The decision of the African Development Bank Group’s Bureau of Governors to approve an independent investigation of the allegations against the bank ‘s president, Akinwumi Adesina, is a breach of the bank’s regulation, an overview of the report of the bank’s Ethics Committee and its Code of Conduct has been reported for its executive directors, including its chair.
In response to a petition received from a ‘Team of Concerned Staff Members’ accusing Mr Adesina of wrongdoing, the Bank’s Ethics Committee released an eight-page report of its preliminary inquiry following a series of meetings between 27 February and 9 April. The investigation of April 26 exonerated Mr Adesina of the suspected misconducts and violations.
The committee described the allegations of Mr Adesina breaching the institution’s code of conduct as “spurious and unfounded.” It also concluded that the complaint consisting of 16 allegations were “not based on any objective and solid facts.”
The matter would have ended there, by the policy of AfDB.
Nonetheless, the bank’s board of directors approved an independent review of the report by the Ethics Committee under pressure from the United States.
The U.S. government representative on the bank’s board, Steven Dowd, was charged with colluding with the whistle-blowers to smear Mr Adesina,.
“The Bureau reiterates that it agrees that the Ethics Committee of the Boards of Directors performed its role on this matter in accordance with the applicable rule under Resolution B/BG/2008/11 of the Board of Governors.
“The Bureau also reiterates that the Chairperson of the Bureau of the Board of Governors performed her role in accepting the findings of the Ethics Committee in accordance with the said Resolution.
“However, based on the views of some Governors on the matter and the need to carry every Governor along in resolving it, the Bureau agrees to authorize an Independent Review of the Report of the Ethics Committee of the Boards of Directors relative to the allegations considered by the Ethics Committee and the submissions made by the President of the Bank Group thereto in the interest of due process.,” the board stated in a communique dated June 4, 2020.
A analysis of the resolution cited by the Board of Governors suggests that the Ethics Committee would not have referred the matter to the board in the first place, in compliance with AfDB law.
Our review also revealed that, as requested by the U.S. government, the Board of Governors should not have authorized an independent review of the preliminary review report into the complaint.
In a May 24 letter to the Chairperson of the Board of Governors of the bank, Niala Kaba, the secretary of the United States Treasury Department, Steven Munchin, disagreed with the findings of the Ethics Committee, which exonerated Mr Adesina.
According to the letter, the U.S. government expressed “deep reservations about the integrity of the committee’s process” and called for a fresh “in-depth investigation of the allegations” using an independent investigator.
At its 43rd Annual Bank Meeting on 14 May 2008, the Board of Governors of the AfDB adopted Resolution B / BG/2008/11, which made the African Development Bank’s Code of Conduct for Executive Directors and the African Development Fund applicable to the President of the Bank Group.
Article 3 Paragraph 1 of resolution B / BG/2008/11 authorizes the Committee on Ethics to “receive complaints and allegations relating to the violation of the provisions of the Code of Conduct by the President.” The resolution also stipulates that the Ethics Committee should, upon receipt of such complaints and allegations should “conduct preliminary examinations of such complaints”.
Even the Ethics Committee echoed this in the third item of its preliminary inquiry report on the complaint against Mr Adesina:
“Pursuant to Article 3 of Resolution No. B/BG/2008/11, the ECBD is empowered to conduct a preliminary examination of a complaint or allegation received by it to determine whether it is based on apparently solid justifications, with a view to submitting it to the Chairperson of the Bureau of the Board of Governors under the following conditions:
“If the preliminary examination of the complaint or allegation shows that it is frivolous or not based on any objective and solid facts the Committee is empowered to dismiss it.
“If the preliminary examination of the complaint or allegations reveals facts that are capable of establishing violations of the Code of Conduct, the Committee is empowered to submit the complaint or allegation to the Chairperson of the Bureau of the Board of Governors for further examination.”
However, after exonerating Mr Adesina and describing each of the 16 allegations against him as either “unsubstantiated,” “spurious” or “unfounded,” the Committee on Ethics proceeded to refer the matter to the board of governors of the bank.
That is a direct breach of the law that the Ethics Committee believed it had acted upon. Through the rules, after it concluded that the charges were groundless and baseless, the committee would have taken no further action on the matter.
Article 4 of the resolution stated that the Chairperson of the Board of Governors, in consultation with other members of the Board, had the final say whether or not a complaint submitted to the Board against the President required an investigation “in relation to the violation by the president of any provision of the Code of Conduct”.
It claimed that the Chairperson took this decision “may require the Ethics Committee and the person that made the complaint or allegation or any Department of the Bank, to provide additional information and clarifications, where necessary.”
“The Chairperson of the Bureau of the Board of Governors may, in appropriate cases, require the Ethics Committee to conduct more in-depth investigations.”
Therefore, even though after its preliminary inquiry the Ethics Committee had concluded that Mr Adesina had questions to answer, what the board chair would have done was to refer the complaints to the Ethics Committee for a more comprehensive investigation and not allow an independent review.
Moreover, Article 5 of the resolution also specified that, after the Ethics Committee has completed its investigation, it will ‘send a report of its conclusions to the Chair of the Board of Governors for further consideration of the complaint or accusation in compliance with the terms of the Agreement Establishing the Bank.
“The report shall be accompanied by supporting documents,” it stated.
The AfDB Board of Governors also violated Article 7 of Resolution B / BG/2008/11, which deals with the independent review of the report of the Ethics Committee “due process”.
According to the report, no investigation can be performed on an alleged violation of the Code of Conduct by the President of the bank without giving the President “the chance to be heard or invited to present written evidence in defence of him/herself before the Bureau of the Board of Governors.”
First, the Ethics Committee acknowledged receiving replies from Mr Adesina ‘s lawyer and that the President himself subsequently submitted a reply. Yet the committee said it had not accepted any of the correspondence.
“On 10 February 2020 and again on 10 March 2020 the ECBD received two letters from a lawyer who indicated that he was representing the President in this matter,” the Ethics Committee said in its report. “The Chairperson of the ECBD acknowledged receipt of the letters but the Committee did not act on them given that the Committee had not been informed by the President that a lawyer was acting on his behalf.
“On 8 April 2020, the President of the Bank Group transmitted his response to the complaint to the ECBD. Given that the Committee’s review was limited to conducting a preliminary examination, it did not deem it necessary to review the response from the President.”
However, the Ethics Committee reported that the response from Mr Adesina was forwarded to the Board of Governors’ office along with other documents on the matter.
In its June 4 communiqué, the Board of Governors of the bank did not state whether it reviewed the report of the Ethics Committee or if it invited Mr Adesina or considered his response before the decision was taken to approve an independent review of the Ethics Committee Report.
The Board of Governors has stated that the primary reason it authorized an independent review was “to carry every Governor along in resolving it”.
“However, based on the views of some Governors on the matter and the need to carry every Governor along in resolving it, the Bureau agrees to authorize an Independent Review of the Report of the Ethics Committee of the Boards of Directors relative to the allegations considered by the Ethics Committee and the submissions made by the President of the Bank Group thereto in the interest of due process.
“The Independent Review shall be conducted by a neutral high calibre individual with unquestionable experience, high international reputation and integrity within a short time period of not more than two to four weeks maximum, taking the Bank Group’s electoral calendar into account,” the communique read in part.
The AfDB’s Board of Governors not only flouted Resolution B / BG/2008/11, it also disregarded, along with the Ethics Committee, the Ethics Committee’s terms of reference in dispensing with matters relating to the Code of Conduct for Executive Directors as well as the Bank’s President.
Number 17 of Section 3, of the “Procedure” terms of reference, under the subheading “Procedure for Allegations and Misconduct” The Committee stated that it should first determine whether the allegations brought before it are credible and appropriate for review. If it did consider this the case, “the Committee shall consider the allegation and conduct an investigation, as may be appropriate.”
But if the allegation is deemed frivolous, “the Committee shall advise the concerned Board Official, accordingly, and shall cease to take any further action on the matter.”
But instead of taking any further action on the matter as set out in its terms of reference, the Ethics Committee continued to forward the results of its preliminary report to the Board of Governors.
Following the preliminary inquiry, the terms of reference specified that if the Ethics Committee found that a member of the Board of Directors or the President, in Mr Adesina ‘s case, might have committed any violation of the Code of Conduct, it will continue to conduct a full inquiry and would notify the official under investigation.
“The Board Official whose conduct is under review by the Committee shall, in all cases, be provided with timely notice of the allegations and shall have the opportunity to present his/her views to the Committee,” the resolution stated.
The committee is expected to present a report to the Governing Board at this point, “stating whether the facts indicate that misconduct occurred, and the recommended measures to be taken by the Board.”
“The Board shall take a final decision based on the findings and recommendations of the Committee,” it added.
A review of the Ethics Committee’s terms of reference also revealed that the appointment of independent investigators by the Board of Governors to review the preliminary investigation report on those allegations is an aberration, as it is not contained in any of the provisions of those rules.
In fact, according to the terms of reference, only an independent investigator’s services may be used by the Ethics Committee when he or she is required to assist the committee in “gathering facts and evidence on a matter before it”.
There is no place in the bank ‘s regulations for an independent investigator to be employed to conduct “an Independent Review of the Report of the Ethics Committee of the Boards of Directors.”