Managing Covid Funds: the accountability gap

Managing Covid Funds: the accountability gap

Background

When the Covid pandemic broke in early 2020, there was near unanimous consent that a crisis of this magnitude required governments to act boldly and swiftly to meet the needs of their people. By the end of 2020, governments mobilized a staggering $14 trillion in fiscal policy responses of different types.

While welcoming these responses, a chorus of voices, including ours, urged governments to put in place the transparency and accountability arrangements necessary to ensure that the massive resources being mobilized did not go to waste. Responding to the crisis in an open and accountable manner was a way for governments to restore public trust and build back better.

Working with civil society researchers in 120 countries, we documented the introduction of almost 400 emergency fiscal policy packages from March to September 2020 and assessed the largest or most important of these packages in each country.

Findings

Our assessment shows that more than two-thirds of surveyed governments are falling short of managing their fiscal responses in a transparent and accountable manner, thereby jeopardizing the effectiveness and impact of their responses to the crisis (Table of Results).

These shortcuts and limitations are neither necessary nor inevitable. Many countries across regions and incomes have chosen a different path. An urgent and speedy response does not have to come at the expense of accountability. There are three key findings in our COVID accountability report.

1. Governments have failed to adopt key measures to enhance accountability that many voices had demanded when governments began to announce their relief packages.

  • Only in about a quarter of countries assessed were auditors able to produce and publish audit reports on Covid fiscal packages before the end of 2020.
  • About half of the governments surveyed published little information on the implementation of policy initiatives.
  • Approximately two thirds of surveyed countries failed to follow transparent procurement procedures.

Despite this, some countries have shown a different way is possible. For example:

  • Paraguay has a one-stop-shop site that publishes information on all pandemic-related procurement.
  • In Jamaica, the Auditor General published three concurrent audit reviews of the government’s cash transfer program, and the Ministry of Finance worked closely with the national audit office to follow up on audit recommendations.
  • Recognizing the disproportionate impact of the pandemic on women, Canada, the Philippines and Sweden published a Gender Impact Assessment of their COVID-19 response. And in Togo, in a short period of 10 days, the government established a transparent platform for a cash transfer program that prioritized women.

2. The role of legislatures has been limited during the pandemic.

In almost half the countries in our assessment, governments introduced fiscal policy measures through executive decrees, side-stepping normal legislative and approval processes and preventing public debate. Not surprisingly, countries that bypassed their legislatures were also generally less transparent in their Covid-related spending.

Again, some countries showed that a better way is possible. For example:

  • In Nepal, the Parliamentary Accounts Committee investigated irregularities in procuring medical equipment and supplies to hold to account those responsible for these failures.
  • In the Philippines, weekly reports on COVID-19 response actions are sent to a Joint Congressional Oversight Committee that oversees implementation.

3. Public participation in the formulation and execution of COVID policy responses is virtually non-existent.

This has not only excluded the public from having a voice in decisions on priority-setting during the pandemic but it has also deprived governments of inputs which could greatly improve the effectiveness of their actions. Only 10 out of 120 countries made any meaningful efforts at engaging with their populations in the design and oversight of relief monies.

Even as governments largely kept the public at bay, civil society groups have been active in mobilizing local communities and amplifying their needs to government. One of the most successful examples of civil society and government collaboration is the Asivikelane initiative in South Africa which is giving an active voice to informal settlement residents in major cities who are faced with severe basic service shortages during the crisis. Through targeted advocacy and campaigns, the initiative has already secured improved access to water, sanitation and waste removal services from municipal governments affecting more than one million people.

Going Forward

There are practical steps governments and donors can take to bolster accountability as part of the ongoing response and to build back better.

  • Governments can adopt reforms now such as publishing monthly progress report and disclosing procurement details in open formats. They can plus up resources for national auditors to conduct expedited audits and take remedial measures in response to their reports. They can take actions to restore legislative oversight. Further, they can also leverage existing mechanisms in the executive, legislatures and within national audit offices to facilitate citizen participation in the formulation, approval and execution of new Covid-related packages.
  • Over the long-term, governments can strengthen systems in the annual budget cycle to be better prepared for future crises. These include reforming legal and regulatory frameworks to clarify roles and responsibilities in areas such as procurement, oversight and participation. They can also integrate innovations that emerged from this crisis, such as providing user-centered information.
  • The international donor community can play an important role in advancing accountability norms in emergency spending. As part of their assistance, donors should urge and support country-led efforts to publish more information about what governments are spending and its impacts and to facilitate oversight by legislatures, auditors and citizens.

The COVID crisis is far from over. We must keep mobilizing resources for the global COVID response, including filling the funding gap for COVAX to ensure everyone has equitable access to vaccines. But if we are serious about equity and justice, we must simultaneously get serious about accountability. This is about ensuring assistance reaches those who need it most. When governments do not deliver as promised, underserved communities bear the brunt.

Budget Trailblazers: Rongai Leakwara

Budget Trailblazers: Rongai Leakwara

In this section, we shine a spotlight on partners who are using budget advocacy to bring transformational change to their communities. This month, we talked with Rongai Leakwara, a budget champion from one of the smallest and marginalized ethnic minority communities in Kenya, known as the Ilchamus community. 

Q: What inspired you to start working with budgets? 

A: I became involved in budget work to help my community better organize and engage in county budget making processes. As a person with a disability from the Ilchamus community, I became an active member of a support group for people with disabilities. It was through them that I was introduced to the Centre for Enhancing Democracy and Good Governance (CEDGG), a civil society group that works to empower vulnerable and marginalized citizens to engage with development and governance processes. CEDGG has truly played a big role in making me who I am today. Through CEDGG, I was able to learn about and engage in county budget processes to push for our community needs to be included in the county annual budgets.  

Q: What skills and tools have you learned from your partnership with IBP that has helped your budget work? 

A: I have learned about the county budget process such as the decisions that are being made, important dates in the process, the people involved and the role of citizens. I have also gained skills in analyzing budget documents, community organizing and facilitation of budget deliberations at the community level and engagement with government officials. More importantly, I have gained advocacy skills that have enabled me to engage government officials and follow up on their commitments to hold them accountable.  

Q: How has becoming a budget champion in your community changed your life? 

A: Being a community budget champion has raised my social status in the community and I am now recognized and respected in my community as a resource. Even men, who had previously looked down on women and people with disabilities, now call on me to educate them. For example, the Ilchamus Council of Elders has invited me to consult on their decision-making regarding development in our ward. In addition, government officials, media and research institutions reach out to me for my opinion on various development concerns within the Ilchamus community. In 2019, I was recognized and rewarded by the Baringo County government as a community heroine for championing for the rights of people with disabilities, women and the Ilchamus Community. However, what pleases me the most is when I see my community members accessing water, health and other services as a result of the budget advocacy work that I and my fellow budget champions have done.   

The Iingarua health center that Rongai has been advocating for more budget allocations to improve service delivery.

Q: Why is it important for women to have a voice in budget processes? 

 A: Women play key social roles at the family level ranging from overseeing health care for the family to ensuring water is available for the household. Women end up shouldering the many costs that come with health care needs such as travelling to health care clinics and the purchase of medicine. Therefore, if only men participate, they may not remember to prioritize water projects or health services since they do not appreciate the struggles we go through. When men and women participate, budget decisions are likely to be balanced. 

Q: Why should the average citizen care about budgets? 

A: We expect the government to implement development projects and improve services such as water and health services in our communities. But as a budget champion, I have come to learn that it is only through the budget that the government brings development to our community. We may continue complaining about poor services but unless they are factored in the budget, we may never see the improvements we want and need. Citizens also pay taxes which finance government activities, so we should care because it is about our money. 

In case you missed it: high-level panel on promoting equity and accountability in the COVID-19 response

In case you missed it: high-level panel on promoting equity and accountability in the COVID-19 response

On Dec. 16, 2020, the Finance Ministry of the Republic of Indonesia and IBP held a high-level, virtual panel, “Getting it Right: Promoting Equity and Accountability in the COVID-19 Response,” which focused on equity and accountability in emergency public spending and how we can strengthen the role of civil society in monitoring these expenditures. The event garnered international media coverage from major outlets in Indonesia and Kenya and more than 3,300 viewers from across Canada, Ghana, India, Indonesia, Italy, Mexico, Senegal, South Africa, Tajikistan, United Kingdom and the United States​.

Moderator Beena Pallical, General Secretary, National Campaign on Dalit Human Rights was joined by Gene Dodaro, Comptroller General, United States of America, Kristalina Georgieva, Managing Director, International Monetary Fund, Sri Mulyani Indrawati, Minister of Finance, Republic of Indonesia and Warren Krafchik, Executive Director, International Budget Partnership for a conversation on the choices governments make while channeling public resources to combat COVID-19 – choices that will determine how many lives are saved and how many people fall into poverty.

Understanding the role of citizens in promoting equitable taxation: A peek at upcoming IBP publications

Understanding the role of citizens in promoting equitable taxation: A peek at upcoming IBP publications

Even before the global pandemic, the international community was increasingly focused on domestic resource mobilization, as aid budgets were set to shrink while countries had affirmed ambitious targets in the Sustainable Development Goals. COVID has brought into even sharper relief the need to resource emergency responses and support aggregate demand. The fiscal costs of the current crisis require a mix of revenue sources, but ultimately will be paid for mainly with taxes.

Alongside the growing attention to taxation in general, interest in the role of civic actors in tax reform in low- and middle-income countries has also grown. This is due in part to a recognition that without a strong grass-roots voice in tax, some of the goals of progressive tax reform—such as equitable tax systems that are based on strong reciprocal ties between taxpayers and the state—may not be met. Civic actors have a vital role to play to ensure that tax systems are redistributive, and that tax compliance is part of a bargain in which citizens demand state performance and services in exchange. This is no easy task, as it means mobilizing the public to take on powerful interests that oppose progressive tax reform.

As part of IBP’s new Tax Equity Initiative, we have developed some resources to help civic actors deepen their engagement with tax reform and learn from each other.  We spent most of 2020 working on three exciting new projects:

  • A review that explores lessons for civic actors from the academic literature on the politics of tax reform. This project resulted in two publications: an extensive literature review paper and a much shorter guide for civic actors to reflect on the main findings from the literature review. Both were released Friday, October 9.
  • A global scan of the civil society tax field, in which we catalogued the major civil society organizations around the globe that are working on tax, the topics they are working on, their main approaches and the constraints that they face, among other things. Products include a summary paper with a broad overview of our findings, as well as a searchable online database that will be available to everyone, which will be published in early November.
  • The first ever set of in-depth case studies on how civic actors have engaged in tax reform, covering seven cases of CSO-led tax reform campaigns in Latin America, Africa and Asia. A synthesis of these cases, and short summaries of each, will be available later this year. In addition to highlighting emerging findings from across the case studies, this project will generate lessons for other civic actors interested in engaging with tax reforms.

Taken together, we think these products will fill a gap in our understanding of how civic actors can and do engage in tax reform.

Our review of the academic literature on the politics of tax reform surveys the literature on the political economy of domestic tax reform, with a focus on low- and middle-income countries. The review looks at the main players involved in the politics of tax reform, the way in which the substance of tax reform shapes political forces, and the process by which taxes are eventually reformed, including how the reforms are framed and understood.

Tax reform is fundamentally political. It is about governments and the bargains that governments strike with taxpayers over how much will be paid and in exchange for what. Of course, states do not bargain with an undifferentiated mass of taxpayers, but with an array of interests, including powerful business interests, donors and creditors, civic actors and individual taxpayers that may or may not be organized. These actors may react to tax reform in different ways depending on their interests and perceptions, including their views not only about the taxes themselves, but what those taxes will be used for.

The literature review demonstrates that while states may generally seek revenue, and business and other elites generally seek to avoid shouldering the burden of paying tax, there are important divisions within these actors and groups. For example, ministries of finance may seek greater revenues to support expenditure, manage debt repayment, and ensure overall fiscal balance. But they may also promote foreign investment and other specific economic activities. This can lead to the pursuit of tax exemptions or tax treaties that reduce revenue, bringing ministries of finance into potential conflict with revenue authorities.  Thus different parts of the state have divergent views on how much revenue to collect and how to use tax policy and administration to further their goals.

While business associations frequently oppose tax increases, they are also often divided over their interests. For example, formal sector business generally likes to see informal businesses enter into the tax net because they believe this leads to fairer competition. In Ghana, larger traders that were part of the Ghana Union of Traders’ Associations supported a turnover tax that brought smaller and more informal business into the tax net because it ensured fairer competition between these larger and smaller traders. Smaller firms may wish to see incentives or exemptions removed for larger firms for the same reason. These examples point to strategic opportunities for civic actors to exploit: opportunities to create alliances with state actors or powerful interests that may not typically be friendly to citizen agendas.

Tax reform is not only about fixed interests or incentives, but also about the way in which such reforms are structured and framed. Different ways of designing and talking about reform also matter. For example, when taxes are closely linked to popular expenditure programs, and when taxpayers trust the government to collect taxes fairly and use them for spending in the public interest, there may be more support for tax reform even from those who have to pay more. This suggests the importance of sound tax administration for tax policy: where there is high trust in tax authorities, there is likely to be more willingness to support progressive tax reform.

These points are just a taste of what is covered in the literature review paper. The shorter reflection paper is organized around guiding questions that civic actors can use to reflect on their strategies. We hope this is a useful starting point for supporting more and better civic engagement with tax, but we also want to hear from you! We know we are only beginning to scratch the surface of this exciting and dynamic field, and we want to keep improving the materials we are developing to make them more accurate, insightful and useful. So please: read and reflect, and also share your thoughts with us.

How persistence, proactiveness, partnership and social media bridged the access to information gap in Mombasa

How persistence, proactiveness, partnership and social media bridged the access to information gap in Mombasa

Kenya has a firm legal and regulatory framework governing access to information. The Constitution of Kenya, 2010, Article 35, further elaborated by the Access to Information Act 2016, guarantees citizens the right to access information. Section 7(3) of PFM regulations, 2015, specifically demands that budget information be publicized within seven days.[1]In addition to the national legislation, Kenya has ratified several regional and international treaties committing to upholding and promoting access to information.[2] In this article, I focus on access to public budget information.

Access to information remains a prerequisite factor for meaningful public participation in budgets and policy decision processes. Citizens need information on how the government raises, allocates and spends money, as well as the quality of services delivered as outcomes. Further, there are provisions for public participation in the constitution and subsequent legislation.[3] Despite the progress made in legal frameworks for access to information and public participation in the budget-making process in the last decade, the implementation has yet to be fully achieved at the county or national levels.

According to the International Budget Partnership’s Open Budget Survey 2019, Kenya scores 20% in its level of public participation in the budget process, and 50% in transparency.[4] Although this is an improvement from the 2017 score of 47%, the level of transparency is still low. Sadly, the challenge of access to information is equally alive at the county level.  IBP Kenya conducts a bi-annual survey that measures how much budget information counties publish on their website. The latest survey revealed that only Elgeyo Marakwet had all seven documents of the budget cycle available, Laikipia and West Pokot had published six out of seven documents and Kitui County had five out of seven documents available. Ironically, Nairobi and Mombasa – two of Kenya’s major urban counties – had only published three and two documents respectively. Kisumu, Migori, Lamu and Garissa counties published no documents.[5] These statistics demonstrate that most counties still have a long road ahead to meet the requirements for public access to information.

How has COVID-19 affected Access to Information and public participation?

COVID 19 has had socio-economic impacts as the government directs its efforts in combating the spread of the virus. The public finance environment has changed drastically and if not observed, the principles of good financial practices may become a casualty. However, despite the glaring effects of COVID-19, the government processes such as the budget, are ongoing. The Constitution and the PFM Act are clear on the timelines and guidelines for the budget cycle, therefore the government, both national and counties, ought to proactively come up with alternative measures for ensuring public participation does not come to a halt. The already ailing public participation practice in most counties seems to be getting worse as efforts to avail required information on time become negligible. However, the big question should be, what are our stakeholders and community members doing about the situation?  Should we just sit as we watch the fading of accountability, openness, access to information and transparency principles? The response is no, for all is not lost.

How persistence bridged the gap of access to information in Mombasa

‘Who sent you? Where do you work? Why do you want this information?’ These are popular questions that anyone attempting to request for information, particularly in Mombasa County, has encountered. Dissatisfaction with how public participation is conducted in Mombasa County sparked my bid to find a solution. The county has made efforts to implement public participation regulations, however, the full threshold of public participation is still a dream yet to come true. Public participation in the budget process has been conducted as an event rather than a process. One of the key concerns is untimely access to information. In the several public participation forums I have attended, I have witnessed as voluminous budget documents, even 100 pages or more, are read and summarized within two hours, and participants are randomly asked for their views. This leaves most of the participants with little or nothing to contribute since it is not easy to engage in something you have no idea of. Even the numbers are enough to confuse! This is why the law strictly prescribes for at least two weeks’ notice and availing of the required information before the forum.[6]Regrettably, the department of devolution and public service administration, which is mandated to carry out civic engagement, has not fully exploited this mandate, and the role of educating the public about the budget process is left to civil society organizations.

I decided to be more proactive with the 2020/21 budget process in Mombasa County. I have been engaging and training a group of budget champions, most of who are journalists and community workers. Being cognizant of the budget timeline of September, the Annual Development Plan (ADP) was not availed and a public participation forum was not held. This was the beginning of my journey of making official requests for the ADP using an ATI tool. The requests, even though received, were followed by pure silence until the County Budget Review and Outlook Paper (CBROP) was due. The CBROP was not published in the respective County Assembly or executive websites! When I requested the document from a Member of County Assembly), he told me that he had a hard copy and I could arrange to pick it. However, my goal was not to pick up the CBROP -what about the 1.2 million residents in the county who have the right to read it?

Extract of an ATI request

There is a parable in the Bible of a persistent widow who kept demanding justice against her adversaries from a judge. The widow was eventually granted justice due to her persistence. I decided to be the persistent widow and kept demanding information from Mombasa County.  On 14th February my team and I did another ATI requesting the ADP, CBROP and quarterly implementation reports to be uploaded on the website or provide a soft copy. Old habits die hard, and after 21 days, we still had not received the documents.

Our efforts were almost derailed when the first COVID-19 case was reported in the country, as the national government implemented immediate directives and measures to contain the virus. At this point, citizens were in panic mode in a quest to adapt to the new normal that was going to stay with us. Change of the strategy was the next step. With limited movement and measures such as physical distancing, it was not easy to access county offices to request information. The next course of action was to kill the snake with the stick at hand, and that meant using social media platforms where almost every duty bearer is a subscriber and an active user. As residents, we were still in the dark as far as budget information is concerned. In collaboration with the Coast Civil Society Organization Chair, we were contacted by the Star for an interview on the status of governance in the county.[7] An opportunity presented itself and I had to lobby and advocate for access to information more so during the COVID-19 period.[8]  At this point, it was not a one-man battle but a joint effort with several actors in the county.

The power of social media platforms

On 21 May, the county issued a public notice on public participation through a memorandum on the proposed budget estimates 2020/21. This came after a long struggle, constant follow-up and tagging county leaders on social media asking for these documents, as well as writing to the speaker of the county assembly through the Chair of the Mombasa Governance thematic group. In recent years, the county has tended to indicate that the documents are available on their websites when that is not the case.  Perhaps, this was the assumption that after all, no one was going to follow up. This already tells you how sometimes the public’s disinterest in holding leaders accountable can be taken as a strength by some duty-bearers.

After the notice was posted on the Mombasa County sub-county administration, Facebook, and twitter page, I visited the county assembly website just to confirm the availability of the document.  I was not surprised to find that the Budget Estimates document was unavailable. The public notice and call for submission were the only documents available, along with the previous years’ budget estimates.  It was a time to act and do something about the unavailability of the required budget documents. Section 13 (c), 17 (m) (n), and section 19 (1) of the Mombasa Public Participation Act, 2017, provides for guidelines on public participation and access to information.  Despite having good policies and regulations at the county level, implementation remains is a big challenge.

Fortunately, three-quarters of Mombasa County leaders are on Facebook and Twitter, so despite the COVID-19 restrictions, we could still engage online. This had earlier proved effective after we had carried out a campaign dubbed’ Rudi Bunge campaign’ meaning ‘Resume to the assembly sessions campaign’ with other partners in Mombasa on 25th April 2020.[9] Through the campaign, we had demanded all Members of County Assembly to reconvene their sessions to ensure oversight as well as approving the supplementary budget. After tagging the Members of the county Assembly s, our campaign was successful and a section of the county assembly committees reported back to work.

After confirmation that the Budget estimates were unavailable on the assembly’s website, I went back to the public notice, tagged the County Executive and the County Assembly and requested that they upload the document.[10] Further, I took to my Twitter page as well as KeBudgetTalk page and posted the public notice while tagging more partners from Mombasa as well as the county authorities.[11] Ke Budget Talk is a budget literacy and communication platform initiated to further public participation and enhance dissemination of budget related information during and afterCOVID-19.The discussion was picked positively and attracted interest from several stakeholders and civil society members in Mombasa. Since the day the public notice was publicized, I took screenshots daily whenever I visited the county assembly page for documentation on the untimeliness of access to information in the county. Importantly, it is advisable to engage with credible facts more so when advocating to seal the information gaps. To firm up the social media advocacy efforts for requesting information, we joined with partners in the governance network in Mombasa. A meeting was convened with the relevant county stakeholders and representatives from diverse groups in Mombasa, during which we presented our position paper and our demands for the budget process for 2020/21. As the way forward in the meeting, the county officials committed to uploading the information. Up until this time, I had kept a good record of the screenshots until the documents were uploaded on 28th May 2020 in the county assembly website.[12] The picture below is a summary of the documentation that I had compiled on the journey to persistent requests and demand for Budget document information.

 

ATI journey in one photo

Lessons learned

  1. Social media can be a good avenue for communication and demanding accountability from our leaders.
  2. Persistence, proactiveness and partnerships (3Ps) are required when pushing for an agenda.
  3. Credibility and documentation- it is always imperative to engage with facts that can be verified.

 

Conclusion

To attain meaningful participation, accurate, consistent, comprehensive and timely information is important. Best practice would be availing the required information to the citizens without any form of coercion and as stipulated by the law. The public and stakeholders have a role to play in demanding information and engaging fully in influencing decisions that affect them.


[1] http://kenyalaw.org/kl/fileadmin/pdfdownloads/LegalNotices/35-PublicFinanceManagement_CountyGovernments_Regulations2015.pdf

[2] Constitution of Kenya, 2010, article 2(6)

[3] PFMA 2012, CGA 2011

[4] http://internationalbudget.org/sites/default/files/2020-04/2019_Report_EN.pdf

[5] http://internationalbudget.org/ibps-work-in-countries/kenya/understanding-county-budgets/tracking-county-budget-information-kenya/

[6] http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2015/PublicFinanceManagement_Amendment__Bill2015.pdf

[7] https://www.the-star.co.ke/counties/coast/2020-05-06-lobbies-demand-breakdown-of-mombasa-covid-19-funds/

[8] https://www.the-star.co.ke/counties/coast/2020-05-06-lobbies-demand-breakdown-of-mombasa-covid-19-funds/

[9] https://www.facebook.com/photo.php?fbid=10223597432988109&set=pcb.2617681608333500&type=3&ifg=1&__tn__=HH-R&eid=ARCjaSmPyl746rpViDzidGjPNJAhtKqjsHC5C0_pDFnbb4-n_eoeCdI7xBd9bw1YfjcRiwn3A69G9_i6

[10] https://www.facebook.com/946676615460774/photos/a.949127625215673/2822192507909166/?type=3&theater

[11] https://twitter.com/JossieNyamai/status/1263344737865609216/photo/1

[12] http://www.mombasaassembly.go.ke/

Friend of the Court? The role of judiciaries in tax reform

Friend of the Court? The role of judiciaries in tax reform

In May, 2020, Colombian activists, led by the non-governmental organization Dejusticia, sued their government over the inequities in the tax system.  They argue that the current tax system in Colombia violates the constitutional principle of tax progressivity. Their petition calls on the courts to require the government to address this violation within a two-year period (with an additional two-year grace period if reform gets underway but is still incomplete).

Aside from the remarkable ambition of the litigation, this Colombian case is notable because it is one of only a handful, but possibly growing, number of occasions where citizens have used the courts to challenge tax policy. Traditionally, it has been difficult, if not impossible, for public interest groups to press their tax policy claims in court. There are at least two reasons why.

First, most tax matters that make it to court are between specific taxpayers and the tax authority. Other parties lack legal standing to participate in such cases, as they are not directly affected by the outcome.

Colombian Supreme Court

Second, while it is possible to get around the standing problem by using public interest litigation to file a constitutional claim, as Dejusticia has done, most countries’ constitutions are silent on the matter of tax policy. This might appear to render moot the approach of making a constitutional claim.

Legal status: where you stand depends on… where, and when, you sit

Neither of these constraints are fixed, however. The standing requirements for filing a case related to tax policy have loosened in many jurisdictions and can vary over time within a single jurisdiction. In the 1970s, the Indian courts began to relax standing for public interest litigation to allow suits challenging the denial of fundamental rights. Since the transition from apartheid, South African law permits standing to anyone “acting in the public interest.” This language was also adopted in the 2010 Kenyan constitution.

While standing has long been a hurdle to bringing federal tax policy cases in other countries, such as the United States, these restrictions have waxed and waned. In the early 1970s, Black taxpayers were permitted to sue the U.S. Internal Revenue Service over rules that granted tax exemptions to segregated private schools and private charitable associations. Then in the late 1970s and early 1980s, the courts restricted these types of suits by tightening federal standing requirements.

More recently, the U.S. courts increasingly take the view that the Treasury is subject to far tighter judicial oversight for major tax policy decisions and have overturned several agency rules based on failures to follow procedures requiring public input. These recent cases do not dramatically alter formal standing requirements, but by challenging the protected status of tax policy, they arguably open the door to greater public participation as required by the administrative law that governs all government behavior.

A potentially more radical approach, long permissible at the state and local level in the United States, permits taxpayer standing to challenge government spending (rather than simply the tax code) based on their status as taxpayers. In fact, Americans have successfully used such suits at the state level for more than a century to curtail what they perceive as wasteful and corrupt public expenditure.  Other countries have also allowed such suits. In Canada, for example, the Supreme Court established in the 1970s that a federal litigant could claim standing in a case concerning government spending as a general taxpayer: “Any attempt to place standing in a federal taxpayer suit on the likely tax burden is as unreal as it is in the case of municipal taxpayer suits. It is not the alleged waste of public funds alone but the right of citizenry to constitutional behaviour that will support standing.” In other words, what matters for standing is not the direct tax burden but the litigant’s status as a taxpaying citizen.

Constitutional reform may open the door to further court involvement on tax matters

The second constraint, that of the inability to make a constitutional claim, has loosened in many countries in the last several decades as a result of constitutional reforms that now specify rights and duties in far more detail. The inclusion of specific economic rights in many constitutions in the post-World War II era has created an avenue for challenging government decisions that affect those rights in some way, such as revenue policies that limit available resources. Not all such constitutions have specific clauses about revenue per se: the Colombian constitution is atypical in specifying that the tax system must be progressive. Colombia is also unique in the degree to which the courts have taken up issues of economic rights and are willing to engage in so-called “dialogic justice”, where courts issue supervisory orders requiring parties to come up with policy solutions over a certain period of time, as the advocates have requested in the present tax system case.

Nevertheless, while Colombia is certainly special, there are other cases where civic actors have been able to use strategic litigation to make constitutional claims around tax. In Kenya, for example, Tax Justice Network Africa took the government to court in 2014 over a double taxation agreement with Mauritius; the courts ultimately found that the government had not adequately consulted with Parliament before ratifying this agreement. In Mexico, Fundar took the government to court over failure to release information about the beneficiaries of tax amnesties, eventually winning the argument that this information was protected by the constitutional right of access to information. In these situations, civic actors have forced courts into balancing exercises, weighing the rights of government and private citizens against the public interest in knowing about and participating in tax policy.

Civic actors can be friends of the court, but are courts friendly?

Beyond these cases, if their standing is generalized, and taxpayers are permitted to challenge government spending simply based on their general standing as taxpayers, there is considerable ground for using the courts to influence tax policy. However, this could well be a mixed blessing: taxpayer challenges can be exploited by both conservative and progressive groups, and can be used to slow the implementation of both tax policy and expenditure programs. Litigation is costly and time-consuming, and often conservative interests are better funded to see it through. There are clear risks involved, particularly where there is no constitutional protection for specific economic rights like health or housing, but there are enumerated rights protecting property, privacy and general liberty. As always, civic actors must consider their context: how progressive and independent is the judiciary, what precedents, if any, can be drawn upon domestically or globally, and what is the domestic legal framework to support progressive taxpayer suits?