary. Moreover, DRR standards need to hold all stakeholders accountable, not only governmental entities. In Ecuador’s case, an effective accountability mechanism would identify the different levels of government—both national and local—and the various branches of government—particularly the National Assembly—that are responsible for the country’s inadequate response to the COVID-19 pandemic.

In response to crises and disasters, transparency in the management of public resources facilitates accountability and inhibits corruption. Thus, public procurement systems must include regulations that guarantee transparency and establish authorities in charge of investigating any anomalies.  Corruption underscores existing vulnerabilities and the risk of corruption during disasters. Consequently, individuals and public authorities must combat and denounce corruption as part of a response to COVID-19.

As the Ecuadorian Constitutional Court has indicated, it is necessary to assume a proactive role in the COVID-19 public health emergency. Based on technical criteria developed in coordination with health and risk institutions, public authorities must adopt special regulations to control the spread of COVID-19 and protect human rights that are threatened by the pandemic and other crises. In Ecuador’s case, this means adopting a disaster risk management law that not only anticipates this kind of event but also accounts for the phases after a disaster; namely recovery, rehabilitation and reconstruction.

*Law Professor, Universidad San Francisco de Quito, Ecuador (USFQ); Ph.D. Candidate, World Trade Institute, University of Bern. My gratitude to Felipe Idrovo, student at the USFQ, for his permanent support as research assistant.

[1] A slow-onset disaster emerges gradually over time and could be associated with drought, desertification, sea-level rise, epidemic disease. See U.N. General Assembly, Report of the Open-Ended Intergovernmental Expert Working Group on Indicators and Terminology Relating to Disaster Risk Reduction, United Nations (2016) at 13,  https://www.preventionweb.net/files/50683_oiewgreportenglish.pdf.

[2] Id. (“Disaster is “[a] serious disruption of the functioning of a community or a society at any scale due to hazardous events interacting with conditions of exposure, vulnerability, and capacity, leading to one or more of the following: human, material, economic and environmental losses and impacts”)

[3] Hugo Cahueñas, Gobernanza Del Riesgo de Desastres Frente al COVID-19 En Ecuador, in Derecho de Los Desastres: Covid-19 (Lima, Perú: Pontificia Universidad Católica del Perú, 2020).

[4] Sendai Framework for Disaster Risk Reduction 2015-2030, UNDRR, (March 2015), Priority 2 at para. 20,  https://www.preventionweb.net/files/43291_sendaiframeworkfordrren.pdf.

[5] Joachim Ahrens and Patrick M Rudolph, The Importance of Governance in Risk Reduction and Disaster Management, 14 Journal of Contingencies and Crisis Management 212 (2006).

[6] B Guy Peters and Jon Pierre, Governance, Government and the State, The State: Theories and Issues 210 (2006). See Ahrens and Rudolph, supra note 7, at 212 (discussing many informal governance structures and mechanisms).

[7] Emmanuel Raju and Karen da Costa, Governance in the Sendai: A Way Ahead?, Disaster Prevention and Management: An International Journal 280 (2018).

[8] Ahrens and Rudolph,  supra note 7.

[9] Melanie Gall, Susan L Cutter, and K Nguyen, Governance in Disaster Risk Management (IRDR AIRDR Publication No. 3),  Beijing: Integrated Research on Disaster Risk 9 (2014).

[10] Nkechi Cordelia Ojiagu et al., Accountability and Transparency in Nation Building: A Covid-19 Experience in Sub-Saharan Africa, 7 International Journal of Public Policy and Administration Research 31 (2020).

[11] Id.

[12] Kristian Cedervall Lauta, New Fault Lines: On Responsibility and Disasters, 5 European Journal of Risk Regulation (EJRR) 142 (2014).

[13] Raju and da Costa, supra note 9 at 284.

[14] Sendai Framework for Disaster Risk Reduction, supra note 6,  at para. 28 (f).

[15] Raju and da Costa, supra note 9, at 280.

[16] Id.

[17] UNISDR, Reading the Sendai Framework for Disaster Risk Reduction 2015 – 2030, (2015) at para. 81, https://www.preventionweb.net/files/46694_readingsendaiframeworkfordisasterri.pdf.

[18] Dug Cubie and Marlies Hesselman, Accountability for the Human Rights Implications of Natural Disasters: A Proposal for Systemic International Oversight, 33 Netherlands Quarterly of Human Rights 22 (March 1, 2015), https://doi.org/10.1177/016934411503300103.

[19] Raju and da Costa, supra note 9, at 281 (referencing UNISDR, 2015a, p.1).

[20] Raju and da Costa, supra note 9, at 282.

[21] Id.

[22] “The explosion claimed 39 human lives (ECtHR, 2004, Case of Oneryildiz v. Turkey). Another case refers to mudslides, known to occur in a small Russian village recurrently, and which in a particular year claimed eight lives (ECtHR, 2008. Budayeva v. Russia),” Raju and da Costa, supra note 9, at 282.

[23] Raju and da Costa, supra note 9, at 285.

[24]. “This court believes that not enough was done to avoid the catastrophic results” of the quake, Judge Ponciano Sallés said. “Any reasonable analysis would conclude that the risk was greater by not evacuating the population than by doing so,” he said, adding that “information was concealed.”

See Pascale Bonnefoy, Chilean Judge Upholds Manslaughter Charges Linked to 2010 Tsunami, The New York Times, (May 16, 2016), http://www.nytimes.com/2013/05/17/world/ americas/chilean-judge-upholds-manslaughter-charges-against -officials-over-tsunami-alert.html.

[25] See Lauta, supra note 14, at145; Raju and da Costa, supra note 9, at 283.

[26] Gall, Cutter, and Nguyen, supra note 11, at 12,16.

[27] Gall, Cutter, and Nguyen, supra note 11, at 16.

[28] Ahrens and Rudolph, supra note 7, at 212.

[29] Jeffrey V Lazarus et al., Keeping Governments Accountable: The COVID-19 Assessment Scorecard (COVID-SCORE), Nature Medicine 1005 (2020).

[30] Id. at 1005–1007.

[31] Corte Constitucional de Ecuador, Case No. 5-20-EE, at para.100.

[32] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.50.

[33] Corte Constitucional de Ecuador, Case No. 5-20-EE, at para.33.

[34] Thomas N. Hale, Transparency, Accountability, and Global Governance, 14 Global Governance 91 (2008).

[35] Ahrens and Rudolph, supra note 7, at 212.

[36]  Sendai Framework for Disaster Risk Reduction, supra note 6, at para. 27(a)(iii).

[37] Corruption and the Coronavirus, Transparency International, (Mar. 18, 2020), https://www.transparency.org/en/news/corruption-and-the-coronavirus.

[38] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.129.

[39] Raju and da Costa, supra note 9, at 285.

[40] “Build Back Better (BBB): The use of the recovery, rehabilitation and reconstruction phases after a disaster to increase the resilience of nations and communities through integrating disaster risk reduction measures into the restoration of physical infrastructure and societal systems, and into the revitalization of livelihoods, economies, and the environment.” United Nations General Assembly, Report of the Open-Ended Intergovernmental Expert Working Group on Indicators and Terminology Relating to Disaster Risk Reduction, (2016), Seventy-First Session, Item 19(c), A/71/644.

[41] Raju and da Costa, supra note 9, at 285.

[42] Kathleen Tierney, Disaster Governance: Social, Political, and Economic Dimensions, 37 Annual Review of Environment and Resources 347 (2012), https://doi.org/10.1146/annurev-environ-020911-095618.

[43] Raju and da Costa supra note 9, at 287.

[44] Id. at 285.

[45] Penny Green, Disaster by Design: Corruption, Construction and Catastrophe, 45 The British Journal of Criminology 1-2 (July 1, 2005) https://doi.org/10.1093/bjc/azi036.

[46] Elena Nikolova and Nikolay Marinov, Do Public Fund Windfalls Increase Corruption? Evidence from a Natural Disaster, 50 Comparative Political Studies 1481 (2017).

[47] The research analyzed administrative data for almost 360,000 contracts procured around the first confirmed COVID-19 case in March 2020.

[48] Jorge A Gallego, Mounu Prem, and Juan F Vargas, Corruption in the Times of Pandemia, (July 25, 2020), Available at SSRN: https://ssrn.com/abstract=3600572 or http://dx.doi.org/10.2139/ssrn.3600572 at 2.

[49] Id. at 1-2.

[50] Corte Constitucional de Ecuador, Case No. 3-20-EE, at para.52.

[51] La Fiscalía de Ecuador crea una fuerza para combatir la corrupción bajo el COVID-19, (Jun. 1, 2020), El Diario, https://www.eldiario.es/politica/fiscalia-ecuador-combatir-corrupcion-covid-19_1_6033423.html.

[52] Fernando Medina and Diego Puente, 95 expedientes por corrupción durante la pandemia, El Comercio, (Sep. 21, 2020), https://www.elcomercio.com/actualidad/expedientes-corrupcion-pandemia-coronavirus-emergencia.html.

[53] Venelin Terziev and Marin Georgiev, Increasing the Risk of Corruption Activities during a COVID-19 Pandemic, Available at SSRN: https://ssrn.com/abstract=3674427 or http://dx.doi.org/10.2139/ssrn.3674427 (August 12, 2020), at 58.