Why the rule of law is important for the WANA region

Whether you subscribe to the human rights or development theories, it is generally accepted that the rule of law is key to poverty reduction, economic growth and human security. But is what we’re doing aligned with the aim we wish to achieve?

For the better part of the last three decades, the approach has been what many people describe as ‘top-down’ or orthodox legal development assistance. The focus is on strengthening formal justice systems through legislative reform, training judges and equipping courtrooms. The rationale was that a modern legal system was a prerequisite to development. It’s the basis for property rights; it’s needed to facilitate investment and hence economic growth; and it’s central to public administration, which is the basis for public revenue generation and service delivery.

The idea was that benefits would trickle down to ordinary people: get the system right and the people will come. But the people did not come.

Despite the international community spending an estimated US$1billion over the past two decades on initiatives aimed at strengthening the rule of law, there’s scant evidence that programming has had a sustainable impact. This is a huge concern, for donors, practitioners and, of course, for the marginalised and poor: the 4 billion people excluded from the rule of law.

Why orthodox approaches haven’t worked

First, orthodox approaches lack a theory on how legal systems are built or develop. It makes a causal connection between countries with sound records of human rights, high growth, democracy, and the institutions that exist there. A lot of people think that this is too simplistic. And it is.

Second, orthodox approaches ignore the issue of political economy. Technical interventions don’t deal with fact that governance is highly political and that too often, power trumps law. Revised legislation or training will not necessarily overcome causal issues such as corruption or discrimination.

Third, orthodox approaches underrate the limitations of the state. They focused attention on fixing the state system when, in developing countries, there are usually other important rule systems in play, such as tribal justice.

The emergence of legal empowerment

About ten years ago, some progressive members of the rule of law community drew the conclusion that we were focusing on the wrong problem.

A different problem was posed: that the poor are caught up in a cycle of marginalisation-exploitation-poverty. This cycle needs to be interrupted and it’s the way the marginalised interact with the legal system that needs to be the solution. From these connections the concept of legal empowerment emerged.

Legal empowerment is grounded on the idea that poverty persists partly because the poor do not enjoy legal rights or the power to exercise those rights. By giving people power in the form of information, skills and tools, they will be able to protect and uphold their rights, access services equitably, and demand accountability. 

Legal empowerment doesn’t say that the formal justice sector is not important. It is. What’s the point of knowing your rights if the law is discriminatory or doesn’t protect you? What’s the point in knowing how and being able to access the justice system if judges are corrupt or there’s no enforcement of decisions? Instead, top-down and bottom-up need to work in concert, at different rates and with different sequencing.

Rectifying the situation in the WANA region

Arguably, legal empowerment is needed in the WANA region more than anywhere. Here, there is a crisis in access to justice coupled with a crisis in confidence. The likely consequences of this was graphically played out in 2011 where poor access to resources, limited economic opportunity and weak accountability, translated into widespread unrest during the Arab Spring.

There are a number of actions that need to be taken.

First, we need to look critically at why legal empowerment has not caught on here as it has done elsewhere. We need to galvanise support around the idea that all people need to be able to resolve their grievances in a fair and predictable manner. The majority of the people in the WANA region are poor and marginalised. Because of their vulnerability, they are more likely to be victims of crime and illegality and are less likely to be able to obtain redress. So they fall further into poverty. There is a moral and economic imperative to fix this situation.

Second, we need strategies to move beyond the political economy that currently blights progress towards legal empowerment. We have to confront the reality that some people will not benefit from reforms. What incentives or accountability structures need to be set in place to turn potential spoilers into champions, or at least into passive partners? We also need to remember that those who have a lot to lose are often also marginalised: it is not as simple as the strong rich versus the vulnerable poor. These conversations need to proceed carefully. Legal empowerment cannot become equated with ‘a language of revolution’. We cannot provide any excuse for decision-makers to resist legal empowerment on the grounds that this might aggravate instability. Legal empowerment must be promoted as a tool of conflict resilience.

Third, we need to carve out a wider and more liberal operating space for civil society. Legal empowerment is too large of a problem to be left to government alone. Civil society must be brought into development discussions as equal partners. We also need autonomous bodies like ombudsman and public legal aid boards to serve as the gatekeepers of civil society’s independence.

Fourth, we need to develop a regional knowledge base capable of supporting the level of innovation required to meet these challenges. I support the High Level Panel’s call for a data revolution, but I disagree that this revolution should be driven by the new development framework; rather, the development framework should be driven by data. Policy must be evidence-based, as opposed to being founded on buzzwords and conjecture. More practically, we must face the fact that “doing the right thing” is never as compelling a reason as it should be. Legal empowerment must speak the language of economists to justify money being spent by governments.

Finally, we need to think seriously about building a culture that supports legal empowerment. This discourse heralds the power of the individual to assert their rights and hold duty-bearers to account. However, for those who have only been exposed to inequality, institutional failure and lack of opportunity, such an expectation may be unrealistic. Promoting knowledge of the law and legal tools, and getting people to have sufficient belief to make use of them, are separate processes and require different working methodologies. Promoting rule of law values is an elusive area and one that — particularly in this part of the world — is often eschewed. But legal empowerment cannot exist unless people believe that the law can work for them; without this, a legally literate population, legal aid and functioning institutions, are missed opportunities.

We need to kick-start a fundamental rethink of how people of the region perceive the value of their legal system. This is a generational shift that must start now. The law must make everyday life easier, not be another challenge to overcome.