Stewart, S. 2014. Rule of law is a game of thrones. GREAT insights Magazine, Volume 4, Issue 1. December 2014/January 2015.
Having had Cinderella status for many years, justice and security – or rule of law programming – is having a development ‘moment’. It is seen now as at least a critical part of a holistic development package, at most possibly the most critical piece of the development package. At the same time evidence is emerging which suggests that rule of law interventions are mostly not working. Our understanding of what makes an effective intervention urgently needs sharpening before the rule of law is abandoned.
Rule of law interventions – particularly those that involve the whole system, both informal and formal – have the potential to significantly shift the institutionalised terms on which the state engages with its citizens. This matters, particularly in fragile states where the failure to rebuild the confidence of alienated constituencies (or as in Sudan where new policies created newly alienated groups) consistently foils attempts to rebuild peaceful societies. The Maliki Government’s failure to establish a state which had something to offer Sunni Muslims is a major contributor to the current crisis in Iraq.
This article interrogates our current understanding and suggests an approach to increased rule of law programming effectiveness.
We agree that the rule of law is political, but not on what this means
There is wide agreement on the need to approach rule of law as “political”. In fact it would be difficult to find anyone who admitted that they approached this or any other development issue technically. Yet, there is no agreement on what this means, or what it looks like on the ground. Our first task therefore is to get some joint understanding of what “a political approach means’ in theory, and our second to understand what this means in practice. (1) Such an understanding provides a framework for rule of law programming that will be more effective.
To get to this joint understanding we need to go back to basics, and this means going back to North’s definition of institutions as ‘the rules of the game’. (2) Our understanding of what this means is sharpened when we understand that the rules of the game are deeply infused with power. Playing the game is like a Game of Thrones. Laws, practices and constitutional processes are artifacts of the way the game is played.
“When you play the game of thrones – you win – or you die”
As Circe Lannister suggests in the Game of Thrones, the stakes are high. They determine which groups are powerful and rich, which powerless and poor, and, sometimes who lives and who dies. The way in which the deal is framed can easily form the basis for future conflict. As Frances Stewart has shown, “Where ethnic [or religious, or caste] identities coincide with economic or social ones … instability of one sort or another is likely”. (3) It is tempting to note that the stakes are higher in poorer countries, but a cursory glance at our own governments shows that the stakes are very high wherever the game is played.
In contexts where there is an established peace, the mechanisms for managing the game contribute to a system of rule of law. Such a system of rule of law exists i) when the playing field is more-or-less level; and ii) when all players have an opportunity to defend themselves against unfair practice, and iii) where players can use the legal system to change the rules of the game. (4)
The rule of law as a game of thrones
Peace negotiations and constitutional assemblies set out the rules of the game. These are recorded, interpreted, enforced and reinforced within the justice system. The use of and state monopoly over force are legitimised within the justice system. As such, the justice system is both critical to and a critical symbol of national systems of governance which determine who accesses power and resources. The justice system can also be a powerful tool for enforcing discrimination. This tends to happen in two ways – either the less-powerful are consistently targeted through the justice system, or they are excluded from accessing justice to manage livelihoods of physical security issues. In short, the use or abuse of the justice system is an important element in governance.
Systems that beget constituencies – particularly those defined by ethnicity, caste or race – which invariably lose and lose-out and which have no recourse or no chance of changing this outcome within the rules, are most usually the systems which erode trust and generate conflict. Systems of peaceful contestation result when different (ethnic, religious, caste) groups trust the justice system sufficiently to use legal means to negotiate, and choose to not resort to violence. Importantly, they do not have to trust the entire system, or all of the players, for this to work. (5)
What does this mean in practice?
As Frances Stewart argued, the legal system is a distinct arena for the institutionalised reflection and reproduction of inequality. Issues of power and inequality thus need to be an integral component of rule of law programming.
This means that rule of law cannot be approached as separate from a wider change process, but needs to be part of rethinking the social contract, which implies most importantly the incorporation into the rules of the game i) a reduction of structural inequalities; ii) systems which enable challenge to inequalities as they arise in the future. The Somali Compact, which highlights the justice and security system as a key area for delivery of the compact, is a good example of contextualising rule of law as a critical part of wider reforms. (6)
Governments need to make changes to institutionalised inequality – but they also need to be seen to be making change. While it is true that change in the rules of the game happens slowly, it is simply untenable to programme in a way that reflects the ‘it is going to take 25 years to make realistic change’ truism. No population that has suffered extreme abuse, and fought a long hard conflict will wait 25 years. The window for change is short – between 3-5 years – and the reform process long. In South Sudan confidence started to erode very early – within a year. Rule of law programming needs to accommodate this reality. This means that rule of law programming needs to include some areas that deliver fast. This is not easy, as there are few “low hanging fruit” because patterns of inequality are embedded deep with institutions and practices.
The key focus therefore needs to be on those obvious artefacts of inequality which can be changed quickly and then build the programme around changing these in the very short term, backed with longer term work to institutionalise changes. The critical word here is “obvious” – things which can be seen – or brought quickly to the attention of the whole population. (7) Communication of a different intent, release of political prisoners and reform of laws, statements of a new and different intent, matter hugely. Other key early actions might include registration of weapons with a view to later disarmament, and changes of law and practice for groups against whom there has been consistent legalised discrimination. Donors need to consider supporting the publicising of these measures.
Programming for Rule of Law
The focus of programming around the rule of law should therefore be on those issues that generate distrust in governance. What programming for a power and inequality sensitive approach to Rule of Law Programming will look like can only be determined in a specific context. Such analysis needs to go further than a focus on the formal system and its laws, and include the whole of the justice system. The specifics will vary according to context, and will need to be assessed with the local partners. Yet, a number of themes are worth special mention.
1. Safety and security are key
People rely on justice system actors to keep them physically safe and provide the conditions within which they can go about normal life. Ordinary activities which form the fabric of survival (planting crops, going to work, going to the doctor, going to school, fetching water) depend on physical and personal security. When people are unsafe, they are poorer and more risk averse and development suffers. When people are unsafe because their religious, ethnic or caste identity groups are targeted (often with sexual violence) or refused assistance by the state, then trust in the state is eroded and they look beyond the state for help. Looking elsewhere often sows the seeds of conflict. Insurgency groups (e.g. the Taliban, Hamas) often provide at least ‘rough’ justice which is perceived to be fairer than the state.
Women’s safety matters hugely here, not necessarily because parties to conflict share the view that women’s rights are human rights, but because the ability to protect women is closely associated with masculinity and honour and is therefore deliberately used as a tactic of war. Making sure – as DFID has recently done (8) – that women are in the front and centre of thinking about safety and how to deliver it matters hugely.
2. Understanding access to justice is crucial
Access to justice has become a catch phrase in much rule of law work. As such it can lead to a variety of unevidenced and weak interventions. When people cannot access justice they cannot deal with land disputes, theft, licensing and other issues which can threaten their livelihoods. Again some groups may be excluded from basic legal provision as a function of discrimination. In mainstream development we often overlook the way in which group and personal prejudices about gender, ethnicity, caste, religion etc. infuse the approaches of neutral or “independent” formal and informal officers of the law. These prejudices contribute to a dangerous distrust in legal ways of solving problems. The way in which prejudice works its way into legal practice and process, needs to be better understood.
It is important to determine why groups lack access before embarking on specific programmes such as legal aid, or barefoot lawyers or mobile courts – all of which work in some contexts and not others
3. Addressing exclusion
Rule of law interventions therefore need to have a plan for delivering consistent and fairer justice in areas where it is absent – either because the state has ignored certain areas or groups or because it has deliberately discriminated against them. Exclusion, which is a function of discrimination, usually needs to be dealt with first because of its close connection to potential or existing conflict. The connection of the exclusion of people beyond the Kathmandu Valley to the Maoist conflict is well-evidenced
4. Redress for past crimes
Post-conflict, acknowledgment and redress of human rights abuse plays a role in whether societies can move forward. Transitional justice, which initially provides external support for dealing with past crimes and then (through the complementary agenda) supports countries own capacity to deal with past abuse sustainably, is often key to building a platform for peace.
Summing up, the key to more effective programming therefore is i) to understand that the law sets the rules which determine who wins and who loses in a given context; ii) that issues of power and inequality need to be addressed if a fair system of rule of law is to be obtained. It is thus necessary to identify the key issues that undermine trust and confidence in the justice system, and work these into a programme that combine quick visible and symbolic results with longer term work to address the institutionalisation of inequality and other forms of exclusion.
Sheelagh Stewart is a Governance, Rule of Law and Gender Consultant. Sheelagh works as an independent consultant and as a senior Research Associate at the Overseas Development Institute (ODI).
1. There is a great deal of evidence, based on bilateral and NGO programming in Africa and South Asia over at least the last 30 plus years. I strongly recommend that this evidence be consolidated, in order to strengthen understanding further.
5. The recent Scottish referendum is interesting in this regard. It is clear that many Scots trust neither politicians nor the way in which the game provides for the future of Scotland. The turnout at the polls (an almost unprecedented 80% or above), however, suggests that they trusted aspects of the game enough to vote.
6. All too often, the critical junctures (e.g. peace processes) which follow crisis are seen by international partners as a moment to disengage, cut expenses etc. International partners need to understand that these processes are just the beginning. Funding needs to reflect the needs – not be cut the day the agreements are signed. Programming approaches cannot return to “normal” either. The political order needs to be approached by donors as contested with the careful practice around “doing no harm” that this implies.
7. In Zimbabwe and South Africa, the immediate removal post apartheid of “Whites Only” signs, release of political prisoners and the abolition of racist laws and the stated intention of the government, created immediate confidence – and therefore a preparedness to wait for reforms which were going to take longer. In Zimbabwe, the longer term work of land reform which was a critical underpinning of the racist polity remains incomplete, with clear consequences.