New constitutionalism across the North-South divide—neoliberalization through development cooperation agreements

Abstract

The Wall Street Consensus (WSC) marks the global North’s recent attempt to make development in the global South investable. Yet, how are these neoliberal reforms for an investor-friendly environment promoted? This article argues that new constitutionalist mechanisms are used in development cooperation agreements between the global North and the global South to carve in neoliberal reforms in general, and financialization in particular. We apply Gill’s concept of New Constitutionalism (NC) to trace the mechanisms that attempt to lock in these reforms. We chart out how NC underpins Gabor’s WSC and account for idiosyncratic features of postcolonial statehood. We, thus, operationalize and expand Gill’s NC concept. We apply this framework to the MCC Ghana Power Compact, a development cooperation treaty between the Millennium Challenge Corporation (MCC) and the Government of Ghana. Deploying qualitative content analysis, we spot about 60% of the NC mechanisms. Beyond rendering visible the NC mechanisms in international agreements, this article contributes an analytical tool to research the (power) dynamics in development cooperation between the global North and South. While it demonstrates Gill’s relevance in understanding these processes, it also points towards avenues of research regarding the locking in of WSC reforms.

Keywords:

• Development cooperation
• new constitutionalism
• neoliberalism
• Wall Street Consensus
• postcolonial statehood
• Millennium Challenge Corporation
• Ghana

Introduction

On 23 October 2019, the Millennium Challenge Corporation (MCC) announced the spectacular termination of the concession agreement between the US donor and the Ghanaian government regarding the privatization of the Electric Company Ghana, effectively denying the Ghanaian government US $190 million in previously agreed development funds (MCC, 2019). That the Ghanaian government refused to implement this privatization component of the agreement warrants taking a closer look into the MCC’s development practices, in particular, and neoliberal development processes more generally. This article asks how neoliberal reforms are contractualized through bilateral development.

Despite persistent criticism, neoliberal reforms of the Washington Consensus have arguably morphed into more covert practices (see Babb & Kentikelenis, 2021). The growing literature on the latest development paradigm diffusing from the global North, namely the Wall Street Consensus (WSC) (Dafermos et al., 2021; Gabor, 2021; Schindler et al., 2023) shines a light on the restructuring of development policy into investment opportunities. But research on the mechanisms used to implement these new neoliberal dimensions in the realm of development cooperation agreements is scarce. To systematically identify suc h mechanisms, we draw on Stephen Gill’s (2014) concept of New Constitutionalism (NC). While NC was used before to explain how trade treaties can lock in tax policies (Eskelinen & Ylönen, 2017) or to understand the rise and fall of the Trans-Pacific Partnership (Chodor, 2019) it has not been used to study the neoliberal lock-in mechanisms in development cooperation agreements. In their latest piece, Biscahie and Gill (2022) argue for the need to shift attention ‘also to the quasi-constitutional effects of international agreements and other mechanisms of neoliberal globalization.’ We address this gap by exploring how NC mechanisms operate in a developing country context.

Our empirical case is the ‘Millennium Challenge Compact Between the United States of America Acting through the Millennium Challenge Corporation and the Republic of Ghana’ (henceforth called the MCC Ghana Power Compact), which is part of the United States’ ‘Power Africa’ initiative. It is a suitable case given the MCC’s strong neoliberal agenda (see Davies, 2018; Mawdsley, 2007; Soederberg, 2004) and its extensive presence on the African continent (Resende-Santos, 2020).¹ The compact aims to implement six energy projects, including the highly controversial privatization of the Electricity Company of Ghana (ECG). Based on NC, we develop a coding system that we apply to the compact by using qualitative content analysis. The Ghana Power Compact consists of a 16-page core contract and five annexes, yielding 75 pages in total, which we coded using MAXQDA, a qualitative coding software. For the political context, we also draw on 10 semi-structured interviews we conducted with pertinent stakeholders in Accra, Ghana, in 2019.

In this article, we not only demonstrate the prevalence of neoliberal lock-in mechanisms and the intricate ways these policies are contractualized. By substantiating and extending Gill’s NC, we also unveil the subtle means through which the WSC is enshrined in contemporary development agreements, whether through interventions into state sovereignty, by extending investor freedoms or by harmonizing domestic markets with international market requirements. Finally, by centering around this North-South constellation, we discuss some specific means through which neoliberal reforms are carved into the policy fabric of the developing partner country. We argue that the concept of NC is a powerful tool to uncover these (power) dynamics undergirding development cooperation between the global North and South, rendering visible the mechanisms of neoliberal reforms.

In the following section, we first recapture the persistence of neoliberal tenets in development cooperation and explain why NC adds meaningful insights. We then zoom in on the MCC and its compact with Ghana. Afterward, we operationalize Gill’s concept of NC to deduce our coding system. In the last step, the results are presented and discussed.

The neoliberal agenda since the 1980s: from Washington Consensus to Wall Street Consensus

What happened to the neoliberal agenda from the 1980s? Has it changed or even unraveled? We trace the most important developments over the last four decades to illustrate how neoliberalization is still alive and well.

With the end of the Cold War came the shift from embedded liberalism to neo-liberalism (Hirst et al., 2009, p. 156f.). Economic interests took precedence over security concerns, effectively granting corporate interests better access to the political sphere, including policy design (Babb & Kentikelenis, 2021). Illustrated by the process of (Western) European Integration (Van Apeldoorn, 1998), the postwar socioeconomic order of the so-called Keynesianism welfare state was increasingly supplanted by deregulation and liberalization of economic transactions (ibid.). In this context, Stephen Gill (1998) observed discursive and institutional shifts in the world economy resulting in a new understanding of statehood. Accordingly, the state aims to institutionalize market forces, liberalize the economy and, most crucially, separate the political from the economic sphere to build investor confidence and to comply with the necessities of capital mobility (ibid., p. 25, 27, 31). The state was reinvented as a quasi-’enterprise association’ rebranding regulation and state intervention in the name of competitiveness and marketization (Cerny, 1997).

In this context, the approach of the global North to development cooperation also changed. The so-called Washington Consensus led to the first round of restructuring in the global South (Babb, 2013; Marangos, 2009). Trade barriers were lifted (Lora, 2001; Williamson et al., 2008) and labor market regulations were dismantled (Reinsberg et al., 2019b, 2019a). State-owned or controlled industries were privatized (Bouton & Sumlinski, 1996; Cramer, 1999), and market-friendly laws were enacted (Polillo & Guillén, 2005). Moreover, during this structural adjustment era, development finance became conditional on recipients complying with the good governance agenda (Best, 2014, p. 47f.; Hattori, 2001), essentially codifying market-friendly practices, whilst executing ‘moral bookkeeping’ (Hattori, 2003, p. 230).

Though proponents and critics alike acknowledge the strong impact of the Washington Consensus from the early 1980s until the end of the twentieth century (Marangos, 2009; Rodrik, 2006), there is dissent around what happened to the Consensus next. Sarah Babb and Alexander Kentikelenis (2021) identified two opposing camps: Scholars who emphasize the growing irrelevance and erosion of the Washington Consensus, and scholars who highlight its persistence in a more covert form. The first strand of scholarship assumes there is no longer any unified policy paradigm (see Grabel, 2021) due to both the Consensus losing legitimacy over its inability to deliver ‘development’ outcomes and emerging markets like China pursuing development policies outside the Consensus toolbox (cf. Karagiannis et al., 2021; May et al., 2019; Petry, 2021). Beyond the distinctively different development approach pursued by emerging powers like China, we also acknowledge a gradual reorientation of agendas and discourses about the state’s role in development since the financial crisis of 2008. That discourse centers around state capitalism, dwelling on the restructuring of international divisions of labor and hybrid state-capital formations (Alami et al., 2021; Alami & Dixon, 2023). But we argue that this change did not lead to a paradigm shift in North-South development cooperation. It merely allowed emerging countries to entirely abstain from IMF lending arrangements and enabled developing countries to exercise choice in a marketplace of development financing (Chin & Gallagher, 2019; Mawdsley, 2012; Mawdsley et al., 2013). This has included funds from emerging countries like China without onerous policy conditionalities (Babb & Kentikelenis, 2021), yet unified under the banner of development effectiveness (Eyben, 2013; OECD-DAC, 2011). In summary, we argue that while non-traditional development cooperation gained importance, often framed by a non-aligned or anti-colonial rhetoric, development cooperation between developed and developing countries still reflects the neoliberal orthodoxy captured in the second strand of scholarship that Babb and Kentikelenis identified. The Washington Consensus is alive and well, and it works in a more covert form.

Indeed, there are continuities that span from the late 1980s neoliberal agenda until today’s new facade of development cooperation. After strong criticism of the Washington Consensus, the Washington Institutions embraced what has become known as the post-Washington consensus, or PWC (Fine et al., 2003; Ruckert, 2006). However, this new consensus only marked a paradigm expansion that complemented the market orientation of orthodox neoliberalism with a novel focus on the socio-political dimension of development (Güven, 2018). The PWC was driven by the fallout of the Asian financial crisis and the stagnating development progress in many sub-Saharan African countries (Grugel et al., 2008). In response, traditional international financial institutions (IFI) devised strategies to foster domestic ownership, created global risk mitigation frameworks, and prioritized measurable development outcomes (Best, 2014; Wade, 2007). Despite its mediocre success (ibid.), the PWC augmented the IFI’s operational flexibility (Güven, 2018). As Isabel Ortiz and Matthew Cummins (2019) show, public expenditure adjustment is used as a trojan horse to induce Washington Consensus policies that cut back on public policies and the welfare state, especially in developing countries. The resulting limited funds should then be supplemented by the private sector (ibid.). In the UN’s financing schemes for the Sustainable Development Goals or the World Bank’s ‘From Billions to Trillions’ agenda (UN, 2015; World Bank, 2015), global finance is identified as the critical actor for achieving development indicators. This effectively reframes the Washington Consensus as a strategic tool to draw institutional investments into development asset classes. Coined as the Wall Street Consensus (WSC) by Daniela Gabor (2021), this new consensus urges developing country governments to de-risk their investment environment by removing regulatory barriers, privatizing assets, and providing subsidies and guarantees (ibid.), with energy sectors and renewable energy as pertinent examples (Elsner et al., 2021; Haag, 2022). Even with industrial policy gaining momentum, low- and middle-income states embrace the WSC which subordinates states to financial capital while allowing a stronger role for the state within the limits of the reach of the disciplining financial markets (Schindler et al., 2023).

The WSC arguably gains particular salience in states marked by post-colonial statehood. Maiangwa et al. (2018) describe this concept as a form of quasi-statehood, which—according to its functions and executive powers—was envisioned to operate as a business organization, resulting in essentially apolitical, yet ‘efficient’ governmental institutions, designed to facilitate resource extractivism. Focusing on the financial functions of the state, Koddenbrock et al. (2022) have demonstrated how a ‘longue durée’ of financial power structures has prolonged colonial dominance. Consequentially, the postcolonial state acts as a ‘transnational project’ (Beckman, 2004), which even after formal independence remains open to external forces able to intervene and reconstruct economic or juridical spheres using soft power or else disciplinary forces (Young, 2004). These characteristics of postcolonial statehood can result in countries entering agreements predominantly to obtain the promised funds or to demonstrate compliance with normative orders promoted by donors (Müller, 2015). In such cases, the mechanisms at work may act in a coercive manner, yet often orchestrated through soft governance, carrot-and-sticks approaches, political consultancy, capacity building and normative power (Joseph, 2010). We will see how the postcolonial setting caters to the MCC using specific forms of contractualizing its reforms into the compact.

Uncovering the neoliberal agenda in contemporary development cooperation: why new constitutionalism matters

As shown above, the premise that states should institutionalize market forces and overhaul their state structures to comply with financial market needs is not new. As Biscahie and Gill (2022) state, the contemporary scale of the phenomenon, however, is massive. While Gabor (2021) has foregrounded the financial and monetary mechanisms distinctive to this new development paradigm, her work is less outspoken on how the neoliberal restructuring of developing countries is implemented and legally underpinned. In other words, how does the new financialized dimension of the neoliberal agenda manifest in development cooperation? Indeed, contractualization and therefore the law is central to the constitution of the power of capital (Biscahie & Gill, 2022; Cerny, 1997), a fact which is rooted in the long history of neoliberalism, its emphasis on purposely designed state formations, rule of law and norm-setting (Krever, 2011; Slobodian, 2020). We argue that the concept of New Constitutionalism (NC) provides an adequate approach to shed light on the legal processes carving in the subtler nuances of this neoliberal agenda. In Gill’s point of view, NC amplifies the power of capital on a world scale, which is why he urges to not only look at domestic laws and changes to constitutional structures but also at the quasi-constitutional effects of international agreements and other mechanisms of neoliberal globalization (see Biscahie & Gill, 2022; Gill, 2002). By focusing on international agreements through the lens of NC, the manifestation of the WSC can be rendered visible.

The concepts of NC and WSC share a lot of assumptions about the process of neoliberalization. Both emphasize the role of the state as catering to the interests of international investors (Gabor, 2021; Gill, 1998). Both assume that public policies are therefore transformed following investors’ interests. The NC concept remains more general about the objectives behind restructuring the state, referring to the fact that it serves to extend capitalist markets and the sway of market forces in social and political life (Gill & Cutler, 2014). The WSC, on the other hand, is somewhat more explicit in stating that the reconfiguration of state institutions serves the purpose of building the basis for accumulation organized around development asset classes and industrial policies (Gabor, 2021; Schindler et al., 2023). However, both agree on the fact that central banks and the ministry of finance have gained power and importance (Gabor, 2021; Gill & Cutler, 2014). Further, both concepts describe interference with state sovereignty resulting in constraints on industrial policy (Gabor, 2021; Gill, 2014, p. 38). Therein, the state should inter alia interfere if investors’ interests are at stake. Gill (2014, p. 38) mentions extra-constitutional means to protect capital in emergency situations to which Gabor (2021) provides a fitting example, namely, risk guarantee schemes that ensure the state compensates investors for losses in case of severe climate events. Lastly, both agree that the state protects the economy against political risks. The concept of NC points to a separation of the ‘economic’ from the ‘political’ sphere (Gill, 1998) insulating strategic areas from democratic participation by removing the strategic economic policy from political contestation (Gill & Cutler, 2014). Participation is only possible in safely channeled areas outside the field of macroeconomic policy (Gill, 2014, p. 41). The WSC, similarly, projects the idea that attracting international investment requires financial restructuring in global regulatory spaces and technocratic forums outside the reach of public scrutiny (Gabor, 2021). State functions are essentially reduced to those of a ‘de-risking state’ (ibid., p. 431). Additionally, the WSC requires local political coalitions to diffuse political contestation (ibid.).

In conclusion, both concepts share common ground. Nevertheless, the WSC is more explicit about the field of neoliberalization (development assets), whereas NC provides an account of how neoliberal norms are operationalized and inscribed into multilateral and bilateral contracts. Gill (1998) delineates three sets of mechanisms to restrain the state from deviating from the neoliberal reforms: (1) creating judicial independence and effectiveness so that the judiciary can hold the executive and legislature accountable to ensure a secure business environment; (2) vertical and horizontal separation of powers, resulting in more complex checks and balances, more veto powers and hence more inflexibility; and (3) the external restraint mechanisms that are especially used to lock-in neoliberal policies in states ‘where “institutional capability” is weak’ or in states labeled as ‘Third World’. Two sorts of external restraint mechanisms - international agreements and agreements with multilateral organizations, involving policy conditionality—can be used to implement this agenda (ibid.). This article focuses on the latter mechanism.

The operationalization of Gill’s original concept will aid in tracing the political-legal tenets undergirding the neoliberal global economy, and by extension, reveal insights into the development contracting on which Gabor’s WSC thrives. Before we turn to the operationalization, however, the context within which the development agreement between the MCC and the Ghanaian government was struck begs brief elaboration.

The Millennium Challenge Corporation in Ghana: a development agent on a neoliberal mission

The MCC was established by US President George W. Bush in the wake of the War on Terror in 2004. It is the implementing agency of the Millennium Challenge Account, a fund set up to reduce poverty through growth. Under the Bush administration, development spending for the MCC was mainly justified on the geopolitical premises of defending US security interests abroad (see Mawdsley, 2007 and Soederberg, 2004 for a critique).

Though significantly smaller than the more established USAID and thus slightly under the radar, the MCC was key in introducing a results-based development model. The MCC’s funding disbursal is highly conditional and hinges on the recipient country meeting 20 pre-selection criteria which are drawn from good governance practices and are clustered into ‘Ruling justly’, ‘Investing in people’, and ‘Encouraging Economic Freedom’ (MCC, 2022a), effectively. Joanne Davies (2018) disaggregated these indicators to uncover the ideological premises on which they rest. Far from being apolitical indicators supplied by a third party as claimed by the MCC, these indicators, she argues, serve to entrench developing countries further into neoliberal capitalist structures, thereby leaving existing (intra-national) inequalities intact. The other pillar of the development effectiveness discourse revolves around increasing recipient country ownership of the development agenda. The MCC frames its local teams that manage the funds in the recipient countries as important mediators and enablers between the MCC and the recipient government, effectively negotiating domestic ownership and alignment of donor and recipient interests (Davies, 2018).

Since its inception, the MCC significantly expanded its engagement on the African continent, following a straightforward recipe, in supporting particularly those countries that favorably matched the criteria (Hook, 2008). Half of the 50 countries currently comprising its development portfolio are located in Africa (MCC, 2022b). This mainly results from the economic thresholds the MCC put in place. Countries whose gross national income (GNI) is below US $2,045 and whose GNI per capita is between US $2,046 and US $4,255, are eligible for funding support, effectively reducing the list to developing and lower emerging countries. Though the potential recipient country files the initial request for funding with the MCC, it is the MCC that rates the country’s policy performance against the 20 indicators, assesses the country’s opportunity to reduce poverty and increase economic growth, and then considers its own budgetary space. In case countries fail to meet the minimum requirements of the policy ‘scorecards’ but exhibit a significant commitment towards meeting the requirements and show enough ‘opportunity’ for economic growth in the short- to medium term (MCC, 2022a), threshold programs are set up to accelerate the reform process. On the African continent, Rwanda, São Tomé and Príncipe, the Gambia, Togo, and Uganda are currently at this stage (MCC, 2022b). Once a country fulfills the requirements of the scorecard, a compact is developed and ultimately signed between the MCC and the recipient country. Therein, the conditionalities and legal safeguards of the development cooperation are spelled out and the objectives and respective targets are stipulated. The MCC then disburses funding contingent on achieving progress against the stipulated goals.

In this article, we look specifically at the MCC’s Power Compact with Ghana, a country that bore all the relevant characteristics for fruitful cooperation. Fueled by economic growth and democratizing efforts since the 1990s (Haynes, 1993; Hickey et al., 2020) Ghana had become a ‘donor darling’ and ‘role model’ (interview with a development bank representative, 31 October 2019) by the turn of the millennium. The offshore oil discovery in 2007 disrupted the country’s energy sector and garnered not only domestic but also international attention (Hickey et al., 2020; Phillips, 2019). OECD countries increased their official donor assistance for the energy sector more than 18-fold, from US $52 million in 2008 to US $923 million in 2016, earmarking most for transmission and regulation (Aid-Atlas, 2018). And China, too, doubled down on its engagement with Ghana, among others, by extending a US $3 billion oil-backed infrastructure loan to Ghana in September 2010, just two months before commercial oil production began offshore (Phillips, 2019).

Over the last couple of years, Ghana has also become a favored destination for risk mitigation and donor guarantees, oftentimes lumped together as de-risking tools. Under the banner of the Compact With Africa, the International Finance Committee (IFC), the African Development Bank (AfDB), European Commission and European Investment Bank (EIB), Global Infrastructure Facility (GIF), the German Development Bank (KfW) and World Bank enlisted an array of de-risking tools to support (foreign) investors in the country (Haag & Müller, 2019; International Finance Corporation, 2017, pp. 8–9, 12; KfW, n.d.). Not surprisingly, Ghana has been considered a frontrunner on the continent regarding Public-Private-Partnerships (PPPs) (Kwofie et al., 2019; Osei-Kyei & Chan, 2017), spanning various sectors such as transportation, water, and waste facilities, information and communications technology (ICT), power, social and health infrastructure, agriculture, and housing. Comparing PPPs in Ghana and South Africa, Kwofie et al. (2019) find that loads of them are heavily internationalized with stakeholders from China or the US, but also from Germany, the Philippines, and others.

Given its excellent good governance credentials, Ghana was selected as a development partner in August 2014 (MCC, 2019). Earmarking US $498 million, the MCC sought to deepen US engagement in the energy sector, building on previous work by USAID in the gas and oil sector (Phillips, 2019). Stipulated in the Ghana Power Compact, the MCC and the Ghanaian government agreed on a substantial reform of a sector that, according to the MCC (2021), ‘has not kept up with increasing demand from businesses and consumers, holding back Ghana’s potential for private investment’. The main goal was the privatization of the ECG, in charge of transmitting electricity across most of the country (MCC, 2019).

This brief contextualization underscores the MCC’s credentials as a Northern agency driving neoliberal reforms in the developing world. The Ghana Power Compact, in turn, provides a fitting case to understand how these neoliberal reforms are carved in legally through development agreements.

Tracing the neoliberal dimension in development agreements

By operationalizing Gill’s (1998, Gill & Cutler, 2014) NC concept, we seek to render visible the mechanisms driving neoliberal reforms through development cooperation. This section presents the methods deployed.

First, Gill’s most recent text about NC (Gill, 2014) is reconstructed to gain an overview of new constitutionalist mechanisms and the goals they have. In a reconstruction, the theoretical text material is assembled in a certain way so that it is made accessible for subsequent discussion (Zapf, 2013, p. 71). An overview-like reconstruction to meet the methodological standard of intersubjective traceability is achieved through qualitative content analysis (Mayring, 2015, p. 13; Zapf, 2013). This article uses a thematic qualitative text analysis that focuses on identifying themes and subthemes with the aim of systemizing and analyzing the relations between them (Kuckartz, 2016, p. 123).

To ensure replicability, coding Gill’s NC concept requires definitions and structure. In the present case, themes refer to the new constitutionalist mechanisms Gill delineates. To filter the text passages in which NC mechanisms are described, it is important to determine what a mechanism is. We draw on the Cambridge Dictionary (2021) to define a mechanism as a way of doing something that is part of a system. In the present case, the system is Gill’s concept of NC. Thus, we coded text passages that contribute to the maintenance and consolidation of NC. Throughout the coding process, intra- and intercoder reliability were ensured by cross-checking our coding markers, common agreements on coding rules, and by using a common codebook.

The system ‘NC’ is determined by its goals. The overarching goal is to ‘strengthen the power of capital’, which we deduced due to its high level of abstraction and its prominent position in the text. Gill argues that three interrelated sets of measures contribute to this overarching goal, namely (1) measures to reorganize state apparatuses, (2) measures to create and expand capitalist markets, and (3) measures to maintain the depoliticization of the economy (2014, p. 24). These three sets of measures, in turn, are defined by their intermediate goals (i.e. to reorganize state apparatuses). We coded text passages as intermediate goals, when Gill ascribes a purpose in line with the overarching goal of strengthening capital, as can be seen by his use of the preposition ‘to’, ‘for’ or ‘in order to’. This resulted in a total of five different intermediate goals: (1) reorganize state apparatuses, (2) create capitalist markets, (3) depoliticize the economy, (4) achieve full international capital mobility, and (5) extend the influence of market forces. The five intermediate goals subsume the NC mechanisms whereby one mechanism can contribute to more than one intermediate goal. By analyzing each sentence, we discovered 34 NC mechanisms. The 34 NC mechanisms are divided into three levels of abstraction: High-level, medium-level, and low-level abstraction mechanisms (see Figure 1). For example, Gill elaborates on the mechanisms that ‘deploy double legal standards’ in more detail throughout his whole text, thus adding depth:

Finally, in the context of the debates concerning “hard” and “soft” law as aspects of the governance of the global political economy, it seems that it is no accident that new constitutional agreements tend to provide hard or binding rights for corporations and investors but only require soft or voluntary responsibilities of them. (Gill, 2014, p. 13)

In his explanation of double legal standards, he formulates two further mechanisms, namely ‘require only voluntary responsibilities of corporations and investors’ and ‘provide binding rights for corporations and investors’. These two mechanisms have more substance, are less abstract, and are therefore subcategorized under the more abstract mechanism. By relying on three levels of abstraction, we ensure that no information is lost. Generally, we always assigned the most concrete mechanism. We apply the more abstract mechanism only if text passages in development cooperation agreements reveal insufficient information to use the more concrete mechanism. For example, consider the following text passage from the MCC Ghana Power Compact:

The Parties understand that any modification of any Annex or to any other provision of this Compact pursuant to this Section 6.2 may be entered into by the Government without the need for further action by the Government (including any parliamentary action), or satisfaction of any additional domestic requirements of Ghana. (MCC Ghana Power Compact, p. 12)

We coded this with the NC mechanism ‘insulate the economy from democratic control’, instead of ‘reframe political and economic issues as technical’ or ‘legitimize the removal of democratic participation’, which are on a lower level of abstraction. Overall, our coding of Gill’s NC yielded 21 mechanisms of high-level abstraction, 12 mechanisms of medium-level abstraction, and one low-level abstraction mechanism.

Results: how to lock in a neoliberal agenda in development cooperation

The following section briefly showcases our findings, namely which NC mechanisms could be identified in the Ghana Power Compact. The section is divided into two subsections. The first discusses NC mechanisms found in the compact whereas the second presents our inductively elaborated mechanisms and how we proceed to obtain them. In total, we obtained a coding system of 34 NC mechanisms and 14 inductively elaborated mechanisms (see Figure 1 for the whole coding system).

New constitutionalist mechanisms in development cooperation agreements

First and foremost, the results demonstrate that Gill’s NC concept uncovers how neoliberal reforms are locked in through development cooperation agreements. We spotted 20 of the 34 NC mechanisms in the Ghana Power Compact, meaning roughly 60% of our NC framework applies in the 75 pages of the contract document (see Figure 1). The frequency with which mechanisms were identified varied significantly, as Figure 2 indicates. Some mechanisms were coded 20 times more often than others, with ‘establish system of surveillance’, ‘impose funding conditionality linked to vested donor interests’, and ‘co-opt democratic forces and opposition’ being by far the most frequently coded NC mechanisms. While the frequency might give a notion about the importance of some mechanisms over others, it is not the decisive reason for the selection of our major findings. Rather more important were the scope and impact of the implementation of the mechanisms. The three most relevant conventional NC mechanisms in the Ghana Power Compact revolve around protecting the compact against domestic laws, ensuring seamless monitoring of development progress, and safeguarding donor interests.

Figure 1. Overall coding system along with the levels of abstraction. Blue: original NC mechanisms, orange: deductively elaborated NC mechanisms, yellow: inductively elaborated NC mechanisms. Source: Authors.

Figure 2. Frequency of original NC mechanisms in the MCC Ghana Power Compact. Source: Authors.

We found ample evidence of integral mechanisms of NC namely ‘to prioritize constitutional agreements over domestic regulations, laws and policies’. In the compact, the MCC makes sure that it is governed by the principles of international law (ibid., p. 12) even after the compact is terminated (ibid., p. 11f.), and ‘(…) that the MCC and the United States Government or any current or former officer or employee of MCC or the United States Government will be immune from the jurisdiction of all courts and tribunals of Ghana for any claim or loss arising out of activities or omissions under this Compact’ (ibid. 13). This involves even the Millennium Development Authority (MiDA) (see also sub-section below) officials with Ghanaian citizenship who may step up to defend MCC interests. Additionally, the MCC entails Section 7.1 which was widely criticized by trade unions in the run-up to the negotiations (Interviews with trade union representatives on 4–5 November 2019). This section explicitly states that the compact will prevail over the domestic laws of Ghana (ibid., p. 13).

Another interesting finding is the establishment of a system of surveillance that is spread all over the compact and entails a wide set of measures ranging from financial audits of all disbursements by an independent auditor that is formerly approved by the MCC (MCC Ghana Power Compact, p. 8), providing system monitoring/control to strengthen the implementation of certain projects through the hiring of advisors in various areas (ibid. Annex I, p. 11), or demanding independent impact, performance and self-evaluations (ibid. Annex III, p. 12). Overall, the monitoring system is strongly elaborated and aims at demonstrating MCC’s commitment to making its evaluations as rigorous as warranted to understand the causal impacts of its program and to assess cost-effectiveness (ibid.).

This system of surveillance is accompanied by funding conditionalities linked to donor interests. Ghana had to ensure that the MCC funding would not be used for ‘(…) any activity that is likely to cause substantial job loss of United States jobs or substantial displacement or United States production (…)’ (ibid., p. 4). The liberalization of the Ghanaian energy sector, in turn, would open it up to international investment. This manifested above all else in the attempted privatization of the Electricity Company of Ghana (ECG), which would hand over the assets and operation of the distribution system to Ghana Power Distribution Services (PDS), a consortium of investors led by the Philippine electricity company Meralco MER.PS (Reuters, 2019). Further, Ghana would have been required to implement a full cost-recovery tariff plan for its energy utilities, thus catering to its investor needs (MCC Ghana Power Compact, Annex V, p. 6), but clashing with the Ghanaian government intentions at the time to lower the prices for electricity (Interview with a trade union representative on 5 November 2019).

Regarding the general application of Gill’s NC, these findings demonstrate the means through which the MCC protects its actions and simultaneously carves its neoliberal agenda into the policy fabric of the recipient country. Yet there are more mechanisms hidden in the compact which we turn to next.

Differentiating Gill’s new constitutionalism empirically

Beyond the mechanisms derived from Gill’s body of work, we spotted some mechanisms his NC concept does not mention. These mechanisms relate to the overall concept of NC. But they also yield more information about how NC works in the current era of development cooperation, the WSC, and in the context of postcolonial statehood. In total we obtained 14 new mechanisms, which all relate to NC by a) either supplementing existing NC mechanisms by being more specific about the way the mechanism works, b) by being more abstract than an existing NC mechanism, or c) by directly contributing to NC goals without relating to NC mechanisms (see Table 1). By definition, NC mechanisms of categories a) and b) fit into the existing NC code system, while category c) mechanisms are automatically high-level abstraction mechanisms. The inductive mechanisms served three major purposes: 1) Making NC mechanisms more visible; 2) accounting for the new dimension of development cooperation (the WSC); and 3) accounting for the specificity of development cooperation in the context of asymmetrical power relations.

Table 1. New NC mechanisms sorted by category and effect.

	Category a) mechanism (mechanism is more specific than an existing NC mechanism supplementing it)	Category b) mechanism (mechanism is more abstract than an existing NC mechanism)	Category c) mechanism (mechanism directly contributes to NC goals without relating to existing NC mechanisms)
Mechanisms to enhance NC’s visibility	-’threaten to impose sanctions upon misaligning donor interest’	-’intervene in state sovereignty’ -’impose market mechanisms’	-’promote climate of competition’
Mechanisms that start at the intersection of NC and WSC and make WSC logic visible	-’harmonize the domestic economy with international investors’ needs’ -’protect investors’ returns on capital’ -’promote private investment’ -’remove regulatory barriers to market-based finance’	-’impose market mechanisms’	-’prioritize economic over social/environmental factors’
Mechanisms that explicitly make visible the asymmetric power relations between developed and developing countries	-’engage third agents to evaluate government activities’		-’sign away of accountability’ -’provide external technical advisory services’ -’diffuse environmental and social responsibilities to Southern actors’ -’create pseudo-ownership structures’

Source: Authors.

Making new constitutionalist mechanisms more visible in development cooperation agreements

On the one hand, we spotted mechanisms that were more abstract than the given NC mechanisms, but yielded crucial insights into understanding the concept at work. While it was impossible to find any ‘enabling of commodification forces to reach into new areas’, we could prove that ‘market mechanisms were imposed’ (category b mechanism)—thus providing an example of why more abstract codes add value. The MCC Ghana Power Compact, indeed, focuses, strongly on the implementation of a market-oriented gas sector.

We also, on the other hand, identified mechanisms that are more specific than those described by the NC. While NC only accounts for the establishment of a system of surveillance, we also found that the surveillance system encompasses threats of sanctions upon misaligning donor interests: The Ghana Power Compact can be terminated by the MCC if the MCC identifies an event or events ‘(…) that makes it probable the Program Objectives or any of the Program Objectives will not be achieved during the Compact Term or that the Government will not be able to perform its obligations under this Compact (…)’ (MCC Ghana Power Compact, p. 10). Further, the compact can be terminated if ‘(…) the Government or any other person or entity receiving MCC Funding or using Program Assets is engaged in activities that are contrary to the national security interests of the United States (…)’ (ibid.). These examples underscore that the donor may suspend funding on the mere probability that program objectives may not be reached, thereby leading to strong disciplining of the Ghanaian Government. By adding this more specific code, we were able to tease out a crucial mechanism safeguarding US interests pre-emptively.

This point becomes more interesting when considering the program objectives. There is, for instance, the Power Generation Sector Improvement Project, which aims ‘(…) at opening up the power sector making it attractive to private investment (…) to meet demand’ (ibid., Annex I, p. 19). This project also entails the Facilitate Liquefied Natural Gas (LNG) Development Activity, which intends ‘(…) to attract funding from the private sector or other donors for LNG development’ (ibid.). Combined with the fact that energy security is a national security interest in the US (American Security Project, 2022) the text passages give MCC the possibility to terminate the compact if Ghana were to substitute fossil fuels with environment-friendly options. As Gabor (2021) points out, this narrows the scope for a green developmental state to design its own just low-carbon transition. It is also one example of another mechanism we created to make NC mechanisms more visible: ‘Intervene in state sovereignty’. While NC describes many mechanisms that entail the intervention in state sovereignty (i.e. impose binding constraints on states’ economic policies or prioritize constitutional agreements over domestic regulations/law/policies) which could all be identified within the compact, we summarized all these mechanisms by creating the more abstract mechanism of ‘intervene in state sovereignty’, that allowed us to visualize this kind of intervention that does not use binding constraints or the prioritization of the compact over domestic law.

Locking in financialization in development cooperation

Many of the new mechanisms we created have the purpose of rendering mechanisms that are inherent to NC and WSC visible. This sub-section touches on the commonalities between NC and WSC along the mechanisms intervening in state sovereignty, extending investor freedoms, and harmonizing domestic markets with international market requirements.

‘Intervene in state sovereignty’ is one such mechanism that highlights the intersection between the concepts of NC and WSC. During the Ghana Power Compact, MiDA provided equipment to test the standards of several products including solar panels (Interview with Ghana Standards Authority, 2019). MiDA also advised the Ghana Standards Authority and the Energy Commission to develop legal instruments for a list of predominantly electric devices, including solar panels, solar batteries, solar inverters, and electric motors (email correspondence with MiDA, 2019). This attempt to intervene in state sovereignty is accompanied by another mechanism we discovered: ‘Provide external technical advisory services’ (see for details below). The compact also intervened in state sovereignty by creating a reform unit within MiDA that is responsible for ‘taking actions as needed in key reforms, working closely with MiDA to achieve inter alia private sector participation’ (MCC Ghana Power Compact, Annex I, p. 9, 26).

NC mechanisms describe the liberalization of trade and investment and the extension of investor freedoms, both of which could not be found explicitly in the MCC Ghana Compact. Nonetheless, we discovered that private sector investment is strongly promoted in the Compact. The first objective of the compact targets the increase of private sector investment (MCC Ghana Power Compact, p. 1). The ECG Financial and Operational Turnaround Project encompasses the Private Sector Participation Activity, which also seeks to mobilize private investment (ibid., Annex I, p. 4), i.e. to fund future power generation (ibid., Annex I, p. 20).

Similarly, we not only found the NC mechanism of ‘harmonization of the domestic economy with world market needs’, we also found the text passages that incentivized the harmonization of the domestic economy with international investors’ needs. By way of example, the compact stipulates updating the electricity ‘(.) distribution design and construction standards based upon currently accepted best practices to ensure compliance with international best practice for low loss and economical designs’ (ibid., Annex I, p. 6). Also, the power sector should be liberalized by creating ‘(…) an enabling environment that reduces barriers and levels the playing field for private sector investment (…)’ (ibid., Annex I, p. 21), again signaling efforts to harmonize the domestic economy with international investors’ needs as also mirrored in other instances (i.e. ibid. Annex I, p. 15, 20). Only by extending the concept of NC with more precise mechanisms that entail the analytical lens of the WSC were we able to identify these mechanisms.

The particularities of contractualizing neoliberal reforms in developing countries

The third major finding of our analysis of the Ghana Power Compact relates to the specific ways the MCC uses its conditional funding to carve a neoliberal agenda into the policy fabric of developing country partners. In this North-South relationship, the MCC deploys two broad—and at first glance incommensurable—means, namely external services and the diffusion of responsibilities towards domestic pseudo-ownership structures. Both mechanisms correspond well with the particularities of postcolonial statehood, such as the openness to external actors and their integration into sovereign government bodies. They play out, as we will recapture, as an externalization of control and as a weakening of ownership and sovereignty.

The compact includes several paragraphs spelling out the provision of external advisory services, which at most concentrate on introducing and/or extending market mechanisms. For instance, the compact foresees ‘[t]echnical assistance for tariff applications to provide ECG with the support and training needed to develop a rate case filing compliant with the Tariff Plan’ (MCC Ghana Power Compact, 2014, p. 24). To make the investment ‘sustainable’ the compact mandates in another instance, that investments ‘are accompanied by changes in business processes and reinforcement through technical assistance and training’ (MCC Ghana Power Compact, 2014, p. 27, italics added).

The MCC also reserves the right to engage third agents to evaluate government activities in order to control the reform processes. In this vein, the MCC may request the government to permit ‘at all reasonable times (…) any assessment, review or evaluation of the Program, the opportunity to audit, review, evaluate or inspect facilities, assets, and activities funded in whole or in part by MCC Funding’ (MCC Ghana Power Compact, 2014, p. 9f.). Compact-related policy preparation is thus undergirded by external technical assistance. Simultaneously, government conduct may thus be monitored at MCC discretion to avoid domestic policies from leading the country astray in its neoliberal restructuring pathway.

To counter concerns over any lack of domestic ownership, secondly, the MCC creates pseudo-ownership structures in its partnering developing countries. The Compact stipulates the establishment of an accountable entity, the MiDA. While MiDA acts as Ghana’s permitted designee and thus representative under the compact and was formally established by an act of the Ghanaian parliament (MiDA, 2021), it is governed by the bylaws in the Program Implementation Agreement notwithstanding any provisions to the contrary in the establishment legislation (Program Implementation Agreement between the United States of America & Acting through the Millennium Challenge Corporation & the Republic of Ghana, 2016, p. 6, 34). In other words, a government institution, whose board of directors is composed of government officials as much as private sector representatives (ibid., p. 37), is established that is not bound by Ghanaian law but by a development compact. To enhance domestic buy-in in the early phase of the compact preparation, MiDA hosted several workshops with key stakeholders like trade unions at lavish venues, trying to win them over for their agenda without providing the opportunity for co-creating policies (Interview with trade union representative on 5 November 2019). Domestic ownership as practiced under this Compact seems to work as a façade rather than as a platform for meaningful cooperation.

Beyond deterring from external agenda setting, these pseudo-ownership structures serve another vital end, namely, to diffuse environmental and social responsibilities to the recipient country and thus sign away accountability. In this vein, the MCC Ghana Power Compact makes several generic statements about MCC not being responsible in case of any damages. On an international level, in turn, the compact protects the donor, its host country’s interests and the investments from any liability or claim in case social and environmental costs arise during the implementation of the compact (MCC Ghana Power Compact, 2014, p. 22; Program Implementation Agreement between the United States of America & Acting through the Millennium Challenge Corporation & the Republic of Ghana, 2016, p. 5f.), covering both intended and unintended outcomes. In other words, if something goes amiss, donors can point to their Southern partners as ‘responsible executives’, shielding themselves against criticism.

All in all, our findings shed light on the mechanisms driving financialization as the latest feature of neoliberalism, provide additional detail to Gill’s NC concept, and expanded it by zooming in on some idiosyncrasies of North-South development cooperation.

Discussion and concluding remarks

New constitutionalism not only locked in the first wave of a neoliberal agenda in the 1990s. It still does so nowadays by strengthening asymmetrical power relations and locking financialization into development cooperation. Our results demonstrate that neoliberal policies are strongly promoted through development cooperation.

We showed that over 60% of the NC mechanisms can be traced in the Ghana Power Compact. Some of the most frequently coded ones are at the core of the NC concept. It is not only demonstrated that the compact itself determines its prioritization over Ghanaian law, but also that the compact puts constraints on Ghana’s economic policy, thus intervening in its state sovereignty. As Joanne Davies (2018) noted, the prevalence of the MCC Ghana Power Compact over Ghanaian law shifts power from the democratically elected Government to the US government, imposing what Gill (2014) would call a mechanism to insulate the economy from democratic control.

Still, this intervention in state sovereignty is no end in itself, but explicitly serves the interest of the donor country. The efforts to privatize the power distribution system go hand in glove with the liberalization of the gas sector and the promotion of LNG. This observation seconds literature criticizing development cooperation merely as a means to assert donor countries’ interests (Anyang’ Nyong’, 1993; Escobar, 1995; López & Thomas, 1990; Veltmeyer, 2005). Thanks to the concept of NC, we could empirically show how these interests are locked in through a development cooperation agreement, thus rendering the pursuit of donor interests (at the expense of the recipient’s interests) more visible.

Further, we demonstrated that conditionality linked to development finance is no forgone practice—and neither is it the only measure hailing from the Washington Consensus era. The Compact stipulates various forms of liberalization, privatization, and deregulation, thus backing literature that emphasizes the continued relevance of the Washington Consensus paradigm (cf. Babb & Kentikelenis, 2021).

The contestation of certain measures and program objectives is complicated by the establishment of strong systems of surveillance that guarantee early disciplining. These systems of surveillance cannot be subsumed under the concept of mutual accountability, which is set as one of the five principles of the Paris Declaration on Aid Effectiveness and was formulated in contrast to the tradition of development cooperation as ‘donor-guided’ (Ocampo & Arteaga, 2014). Mutual accountability relies on trust and partnership around shared agendas rather than on sanctions for non-compliance (ibid.). The compact does not only impose strong sanctions upon misaligning donor interests. It also diffuses the social and environmental responsibilities to Ghana while determining its immunity to legal prosecution in Ghanaian courts. Rather than mutual accountability, the MCC ensures its accountability is signed away in the Compact regulations.

Beyond demonstrating the persistence of the Washington Consensus, we also showed that mechanisms of the WSC are implemented. We found three mechanisms that are strongly linked to the concept of NC but entail mechanisms described by Gabor’s WSC. One of them, the promotion of private investment, is at the core of the compact. By putting private investment in the center, the compact determines the harmonization of the domestic market with investors’ needs and the removal of regulatory barriers for investors. These mechanisms can prevent the formation of a green developmental state, in combination with imposing constraints by the compact on Ghana’s economic policies and the conditionality linked to US interest in the gas sector.

While we illustrated that neoliberal policies and, more precisely, policies of the WSC are implemented in development cooperation, we also point out mechanisms that take advantage of asymmetrical power relations between donor and recipient countries. As argued elsewhere (ie Hasselskog, 2022; Keijzer et al., 2018), the principle of ownership is not applied. We extend these assertions by showing how ownership is foreclosed through the creation of pseudo-ownership structures, wherein the organization representing the recipient country’s interest is dominated by the donor country. Jacqueline Best’s (2014) observation that there has been a notable failure in implementing the ownership system, still holds true.

In summary, the new additions to the NC highlight the dynamics in contemporary North-South engagements. Were it not for our extension, crucial mechanisms around the engagement of third agents and reliance on foreign expertise would have gone unnoticed. In combination with the mechanisms that show the logic of the WSC, they point out the new tendencies in development cooperation concerning a new overarching consensus on norms and legitimization of aid. Our article contributes to structuring and highlighting the means through which these practices are entrenched legally.

Still, our study has its limitations and, thus, points to potential avenues for further research. The inductive coding of WSC mechanisms could be extended by comparing multiple MCC cooperation agreements, thus expanding criticism of the MCC’s neoliberal agenda on the African continent and beyond. This would deepen our understanding regarding NC mechanisms and their scalability. Case studies, in particular, could add indispensable insights into lock-in mechanisms in practice. Further, the high range of frequency among the codes does not necessarily correlate with the relevance or strength of the underlying mechanism. Research deploying our analytical instrument on several development agreements and applying a weighting system that qualitatively elaborates the importance of a mechanism, would help integrate these quantitative measures.

This article contributes to critically assessing development practices by tracing the legal means through which neoliberal reforms are locked into recipient partner countries in developing countries. It renders visible the mechanisms at work and thus enables and simplifies its contestation. Our analytical extensions of the NC will thus allow scholars to better elucidate the power relations of actors and interests involved with the locking in of WSC reforms.

Acknowledgments

A preliminary version of the paper was presented at the 45th British International Studies Association (BISA) Conference, on June 5^th, 2021. The authors would like to thank the participants for their comments without implicating them. Also, we would like to thank Anil Shah and Lena Rethel for their constructive thoughts and ideas.

Disclosure statement

No potential conflict of interest was reported by the authors.

Interviews

Interview with a MIDA representative on 30 October 2019.

Interview with a development bank representative on 31 October 2019.

Interview with 350.org lead activist on 2 November 2019.

Interview with trade union representative on 4 November 2019.

Interview with another trade union representative on 4–5 November 2019.

Interview with a representative of the Ghana Standards Authority, 2 November 2019.

Additional information

Notes on contributors

Nina Glatzer

Nina Glatzer is a Research Associate at the Chair of Global Climate Governance at the University of Hamburg. During her Master’s degree in Political Science at the University of Göttingen, she conducted research on South-South cooperation and the development models of BRICS countries. Her current research focuses on the financialization trend within international cooperation and its impact on sustainable development; Global governance structures in international cooperation contracts, especially in the field of renewable energy projects; and South-South cooperation and its relationship to ownership and accountability.

Manuel Neumann

Manuel Neumann is a Research Fellow of the research group ‘GLOCALPOWER’ anchored in the Department of Political Science. He did his PhD at Kassel University and was a visiting scholar at Wits University in Johannesburg in 2018 and 2019. Beforehand, he worked in the development context in Geneva and Kathmandu and studied at SOAS, Delhi University, and Tübingen University. His research revolves around green financial innovation and the political economy of energy transitions in the global South.

Franziska Müller

Franziska Müller is Assistant Professor for Globalization and Climate Governance and leads the research group ‘GLOCALPOWER: Funds, tools, and networks for an African energy transition’ at the University of Hamburg. Her main research interests are global climate and energy governance as well as theories of international relations. Her current research focuses on international politics in the Anthropocene, green financialization, and transformations of postcolonial statehood.

Notes

1 By 2019, 49 developing countries had received development financing through the Millennium Challenge Account (MCA) of which 26 are situated in Africa (Resende-Santos, 2020).