Prepared for a Legal Reform and Judicial Capacity Building Workshop at the World Bank


The Low Income Countries under Stress Section of the World Bank must be congratulated for organising this one day Learning Seminar which brings together experts on various different aspects of state building around the world.

Almost all the low income countries under stress are to be found in the developing world. Most of these countries are in Africa. The task of bringing about development in these countries is not only the concern of the political leaders of those countries; it is also the concern of the Bretton Woods Institutions and the wider international community.

Since the creation of the United Nations Organisation following the aftermath of the Second World War in 1945, the world scene has changed vastly. From a membership of about 53 nations in 1945 the United Nations Organisation has now a membership of close to 193 countries. These member States of the United Nations are in different stages of political, economic and social development; some requiring massive development assistance from multilateral and bilateral donors and others slowly achieving the desired development.

Most of these countries have written their own constitutions providing for the separation of powers between the Executive, the Legislature and the Judiciary. In this discussion it is the role of the rule of law in the development process that we concern ourself with. This is a tall order as the rule of law encompasses a variety of issues.

Apart from the role expected to be played by ordinary courts in the promotion of the rule of law; there are other institutions created to assist in the promotion and development of democracy and the rule of law. Of paramount importance however is the relationship between the Executive and the Judiciary which in most of these fragile states is at best ambivalent or more likely hostile where the judiciary shows too much sign of life.

Who are the enemies of legal reform and judicial capacity building?

Nobody owns up to occupying the above position but it is too often the very individuals in authority whose job it is to get the rule of law institutions up and running who are most prepared to subvert them.

The end of the cold war has brought with it some advantages in the area of the promotion of human rights and the rule of law. This does not necessarily deny developments in the field that took place during the subsistence of the cold war.

Speaking for Africa the continental grouping, the Organisation of African Unity was conceived during the cold war and so was the adoption at Nairobi on the 21st June 1981 by the Assembly of the Organisation of African Unity of the African Charter of Human and Peoples’ Rights. Coming into force on the 26th October 1986, the African Charter broke ground as the second regional human rights charter. At the time of its adoption it was the second most important regional charter; the first being the Inter American Regional Charter of Human Rights.

Socialism out - Something else in.

The dismantling of the iron curtain came with its own distractions to the development of democracy in erstwhile one-party states. Socialism in Tanzania and Zambia was replaced by something akin to the capitalism of Kenya.

Whilst the socialism in a country like Zambia may not have been identical to the versions existing in the Eastern Bloc there was a considerable amount of interaction with some of those states. Some of the political mind set of the former found its way into the political culture of the latter.

Unfortunately there was also direct interaction between the intelligence wings of law enforcement in these anti democratic states and these had considerable influence over the function of the police and the judiciary in the African country.

The extent to which there was an existing cultural propensity to be closed and authoritarian which was built on by this aspect of African-East Bloc interaction is open to debate but my view is that there was a lasting result from this.

Today there are police and members of the Intelligence services who have inherited and are still immersed in the heavy handedness learned in those days.

Unfortunately there is currently very little softening effect being felt on a policy level from the West as it appears to leave behind the human rights based features that distinguished it from such regimes in a knee jerk reaction to the terrorist threat.

Discussions amongst and in western democracies about the need to torture people do not assist those who are trying to stop torture as a method of interrogation not only on the books but in reality. In countries where the torture of ordinary individuals and political figures by police is routine the battle to strengthen rights can only be undermined by debate aimed at legitimising torture.

Corruption

There is such deep corruption in some of the fragile states that it is perhaps not even meaningful to refer to the activity as corruption. In the case for instance of Liberia there appears to be no real method of paying some of the members of the Judicial establishment so a person wishing to have a matter adjudicated upon may simply pay the “judge” to do it. This leaves everything to be desired when it comes to obtaining fair outcomes on the ground.

This kind of perversion of the process is clear enough, as is simply diverting funds meant for the public good into the private purse of a political leader or a civil servant, which activity all too often is as plain as the nose on your face.

It is not difficult for a government or an institution which wishes to provide assistance to the rule of law sector in a fragile state to identify this more blatant activity, the effect of which is too simply subvert all the best efforts they might wish to make.

In looking at countries where the failed state tag has been avoided so far it is worthwhile examining the judiciaries that give an initial appearance of being fully functional. For some of these on closer examination it is easily possible to determine that they do not enjoy the confidence of the people at all.

The issue of perception.

In an environment where corruption is widely practiced at all levels of the society, whether or not the judiciary is by and large able to give uncorrupted judgements, the confidence of the people is likely to be deeply eroded by what they see happening in the broader administration and political elite.

This lack of confidence in and of itself leads to litigants seeking ways to influence the decision of the judges by corruption. Here I refer even to litigants who would as a rule prefer to keep clear of corruption. Placed in an impossible situation many will submit to what is seen as the prevailing custom.

Delays in giving judgements either due to negligence or to lack of resources including too few judges and administrative staff play on the fears of the litigant that there is malfeasance behind the delay.

I am not suggesting that all the fears of the public about corruption in the judiciary are misplaced, far from it but I do suspect there is a multiplier effect caused by the perception itself of the prevalence of corruption.

Corruption in judiciaries extends far beyond judges chambers. In reality a great deal of corruption is evidenced in the administration with court registries clerks being easy pickings for cashed up litigants. This results in missing files, judgments being withheld and bailiffs being interfered with. In this environment many litigants face the courts with deep fear but they are still the only places they can go for redress.

Even in the states that are considered more robust and I use Zambia, for example, it is quite possible to lose your house and farm due to a conspiracy between lawyers who acted for you when you acquired them, a cashed up business man and the lawyers at the lands registry and then when you try to defend yourself, police for hire throw you into cells on a trumped up murder charge of which you can be acquitted by a perfectly honest judge and then be locked up again by other paid for officials for stealing the animals off your own farm before it was taken away from you. You can in fact discover that officials across as many as five departments of government are involved in the corruption network set up to “legally” defraud you.

It is a fact that in Zambia and this is not rare; you can hire police officers to lock someone up because you claim he or she may owe you money or because you want to intimidate them into leaving their property and business to you.

This is Zambia, the sub-Saharan country that has recently received kudos from the international community because of the government’s perceived commitment to tackling the issue of corruption.

During the period that this supposed tackling has been taking place, around the last 4 years, many people who have to live and work in the Zambian environment have an impressionistic view that instead of reducing, corruption in Zambia has become more entrenched and much wider based.

Perhaps this view is correct. After the many years of misery during which the Zambian people endured a perverted and corrupted version of structural adjustment some positive results may be on the way. There seems to be an increase in business activity and possibly more investment in the country.

I make no claims here for the integrity and general probity of the existing political leadership in Zambia but there was such a clear pillaging of resources and state owned property under the previous incumbents that there is much less left to openly steal than was the case then. However opportunities for the current political and administrative leadership to engage in corrupt practice with local and international business people are improving as business expands.

It is also clear that the open theft of the property belonging to Government at all its levels in a process that was called “empowering the people” has left behind a culture where it is perceived that the law does not apply to the political incumbents.

Houses belonging to Local Government which provided a small return in rent were given to sitting tenants at a pittance without tender process and without the right to give residing in the giver, i.e. the President of the country.

The net result is that local government lost its most reliable form of income. This has been “rectified” by the Government passing legislation to the effect that Councils cannot be made to pay their debts. A person or enterprise having a debt may sue a council but having won such an action there is no law in Zambia to enforce it. That this is a factor that any sensible business person will note in their dealings with local government requires little elaboration.

Zambia - what happened outside the Local Government property arena

The then President began to extend the handing over of Government owned property of much greater value per item to his political supporters and to administrators. Land, farms and houses were all piled on. Again there was no tender process and the properties were parted with at much below replacement cost. Houses that were the official residences of Government and para-statal appointees simply slid right off the public housing stock leaving new appointees without anywhere to stay in a country where the accommodation that went with a job had value in attracting good people.

There was a clear strategy at play here and that was to extend political patronage to a wide enough base to ensure the re-election of the President. It did not work as of course far more people were excluded than included and in the end the Father Christmas president had to leave office to his appointed successor.

Results

The loss of public property is not the end of the story as I believe that this visible public process involved such a widespread suspension of probity at all levels including amongst the professional classes that it contributed to the notion of an entitlement to abuse power for personal gain. By professional classes I include many who are not employed in the public sector at all and in relation to the private sector this includes many private lawyers.

There are uncountable recent cases of private sector lawyers conspiring to cheat their own clients and engaging in acts of corruption with public officials to secure unwarranted results from courts. My own experience is that around six out of ten cases involves some misdeed of a lawyer, a situation that was rare before the reintroduction of multiparty politics in 1991.

This is set against a public spectacle of what so far appears to be show trials relating to the former regime whilst corruption currently continues to expand in an epidemic fashion throughout the whole society.

AND ACROSS THE RIVER
Zimbabwe

The activities of the Mugabe regime in grabbing property from the white farmers has been more blatant and well publicised particularly as it has resulted in the subsequent destruction of the economic base of Zimbabwe not to mention the attendant human rights violations.

This has been accompanied by the subversion of the Judiciary with sharp expulsion of those on the bench likely to oppose the so called fast track land grab. Laws have been promulgated that in themselves violate all rights to property and engage the bench in the adjudication of cases where the law itself is simply bad law whether the judge might be a good or bad judge.

It is my belief that there will be a long term effect in Zimbabwe that will outlive this crisis period. That effect which by all reports is already well-established will mirror the invasive spread and entrenchment of corruption seen in Zambia. In the case of Zambia I argue this result can be attributed at least partly to Chiluba’s distribution of state owned property outside of the provisions of the law.

Elsewhere

It is interesting to me that these countries which may be classed as fragile and failed states in the West of the African Continent own reputations as being very corrupt states.

Is it possible that the corruption which is endemic there is an indicator of sorts of a propensity for developing fragility and eventually shattering?

Nigeria which is the corruption godfather has never been classified as a failed state but it has been in a condition perilously close to it on several occasions of major crisis. Current efforts to address corruption appear somewhat sincere in Nigeria and it will be interesting to see whether or not there will be any stabilising influence on the Nigerian state as a result of this initiative. Admittedly the enormous cultural and historical problems associated with the political construct known today as Nigeria are also significant.

It seems to me that the development of democracy and the entrenchment of the rule of law is not going to thrive in the face of the corruption that attends the electoral process in fragile and near fragile states that may be well on the way to being broken states. I say this because corruption is very deeply entwined with the fake elections that are regularly conducted in some of these states - that is where they have elections at all.

Whilst there may be the trickle up effect in terms of the role that is played by Civil Society in policing some of the worst excesses of the political establishment it is common that by politicians rigging the elections and paying for it (usually from the public purse) nations are being denied of opportunities to see the deep entrenchment of the rule of law.

By their nature, regimes corruptly in power as a result of the illegal act of election rigging are deeply unsympathetic to the development and establishment of the justice sector. This is the case regardless of how legitimate they purport to be as a result of the recognition conferred on them by the international community.

LIBERIA

With Liberia the International Community has made efforts to deal with the now dislodged interim government to kick-start development and reconstruction. Apart from a recent successful election what seems to have been achieved is only the cessation of war and fighting which may have been all that was possible in the circumstances.

In spite of the various valiant efforts including by the UN no substantial results have been yielded in the development of the justice sector in that country.

My view is that the interim Government was ad hoc, unelected and largely pre-disposed towards the entrenched national culture of corruption particularly in the political leadership. This combination and a natural antipathy to the rule of law by the leadership was the main reason of this failure.

This does not mean I never met people there in the interim government with goodwill towards law development. I did as did other people in the field but my experience was that their goodwill could not overcome the human liabilities that beset the temporary political dispensation.

Even leaving aside the culture of corruption, Liberia on examination, has under the ruins a legal system which seems quite rudimentary in a modern state. It appears
that it was a lot less developed, less modern than what would have been expected given the close association with the United States.

It is not a case here of putting back on track a country that is like Japan and Germany were after WW 2, equipped with nationally shared values amongst the people that could be supported by existing, if submerged, entrenched organisational capacity including in the rule of law area.

Liberia has its own set of cultural imperatives and histories which may if handled sensitively become its strength but there is small evidence that the legal system formerly in place ever really worked for all or even any one set of Liberians.

Indeed one has to ask the question as to what role the underdevelopment of the legal systems in fragile states plays in their break down in the first place?

Also what is the role that the level of legal development and initial entrenchment of the rule of law plays in the degree of any breakdown when it occurs?

Can these issues be seen in other fragile states? Arguably one can see considerable similarities in shaky places like Papua New Guinea and perhaps other Pacific states.

Certainly with the African states there is only one or two that can be said to have a historical cohesion running along the national borders. The legacy of the artificial colonial division of Africa works against the success of these states in a way that I believe the international community fails generally to take into account.

In the long run the establishment of the African Union may offer a new mechanism of government that will bring a new rule of law establishment of its own.

Yet even the AU has its own history and it is not created through the informed choice of the African peoples. Unlike the European Union the people of the joining states of the AU are largely unaware of its existence. Unlike the EU there has been no attempt to seek the views of the people in the countries that have been incorporated into the AU. It has neither been rejected nor accepted.

The prevailing view may well be that the people of the AU states are hard to contact for their views on the AU or that the governments in power have signed on their behalf.

Whilst the first part of this statement may have some soundness one tends to stumble over the second part seeing that too many African governments lack legitimacy in the eyes of many or most of their people.

Starting somewhere

Whether the AU is a truly legitimate organisation to make lives of people in Africa more compatible with modern thinking about what constitutes a quality existence is an open question.

In Africa in the development of the legal sector in fragile states there are clearly possibilities for using the existing regional experts including retired members of the judiciary and lawyers to support legal development programs. Many such people have been through situations which are akin to the realities of life in fragile states and yet can bring fresh vision having come out other side. In addition there are regional organisations which are credible and that can offer assistance in the development of the law in such states. It is not necessary to confine this approach to the development of law and judiciaries and it is an approach that may have value. It may be a process if implemented that will give greater currency to notions of African unity at a people to people level.

In the meantime governments comprised of individuals that expect to be prosecuted for their offences committed while in office are not the best partners for the international community in the creation of rule of law projects or in entrenching the concrete symbols of government under law.

It is possible that when confronted with temporary regimes of this sort that there is need for the international actors in the resurrection of the law business, to come together and agree that this or that is indeed a type of regime that needs firm principles in place to deal with it and that it may be best to deal with it collectively.

Even where there is immunity granted there is little indication that such people as may comprise ad hoc political leadership will warm up to the law and the law is essentially to do with people first. It is a murky muddy field that is traversed in some of the fragile states and their near associates and when a good hard look is taken at what’s on offer it does not always look very hopeful. So if we are in the game our question to ourselves might be - are we in for the long haul or not?
 
Where does the rule of law start?

Where does it have most hope?

It is possible that it starts best and has most chance of survival with a legitimate democratically elected government which does not have to view the whole concept of government under law as being at odds with its own existence.