ISSUE BRIEF
USING ACCOUNTABILITY: WHY REDD+ NEEDS TO BE MORE THAN AN ECONOMIC INCENTIVE
FLORENCE DAVIET
EXECUTIVE SUMMARY The global effort to save forests in developing countries, known as “REDD+,”1 would benefit from a set of tools that hold governments to account for their commitments. These accountability tools need to be integrated into national REDD+ programs.
A set of accountability tools affecting the reputational, financial, and legal interests of the government at the national and subnational levels would enable oversight institutions, individuals, and civil society to hold governments to account for the objectives that REDD+ programs hope to achieve. In particular, oversight actors need accountability tools to uphold social and environmental objectives beyond emission reductions in order to change the status quo required to achieve REDD+.
WRI.ORG of the Indonesian primary forest and istrators responsible for land peat land conversion moratorium on allocation and use processes. CONTENTS the oil palm permitting process.2 1 Executive Summary 2. Where REDD+ laws, regula- The case studies are based on tions and/ or other related 3 Introduction research by and experiences of the program documents are being World Resources Institute’s Gover- drafted, specific inclusion of civil 6 Accountability in nance of Forest Initiative networks in society participation may help Brazil’s Mato Grosso Brazil and Indonesia. The objectives strengthen its ability to function Socioeconomic of reviewing the case studies are to: as accountability actors, thereby Ecological Zoning Law also supporting more formal 10 Accountability in the Better understand what account- government institutions playing Indonesian Moratorium ability tools are and how they that role. Granting civil society on Oil Palm Permitting function in practice; other roles, such as a monitor- ing role, may also strengthen its 14 Findings and Explore the conditions needed ability to be an oversight actor. Recommendations for accountability tools to work; and 18 References 3. During the design of REDD+ programs, economic and/or Identify the functions of account- 20 Endnotes legal accountability tools should ability tools in helping countries be linked to social and environ- achieve their REDD+ objectives. mental outcomes for REDD+, as well as to greenhouse gas We found that accountability tools (GHG) emission reductions. had at least one of three main func- Reputational tools are unlikely tions: bringing actors to the table to to be sufficient. negotiate reforms, protecting people or the environment during the design 4. REDD+ designers may want to and implementation of laws and poli- consider how REDD+ incentives, cies, and giving oversight actors the laws, and programs will provide Governments and NGOs have dis- ability to enforce the implementation or integrate accountability tools cussed the concept of accountability of agreed rules. In each case, several aimed at achieving three func- for national governments in relation factors played a role in the successful tions: bringing actors to the to international obligations, but how use of accountability tools, including table, including marginal voices, national and subnational governments the clarity of the relevant laws, the and enforcing implementation. will be accountable domestically is a strength of oversight institutions, and much more complicated question. the strength of the economic incentive. 5. REDD+ designers should consider how best to build on This issue brief explores the compli- Based on this research, we make existing laws and institutions cated realities of how accountability the following suggestions to govern- that are clear and effective. tools functioned in land-use plan- ment and civil society actors par- Layering REDD+ laws and pro- ning, zoning, and permitting pro- ticipating in the design of national grams over ineffective laws may cesses in a pair of case studies from REDD+ programs: Brazil and Indonesia and draws les- reduce the ability of oversight actors to hold government actors sons for government or civil society 1. REDD+ program designers may to account. It is also important designers of REDD+ programs. One want to consider how to include to clarify who has oversight for case study focuses on how presiden- accountability tools in REDD+ REDD+ laws and regulations, tial decrees on land zoning are help- laws and programs that will and make sure they have the ing oversight actors achieve politi- engage and hold to account sub- authority to do the job. cal accountability in Mato Grosso, national politicians and admin- Brazil. The other examines the role
2 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
INTRODUCTION these reasons, methods for holding people accountable to their obliga- Accountability Background tions are vital. Citizens, governments, civil society, tools have one of and the private sector are increas- Brazil and Indonesia are home to three main func- ingly interested in changing the global large proportions of the world’s trend of forest loss and degradation. remaining forests.6 As a result, they tions: bringing ac- This interest stems, in part, from are host to a number of important a growing awareness of the links processes affecting forest lands. The tors to the table to between forests and climate change. governments of these two countries In 2007, this awareness led to the kick are active in international climate negotiate reforms, off of a global process aimed at devel- negotiations and in the REDD+ oping a way to support countries3 that discussions and they have committed protecting people slow, halt, and reverse deforestation to taking REDD+ actions. This report and forest degradation. This initiative presents two particularly interesting or the environ- is called REDD+.4 cases from Brazil and Indonesia. The first concerns the land-use planning ment during the At the same time, direct and indirect and zoning process in Brazil’s state human pressure on forest landscapes of Mato Grosso. The second looks at design and imple- from agriculture, urbanization, efforts to improve the oil palm per- climate change, pollution, and other mitting processes in Indonesia. These mentation of laws threats continues to grow.5 As a result, two cases exemplify the importance everyone—from local communities to and the difficulty of ensuring account- and policies, or governments—needs to make difficult ability. They demonstrate the value of decisions about whether and how to using different types of accountability giving oversight counter these pressures on forests. tools to create change, including tools that affect the reputational, economic, actors the abil- There is no single approach to and/or legal interests of the person or addressing the threats to forests. In institution being held to account. ity to enforce the each country, diverse sets of stake- holders—including national and By highlighting these two experi- implementation of subnational authorities, domestic ences, the author hopes to shed light and international companies, local on the importance of accountabil- agreed rules. communities, indigenous peoples, ity to the success of international, and nongovernmental organizations national, and subnational programs balancing the activities of different (NGOs)—hold a variety of values and to achieve REDD+, and identify sectors of government (Fukuyama perspectives, which may be conflict- some tools that can be used to 2013) (See Table 1). ing. Reaching agreement among achieve such accountability. these competing demands on for- Within government there are two broad est lands is difficult. Implementing What is Accountability? categories of accountability that have agreements, once they are codified Accountability is the ability of an slightly different objectives (Brinker- into laws, policies, and programs, actor—called an oversight actor in hof 2001).8 The objective of political is even more challenging. The most this brief—to hold others responsible accountability is to create a space for important remaining forests are for their actions. It is also the abil- multiple voices and values so that laws, often vast and far from population ity of citizens to hold their govern- policies, and procedures that reflect the centers, thus much of what occurs in ment responsible for the actions it will of the people9 can be developed. these areas escapes the attention of 7 has taken on behalf of society. Most A politically accountable government the public and those responsible for countries have many types of over- actor is broadly responsive to the pub- implementing the agreements. For sight actors involved in checking and lic’s needs and demands.
ISSUE BRIEF | March 2014 | 3 Accountability tools are the “sys- tems, procedures, and mechanisms” POTENTIAL OVERSIGHT ACTORS that oversight actors can use to
TABLE 1 TABLE “impose restraints on power and OVERSIGHT ACTORS OVERSIGHT ACTORS authority and/or create incen- WITHIN GOVERNMENT OUTSIDE THE GOVERNMENT tives for appropriate behaviors and Supreme audit institutions Members of the public actions” (Brinkerhof 2001, 3). Figure Courtsa Experts in national or international 1 provides an example of how power Comptrollers general standard-setting bodies can be used in a manner that is more Law enforcement agencies Donors or less accountable. In his 2001 Central state oversight of local Citizen oversight committees conceptual overview of account- governments Civil society watchdog organizations ability, Brinkerhof discusses three Parliamentary hearings Experts in policy research (e.g., think main accountability tools. The most Legislative committees tanks or universities) Administrative review councils Journalists common is reputational account- Anticorruption agencies Associations or associative ability, in which the oversight Advisory boards movements actor threatens to make account- Interministerial committees able individuals or institutions look Ombudsman offices bad in the public eye if they are Other agencies via “sunshine” and not fulfilling their mandates. This freedom of information laws tool can be used via the creation of published reports, news stories and op-eds, public posters, and even by a Depending on the context, courts may be considered to be outside of the government. In some jurisdictions the providing information directly to judicial branch is explicitly separated from the government to ensure its independence. Even in such cases there may be some crossover because the executive can play a role in appointing members of the judiciary. other oversight actors. The incentive for the accountable actor to behave appropriately is to avoid damage to his or her reputation. Often reputa- The objective of administrative tives, because they do not share basic tional accountability precedes the accountability is to check on actors beliefs about the role of government, use of economic and legal tools. in positions of public responsibil- or because they have insufficient Economic accountability also takes ity, normally in administrative resources or knowledge of how to be many forms. Appropriate behavior is agencies,10 to ensure they are effec- transparent. Figure 1 shows a scale of incentivized via the potential gain or tively implementing their mandates. political and administrative behavior loss of financial support, such as pay- ranging from acting solely for individ- ments for a specific activity, access These two categories of accountabil- ual gain to being fully accountable. to markets or clients, and/or the ity are directly relevant to govern- threat of fines. Legal accountability ment actors that manage and impact When politicians and government is the tool most often associated with forest lands, including those relevant administrators are not open and accountability. Appropriate behavior to achieving REDD+ goals. transparent about their decisions is incentivized to avoid litigation and and when they resist accountability, possible fines and imprisonment. An actor can be said to be accountable oversight actors need to: Often oversight actors will use more if he or she is willing to be transparent than one accountability tool, or all about his/her actions, be monitored Search for the information neces- three in combination, especially and questioned by others, and accept sary to understand what actions when seeking deeper institutional or criticism if warranted. However, are being taken and their impact; cultural change. many individuals or institutions do not wish to be accountable (Fuku- Create spaces for discussion; and yama 2013), possibly because of pres- Use accountability tools to change sure from interest groups, because the accountable actor’s behavior. they are pursuing individual objec-
4 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
INCREASINGLY ACCOUNTABLE USES OF POWER FIGURE 1 POLITICAL ACCOUNTABILITY
Motivated by individual Decision making favors interests Receptive and responsive gains of wealth and power of one section of society only in an equitable manner
INCREASINGLY ACCOUNTABLE USES OF POWER
“Services” for certain actors favored, Motivated by individual Implement mandate while significant gaps in implementation gains of wealth and power effectively of other mandates remain
ADMINISTRATIVE ACCOUNTABILITY
Accountability and REDD+ strate that they have addressed and promises to engage productively in respected a certain number of social, REDD+, but fails to deliver emission Conversations around REDD+ environmental, and procedural reductions, it can lose funding. In started when negotiators from Papua considerations (i.e., the REDD+ addition, failure to live up to expecta- New Guinea and Costa Rica pro- safeguards) by providing informa- tions could potentially affect the coun- posed a simple concept: actors in tion to the international community try’s international reputation, since the developing countries should get paid about how they did so (i.e., via the United Nations Framework Conven- if they demonstrate that they have REDD+ safeguard information tion on Climate Change’s (UNFCCC) reduced emissions from deforesta- system). The REDD+ safeguards reporting rules11 and emphasis on tion at the national level. This vision were developed to address concerns transparency12 require that REDD+ remains, though answers to the key that REDD+ activities, if developed countries disclose their actions to the questions—Who should get paid? without the participation of indige- international community. What should they get paid for? And nous peoples and local communities, what should payment look like?—are could infringe on local people’s rights more complicated. to land or natural resources and/or reduce biodiversity. In addition, at the 2010 Conference of the Parties to the Climate Conven- At the international level, REDD+ tion in Cancun, Parties agreed that comes with a built-in accountability in addition to emission reductions, tool linked to the economic interests countries would need to demon- of the REDD+ country: if a country
ISSUE BRIEF | March 2014 | 5 Accountability tools and actors ting is the administrative process by of the linkages of each case study linked to these international pro- which individuals or institutions get to REDD+. The final section sum- cesses are vital. However, the fol- permission to undertake an activity marizes common lessons from the lowing case studies demonstrate allowed in the designated zone. The case studies for REDD+ and offers why these accountability tools are permitting process often includes recommendations for REDD+ policy insufficient for achieving REDD+ in rules for how to mitigate for the and program designers. a country. It is unlikely that existing social and environmental impacts accountability tools at the national of the activity. ACCOUNTABILITY IN and subnational levels will be suffi- cient to change the behavior of actors The development and implementa- BRAZIL’S MATO GROSSO who are currently profiting from the tion of REDD+ incentives mimic SOCIOECONOMIC status quo. Thus, a focus on creat- these processes, and the REDD+ ECOLOGICAL ZONING LAW ing effective domestic accountability incentives should both affect and be tools for national and subnational affected by them. For example, the In early 2011, the state legislature government actors as part of the successful integration of a REDD+ of Mato Grosso passed the Socio- REDD+ process is crucial. goal and incentives into national economic Ecological Zoning (ZSEE) plans should have an impact on Law,14 which opened 5 million hect- Land Use Planning, Zoning, macro land-use planning discus- ares of forest areas for conversion to and Permitting sions and decisions. Decisions to give agriculture. Within a month of the permits to actors who will deforest governor sanctioning the new law, While countries can take many lands without seeking to mitigate the IMAZON—a Brazilian institute that approaches to achieving their environmental outcomes will, in turn, tracks deforestation in the Brazilian REDD+ goals, generally they need to: impact the ability to achieve REDD+. Amazon—documented a more than 500 percent spike in deforestation in Identify the tradeoffs between The Brazilian case study focuses on the state. In February 2012, following different land uses that impact the accountability tools used dur- a high-profile civil-society campaign forests; ing a state zoning law process that and a public action lawsuit, the law was suspended through an injunction Find ways to divert activities was halted by stakeholders who by Mato Grosso’s state court. The next away from forested lands; disagreed with both the process and the content of the law. The Indo- month, Brazil’s Federal Zoning Com- Mitigate the impacts of activities nesian case study focuses on the mission ordered the state government on forest cover; and accountability tools used to support to redraft the law. In August 2013, a national process led by the REDD+ the state court upheld a decision that Find areas where forests can be task force to improve land-use allo- an expert team should be created to restored. cation tools, including zoning plans review the law. During the redrafting, and permitting processes, to address implementation of the ZSEE law has Although no country has completed the expansion of oil palm plantations been halted. these steps specifically to meet the into forested areas. REDD+ objectives, land-use plan- This case study is an example of how ning, zoning, and permitting pro- These experiences from Brazil and oversight actors used accountability 13 cesses represent a useful proxy for Indonesia provide useful lessons for tools to check unsustainable land the types of political and administra- REDD+ initiatives. The next two use in the face of political pres- tive challenges faced by governments sections include a short description sure to increase deforestation.15 It seeking to implement REDD+. Land- of the context in which the account- demonstrates important lessons for use planning is largely a political ability actions took place, the role of those designing REDD+ programs in process that seeks to define how to different accountability tools in each places like Mato Grosso where pri- best manage the tradeoffs among dif- process, a discussion of the enabling vate actors interested in converting ferent land uses. Zoning is the spatial elements that supported and/or forests to agriculture are protected tool used to define areas where challenged the implementation of the by government actors. The lessons certain uses are allowed. Permit- accountability tools, and a discussion show the need for:
6 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
Multiple robust accountability peoples groups, agrarian reform tools to bring government actors settlers) living in the frontier areas The successful to the negotiating table; where governance is poor (Sauer and Leiter 2011). Conflicts over land rights integration of a Legal tools to ensure civil society is have often resulted (Sullivan 2013). allowed to engage and is protected REDD+ goal and during the policymaking process; Passing the ZSEE law was a long process. In 1993, the State of Mato incentives into Resources for long-term engage- Grosso, supported by a World Bank ment and monitoring of these grant, started to develop technical national plans processes by multiple oversight zoning documents (Office of the Gov- actors, especially civil society; and should have an ernor 2008). After much back and Clear laws and mandates and forth between technical experts and impact on macro strong oversight institutions. the government, a formal consulta- tion process with civil society began land-use plan- Background in March 2008 when the governor of Mato Grosso created the Commis- Mato Grosso is a state at the south- ning discussions sion on Socioeconomic and Ecologi- ern edge of the Brazilian Amazon. cal Zoning,17 which included various Forests once covered about 58 per- and decisions. state, national, and civil society cent of the state; now, about 39 per- groups (Office of the Governor 2008). cent of the original Amazon forests and 42 percent of original savannah At the time, Governor Blairo Maggi18 forests have been deforested gave commission members three (Strassburg, et al. 2012, 8). days to review the draft 283-page plan and the 24-page bill. The ZSEE These dramatic changes in Mato bill was submitted to the legisla- Grosso’s forested lands are the result tive assembly the following month Santos Neto 2013). As a result, the of multiple pressures. For example, (Office of the Governor 2008), and group requested the presence of state the state has been the focus of the assembly took over the process prosecutors at consultation meetings. numerous federal initiatives aimed at of public consultations sponsoring Nevertheless, on December 4, 2009, promoting natural resource extrac- 17 seminars and 15 public hearings when the draft bill was forwarded tion to boost the national economy, between June 2008 and July 2009.19 to the state legislative zoning com- developing infrastructure projects, mission, it had been reviewed and initiating land-redistribution pro- Civil society actively engaged with the discussed by many members of civil grams and state colonization proj- process. In August 2008 the Social society and was considered a reason- ects, and supporting the mining and Mobilization Work Group, a coalition able way forward (Moreira dos Santos livestock sectors through incentives of about 130 civil society organiza- Neto 2013). and concessions (Jepson 2006, 293). tions, was organized to build the These initiatives, as well as drivers capacity of stakeholders and prepare However, in March 2010, all but one at the state level, have resulted in for the meetings (Moreira dos Santos member of the state zoning com- significant increases in cattle ranch- Neto 2013). One concern about the mission rejected the Mato Grosso ing and agricultural production, the consultation process was that it was ZSEE bill, and wrote another bill. No latter often by large land owners.16 moving too quickly to fully inform consultation process was held for the and get the participation of affected new bill. From that moment, civil In addition to environmental con- actors, especially those in rural areas. society in Mato Grosso shifted from sequences, these changes have had Another concern was that the attitude providing input to using accountabil- significant social consequences for of some stakeholders during meet- ity tools to try to stop the new ZSEE the diverse communities (e.g., small ings was stifling other stakehold- bill from becoming law. and medium landowners, indigenous ers’ willingness to talk (Moreira dos
ISSUE BRIEF | March 2014 | 7 The Accountability The amendment, Decree 6.288/2007, appropriate for cattle ranching and Process and Tools added an incentive for state govern- soybean cultivation. Civil society ment actors to engage in a program reports also highlighted that 13 or 14 The legal backbone for accountability largely driven by a federal agenda. areas meant to be Indigenous lands28 actions taken by the oversight actors States that develop a zoning law would be zoned to other uses as a against the Mato Grosso zoning bill and have it approved by the federal result of the ZSEE bill (Azevedo 2011, was the 2002 Presidential Decree government may apply for a more Fanzeres 2011, ICV 2011, Firori 2011). 4.297, signed by President Luiz relaxed forest cover requirement for Inácio Lula da Silva and amended in lands zoned for agricultural activi- Second, civil society held several meet- 20 2007. As amended, the decree pro- ties. By allowing states to request a ings with public prosecutors to discuss vides standards and requirements for drop from the 80 percent forest cover the process by which the proposals the development of regional, state, or required by the Forest Code to 50 were being generated, as well as sub- local socioeconomic ecological zon- percent forest cover, this incentive stantive concerns. Given the numerous ing plans or laws, and gives oversight spoke directly to the most powerful procedural requirements included in actors the powers to ensure their constituents— large land owners.25 the presidential decrees, as well as in implementation. The decree followed other laws guiding the development many years of unsuccessful land-use The 2002 decree gives a number of of state laws in Brazil, oversight actors planning and zoning processes by the federal government institutions over- felt that the legislative assembly was 21 federal government. sight power over the creation of state not following due process. zoning laws.26 It created the Federal In particular, Decree 4.297/2002 Zoning Commission— a body formed Third, to encourage the governor to describes: by representatives of 14 ministries— veto the bill, civil society mobilized the to analyze and approve state land- director of zoning in the Ministry of The overarching goal of the use plans before submitting them to Environment in Brasilia to discuss con- ZSEE, including to seek “ecologi- the National Environmental Council, cerns about the bill with the governor. cal, economic and social sus- which then submits the plans to the tainability, in order to reconcile President for approval. The reports and meetings clearly economic growth and protection had some impact on the legislative of natural resources, for the ben- Reputational accountability: Three assembly, as the next drafts of the efit of present and future genera- types of actions were taken by over- bill included some concessions. How- tions, as a result of recognizing sight actors between 2010 and 2011 ever, despite these efforts, Governor the intrinsic value of biodiversity aimed at pointing out the incon- Silval Barbosa accepted the bill from 22 and its components”; sistencies between the ZSEE bill the legislative assembly that many Procedural requirements for being put forward by the legislative felt had significant flaws, and signed designing the plan, including assembly, the Presidential decrees on it into law in April 2011. broad democratic participation, zoning, and other policy processes in sharing of actions and responsi- the state. After the bill was approved, Legislative bilities among various levels of Assembly President Jose Gerardo Riva public administration and civil First, each time the legislative assem- denied any wrongdoing by the legisla- society, and an appreciation bly released a new proposal, civil tive assembly in an opinion column in of multidisciplinary scientific society prepared documents demon- a local paper and through television 29 knowledge;23 and strating its impact on the physical and ads (Fanzeres 2011). Nevertheless, cultural resources that were sup- the law was very different from the Substantive requirements cover- posed to be protected by the ZSEE.27 draft bill that had gone through the ing, for example, the scale of The reports identified the negative consultation process. In addition, mul- mapping and protections for impacts on deforestation and water tiple oversight actors argued that the conservation areas.24 resources stemming from the legis- law might include illegal components. lative assembly’s proposal to zone The assembly and governor apparently much of Northwest Mato Grosso—the felt they could handle the “reputational state’s last heavily forested area—as risks” of their actions, perhaps not
8 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
surprising given the number of legal Economic accountability: The eco- The next steps in revising the ZSEE actions already pending for a number nomic accountability tool had a very law are unclear and the political space of the legislators.30 different function from the reputa- is diminishing. Actors concerned tional and legal tools in this process. with water, biodiversity, small family Legal accountability: Once the gov- The role of this tool was simply to cre- farms, indigenous peoples’ lands, soil ernor signed the ZSEE bill into law, ate an incentive for state government health, and other issues, are left with oversight actors used a new account- actors to engage in a program—devel- little recourse to restart the zoning ability tool. They began to build a oping a ZSEE plan and law—largely discussions. The only possibility to case for the revision or reversal of driven by a federal agenda. The hold the government to account is the law in court or during review at incentive was that state legislators the state court’s requirement that a the federal level. State prosecutors— could promise their most powerful technical review of the 2011 ZSEE law together with civil society—compiled constituents—large land owners—a be started (Torezzan 2013), though evidence regarding the law’s techni- reduction in the forest cover require- the outcome is uncertain. cal problems, the lack of consultation ment for their agricultural proper- on its final drafts, and “procedural ties if the zoning law was developed. The Effectiveness of fraud” that occurred during the final Given the dominance of large land Accountability Tools in the months when the bill passed back owners in positions of power in the Mato Grosso Case and forth between Governor Bar- state government of Mato Grosso, this bosa and the legislative assembly in tool potentially presented a personal The ability of oversight actors to a manner not recognized by current incentive as well. halt the implementation of the Mato administrative procedures (State Grosso ZSEE law is a significant Prosecutor Dominic Savio, cited in This carrot was in the 2007 Presi- achievement given the political Torezzan 2011). dential decree, perhaps explaining leadership and the pressure by state why the process moved more rapidly and federal actors to clear forest This evidence was sufficiently robust from 2008 to 2011, than it did from lands. Although the outcome is to to convince the state court and the 1993 to 2008, when the zoning plan be determined, the current situation Federal Zoning Commission to reject was in the hands of technocrats. is a testament to the strength of the the zoning law in 2012 (Midia News However, changes to the Forest Code accountability tools and oversight 2012). The Federal Zoning Commis- in 2012 counteracted the incen- actors engaged in the process. A few sion ruled that Mato Grosso must tive created by the 2007 decree by observations are relevant about how make changes to address social and reducing reforestation requirements legal and institutional circumstances environmental requirements and to 50 percent for large land owners facilitated the accountability process resubmit its plan (Marinho 2012). who had already cleared their lands in Mato Grosso. beyond 80 percent, effectively grant- At the time of writing, the state ing the incentive without the ZSEE First, the legal requirements for pub- had tried, but failed to overturn the having been completed. lic participation in the presidential court’s decision, and was stalling decrees provided a basis for civil soci- on revisions. Meanwhile the court Although the Forest Code requires ety to demand a say during the zoning mandated that the state undertake a that states develop a ZSEE in five process in 2008 (Acselrad 2001, technical review of the 2011 law and years, contacts in the State Environ- 158). Civil society collected much of determine a process for finalizing the ment Agency (SEMA) and other the information needed for oversight land use plan (Torezzan 2013). stakeholders, observed that the leg- actors to take reputational and legal islative assembly appears to be in no actions in 2010 and onward. hurry to tackle the revisions needed for the court and the Federal Zon- Equally important was the ability of ing Commission to accept the Mato civil society to organize and build Grosso law. the capacity of other stakehold- ers. Because leaders of a few Mato Grosso civil society groups recog- nized the importance of the process
ISSUE BRIEF | March 2014 | 9 in 2008 and consolidated the Social ZSEE process (from 1993 to 2011), outlining tasks and roles for each Mobilization Work Group (GTMS), one of the biggest challenges to get- ministry during the moratorium, the groups were able to speak with ting a ZSEE law in Mato Grosso was such as improving the policies man- a united voice. GTMS helped build creating political space for the discus- aging land-lease and timber-exploi- capacity in many ways, including by sion. Without having the actors at the tation permits. By establishing the inviting public prosecutors and other table to discuss a bill, the legal and moratorium, Indonesia met one part oversight actors to the group’s work- reputational tools protecting social of the agreement with Norway linked shops to inform members about their and environmental concerns would to the first phase of funding, and rights and how to recognize when the not have mattered. took a step toward potential further process deviated from mandates in funds related to emission reductions. the presidential decrees. Also impor- The economic incentive in the 2007 tant was the ability of civil society Presidential decree appears to have Much has been written about the role to stay engaged for a long period put the process on a faster track. Sud- of the moratorium in reducing defor- (from 2008 to 2012). Many are still denly there was a benefit to legislators estation and related GHG emissions, engaged, though the political process finishing the ZSEE. The disappear- as well as improving the transpar- is currently stalled. ance of the incentive after the 2012 ency and coordination of the man- changes to the Forest Code brought agement of forested lands (Murdi- Second, the GTMS engaged govern- the process back to a slow crawl. The yarso, et al. 2011; Austin, Sheppard ment oversight actors—the civil importance of having an economic and Stolle 2012). The REDD+ Task prosecutors and the Federal Zoning incentive to bring actors to the table Force, in charge of coordinating Commission—early in the process. should not be underestimated. actions to improve land allocation Although this engagement began processes during the moratorium, partly to protect civil society actors, ACCOUNTABILITY planned a number of actions, includ- it also gave the government oversight ing: creating “OneMap,” a repre- actors the opportunity to participate in IN THE INDONESIAN sentation of the biophysical and the process and collect their own data MORATORIUM ON OIL land-use characteristics of Indonesia and impressions. The ability and will- PALM PERMITTING agreed to by all stakeholders (Tahil- ingness of these oversight institutions ramani 2013a); completing or revis- to engage demonstrated their indepen- In 2010, the governments of Indo- ing spatial plans, physically delineat- dence from the political forces facing nesia and Norway signed a letter of ing, gazetting, and/or zoning forest the state legislature and governor. intent agreeing to a joint REDD+ areas; developing an online, publicly partnership to reduce GHG emis- accessible database of all forest The procedural and substantive sions from deforestation, forest deg- permits; strengthening the permit requirements in the presidential radation, and peat land conversion review processes; and formalizing decrees were also vital for the state in Indonesia. It included a “two year community lands and land-use plans court and federal commission to suspension on all new concessions into the spatial planning process take action once it was clear that the for conversion of peat and natural (Austin 2013). legislative assembly and governor forest” and is commonly referred to were not going to make changes to the as the “moratorium” (Government All of these actions could signifi- ZSEE law without legal action. With- of Indonesia 2011, 3). The role of cantly improve the management of out the relative clarity of the require- the moratorium was to give those land in Indonesia. However, the first ments, it would have been much involved in land-use allocation and challenge has been getting govern- harder for the oversight actors to hold administration time to incorporate ment actors, such as the Ministry the government of Mato Grosso to REDD+ goals into existing laws and of Forestry, the governors, and the account in court or during the Federal processes. In May 2011, the Govern- district regents (Bupati), to engage in Zoning Commission review. ment of Indonesia released Presiden- the reform processes. tial Instruction (INPRES) 10/2011, Finally, the role of an economic incen- instructing government ministries to Since the first moratorium was tive tool is interesting, though difficult fulfill their obligations under Indo- signed,31 civil society and other over- to track. As seen by the length of the nesia’s agreement with Norway, and sight actors have sought to increase
10 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
the political space needed to discuss by clear rules that integrate social Numerous experts have written about the management and governance and environmental requirements. the management changes needed to reforms indicated in the INPRES. Like the Brazil case, this case shows improve oil palm plantation develop- They have also sought to hold the importance of civil society and ment in Indonesia. Suggestions have actors who break the moratorium other oversight actors being able to included: limiting the expansion to account. All three accountability monitor and hold government actors of oil palm plantations into forest tools (reputational, legal, and eco- to account. areas (Caroko, et al. 2011; Gingold, nomic) have been used in attempts to et al. 2012), improving environmen- improve administrative accountabil- Background tal impact assessments (EIA 2012; ity. Civil society and oversight actors McCarthy and Zen 2010), implement- Indonesia is famous for its diverse have created dossiers with evidence ing administrative and enforcement forest ecosystems and numerous of infractions by government actors, procedures (Caroko, et al. 2011; endemic forest-dwelling species produced reports, raised awareness McCarthy and Zen 2010; Murdiyarso, (Koh, Pin, and Wilcove 2008; Mitter- through national and international et al. 2011), improving legislation meier, et al. 1998)—and for its high media, and sued government and to recognize local community rights rate of deforestation (Hansen, et al. corporate actors. during negotiations around land-use 2009). Oil palm production is one of allocation (Human Rights Watch the most significant drivers of defor- This case study shows that the mora- 2013; Gillespie 2001), implementing estation in Indonesia. For example, torium was not designed in a manner the new freedom of information act oil palm production has increased that has strengthened administrative (Human Rights Watch 2013), remov- about 12 percent a year since 1990 accountability around the oil palm ing limitations on actions that can be (Index Mundi n.d.) and continued permitting process. As a result, even taken by nongovernmental organiza- growth is expected (Casson 2013). with the goodwill of many govern- tions (NGOs) and civil society, and ment actors and the support of civil putting in place more effective con- While the economic potential of oil society, those who wish to address flict resolution mechanisms (Human palm is well documented (Sandker, the shortcomings of the permitting Rights Watch 2013; Caroko, et al. Suwarno, and Campbell 2007), so are process will have a difficult time 2011). McCarthy and Zen expressed a its social and environmental impacts, bringing government actors to the view shared by many observers when especially for local and indigenous negotiating table, let alone designing they wrote, “The underlying problems communities (Gillespie 2001; McCar- and implementing a better permit- of underdeveloped state capacity and thy and Zen 2010, 154–57). For ting process that would allow Indo- [administrative] accountability of state example, according to a recent report nesia to meet its social and envi- officials continue to undermine regula- by Human Rights Watch (2013), Presi- ronmental goals, without creating tory approaches” (McCarthy and Zen dent Susilo Bambang Yudhoyono’s additional accountability tools. 2010, 2). It is not surprising that many office acknowledged 8,495 agrarian of the accountability actions taken in conflicts in 2012, of which 2,002 were If achieving REDD+ in Indonesia or the context of the moratorium have “likely to erupt into violence” (Prakoso, in other countries includes changing been aimed at improving administra- Lutfia, and Sihaloho 2012). In Suma- the oil palm—or other land alloca- tive accountability. tra, where the majority of oil palm tion— permitting processes, lessons plantations are located, land disputes from this case study can help REDD+ have frequently turned violent. Fires The Accountability program designers. One of the most set to clear the land are also a signifi- Processes and Tools important lessons may be the need cant concern (Carlson, et al. 2012), as to think more carefully about how INPRES 10/2011 does not provide well as land clearing without actual to use accountability tools to change clear hooks for oversight actors to hold plantation development32 (Caroko, et the behaviors of administrators at government actors to account. The al. 2011, 10). As in Brazil, much new various levels of government, as well legal standing of the INPRES is unclear development is projected to occur in as the behaviors of private compa- and there are few substantive or proce- “frontier” areas (Gillespie 2001, 20) nies. This case study also highlights dural requirements in the document. where formal land titles and commer- the importance of making permitting In addition, the economic incentives cial agriculture are not prevalent. processes transparent and regulated resulting from the INPRES are weak.
ISSUE BRIEF | March 2014 | 11 Therefore, while civil society is an area that overlaps an important Banda Aceh Administrative Court on actively monitoring the moratorium, biodiversity hotspot, the Leuser Eco- the Tripa Swamp case, the REDD+ and its efforts have been recognized system, which includes a deep peat Task Force recommended that the and supported by the REDD+ Task swamp (WALHI 2012). Ministry of Environment and the Force, it has not always been able to police further scrutinize PT Kal- hold government actors to account. WAHLI brought the case to the lista Alam’s actions. The REDD+ Below are some of the better known Banda Aceh Administrative Court, Task Force reported to the Medan accountability activities. suing the governor for overlook- High Court that the land-use permit ing environmental considerations granted by the governor was illegal, Reputational accountability: Since and procedures when granting the because it was for lands covered by the beginning of the moratorium, permit, and the company, PT Kal- the moratorium. It also prompted civil society has published several lista Alam, for not consulting with the Ministry of Environment and reports demonstrating negative communities in the area, a require- the Attorney General’s Office to file a social and environmental impacts of ment that falls on companies (Gil- civil case against the company. The poor administrative accountability lespie 2001). The court dismissed the company did not appear for the court in the oil palm permitting processes. action, reasoning that WALHI should date and no subsequent legal actions However, reports that were not have first tried to settle the issues appear to have been taken. picked up by other oversight actors directly with the company (WALHI or used in further action, have had 2012). When WALHI appealed the Economic accountability: In theory, little impact so far. decision in the Medan High Court, the moratorium should create an the judge ruled to revoke the permit economic incentive for government Legal accountability: The INPRES is (WALHI 2012). actors and other administrators to a nonlegislative instrument. Experts participate in the oil palm permit- have interpreted this designation to This ruling, however, was not the ting reform process by blocking the mean there are no legal consequences end. In December 2012, PT Kallista ability of government actors to get if government actors do not imple- Alam brought a case in the Banda revenues from granting permits. ment it (Murdiyarso, et al. 2011, 2). As Aceh Administrative Court against the Potential access to Norwegian fund- a result, oversight actors have sought governor of Aceh, demanding the per- ing in the future may drive some other ways to enforce or support mit be reinstated. WAHLI joined the government actors to participate. the moratorium via existing laws or governor as a codefendant. In April regulations. The Tripa Swamp Case, a 2013, the Banda Aceh court ruled Economic incentives to participate significant legal effort to hold the gov- that the permit reversal decision was in the reform process however, are ernor of Aceh Province to account for not legally binding because the case small. For example, some interpreta- granting a permit allowing oil palm leading to the permit cancelation was tions of the moratorium exclude very development in a peat area, is a good being reviewed by the Supreme Court. little land from development that is example. The case also demonstrates Supreme Court review had also been not already excluded via the 2008 the practical challenges of using exist- prompted by the company. At the National Spatial Planning Regula- ing land-use laws to improve govern- time of writing, the status of the case tion, which means that govern- ment accountability. in the Supreme Court was unclear. PT ments that have been abiding by this Kallista Alam started clearing the land regulation are likely forgoing little, if Just three months after the 2011 even before the permit was granted any, revenue while the moratorium INPRES was signed, WALHI, an and has continued to act as though it is ongoing (Austin, Sheppard, and Indonesian NGO, reported that the has the right to carry on operations Stolle 2012; Murdiyarso, et al. 2011). governor of Aceh argued that his (Hansan 2012). In addition, the management (e.g., province was excluded from develop- improved land zoning and permit- ment by National Spatial Planning The difficulties of implementing a ting processes) and governance Governance Regulation 26/2008, legal accountability tool related to (e.g., increased transparency and and that he opposed the moratorium, a land-use allocation process are accountability around these pro- which banned new development on not limited to civil society. In 2012, cesses) improvements scheduled to peat lands. He issued a permit in following the first decision by the take place during the moratorium
12 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive may reduce the income of the indi- The Effectiveness of is demonstrated by the effectiveness viduals who grant permits, as it has Accountability Processes of the Indonesia Corruption Eradica- been found that there is much graft tion Commission (KPK) for bringing around granting land-use permits in The effective use of accountability tools similar actors—for example, provin- Indonesia (see Box 1). to support the Indonesian moratorium cial governors—to account for cor- has been limited. Even the best exam- ruption (see Box 1). The combination If the moratorium strengthened the ple—the Tripa Peat Swamp Case—is of targeted laws and an institution ability of oversight actors to impose still being contested. Conversely, the with sufficient power to investigate fines for violations of existing laws, it government is slowly making progress and initiate legal cases has been more could provide an economic incentive on trying to address the issues, though effective than legal actions using the for government to join the reform for many the progress is painstakingly permitting and land use laws. processes and participate in the cre- slow (Austin 2013). ation of a new structure, but it is not The moratorium does not provide clear that it does. In general, the moratorium has not oversight actors the accountability made using accountability tools tools to address underlying gover- Finally, information generated by any simpler or more effective, since nance issues. Numerous governance oversight investigations can drive it adds another mandate to a very issues and their impacts have been the investment and purchasing deci- complex set of overlapping and con- highlighted by the REDD+ Task sions of company investors and cus- tradictory policies, laws, and regula- Force in presentations about the tomers, with possible repercussions tions. The importance of simplicity moratorium, which have raised for governments also. For example, for holding governments to account corporate actors might avoid devel- oping facilities in areas where a local government is not granting permits that are perceived as legal and sustainable, thereby costing the government income. THE KPK AND LAND-USE PERMIT GRAFT BOX 1 BOX So far however, there is only one The Indonesia Corruption Eradication Commission (KPK) has sanctioned multiple known example of investigations government actors who use the licensing process for their own gains. In recent years, the driving investment decisions. It KPK has won fraud cases against public officials at the highest levels. For example, the involves PT Menteng, an Indone- KPK won conviction of a provincial governor, Suwarna Abdul Fatah, for illegally granting sian oil palm company. A report by permits for 1 million hectares of oil palm plantations. The governor was sentenced to four years imprisonment and required to pay IDR 250 million (US$20,000). Fines and impris- two civil society organizations, the onment were also imposed on the company director, the head of the forestry department, Environmental Investigation Agency and head of the provincial office of the Ministry of Forestry (Suprapdiono n.d.). (EIA) and Telepak revealed that PT Menteng was clearing forested peat The KPK also won a number of cases against district regents (Bupati) relating to land- land without the proper permits. use permitting graft. In a recent case, a regent in Central Sulawesi was found guilty of They also published that there were accepting a IDR 3 billion (US$250,000) bribe in exchange for expediting a permit for the financial links between PT Menteng oil palm plantation company, PT Hartati Inti Plantation (HIP). He was sentenced to seven and the Norwegian pension funds. As years and six months in jail and fined IDR 300 million (US$25,000), the heaviest fine a result, the pension funds realized given an official to date (Gunawan and Yuntho 2013). HIP owner Siti Hartati Murdaya that they were not meeting their legal Poo was also found guilty and is serving 32 months in jail and fined IDR 150 million requirement to avoid investing in (US$13,000) (Tahilramani 2013b). companies that cause environmental and social harm33 and thus reduced The KPK has also brought oversight actors to account for oil palm concession fraud. For their holdings in the two oil palm example, it brought a case against a judge in the Jakarta High Administrative Court, and a companies from $41.5 million to member of House Commission IV on agriculture, plantations, maritime affairs, fisheries, $3.5 million (Sawitri 2012). and food for accepting bribes (Suprapdiono n.d.).
ISSUE BRIEF | March 2014 | 13 many of the cases noted above is problematic. This trend could con- LAND AND RESOURCE CONFLICT BETWEEN tinue for the new implementing body,
BOX 2 BOX LOCAL COMMUNITIES AND OIL PALM COMPANIES the REDD+ Agency.
Pier Gillespie (2001) notes that many laws related to managing land-use transfers in This trend is very different from Indonesia from community use to plantation use put local communities at a disadvan- KPK’s legal actions in relation to tage. Among other challenges, communities are often not in a position to block the land graft in the forestry sector (see Box transfers or even to negotiate good terms. In Law 18 on Plantations, the process is put 1). The KPK is enforcing a differ- in terms of “reaching an agreement concerning land surrender” (Gillespie 2001, 25). ent set of laws,34 but it has tools for This law, he argues, makes clear the “superior position of a plantation’s rights over land” bringing government actors who (Gillespie 2001, 25). Finally the lack of government oversight in the negotiation process, are profiting from illegally grant- which is directly between plantations and local communities, means that communities do ing forest and oil palm concessions not have support if companies are uncooperative or aggressive (Gillespie 2001, 25). or related crimes to account. While some of the KPK cases predate the Given the initial unequal relationship, it is not surprising that, during its investigations, moratorium, they give an example Human Rights Watch was able to identify a number of situations where violence erupted. of an oversight actor that at least Local communities, growing frustrated by companies breaking their promises and the indirectly supports the objectives of lack of support by local governments and other institutions, at times have taken drastic the moratorium, and has been more actions, such as setting fires to plantations, to get attention. successful than the REDD+ Task Force. Bringing these allies together In two of the three cases discussed in the Human Rights Watch report, communities could strengthen the moratorium in turned to local government, courts, and even mediation bodies to help them, but to no avail. For example, in 2011, one community sought redress for grievances from local the future. government institutions and the courts, but “finding no remedy, the residents protested in front of the local parliament” (Human Rights Watch 2013, 33). FINDINGS AND RECOMMENDATIONS Resolving such situations, recognizing both the legal difficulties and the significant emotional challenges, is likely to require time, resources, and a significant rebuilding The Mato Grosso and Indonesian of relationships between government and civil society actors. experiences illustrate at least five common findings related to account- ability around land-use planning and permitting processes. Building on these findings, we offer recommen- dations for incorporating account- issues such as inequitable distri- like transparency and participation ability mechanisms in developing bution of forestry income, lack of will not be adopted, even where they national REDD+ programs. recognition of indigenous peoples’ exist in laws (Human Rights Watch rights, and unwarranted restrictions 2013). As can be seen in Box 2, the on access to information about forest results can be significant. 1. Include Accountability concessions and land claims. How- Tools in National and ever, the moratorium does not even The REDD+ Task Force and civil soci- Subnational Laws and mention the need for the participa- ety organizations have been the most Programs tion of local communities in the active actors in accountability actions Finding 1: As can be seen in both various moratorium reforms, such around the moratorium. Although case studies, engaging subnational as permitting processes reforms. the REDD+ Task Force’s steady politicians and administrators was a Because these types of reforms are acknowledgment of civil society’s vital aspect of implementing land-use not specifically reinforced by lan- reports about moratorium infractions related laws in Brazil and Indonesia. guage in the moratorium, there is indicates that it feels a responsibility Engaging subnational actors will be a risk that current procedures will for the implementation of the morato- vital in any country where imple- be solidified, and procedural rights rium, its seeming inability to resolve mentation of land and forest laws
14 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
and policies have been devolved or REDD+ Task Force and the REDD+ decentralized. As the case studies Agency could find constructive ways REDD+ program show, without the engagement of sub- to channel the Norwegian funding to national actors, plans at the national further reward good performance by designers may level can effectively be slowed or even governments at the subnational level. blocked. Using economic and/or legal Currently there appears to be no want to consider accountability tools may be neces- direct link between the actions that sary to engage subnational govern- need to be taken during the morato- how to include ment actors who may have a differ- rium and the Norwegian funding. ent agenda than that of the national accountability tools government. In general, those designing REDD+ in REDD+ laws and programs may want to consider Recommendation: REDD+ program creation of an economic incentive for programs that will designers may want to consider how local governments and other stake- to include accountability tools in holders to participate. The strategic engage and hold REDD+ laws and programs that will use of legal and economic account- engage and hold to account subna- ability tools may help the REDD+ to account subna- tional politicians and administrators program be successful. responsible for land allocation and tional politicians use processes. 2. Make a Role for Civil Society and administrators Further observations: Linking national and local laws with account- Finding 2: Civil society groups can responsible for ability tools may be an effective be more effective oversight actors approach. In the Brazil case, for where there is an enabling legal land allocation and example, the presidential decree on framework to support them. In zoning provided a legal linkage to Brazil, for example, the procedural use processes. integrate states and municipalities into requirements for civil society partici- the federal ZSEE program, and both pation in the Brazilian zoning decree a legal requirement and an economic was central to the ability of oversight incentive for them to participate. Both actors to ultimately hold the Mato incentives were needed, though it is Grosso legislature to account for still not clear if they were sufficient. failing to get public input in changing the ZSEE bill in the medium term. ernment to account for its social and environmental promises. Although In the Indonesian case, we learned not all civil society actions were suc- that it is difficult to create robust Recommendation: Where REDD+ cessful, often government oversight accountability tools when the legal laws, regulations and/or other actors would have been less effective structure linking national and sub- related program documents are being without research, information, public national land-use allocation actors drafted, specific inclusion of civil soci- actions, and even lawsuits generated is unclear. Civil society and the ety participation may help strengthen by civil society. REDD+ Task Force found that, as its role as an accountability actor, a result, powerful local actors were thereby also supporting government In both case studies, civil society able to counter reputational and legal oversight institutions. Granting civil actors needed to understand and accountability actions, and avoid society other roles, such as a moni- participate in policy and account- participating in the reform processes. toring role, may also strengthen its ability to be an oversight actor. ability processes over time to be effective. Supporting civil society to In Indonesia, aiming economic participate in REDD+ processes that accountability tools at the subna- Further observations: In both Brazil may last years is vital. Finally, the tional level might partially help and Indonesia, civil society actors ability of civil society to apply legal address this issue. For example, the played a central role in holding gov-
ISSUE BRIEF | March 2014 | 15 accountability tools, as WAHLI did created by the states, with the power of detailed language in REDD+ in Indonesia, may be important in to request changes, ensured there was programs. However, compliance places where formal oversight actors a mechanism to review whether the with such language should be either are overstretched or unwilling to requirements had been met. linked directly to financial incentives tackle certain issues. or established as a legal requirement. Recommendation: During the Reputational accountability, as can The Cancun REDD+ Agreement design of REDD+ programs, eco- be seen in the Indonesia and Brazil includes language requiring govern- nomic and/or legal accountability cases, is unlikely to be sufficient. ment transparency and inclusion of tools should be linked to social and local communities and indigenous environmental outcomes for REDD+, 4. Accountability Tools Serve peoples during the design and imple- as well as to GHG emission reduc- Three Functions mentation of REDD+ programs.35 tions. Reputational tools are unlikely In addition, discussions have been to be sufficient. Finding 4: In both case studies, the held about the role of local commu- accountability tools served three nities and civil society in monitor- Further observations: Brazil’s functions: (1) bringing key actors to ing REDD+ processes. As the two federal zoning decree’s emphasis on the table to negotiate changes in land case studies demonstrate, following social, environmental, and proce- use management; (2) supporting the through on commitments to good dural considerations has been central inclusion of marginalized peoples’ governance will be critical to the suc- to ensuring that ZSEE discussions voices and environmental issues; cessful implementation of REDD+, do not result in simply upholding and (3) enforcing the implementa- as transparency and participation the status quo. Though not framed tion of laws and agreements. Though underpin the ability of civil society to as “safeguards” in this process, the in some cases the tools (e.g., the monitor the activities of government language effectively functioned as economic incentives in the Indonesia and hold it to account. safeguard language. case) may not be strong enough to be fully effective, it is clear that one 3. Link Accountability Tools to In comparison, the Indonesian accountability tool is unlikely to be Social and Environmental INPRES did not clearly link the able to achieve all needed objectives. Outcomes REDD+ safeguards to more general social, environmental, or governance Recommendation: REDD+ designers Finding 3: Without accountability standards. Nor did the INPRES may want to consider how REDD+ tools supporting the social, envi- address gaps in the current rules or incentives, laws, and programs will ronmental, or procedural outcomes support the implementation of such provide or integrate accountabil- stated in laws, policies, and programs, standards by drawing attention to ity tools aimed at achieving three oversight actors have little recourse such issues. Stakeholders found that functions: bringing actors to the when they are overlooked. Without existing laws and regulations were table, including marginal voices, and accountability tools, there is a risk of not sufficient in most cases to protect enforcing implementation. even legal language becoming mean- social, environmental, and proce- ingless and the status quo continuing dural rights. The lack of Indonesian Further observations: Further during the design and implementa- legislation protecting the rights of research may identify which account- tion of the policies and programs. local communities, for example, is a ability tools are most effective for This situation is most clear in the significant gap in terms of using legal each function. Whereas economic Brazil case, where state prosecutors tools to create change. incentives seem especially helpful in and the Federal Zoning Commis- bringing actors to the table, reputa- sion would not have been able to The language in the Cancun Agree- tional and legal incentives can help request changes to the law had the ment on REDD+, which requires ensure that procedural considerations procedural, social, and environmen- countries to develop information are followed and social and environ- tal requirements not been clearly systems to demonstrate that they are mental outcomes are achieved. provided. The addition of the Zon- addressing and respecting the Cancun ing Commission, a body specifically REDD+ safeguards, will be an impor- required to oversee the zoning laws tant tool in facilitating the inclusion
16 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
5. Build on Effective Laws In conclusion, we found that and Institutions accountability tools had at least one of three main functions: bring- Finding 5: In both case studies, ing actors to the table to negotiate where there were clear laws and reforms, protecting people and/or institutions with a clear account- the environment during the design ability mandate with the powers and implementation of new laws and to uphold it, accountability actions policies, or overseeing the imple- were more successful, even if not mentation and enforcement of rules. yet transformative. For example, in A set of accountability tools affect- Indonesia the KPK has been able to ing the reputational, financial, and hold high-level officials to account legal interests of the government at for graft, whereas legal cases more the national and subnational levels directly related to the moratorium would enable oversight institutions, and the National Spatial Plan law individuals, and civil society to hold have not been nearly as successful. governments to account for the One factor appears to be the clar- objectives that REDD+ programs ity of the corruption laws compared hope to achieve. In particular, over- with the land-use laws in Indonesia. sight actors need accountability tools The second is the KPK’s ability to to uphold social and environmental both investigate and bring forward objectives beyond emission reduc- cases. In Brazil the prosecutors tions in order to change the status enjoy these same two powers, which quo required to achieve REDD+. appears to be an important aspect of their success.
Recommendation: REDD+ designers should consider how best to build on existing laws and institutions that are clear and effective. Layering REDD+ laws and programs over ineffec- tive laws may reduce the ability of oversight actors to hold government actors to account. It is also impor- tant to clarify who has oversight for REDD+ laws and regulations, and make sure they have the authority to do the job.
Further observations: Legal accountability tools, while vital for accountability, are insufficient to achieve change on their own. There- fore institutions with the capacity to facilitate participation processes and provide information to stakeholders are also vital. A functioning system requires many parts.
ISSUE BRIEF | March 2014 | 17 REFERENCES
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18 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
McCarthy, J., and Z. Zen. 2010. “Regulating the Slette, J.P., and I.E Wiyono. 2011. “Oilseeds WALHI. 2012. “Judges of Higher Administrative Oil Palm Boom: Assessing the Effectiveness of and Products Update 2011.” U.S. Department of Court in Medan Granted WALHI Aceh’s Apeal.” Environmental Governance Approaches to Agro- Agriculture, Foreign Agriculture Service. Press Release, September 5. http://endoftheicons. Industrial Pollution in Indonesia.” Law & Policy wordpress.com/2012/09/05/press-release-judges- 32, no.1: 153–81. Strassburg, Bernardo, Laurent Micol, Fabio of-higher-adminisrative-court-in-medan-granted- Ramos, Ronaldo Seroa Da Motta, Agnieszka walhi-acehs-appeal/ (accessed May 11, 2013). Midia News. 2012. “Justica suspende a Lei Latawiec, and Fabio Lisauskas. 2012. “Increasing do Zoneamento em Mato Grosso.” Top News, Agricultural Output while Avoiding Deforesta- Watson, Fiona. 2013. “Brazil’s Treatment of Its February 17. tion—A Case Study for Mato Grosso, Brazil.” Indigenous People Violates their Rights.” The International Institute for Sustainability, Rio de Guardian, May 29. Mittermeier, Russel A., N. Meyers, J.B. Thomsen, Janerio. G. Da Fonseca, and S. Olivieri. 1998. “Biodi- versity Hotspots and Major Tropical Wilderness Sullivan, L. 2013. “Identity, Territory, and Land Areas: Approaches to Setting Conservation Pri- Conflict in Brazil.”Development and Change 44, orities.” Conservation Biology 12, no. 3: 516–20. no. 2: 451–71.
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ISSUE BRIEF | March 2014 | 19 ENDNOTES
1. “Reducing Emissions from Deforestation 8. Brinkerhof also considers financial account- 16. Soy production, for example, has increased and Forest Degradation (including forest ability as a category. Often, though not about 9.5 percent per year since 1990 degradation, and the role of conservation, always, it may be considered a subsection (Strassburg, et al. 2012, 5) and the total sustainable management of forests and of administrative accountability and is not planted area of soy is expected to increase enhancement of forest carbon stocks)” discussed at length in this paper, though it by 1.7 million hectares by 2020 (MAPA or “REDD+” has emerged from negotia- is fundamental. 2011). tions under the United Nations Framework Convention on Climate Change (UNFCCC), 9. Laws and regulations capturing the goals of 17. Decree 1.139/ 2008 as a potential climate change mitigation international agreements would also fall in mechanism in forest and other land use this category. 18. Blario Maggi was the governor of Mato sectors. Grosso from 2003 to 2010, and is one of the 10. This requirement is in accordance with largest soy producers in Brazil, potentially 2. Note, the moratorium is relevant to timber a well-established rule in administrative in the world (see “Lula’s Comfortable Win,” as well as oil palm permitting processes law, that is that all government decisions The Economist, October, 30, 2006). impacting forest and peat lands, but this must be lawful in terms of being based on paper focuses on its oil palm aspects. written-formal law as well as rechtmatig, 19. Rapporteur’s report, Cesar Alexandre, Inte- which refers to not only being grounded gral to the Substitute bill ZSEE (adapted). 3. Developing countries have been the focus of in written-formal law but also in being just this initiative. (Harlow2007). 20. Decree 6.288/2007
4. The 2007 Bali Action Plan of the UNFCCC 11. The extent of the reporting under UNFCCC 21. The term “zoning” is mentioned in the 1981 recognized and expanded the original REDD will depend on the measurement, report- National Environmental Policy and in 1990 proposal to include forest degradation, ing, and verification (MRV) requirements an interministerial body was created with and the role of conservation, sustainable ultimately set up through the international the specific task of coordinating the federal management of forests and enhancement of agreement. government’s Ecological-Economic Zon- forest carbon stocks, which upgraded it to ing (EEZ) Program for the Legal Amazon. REDD+. 12. See for example, Lyster 2011, Larson and The role of these zoning projects, was to Petkova 2011, and UNFCCC 2010. “identify the territory’s potential (social, 5. See, for example, Lambin and Meyfroidt economic and environmental), to clas- 2011 and Allen, et al. 2010. 13. Not all countries use this exact terminol- sify areas according to various desirable ogy or have exactly the same relationship patterns of use” (Acselrad 2001, 157) and 6. Brazil is thought to have 13 percent of the between each of the processes, nevertheless to safeguard against new projects having world’s remaining forests—second only to similar processes can be found in many negative social and environmental impacts. Russia. Indonesia is thought to have about places. However, during the 1990s, the Ecological- 10 percent of the world’s tropical forests and Economic Zoning programs for the Amazon has the ninth greatest forest cover. 14. Law 9.523/11. faced a number of challenges, including lack of transparency around process, lack of 7. John Locke noted that “when decision- 15. The Forest Code establishes, among other participation of local actors, lack of techni- making power is transferred from a prin- requirements, a proportion of rural land that cal capacity, lack of coordination between cipal (e.g. the citizen) to an agent (e.g. the land owners should maintain permanently different state and federal actors and plans, government), there must be a mechanism as forest (Legal Reserves), sets forest res- andlack of clarity and even disagreement in place for holding the agent to account toration requirements for those that deforest around the objectives of the zoning process for their decisions and if necessary for their lands, and prohibits the clearing of (Acselrad 2001, 158). imposing sanctions, ultimately by removing vegetation in sensitive areas, such as on the agent from power” (Lindberg 2009, 3). steep slopes and along the margins of rivers 22. Article 4.1 of Decree 4.297/2002 Other researchers have said that account- and streams. The first version was written ability “concerns the mechanisms through in 1965. The Institute of Applied Economic 23. Article 4 of Decree. 4.297/2002 which those who are affected . . . can exer- Research estimates that alterations to the cise countervailing powers” or “instruments Forest Code made in 2012 may result in as 24. Article 19 of Decree 4.297/2002 in shaping or controlling the process for much as 79 million hectares, an area the 25. Included as Article 21-A in the 2002 Decree, bringing about positive outcomes” (Agrawal size of Chile, of additional deforestation based on the 2007 Decree. and Ribot 1999, 5). allowed in the Amazon depending on how it is implemented. 26. Article 18 of Decree 4.297/2002
20 | Using Accountability: Why REDD+ Needs To Be More Than An Economic Incentive
27. See Azevedo 2011, ICV 2011.
28. It should be noted that this is not the only ongoing policy process where state and federal legislative actors have attempted to reverse the legal right of Indigenous Peoples to land. See for example Watson 2013.
29. Mr. Riva’s letter can be found at http://www. oecoamazonia.com/images/stories/file/ Set2011/Note%20of%20clarification%20 of%20the%20Legislative%20Assembly%20 of%20MT.pdf
30. For example, Legislative Assembly Presi- dent Jose Riva has more than 250 cases open against him, including from a huge crackdown on illegal logging in Indigenous Peoples’ lands that started in 2010, but at the time of writing had not yet led to any enforcement actions.
31. Note the moratorium has been renewed for two more years.
32. According to estimates by Slette and Wiyono (2011) nearly “11 million ha of land had been allocated for oil palm estates … [but] on average, less than half of this area has actually been developed into productive plantations.”
33. See regulation on risk management and internal control at Norges Bank, laid down by the Ministry of Finance on December 17, 2009 pursuant to Section 30a, third para- graph, of Act 28 of May 24, 1985 on Norges Bank and the Monetary System.
34. Namely the KPK is enforcing Law 31 of 1999 on the Eradication of the Criminal Act of Corruption as amended by Law 20 of 2001.
35. See the REDD+ safeguards (UNFCCC 2010).
ISSUE BRIEF | March 2014 | 21 ABOUT THE AUTHORS ACKNOWLEDGMENTS Florence Daviet was the Manager of the The author would like to thank all who shared their thoughts about accountability and reviewed the Governance of Forests Initiative at the time this paper for their insights and inputs, but takes responsibility for any errors that may have been made. issue brief was prepared. Her work focused Thank you to Alice Thuault, Brenda Brito, Laurent Micol and João Andrade from Brazil; to Bernad on ensuring that climate change policies and Steni and Giorgio Indrarto and Christian Purba from Indonesia; and to Augustine Njamnshi and Cecile mechanisms developed as part of an international Ndjebet from Cameroon, who shared information and kept me grounded. Thank you also to Crystal climate agreement lead to real emission Davis, Gaia Larsen, Fred Stolle and Lauren Goers Williams who very patiently helped me get my head reductions, healthy forest ecosystems, and around the topic. Thank you to Mary Paden for her help editing. Thank you also to Peter Veit and Daryl sustainable development. She holds a Masters Ditz who reviewed the paper multiple times. Thank you also to Daniela Rey and Niranjali Amerasinghe in International Environmental Policy from the who made time in their busy schedules to review this paper. This research and report was made Johns Hopkins School of Advanced International possible with the generous support of the Norwegian Agency for Development Cooperation. Studies (SAIS), Washington D.C., and a Bachelors in English Literature from Mount Holyoke College. Florence is currently the National Forest Program Director at Canadian Park and Wilderness Society.
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