Consultation on EITI Constituency governance
This consultation is now closed.
EITI stakeholders are organised into the Constituencies of Governments, Companies and Civil Society. Through this consultation, the EITI is interested in learning how the EITI's relationship with its constituencies can be improved.
Comments and submissions welcome by 20 February 2017 to firstname.lastname@example.org.
Comments or questions can also be sent to the following EITI Board members:
- for the Constituency of Civil Society: Wendy Tyrrell, email
- for the Constituency of Companies: Carine Smith Ihenacho, email
- for the Constituency of Governments: Victor Hart, email
- Membership and constituencies
- Nomination procedures
- Constituency coordinators
- Responsibility of Board members towards their constituencies
- Board terms
- Participation requirements by Board Members
- Board vacancies
- Dispute resolution within constituencies
The EITI is a standard, an organisation and a network of national and constituency organisations. The governance and management of the EITI itself has also evolved over the years to ensure that all of the EITI’s stakeholders are able to contribute meaningfully to the development of the EITI. Through this consultation, the EITI Board invites its stakeholders to join the conversation on how to continue to refine how we work together.
We often say that the owners of the EITI are its stakeholders and the Articles of Association – our “constitution” – reflect this. At the core of the EITI’s governance structure are the Constituencies on which membership in the EITI is based (Article 5.1). The Articles of Association leave it up to the Constituencies themselves to work out how they wish to be organised. The Constituencies are, among other things, charged with deciding on their own rules for appointing their own Members (Article 5.3), replacing them (Article 5.4) and nominating members to the EITI Board (Article 8.2ii).
Being an international, largely country-led, multi-stakeholder organisation means that there are few governance precedents from which to draw. Nonetheless, there are similarities in structure with a growing number of collaborations between state and non-state actors, including the Global Fund against HIV Aids, TB and Malaria and the Internet Corporation for Assigned Names and Numbers (ICANN). We can learn from each other.
Breaking ground is not easy. The most recent EITI Members’ Meeting and the process leading up to it showed that there was a lack of clarity concerning Constituencies’ internal processes and the role that the different EITI bodies should or could play in these, particularly as concerns the procedures for the nomination of Board members. This followed a review of the EITI’s governance in 2015 which recommended additional work on a number of areas. Whereas most of these recommendations have been addressed, those concerning the Constituencies specifically continue to require attention.
It is in this light that the Board has decided to encourage Constituencies to review their internal guidelines and initiated this consultation, possibly leading to recommendations to the Constituencies for how these can be further elaborated. If the EITI is to really belong to all its stakeholders, we must have robust, transparent and accountable ways of managing ourselves while at the same time being careful not to create unnecessary bureaucracy. Following this consultation of stakeholders, it may well be that the Board will suggest amendments to the Articles, that the Board will urge the Constituencies to elaborate their guidelines and/or that the Board will commit to changes of procedures.
I urge you all to take part in this conversation and to let us know if you have any suggestions for how we can collectively improve our Constituency procedures.
Questions to consider:
1. Should there be changes to the process of registering members of the EITI Members’ Association? In particular,
a.Who should be responsible for registering members? Is the current practice adequate, that the Secretariat approaches the Constituencies ahead of each Members’ Meeting asking them to ensure that the Members’ registry is updated?
b.Would it be preferable if Constituency coordinators, acting on behalf of the Constituency, ensured that their Constituency has an up-to-date membership registry?
2.Would you support a change to the quorum rules for the Members’ Meeting, making it possible for a quorate meeting to be established with a smaller number of members present? (This would require a change to the Articles of Association.)
3.Do you have any other comments about membership and constituencies?
The governing and highest decision-making body of the EITI is the EITI Members’ Meeting (Article 7.1) and the Members’ Meeting is comprised of the Members of the Association (Article 7.2). The Members’ Meeting approves the accounts and elects the EITI Board and its Chair, among other things (Article 8.1).
The Articles of Association defines a Member of the EITI as “a personal representative of a country (meaning state), company, organisation or legal entity that is appointed by a Constituency…” (Article 5.1). A Constituency “may replace any of its own appointed Members any time” and “shall inform the EITI Secretariat of its Members at any time” (Article 5.4). Each Constituency decides on its rules governing appointments of Members of the EITI Association (Article 5.3). For the Members’ Meeting to be quorate, “half of the Members” of the EITI and “must include at least one third of the Members’ from each Constituency” need to be present.
Article 5.3 sets limits to membership in each Constituency:
- “From the Constituency of Countries, up to one representative from each Implementing Country and each Supporting Country (or their unions);
- From the Constituency of Companies, up to one representative from each company and associations representing them, and a maximum of five representatives from Institutional Investors;
- From the Constituency of Civil Society Organisations, up to one representative from each Civil Society Organisation.”
As Article 5.3 notes, the Constituency of Countries is divided into two sub-Constituencies: Implementing and Supporting Countries. Constituencies have also divided themselves into sub-Constituencies and sub-groups within these sub-Constituencies.
The EITI International Secretariat keeps a list of the Members of the EITI. Ahead of each Members’ Meeting, the Secretariat has asked the Constituencies and sub-Constituencies to update their membership. It has at times been challenging for the Secretariat to track down and obtain responses from Members. It has thus been difficult to establish the membership. This is important, as it has consequences for the Members’ Meeting.
Article 7.7 sets out the rules for quorum at the Members’ Meeting: “The quorum of a Members’ Meeting shall be a minimum of half of the Members, and must include at least one third of the Members from each Constituency.” As it is quite possible that fewer than half of hundreds of members would be able to travel across the world to attend an EITI Members’ Meeting, the EITI Board may wish to propose amendments to the way in which quorum is established at the Members’ Meeting. Somewhat dependent on how well the Constituencies keep the register up-to-date, there is a significant risk that a future Members’ Meeting will not be quorate.
Questions to consider:
a. What criteria should the vetting follow?
b. Is it right that the International Secretariat or the EITI Board have the final say on a Constituency’s nomination process?
6.Do you have any other comments about membership and constituencies?
The executive body of the EITI is the EITI Board. It is elected by the Members’ Meeting on nomination from the Constituencies. How Constituencies nominate their Board members and alternates varies from Constituency to Constituency and is explained in each Constituency’s guidelines. In cases where Constituencies have informally divided themselves into sub-Constituencies, these often have also developed their own guidelines. Problems may occur if there are disagreements within the Constituencies.
The Articles of Association states that “The EITI Members’ Meeting shall… elect the Members, and Alternates for each Member, of the Board, on nominations from the Constituencies.” (Article 8). Article 9.4 adds that “The Constituencies may nominate, and the EITI Members’ Meeting may elect, one alternate Board Member (an “Alternate”) for each Board Member that the Constituency has nominated”. It is thus the Constituencies’ responsibility to nominate Board Members.
The report in 2006 of the International Advisory Group, on which much of the EITI’s governance structure is built, said that “Each of the Constituencies should agree how they wish to be represented on the [EITI Board]. This requires prior consideration by each Constituency of how they define those eligible i) to be selected as representatives; and ii) to be involved in the selection process”. To help Constituencies and sub-Constituencies in this process, the EITI Board agreed at its meeting in 2011 that the following principles should apply:
- The process that the different Constituencies follow should be open and transparent.
- Information on the processes should be made available on the EITI website, including a contact person for any stakeholder wishing to be involved.
- The process should be flexible and open to new members. The Constituencies should bear in mind achieving a balance between the need for continuity against the need for renewal and broadening of the ownership of the EITI.
- Recognising the important role that the EITI Board has for the EITI, countries and organisations are encouraged to be represented at senior level.
- The Constituencies should bear in mind how important it is that the EITI Association and Board are representative of all of the EITI’s stakeholders. It is, for example, expected that countries from different regions, companies, and civil society organisations with strong links to different regions be represented. While it may not be possible to determine that an international body such as the EITI Board be gender balanced, the Constituency groups are encouraged to ensure that both genders are adequately represented.
- Constituencies should also bear in mind that it is beneficial to identify the range of skills that will benefit the constituency and the organisation more broadly and seek to recruit board members that will contribute those skills that are needed.
The processes for agreeing nominations vary considerably between the Constituencies:
The Constituency of…
…is divided into…
… which conduct their nominations processes in the following manner:
Implementing Countries, subdivided into 6 regions
Elections are held in each region, with each country being able to vote for certain candidates to serve on the Board. The International Secretariat supports the process.
Supporting Countries, subdivided into 4 groups
Supporting countries have within their sub-groups agreed rotas and take turns. Within some sub-groups of supporting countries, they have agreed that Board Members should stand down after a year, making way for another representative from another supporting country.
Oil and gas
“Each sub-Constituency shall have the power to decide at its own discretion which members of that sub-Constituency shall be an EITI Board Member or an alternate. They may formalise the election procedure… or apply an informal procedure.”
In case there are more candidates for Board seats than there are available Board seats for the sub-Constituency of oil and gas and the candidates cannot agree amongst them which candidates will be nominated as full Board members or as alternate Board members, the sub-Constituency shall appoint an individual, who is not a candidate him/herself, to facilitate an election for the available Board seats. The individual so appointed shall set forth the election procedures, organise the election (per e-mail) and shall announce the results from the election to the entire sub-Constituency and shall circulate the formal list with Board member nominees for the sub-Constituency of oil and gas companies to the wider Constituency and to the EITI International Secretariat.
The International Council on Mining and Metals (ICMM) agreed to facilitate the selection of the mining and metals sub-constituency’s board representatives. If there are more nominations than places to be filled, ICMM will convene a call between the nominees with the aim of reaching consensus on board representation. If consensus on board representation cannot be reached, ICMM will call an election. An election has not previously been required, but if it were to be, ICMM would convene a ‘hustings’ call of all participating companies and an election would then follow. ICMM will announce the results from the election to the entire sub-constituency and shall circulate the formal list with board member nominees for the sub-constituency of mining and metals companies, the wider constituency and to the EITI secretariat.
In case there are more candidates for the institutional investor board seat than there are available for the sub-constituency and the candidates cannot agree amongst them which candidates will be nominated as full board members or as alternate board members, the sub-constituency shall appoint an individual, who is not a candidate him/herself, to facilitate an election for the available board seats. The individual so appointed shall set forth the election procedures, organize the election (per e-mail) and shall announce the results from the election to the entire sub-constituency and shall circulate the formal list with board member nominees for the sub-constituency of institutional investors to the wider constituency and to the EITI secretariat. Board candidates must be from an EITI supporting investor organisation.
Publish What You Pay (PWYP) serves as a coordinating body for the nominations process for civil society. As per the governance structure of PWYP, the Global Council is responsible for developing the criteria as well as overseeing the process which is executed by a Nominations Committee.
An open call for nominations is made. Any civil society representative can apply. A first round of selection is made, based on a voting system in relation to criteria. A Selection Panel is agreed. Selected candidates are interviewed by Selection Panel members and subsequently ranked. A final decision is made by Committee, endorsed by the Global Council. A public report is made that documents the process and result.
Questions to consider:
7.Do you think that each Constituency should be encouraged to have a dedicated coordinator? Should this be a requirement? (This could require changes to the Articles of Association.)
8. Should there also be sub-Constituency contact-points?
9. If so, what process do you think that your (sub)Constituency should use to nominate their coordinator/contact point?
10. Do Constituency Coordinators need to be EITI Board Members?
11. Do you have any other comments about Constituency Coordinators?
Constituencies are at the core of the EITI’s governance structure. Constituency coordinators can help ensure that there is appropriate representation on EITI Board Committees and that there are adequate systems for coordination and communication within the (sub)Constituencies and with their members. It would also give the Chair, other Constituencies and the Secretariat a point of contact from whom to seek advice on issues related to that (sub)Constituency.
The 2015 Governance Review generally found “good levels of coordination and communication within each constituency, as well as between Board members and members of their constituency who are involved in EITI but who do not sit on the Board”. The report added that “most constituencies hold regular meetings or teleconferences in order to consult with one another on issues being considered by the Board and in some cases key committees; these processes are to be commended.” The Review also recommended the nomination of Constituency coordinators and the Board discussed the issue at its meeting in December 2015. The Board noted that “there [was] merit in the idea of each (sub)Constituency having a nominal coordinating head/point of contact for general issues” and added that “each (sub)Constituency could select a Board member amongst themselves – possibly the person who has served longest on the Board and/or according to the criteria defined by the Constituency.” Having a clearly identified person coordinating Constituency activities could bring a range of benefits, including facilitate decision-making as this person could for example meet with the other Constituency coordinators ahead of each Board meeting.
Some Constituencies and sub-Constituencies have in place coordination mechanisms. The civil society Constituency guidelines provided ahead of the latest Members’ Meeting state that “Publish What You Pay (PWYP) serves as a coordinating body for the nominations process for civil society”. Likewise, the mining sub-Constituency guidelines state that “ICMM has agreed to facilitate the selection of the mining and metals sub-Constituency’s board representatives to serve on the EITI Board”. Implementing countries have also experimented with regional contact points to facilitate communication within their Constituencies.
The Global Fund to Fight HIV-AIDS, TB and Malaria requires Constituencies to identify “Constituency Focal Points” and considers their work “vital to the process of good information sharing and exchange within
Constituencies”, adding that “the importance of this role cannot be emphasized enough”. According to the Fund’s “Guidelines on Constituency Processes, Constituency focal points should “develop an extensive network of contacts, including designated focal points, within the Constituency to ensure information related to the Global Fund is widely distributed; … ensure that all communications from the Global Fund
Board and Secretariat are distributed to all contacts within the Constituency; … be the catalyst and the repository of Constituency opinions and positions on Global Fund matters…”, among other things.
As discussed above, Constituencies are meant to be broad and inclusive. Without some form of coordination, it can become difficult for the constituency to operate in a coordinated way and it can be challenging for EITI to relate to the many different stakeholders that constitute a Constituency in a meaningful manner. At the same time, individuals or organizations that volunteer to coordinate the work of the group have processes to ensure that it is seen to be legitimate and representative of the majority. Institutionalising Constituency coordinators and/or sub-Constituency points of contact can address this challenge by formalising the practice. What are the downsides? Could it be overkill to require it?
A further question is whether Constituency Coordinators need to sit on the EITI Board. Currently there are constituency and sub-constituency coordinators that do not sit on the Board. For instance, the ICMM for companies and PWYP for Civil Society. The Global Fund to Fight HIV-AIDS, TB and Malaria, for example, has the following guidance for Constituencies: “In many cases the Focal Point is from the Board member’s country/organization, although in some cases the focal point is a representative of an organization which assists in managing the Constituency process. Current practice suggests that it is useful if the Focal Point is close to the Board Member either as part of the same office or based in the same country. In any case, the main criterion should be access to a reliable communications infrastructure”.
Questions to consider:
12. Should Constituencies be encouraged to explain in their guidelines how Constituencies are to be consulted and informed of discussions by the EITI Board that could affect their interests?
13. Are there important country-specific (e.g. Validation decisions) or strategic policy issues (e.g., proposed changes to the EITI Standard) or governance issues (e.g., proposed changes to the EITI Articles of Association) that Board Members should ideally only contribute towards after Constituency consultations?
14. Should the EITI itself, i.e. the Secretariat, provide greater support to enable Constituency consultations?
15.Do you have any other comments about Board members’ responsibility towards their constituencies?
Under Norwegian law, Board members have a personal responsibility to the EITI Association, meaning that they have an obligation to adopt – and act upon – their own positions as individuals, irrespective of the mandate given to them by the stakeholders they represent. At its third Board meeting, in 2007, the EITI Board agreed that Board Members would be “named individuals that represent their organisations”. It is not countries, organisations or companies that serve on the Board, but individuals that are Board Members and it is up to them to find the best way to represent the interests of his or her Constituency.
The 2015 Governance Review contains the following:
“The make-up of the EITI Board is very different to that found in most other organisations and for Board members it creates a three-way tension of loyalties between their obligations to their sponsoring organisation (i.e. the individual government, company or civil society group, as the case may be, that employs them); their broader Constituency; and to the EITI Association as a whole. We make this observation because a number of the tensions that exist within the EITI have come about because for some that division of loyalties is not evenly balanced – some feel little loyalty to their Constituency; some feel that their Constituency demands too much loyalty at the cost of their individual views and obligations; others feel that decisions are being made that give little consideration to the overall well-being of the EITI; and some feel that their obligations to the EITI as a whole are synonymous with upholding their Constituency’s interests since EITI is about achieving balance between three different perspectives.
Those conflicting loyalties will always exist on multi-stakeholder governing bodies and the best way that an organisation such as EITI can hope to manage them is by regularly reminding Board members of the general duties of all Board directors everywhere, namely, to:
- be attentive and diligent – i.e. to read documents and to represent those views in person rather than via proxies; be attendant – i.e. present at all Board and committee meetings;
- be deliberative – i.e. to make decisions based on good information, discussion, and without conflict of interest; and
- hold confidences.
Variations of these rules of conduct or obligations are reasonably standard in most organisations – EITI reflects them in the induction that is provided at the beginning of a new Board term as well as in the EITI Association Code of Conduct.”
Consultations are conducted differently by different Constituencies, some do it regularly and on a variety of issues, others less so. The civil society Constituency, for example, consults extensively and widely including making active use of mass mailing lists to inform the broader constituency in advance of the subjects that will be under discussion in Board meetings and of their outcome afterwards. Company sub-Constituencies often arrange open teleconferences. Representatives from Implementing Countries in Francophone Africa meet regularly ahead of Board meetings to arrange a common approach; representatives of Region 6 implementing countries are consulting regularly via the recently introduced Zoom platform for video conferencing,
Questions to consider:
16. Do you think that there should be a term limit for Board Members? If so:
17.Should Board Members be asked to serve full terms? (This could require changes to Articles of Association if mandatory.)
18.Do you have any other comments about Board Members’ responsibility towards their constituencies?
According to Article 8.1(i) Board Members and the Chair of the EITI are elected by the Members’ Meeting, which is regularly held at least every three years (Article 7.3). The Articles of Association state that the term of the EITI Chair may be renewed once (Article 11.1). Article 9.3 says that “All Board Members retire with effect from the conclusion of the ordinary EITI Members’ Meeting held subsequent to their nomination, but shall be eligible for re-nomination at that EITI Members’ Meeting.” Thus, there is currently no limit on the number of terms that a Board Member or his or her alternate may serve.
The 2015 EITI Governance review recommended that the Board should consider whether they wish to adopt some form of term limits for Board Members, taking into account the need to strike a balance between experience and commitment on the one hand, and opening up for new representation on the Board on the other. Such limits could be mandatory and reflected in the Articles of Association or be incorporate in the Constituency Guidelines. Limits could either relate to individual or organisations. At the same time, the Governance review also noted that there was some frustration with the decision by some sub-Constituencies to regularly rotate their representative on the Board in order to give different members turns at representation. The Governance review “strongly discouraged” that Board Members serve less than their full term (i.e., the period between two EITI Conferences, usually 3 years).
The EITI Board considered the recommendation of the Governance Review at its meeting in December 2015 and noted that “The civil society Constituency has already established a two-term limit.” The Board concluded that “there may be good reason for different decisions within different Constituencies” and considered whether the Articles of Association should “directly require that these issues be considered in the Constituency Guidelines”.
The EITI Governance Committee again considered the issue of term limits ahead of the meeting of the EITI Board in October 2016. The Committee agreed to suggest to stakeholders through this Consultation “that a Board member can serve no more than two consecutive terms as Board members” and that in addition there is either a limit of one term or no limits to the number of terms the same person can serve as an alternate before and after serving as a Board member”.
Questions to consider:
19. Do you think that Constituency Guidelines should set out consequences if Board level attendance falls below a certain level, and if so, what should they consider?
20. Do you think that Constituency Guidelines should set out consequences if Board Members fail to actively participate in at least one Board committee, and if so, what should they consider?
21. Should candidates to the Board be required to have their nominating organisation confirm in writing that they have the resources available to fulfil the responsibilities as a Board Member or alternate?
22. Do you have any other comments about Board Members’ responsibility towards their constituencies?
The 2015 Governance Review identified participation by EITI Board Members as an area of concern for the governance of the EITI. The review recommended a number of ways to address this, including adding new provisions to the Articles of Association that allow Constituencies to remove and replace a Board Member if their level of attendance drops below a certain level and recommending that it should be mandatory for Board Members to sit on at least one committee. The review made particular note of the lack of participation of implementing countries, not least due to the absence of funding being made available to fund their participation in Board Meetings.
As a result of the recommendation of the 2015 Governance Review, the Articles of Association was amended to read “Should a Board member fail to attend three consecutive Board meetings, the Board may, after consultation with his or her Constituency, require the Constituency to replace the Board member” (Article 9.5). At its meeting in December 2015 the EITI Board also considered the recommendation that all Board Members sit on at least one Board Committee, which the review argued would “allow… a better understanding by all Board members of the business of the organisation as a whole… greater opportunities to participate in multi-stakeholder deliberations outside of the major Board meetings, [and] increase the likelihood that committee meetings are quorate and are able to make recommendations to the Board”. The Board noted that “given the diversity of the Constituencies, the appropriate and adequate representation on each Committee might be best decided at the Constituency rather than Board level”.
It is the responsibility of the Board Members and their Alternates to ensure, through confirmation from their nominating organisation, that they have adequate resources and time to fulfil their functions. Board Members and their alternates representing civil society organisations from non-OECD receive financial support from the EITI. A growing number of Board Members and their alternates have indicated to the Secretariat that they have difficulties in securing funding for participating in Board Meetings. It may therefore assist possible Board Members and the EITI if from the outset the availability of resources for Board work is confirmed in writing by their nominating organisation.
It is a significant decision for the EITI Board to require that a Constituency replace a Board Member. One option is that the Board, through its Chair, writes to the concerned Board Member encouraging him/her to stand down if she/he fails to attend three consecutive meetings in accordance with Article 9.5 of the Articles of Association.
Most if not all Board members sit on at least one Board Committee, but some Board Members do not attend meetings frequently or otherwise participate actively. The Board is interested in stakeholder views on how the EITI should encourage inactive Board Members to become more active and what sanctions, if any, are considered reasonable.
To address the challenge of Board Members not being able to participate in Board Meetings due to lack of funds, it has been suggested that, for example, governments be required to confirm funding before agreeing a nomination. Constituencies could be encouraged to include in their guidelines provisions stating that “It is the responsibility of a Board Member and their alternate to ensure that they have the adequate resource and time to fulfil their functions. Anyone wishing to be a candidate to the Board is required to obtain from their respective country or nominating organisation a confirmation in writing that adequate resources will be made available.”
Questions to consider:
In the case of a vacancy, the Constituency has often conducted a more limited consultation process before agreeing to a nomination as compared to before the Members’ Meetings. In cases where the Board Member has resigned, it has not always been the case that the Alternate has taken over, but the Constituencies has simply nominated someone representing the same organisations as was previously represented. In the case of the Implementing Countries Constituency, the result from the most recent voting has at times been consulted, with the individual who placed second in the elections ahead of the last Members’ Meeting being nominated. The question is whether Constituencies should have clearer guidelines for the process of agreeing nominations between Members’ Meetings and, if so, whether the EITI should provide recommendations to Constituencies on how this should best be done.
Questions to consider:
25. What, if any, failings can you identify in the existing constituency dispute resolution mechanisms? How do you think the existing mechanism can be improved?
26. Should the EITI encourage the Constituencies to develop more refined procedures in their Constituency Guidelines on dispute resolution? What should be key qualities of a dispute resolution mechanism at the constituency level?
27. Do you have any other comments about dispute resolution within constituencies?
The Articles of Association gives the EITI Board the power to “terminate any Members’ Membership of the EITI Association if i) the Member… does not comply with [the] Articles of Association; or ii) the Member… has conducted his/her… affairs in a way considered prejudicial or contrary to the EITI Principles” (Article 5.5). Article 6 adds that “a resolution by the EITI Board in accordance with Article 5.5 may be appealed by any Member to the Members’ Meeting for final decision”.
As the governing body of the EITI, it is the Members’ Meeting that has the final word on any disputes. It seems appropriate that Constituencies in their own guidelines establish some procedures on how internal Constituency disputes should be resolved.
For other forms of grievances, the EITI has different procedures that stakeholders can make use of depending on whether the grievance concerns implementation of the EITI Standard, a decision by the EITI Board, a breach of the Civil Society Protocol or a breach of the EITI Code of Conduct. For example, the EITI Code of Conduct states:
“EITI Office Holders with a concern related to the interpretation, implementation or potential violation of this Code of Conduct shall bring such issues to the attention of the immediate EITI body. Where matters are brought to the attention of the EITI Board, the Board will consider the circumstances and consider whether action is necessary in accordance with the EITI Principles, the EITI Standard and the Articles of Association. Anybody who is uncomfortable to raise any such concerns with the immediate EITI body may bring their concerns to the attention of the EITI Board through its Governance [and Oversight] Committee and its Chair”.
Grievance mechanisms are explained in further detail on the EITI’s website.