by Rhodri C. Williams
Its been a busy 18 months in my new rule of law gig, and an eye-opening time to boot. While the range of issues falling under the rule of law umbrella is impressive in principle, I have found myself inevitably stove-piped in practice, with my housing, land and property (HLP) interests finding expression mainly in sporadic consultancies, and justice sector reform issues suddenly front and center in my professional life. Not that I am complaining, mind you.
Judicial reform is just another lens on the whole muddle of good intentions and mixed results I was approaching earlier mainly from a humanitarian perspective, and a change of perspective can be refreshing. I also expect that as I proceed down the rule of law road, I will have opportunities to unpack more and more of my HLP baggage along the way. But for now, it is very interesting to have at least a back row seat on the evolving definition of rule of law and how it relates to broader development assistance efforts.
Recently, a colleague (who I will hat-tip if she likes this post) sent me links to a pair of pieces that helped to crystallize some of the recent debates in this area in my own mind. The first was to a recent Washington Post op-ed by Gary A. Haugen of the International Justice Mission. Haugen describes the explosion of private security companies in the developing world and the extent to which this has resulted in a monopoly on protection from violence for the rich:
As elites abandon the public security system, their impoverished neighbors, especially women and girls, are left relying on underpaid, under-trained, undisciplined and frequently corrupt police forces for protection and all-but-paralyzed courts for justice. ….
When a justice system descends into utter dysfunction, those who exploit and abuse vulnerable people may do so without fear of apprehension or prosecution. As a result, violence is an everyday threat, as much a part of what it means to be poor as being hungry, sick, homeless or jobless.
Interestingly, this piece also exposes the great home truth about the ‘civil and political’ rights traditionally protected by judiciaries. Exclusive proponents of such rights (in countries ranging from the US to Sweden) have often lauded them for being ‘negative’ (in the sense that they involve government duties to refrain from taking actions), and therefore ostensibly cost-free to taxpayers.
This in contrast to social and economic rights, which are ‘positive’, entailing affirmative government actions (and expenditures), and therefore often decried as an unwarranted intrusion in the inherent right of governments to roll the pork barrels toward whichever constituency they choose. In the present case, the lurch toward private security has at least laid bare the extent to which courts actually represent a highly expensive ‘positive’ guarantee necessary for the equitable protection of any kind of rights.
As with public schools, where the rich choose to exit (rather than, say, co-opt) systems designed to benefit everyone and redirect their expenditures to systems benefiting only them, the social contract breaks down for the poor. In this sense, courts are redistributive, even in countries where they do not have an explicit writ to enforce social and economic rights, and thereby fundamental to any equitable form of development. In Haugen’s words:
Identifying the right to safety and justice as a crucial development goal is a first step toward including those marginalized by violence and exploitation in the world’s drive to end extreme poverty. For children, women and men plagued by violence as they try to climb out of poverty, it’s a change that can’t come soon enough.
The thrust of this piece is also a timely reminder that the debate surrounding aid to justice institutions versus aid to justice seekers (as nicely captured in this Sida report on access to justice) need not be zero-sum. While there may be many paths to justice, it should ultimately be seen as a public good, implying the necessity of support to public justice institutions in situations in which privatization threatens to exclude access for the poor.
Indeed, almost every report I have read on even non-mercenary traditional or customary adjudicators and ADR has conceded some type of vital complementary role for an effective state judiciary. For instance, the ICG’s excellent 2012 report on the successes of ad hoc gatherings of ‘wise men’ in negotiating ceasefires in Libya’s tribal conflicts ended with the recognition that only strong state institutions could enforce a lasting, positive peace.
In other words, while measures guaranteeing equitable access to justice for the poor and marginalized are necessary for equitable development, the quality of the justice dispensed almost always rests, directly or indirectly, on the availability of healthy, independent formal institutions. So, one would think that rule of law would be a central plank of both the soon to be retired Millenium Development Goals (MDGs) and the up and coming “post-2015 Development Agenda“. Not so fast. Again, Haugen:
The United Nations is in the process of revising the 2000 Millennium Development Goals. Although the original eight goals inspired enormous progress toward addressing poverty, the issue of violence against the poor wasn’t even mentioned. It’s time to add a target for providing the poor basic law enforcement protections from everyday violence.
To be fair, rule of law has effectively been mainstreamed into the post-MDG process, but clothed in the garb of governance. For instance, the first report of the (deep breath) “UN System Task Team on the Post-2015 Development Agenda”, released in May 2012, described the need to balance consistency with the original MDGs with sensitivity to emerging challenges that culminate in “governance and accountability deficits” amounting to lack of the rule of law. Here from the “key recommendations”:
The focus on human development and the eradication of poverty should remain at the core of the new agenda, however it must allow for the inclusion of emerging challenges [including] the persistence of major inequalities; the knowledge gap between countries and within countries; shifting demographics; a growing environmental footprint, peace and security issues; and governance and accountability deficits at the global, regional, national and sub-national levels.
This all seems a bit confusing at first blush. After all, organizations like the Folke Bernadotte Academy in Stockholm have expended a lot of ink to demonstrate that the relevance of rule of law principles extend beyond their traditional base in justice sector reform to “governance” issues like public administration. Now, it seems, the mountain is coming to Muhammed instead. Indeed, a subsequent UN “think piece” on governance (one of a set of 18 on various topics) made the connection even more explicit:
What does it mean to promote good governance for human development? Much discussion about the definition of good governance has centred on what makes institutions and rules more effective and efficient, in order to achieve equity, transparency, participation, responsiveness, accountability, and the rule of law. These aspects are crucial for human development and the eradication of poverty since ineffective institutions usually result in the greatest harm to those who are poor and vulnerable.
So, is there an element of coyness here? Why not just come out with it and clearly declare the rule of law – and particularly access to justice for the poor – to be central poverty reduction goals? This is where the second article comes in, a guest piece by Alanna Shaikh on the now defunct Aid Watch blog. Here, Shaikh is critical of the trend toward “impact measurability” of development aid, and implies that the low visibility of rule of law in this field may be down to lack of quantifiability rather than actual effectiveness:
The Center for Global Development just published a paper by former USAID administrator Andrew Natsios. Natsios points out that USAID has begun to favor health programs over democracy strengthening or governance programs because health programs can be more easily measured for impact. Rule of law efforts, on the other hand, are vital to development but hard to measure and therefore get less funding.
Legal certainty is good, in other words. But statistical certainty of legal certainty is hard to achieve in rule of law programming. So, in the worst case, promoting it may not be of interest to donors, whatever the poor and marginalized might think.