11 October 2011
Professor Rifat Atun
Chair, Coordinating Board
Stop TB Partnership
c/o World Health Organization
20 Avenue Appia
1211 Geneva, Switzerland
Re: Strengthening the Role of the Stop TB Partnership in the Struggle Against Tuberculosis
Dear Professor Atun,
We are writing to follow up on our letter of May 3, 2011, regarding the steps being taken by the Coordinating Board to reduce the conflict of interest in the Stop TB Partnership’s relationship with the World Health Organization (WHO), improve transparency and accountability in the operations and activities of the Partnership, and strengthen the Partnership’s ability to fulfill its mandate.
In your response of May 16, 2011, you informed us that a Sub-committee on Governance, Performance and Finance had been formed, and would address some of our concerns. You also informed us that the Department for Partnerships and the Legal Unit of the WHO were developing a standard set of documents, aimed at ensuring a uniform approach in the hosting arrangements for all partnerships.
As you are undoubtedly aware, in their resolution on partnerships the World Health Assembly (WHA) endorsed a very specific new policy on formal partnerships that requires, among other things, “that the function of the (partnership) secretariat be, and be seen as, part of the functions of WHO.” (Section 13). This is a fairly radical redefinition that will have implications far beyond the Stop TB Partnership, and directly affects the autonomy and function of what were meant to be inclusive and innovative bodies. From what we have been told, the WHO has begun internal discussions on guidelines and operating procedures to implement this new policy and is drafting agreements to be negotiated and signed with the governing bodies of the hosted partnerships.
The new WHA resolution, and the measures through which it will be implemented, raise fresh concerns about the autonomy and potential effectiveness of the Stop TB Partnership, and of other partnerships currently hosted by the WHO. In that regard, we would be grateful if you would please update us on developments that have taken place since May in the work of the Sub-committee on Governance, Performance and Finance. In particular, we would like to know if you or members of the Sub-committee are currently examining proposals from the WHO on how the organization intends to implementation the new WHA resolution. If so, we would be grateful to know whether the Sub-committee will be reporting to the Stop TB Coordinating Board on this matter at the upcoming meeting in November. If negotiations with the WHO do not result in an agreement conducive to the mandate of the partnership and its ability to achieve its full potential, what alternative hosting arrangements and contingency plans have been considered? As this is a significant matter affecting the effectiveness of the Stop TB Partnership, we hope that the Coordinating Board will consider it carefully and solicit views of Stop TB Partnership member organizations in considering the different options.
It would also be helpful to know whether you or other Sub-committee members have consulted with the leadership of other WHO-hosted partnerships—such as UNITAID or Roll Back Malaria—to understand how they intend to respond to the resolution and the WHO proposals for implementing it. Some meaningful degree of autonomy and transparency will likely be important for the effectiveness of all hosted partnerships, and it would be very useful to understand how they intend to fulfill their mandates under the proposed regulations and procedures.
Many people are concerned about the state of affairs in global tuberculosis control. On July 2, 2011, the Lancet called for “a new era for global tuberculosis control,” stating that “a status quo in tuberculosis control is unacceptable.”1 This public expression of concern is one that should be taken quite seriously. To us, part of the challenge in the struggle against tuberculosis has been an inability to leverage the skill-sets of global partners to work effectively together. Although the Stop TB Partnership was created to serve precisely this function, we think that one of the reasons it has not happened is that the Partnership has not had the independence and freedom to work effectively and to complement the significant normative and policy roles that WHO has played in the field.
While we support a strong and active WHO, we have become increasingly concerned that the Stop TB Partnership has been used to strengthen the WHO’s Tuberculosis Department at the expense of strengthening the other technical and implementation partners and of building synergies across health and development programs. Moreover, it has happened through a system that lacks accountability and transparency. For example, we were disappointed to discover at the Stop TB Partnership Coordinating Board meeting in March 2011 that a significant proportion of Stop TB Partnership funds were being transferred to the WHO, with little—less than 30 percent—going to support the activities of other Stop TB partners. We worry that this type of imbalance diminishes the ability of the Partnership to really engage effectively with this unprecedented global alliance of organizations committed to stopping the spread of tuberculosis.2 Clearly, the Coordinating Board was sensitive to this issue as well, and has created the Sub-Committee to which you referred in your letter.
The decisions about the allocation of resources are only one area where the ability of the Stop TB Partnership to achieve its full potential has been hindered. Currently, there is no tendering process for the non-administrative activities of the Partnership nor are there any rigorous performance indicators for the Partnership’s activities. We were heartened at the March meeting that Coordinating Board members expressed surprise at serious problems that were highlighted about specific Stop TB Partnership activities—concerning the function of the USAID-funded TB TEAM and the activities of the Global Drug Facility (GDF), for example—that have a direct impact on the Partnership’s effectiveness in the struggle against tuberculosis. These programs have been running for a number of years, yet members of the Board indicated that the Board was not made aware of serious, recurrent problems which are only now being addressed. This revealed a lack of transparency and deficiencies in reporting to the Board, as well as providing support for the Coordinating Board’s interest in having stronger governance and oversight roles.
From our analysis, it is clear to us that part of the solution to these problems lies in the Stop TB Partnership being given more independence and autonomy from the WHO’s own Tuberculosis Department, while retaining a strong linkage with the WHO as a whole. If this is done in an amicable way—and coupled to a strengthening of the roles and responsibilities of the Stop TB Partnership Coordinating Board and the Executive Secretary—it will lay the foundation for a more coherent, transparent, and effective structure to manage overall efforts in the struggle against tuberculosis.
By acting as the host institution for the Stop TB Partnership, the WHO has a fiduciary responsibility to act at all times in the sole interest of the Partnership in matters relating to administration of the Partnership. It is an accepted element of law that a fiduciary must not profit from a fiduciary position, include any benefits or profits that arise from an opportunity afforded by the fiduciary position.3 In fact, by acting as host, the WHO assumes a greater ethical responsibility for ensuring that the partnership works in the most transparent way possible. The Coordinating Board also has a responsibility to ensure good governance and that the interests of the Partnership and its unique and important mission are not compromised.
It is clear to us that members of the international donor community are also concerned about accountability and governance of global health partnerships. In a report published by the United Kingdom’s Department for International Development (DFID) on global health partnerships,4 the authors recommend that DFID “support a process to identify additional rules and regulations which could be modified to provide greater flexibility for WHO-hosted partnerships….” In addition to recommending that DFID include transparency among its criteria for engaging with global health partnerships, the report called on DFID to encourage and support efforts, such as establishing standing committees aimed at reviewing and engineering appropriate governance structures. It argued that, “Whatever the location of the secretariat, there should be a clear delineation of how the Secretariat is to account to the partnership governing body, and transparency in the exercise of that accountability.” Regarding the Stop TB Partnership/Global Drug Facility in particular, the DFID study quotes a McKinsey report (2003) saying that, “an administrative arrangement that offers more flexible staffing and legal support, greater transparency, and a partnership- oriented attitude is now necessary.”
In order to address the serious governance issues, potential conflicts of interest, and barriers to the optimal functioning of the Partnership, we are recommending that the Coordinating Board include the following in any memorandum of understanding between the WHO and the Stop TB Partnership:
- Affirmation of the role of the Stop TB Partnership Coordinating Board in the governance of the partnership, an affirmation of the Partnership’s mandate, and recognition of its operational independence and distinct role.
- Placement (administratively) of the Stop TB Partnership Secretariat under the Director General’s or Deputy Director General’s office, or delegated to the Assistant Director General for General Management. The Executive Secretary should not report to the Director of the WHO’s Tuberculosis Department or the Assistant Director General for the HIV-TB-Malaria cluster, whether for administrative purposes—including the allocation of funds or activities—or for annual evaluations. This would remedy the manifest conflict of interest in the current governance arrangement by ensuring that there is an arm’s length between any disease cluster or WHO disease-related department that may directly benefit from Stop TB Partnership funding or activities, or through WHO’s administration of the Partnership.
- Placement of responsibility for providing overall management and leadership to the Partnership Secretariat in the hands of the Executive Secretary. This means responsibility for the administration, direction and guidance of the Partnership’s work, and the provision of advice to the Board in setting policies and developing strategies for the Partnership. As part of this role, the Executive Secretary should be directly responsible for establishing an organizational structure and staffing plan to meet the goals and objectives of the Partnership, in consultation with the Board, including the responsibility for overseeing the implementation of the Partnership Secretariat’s work plan and budget. The duties of the Partnership Secretariat staff should be determined by the Executive Director, working with the Board.
- Delegation to the Executive Secretary to authorize the use of Stop TB Partnership funds at the same level as an Assistant Director General.
- Delegation of authority to the Executive Secretary by the Director-General of the WHO, and in accordance with the WHO’s rules, that will permit her to exercise the functions of the position. This would include representing the Partnership to Ministries of Health in countries, and with directors at other organizations.
- Allocation of all non-administrative Stop TB Partnership activities through a tendering process, with published requests for application (RFAs), and clear performance indicators. Contracts (APWs) should be created between the Stop TB Partnership and all organizations receiving funds (including the WHO’s Tuberculosis Department).
- Strengthening of the Stop TB Partnership Coordinating Board’s mandate for oversight and responsibility over Stop TB Partnership operations. The Board should be reconfigured to include a wider array of Stop TB Partners, with less permanent seats. This will ensure regular turn-over and encourage increased transparency and oversight.
- Creation of a permanent Performance and Evaluation Sub-committee that oversees the activities and outcomes of all Stop TB Partnership activities.
Making sure that people infected with tuberculosis are cured of their disease is of utmost importance to us. The independence of the Stop TB Partnership and its ability to fulfill its mandate will help in achieving this goal. The current state of affairs—a lack of autonomy, accountability, and transparency, coupled to problematic governance structures, and mission confusion—will undermine tuberculosis funding in general and support for both the Stop TB Partnership and the WHO.
The WHA resolution seems to provide important space for the Coordinating Board to negotiate an agreement that would allow for a vigorous and autonomous partnership (clauses 8i and 8j). But this would require a much more active and engaged Coordinating Board negotiating to ensure the effectiveness of the partnership under revised hosting arrangements. We believe that this is worth the effort because it could lay a sound foundation for fulfilling the Partnership’s mandate and really moving forward in the struggle against tuberculosis.
We would like to work closely and constructively with you on these matters, and hope that you will take the time to meet with us to discuss this further, and consider allowing a representative of our group to present these concerns to the Coordinating Board at their next meeting in Bangkok, Thailand.
Mr. Jonathan Berger
Senior Researcher and Director of Policy and Research
SECTION27, South Africa
Mr. Patrick Bertrand
Global Health Advocates, France
Ms. Lucy Chesire
TB ACTION Group, Kenya
Ms. Michaela Clayton
AIDS & Rights Alliance for Southern Africa (ARASA), Namibia
Mr. Ted Constan
Chief Operating Officer
Partners In Health
Professor Paul Farmer
Kolokotrones University Professor
Mr. Nathan Geffen
Treatment Action Campaign (TAC), South Africa
Mr. Gregg Gonsalves
Vice-Chair, Board of Directors
International Treatment Preparedness Coalition
Mr. Loon Gangte
Delhi Network of People Living with HIV/AIDS, India
Mr. Mark Harrington
Treatment Action Group
Ms. Yetunde Ipinmoye
Policy and Advocacy Officer
Positive Action for Treatment Access (PATA), Nigeria
Dr. Salmaan Keshavjee
Director, Program in Infectious Disease and Social Change
Department of Global Health and Social Medicine
Harvard Medical School
Ms. Alessandra Nilo
Gestos – HIV+, Comunicação e Gênero, Brazil
Ms. Morolake Odetoyinbo
Chair, Board of Directors
International Treatment Preparedness Coalition
Mr. Shiba Phurailatpam
Regional Coordinator and Director
Asia Pacific Network of People Living with HIV/AIDS
Mr. Gregory Vergus
Dr. Sarah Zaidi
International Treatment Preparedness Coalition
Dr. Margaret Chan, Director-General, World Health Organization, Switzerland
Dr. Lucica Ditiu, Executive Secretary, Stop TB Partnership, Switzerland
Mr. Sandeep Ahuja, Operation ASHA, India
Dr. Nils Billo, International Union Against Tuberculosis and Lung Disease, France
Dr. William Bishai, Working Group on New TB Drugs, USA
Dr. Amy Bloom, United States Agency for International Development, USA
Ms. Nichola Cadge, Department for International Development, United Kingdom
Dr. Ken Castro, United States Centers for Disease Control and Prevention, USA
Dr. Jeremiah Muhwa Chakaya, DOTS Expansion Working Group, Kenya
Dr. Paul De Lay, UNAIDS, Switzerland
Dr. Marja Esveld , Ministry of Foreign Affairs, The Netherlands
Dr. Peter Gondrie, KNCV Tuberculosis Foundation, The Netherlands
Mr. Michel Greco, Working Group on New TB Vaccines, France
Dr. Christy Hanson, United States Agency for International Development, USA
Dr. Diane Havlir, TB/HIV Working Group, USA
Dr. Nobukatsu Ishikawa, Research Institute of TB, Japan
Dr. Aamir Khan, Working Group on MDR-TB, Pakistan
Dr. Michael Kimerling, Gates Foundation, USA
Mrs. Blessina A. Kumar Vice-Chair Stop TB Partnership Coordinating Board, India
Honorable S.E. Mr. Abdallah Abdillahi Miguil, Ministry of Health, Djibouti
Professor David H. Mwakyusa, Ministry for Health and Social Welfare, Tanzania
Professor Kyaw Myint, Ministry of Health, Myanmar
Ms. Carol Nawina Nyirenda, CITAM+, Zambia
Ms. Sarah Nicholls, Canadian International Development Agency (CIDA), Canada
Dr. Rick O’Brien, Global Laboratory Initiative Working Group, Switzerland
Dr, Madhukar Pai, Working Group on New TB Diagnostics, Canada
Honorable Dr. Mphu Keneiloe Ramatlapeng, Ministry of Health, Lesotho
Ms. Montserrat Meiro-Lorenzo, World Bank, USA
Honorable Dr. Meliton Arce Rodriguez, Ministry of Health, Peru
Honorable Dr. Aaron Motsoaledi?Ministry of Health, South Africa
Dr. Masato Mugitani, Ministry of Health Labour and Welfare, Japan
Dr. Mario Raviglione, World Health Organization, Switzerland
Dr. Giorgio Roscigno, Working Group on New TB Diagnostics, Switzerland
Dr. Herbert Schilthuis, Heineken International, The Netherlands
Dr. Mel Spigelman, Working Group on New TB Drugs, USA
Dr. Tonka Varleva, Ministry of Health, Bulgaria
Dr. Hao Yang, Department of Disease Control and Prevention, China
Dr. Jorge Bermudez, Executive Secretary, UNITAID, Switzerland
Dr. Marine Buissonnière, Open Society Institute, USA
Ms. Joanne Carter, RESULTS, USA
Professor Awa Marie Coll-Seck, Executive Director, Roll Back Malaria, Switzerland
Dr. Philippe Duneton, Deputy Executive Secretary, UNITAID, Switzerland
Dr. Myriam Henkens, Médecins Sans Frontières, Belgium
Ms. Brigitte Laude, Director, Administration and Finance, UNITAID, Switzerland
Dr. Hirohito Nakatani, World Health Organization, Switzerland
Mr. Thomas Teuscher, Roll Back Malaria, Switzerland
Dr. Francis Varaine, Médecins Sans Frontières, France
Dr. Tido von Schoen-Angerer, Médecins Sans Frontières, Switzerland
Mr. Paul Zintl, Harvard Medical School, USA
1. A new era for global tuberculosis control? The Lancet 2 July 2011 (Volume 378 Issue 9785 Page 2).
2. The WHO has defended these kinds of allocations as consistent with donor requests or instructions from the secretariat of the Partnership itself. The current institutional arrangements between the WHO’s Tuberculosis Department and the Stop TB Partnership made these decisions a foregone conclusion. Not only does the Executive Secretary of the Partnership report to the Director of the WHO’s Tuberculosis Department for finalization of work plans, allocation of Stop TB Partnership resources, and annual performance reviews, but both of them sit on the five-member Executive Committee of the Coordinating Board of the Partnership.
3. In Seminole Nation v. United States, 316 U.S. 286, 296-297 fn. 12 (1942), the Supreme Court of the United States has stated: “Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to those bound by fiduciary ties…. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the `disintegrating erosion’ of particular exceptions. . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd.” See: Conaglen, M. (2005) The Nature and Function of Fiduciary Loyalty. Law Quarterly Review 121: 452 – 480. Weinrib EJ. (1975) The Fiduciary Obligation. University of Toronto Law Journal 25(1): 1-22. Mary Blasko, Curt Crossley & David Lloyd, Standing to Sue in the Charitable Sector, 28 U.S.F. L. REV. 37, 59 (1993). See also the following examples of case law: Keech v Sanford [1558-1774] All ER Rep 230; Meinhard v Salmon, 1928, 164 NE 545 at 546; ASIC v Citigroup  62 ACSR 427 at 289.
4. DFID Health Resource Centre. GHP Study Paper 5: Global Health Partnerships increasing their impact by improved governance. Author: Kent Buse. Accessible on line at: http://www2.ohchr.org/english/issues/development/docs/WHO_5.pdf