For some of us, it is a nightmare that the Internet is “forever”. However, as I said in my previous post about “historians” and “curators”, it is a wonderful tool to ensure that the historical record remains true and “historical”. I just need to find the time to share this public information in a coherent way. But I will.
So, I cannot help it.
I love anything to do with Rule of Law, especially anything to do with Afghanistan, because I learnt a lot from my Afghan colleagues AND I always wonder how the US Government’s justice sector program is progressing. There was a time when I would read and dissect what SIGAR was stating, both for my employer and my Afghan colleagues. Nowadays, I hope there are others who are on top of this, doing the same thing. Here is the latest SIGAR report: https://www.sigar.mil/pdf/quarterlyreports/2018-10-30qr.pdf.
I cannot find anything that gives me information about Rule of Law issues in Afghanistan. Zilcho, zero, nada. Maybe I am doing the wrong Google search… because the only thing I find are articles written by implementers. Which I find is a disservice to those who take working on Rule of Law issues seriously. Even USG-funded websites that described what the USG was doing in Afghanistan in the justice sector have been obliterated.
The USG changes contractors, periodically. So, whatever the previous contractor did -at the USG demand/direction- is totally forgotten when the new contractor wins the contract. Who cares, right? Yet, whoever has been trying to be a “historian”, or “curator” of the project, is all of a sudden left without any historical background. Why? Because, understandably so, the new contractor does not want to recognize the enormous work the previous group performed.
Luckily, the Internet is forever. IMHO, it is my Afghan counterparts who need to weave the story of what the USG and the Afghan Government accomplished for many, many years. I will just share what I think ought to be checked by anyone doing some research. There is so much available, if we dig deep enough. I wish someone would have done this for me…
The name of the audit says it all, don’t you think?
There was so much excitement at the time of the program’s announcement by the then USAID’s Administrator at the U.S. Institute of Peace (USIP), which I remember well. It was a grandiose $216 million project with the expectation that other international donors would contribute an additional $200 million in funds. SIGAR’s recommendations are three:
1. Conduct an overall assessment of Promote and use the results to adjust the program and measure future program performance….
2. Provide written guidance and training to contracting officer’s representatives on maintaining records in a consistent, accurate manner. …
3. Conduct a new sustainability analysis for the program.
Of the SIGAR recommendations to USAID above, I find #2 quite sad, because in my experience, record keeping has deteriorated to the point of oblivion. Institutional knowledge has waned in many organizations, whether they belong to the private sector or the public one.
Anyone involved in government contracting work ought to read this audit, because it highlights some major flaws in how we run (or not!) multi-million dollar taxpayer-funded programs.
You can read more about the audit at the Stars and Stripes.
The Special Inspector General for Afghanistan Reconstruction (SIGAR) released at the end of May 2018 its latest “lessons learnt” report covering the period 2002-2017. It is chock full of information for anyone who is interested in “development” work.
For those who follow “rule of law” issues, and especially for those who actually are working in Afghan-related projects, the following excerpts strike, at least to me, a very familiar chord.
Even within dispute resolution, the U.S. government chose to focus on formal rule of law, rather than informal rule of law, also called traditional dispute resolution (TDR). TDR in Afghanistan employs a varying mixture of traditional, community-specific norms, and Islamic legal principles, or sharia. 1015 As early as 2007, international legal experts highlighted the coalition’s inattention to informal justice, even though an estimated 80–90 percent of Afghan disputes are handled through TDR, and many Afghans have more faith in it than in formal dispute resolution. 1016
The U.S. government spent more than $1 billion on rule of law programming in Afghanistan between 2003 and 2015, of which less than $100 million (approximately 10 percent) was spent on enhancing informal rule of law. 1022 State’s 2009 rule of law strategy—the only one it drafted—recognized the importance of TDR to Afghans, even calling it a “pillar” of the coalition’s effort; however, the balance between funding for formal and informal rule of law programming did not seem to reflect this recognition. 1023 Worse, the kind of dispute resolution promoted by formal rule of law programming was not only considered corrupt, but also foreign to most rural Afghans.
In my many years of working in international settings doing “development” work, I have found that one of the biggest problems is overcoming individual egos and the posturing that comes with those egos. “Development” work is not just altruistic: there is a lot of money to be made and prestige to be gained. There is a door that is always “revolving” between the implementer, the donor, the supervising entity, the inspecting authority, the academicians, and other intellectuals. It is human nature.
However, once in a while, it is good to read that some of the lonely and knowledgeable individuals who pointed out some of the flaws in design were vindicated. Note that I don’t use the term “expert”, because, in my work, most experts are really “Rupertos the “expertos””. (My own label for the last few years has been “subject matter expert”!).
A very long time ago, when I was in college, I worked at Tiffany & Co., when it was the epitome of elegance and grace in everything, from design to service. I once accompanied the T&Co. salesman (who appeared in the famous movie, Breakfast at Tiffany’s) on a trip to deliver a magnificent almond-shaped diamond, and we lived through an adventure worthy of a Pink Panther episode.
I spent much time working for the then Chairman, Walter Hoving. I was very lucky to have been exposed to true gentlemen and titans of industry when I was very young. It shaped me as a person and a worker. I learnt lessons then that are still applicable today.
I have fond memories of Tiffany’s, so I was absolutely enthralled with its new Tiffany Paper Flowers campaign that plays on the long ago Breakfast at Tiffany’s themes with a modern twist.
“Believe in Dreams” is Tiffany & Co.’s new video that launched the whimsical Tiffany Paper Flowers promotional campaign on May 3rd, 2018.
Imagine my disbelief when I studied the Tiffany paper flowers to discover that the 2018 Tiffany petals are a rearranged version of my sister’s 5-petal flower design, which is circa 1992. Wow. Just WOW!
The Diolun Designs items that my sister has created are all done using what is called the Greek/Roman Lost Wax method of casting, meaning that you sculpt the piece by carving it in wax, which is then used to create a rubber mold.
The wax melts, hence the “lost” in the name of the method. Once you have the rubber mold, you pour the noble metals, which become an individual one-of-a-kind piece. Once the piece comes out of the mold, you must polish it and finish it…one by one. Therefore, no one piece is exactly the same as another, because the jewelry is not machine stamped, the way most jewelry is done today. It is an artistically laborious process and a labor of love.
What all this means is that each item in Diolun’s collections have their own lines, curves, nuances and the like, which make each individual piece totally and truly unique. It is not like precision/laser copying done with a machine that might take a flower and go through its contours and reproduce it exactly the same. My sister sculpts by hand, not by precision machinery.
I used to believe in what Oscar Wilde said, that “Imitation is the sincerest form of flattery…”.
This is the Bibi-Heybat mosque in the outskirts of Baku. It is a reproduction of the ancient one that Alexandre Dumas father, he of The Count of Monte Cristo and The Three Musketeers fame, visited in the 1800s.
Why a reproduction? Because the Soviets under Stalin destroyed this beautiful mosque to smithereens. According to my Azeri guide, it was rebuilt in the 1990s by Iranians and Ukranians,. The Ukranians provided construction material and labor. ( I may have lost something in translation between Russian and hand gestures…). Fatima, a direct descendant of Mohammed is,presumably, buried here, behind the beautiful bars as seen in the photo. The history of this mosque is further complicated because of the Sunni-Shia narratives that sometimes diverge. I am grateful I was able to visit this beautiful place.
SIGAR* has released its 3rd lessons learned report on Afghanistan’s public sector development. It makes interesting reading if you follow Afghanistan, care about international development, and pay attention to how international aid funds are managed.
The lessons learned, which are summarized below, are U.S. Government- and Afghan-specific, but they can apply to any “development” policy and program implementation considerations. There is nothing new under the sun: (i) we always fail to take into consideration the magnitude of the projects involved, (ii) we are arrogant in our determination that we know better -even if we have never lived abroad and have zero sense of what other cultures are like (and, mind you, you can never quite know about this unless you live among them and learn from them)-, (iii) donor countries’ government official “experts” come and go way too quickly to make much of a difference, (iv) we always underestimate the extent that corruption -as we define it- might be someone else’s way of life, and, (v) “change”, if there is going to be any, is a painful process that threatens many, making them feel extremely vulnerable and reticent to engage in it.
From my limited experience, any “development” process needs to ensure that the rule of law is the foundation. You cannot develop a justice sector dealing with just the “criminal” side of justice. Commercial, economic, private sector, education, infrastructure, land rights, health, etc., development programs have to have the proper legal foundation first. You cannot create the program first and then develop the regulatory framework later. Further, you cannot ignore the children and their schooling. Whatever “development” programs are accepted by the host country (whether they involve building a dam, helping women obtain micro loans, or drafting a new penal code), the underlying premises that will make the programs sustainable need to be introduced at an early age.
This report identifies 12 lessons drawn from the U.S. experience with private sector development and economic growth in Afghanistan.
1. It is not realistic to expect robust and sustainable economic growth in an insecure and uncertain environment.
2. Establishing the foundational elements of an economic system at the beginning of a reconstruction effort sets the stage for future success.
3. Any new economic system which represents a break with a host nation’s past knowledge and practice must be introduced carefully and with sufficient time to ensure adequate buy-in and the development of the robust institutions required to maintain it.
4. Spending too much money too quickly can lead to corruption and undermine both the host nation and the goals of the United States, while too abruptly reducing funding can hurt the economy.
5. Inadequate understanding and vetting of the webs of personal, sometimes criminally related, networks can allow elites to control economic activity at the expense of open and competitive markets.
6. Successful private sector development efforts must be nested within the development of the rule of law and overall good governance.
7. The choice of a model for economic growth must realistically acknowledge a country’s institutional and political environment and its physical endowments.
8. The provision of grants and below market rate loans can undermine commercial banks and other market-oriented institutions and create unsustainable businesses.
9. Support to businesses and government institutions needs to be tailored to the environment.
10. Clear agreements on institutional roles, responsibilities, and lines of authority, reinforced by human resource policies that fit a post-conflict environment, are necessary for an effective private sector development strategy and for overall development.
11. Rigorous monitoring, evaluation, and analysis, which transcend individual projects and programs, are necessary to understand the effectiveness of private sector development interventions.
12. Investments in human capital have significant returns, although it may be years before they are realized.
*Special Inspector General for Afghanistan Reconstruction
The Procurement Fraud Handbook issued by the US General Services Administration (GSA) has a general definition of fraud (emphasis below is mine):
Generally, fraud is defined as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment, a misrepresentation made recklessly without belief in its truth to induce another person to act, and unconscionable dealing. A common law act of fraud must contain the following elements: false representation or concealment of a material fact, knowledge of a statement’s falsity, intent to deceive, reliance by the deceived party, and damage to the deceived party. The civil False Claims Act modifies this definition to include reckless disregard.
THE FRAUD TRIANGLE
According to the Handbook, the above Fraud Triangle was developed by Donald Cressey, a leading expert on the sociology of crime.
I was especially interested in the “Attitude/Rationalization” factor, because the GSA’s Office of the Inspector General states that in an audit,
“rationalization is the element that auditors are least likely to determine… Individuals who commit organizational fraud may have different motives from those who commit fraud for their own individual benefit… A more subtle motivation relates to increased self-esteem or co-worker/supervisor praise or envy.”
I find that when reading about fraud in procurement, examples usually used are of a contractor’s risk for committing the fraud. Unfortunately, sometimes the fraud is committed in collusion with government officials. In my opinion, the latter is the most pernicious type of fraud.
Late on Sunday afternoon, doing some research on whether recipient countries might pay lip service on Rule of Law/justice sector reform donor programs, I came across this article in the Mexican Law Review on Rule of Law, titled, “International Support for Justice Reform: Is It Worthwhile? written by Luis Pásara, a Peruvian lawyer, sociologist and professor.
I have just skimmed through it, although I already know I want to study it in full because certain premises of his coincide with some of my thoughts. While it addresses justice reform in Latin America, the author touches on universal problems. Mr. Pásara’s conclusion is worth quoting:
On the one hand, it is important to keep in mind that establishing the Rule of Law is a broader and more difficult task than reforming the justice system. Therefore, building a better justice system is not enough to establish the Rule of Law; the former is just a component of the latter. The quality of the laws, the legal culture, the actual social and economic inequalities, and the role played by the government —among other elements— are important and complex components of the process of building the Rule of Law.
On the other hand, internationally-funded programs of justice system reform are not able to produce deep changes, which are badly needed for both a better justice system and the establishment of the Rule of Law, in the receiving countries. Clearly, such programs are not able to “fundamentally reshape the balances of power, interests, historical legacies, and political traditions of the major political forces in recipient countries. They do not neutralize dug-in antidemocratic forces. They do not alter the political habits, mind-sets, and desires of entire populations” and “[o]ften aid cannot substantially modify an unfavorable configuration of interests or counteract a powerful contrary actor.”175 That is why international aid in the area of justice has not delivered a new justice system in receiving countries. It simply could not do it.
But there is some room for improvement. Taking into account the analysis made in this article, some concrete suggestions can be proposed for the many people, acting in good faith in the international agencies and who are willing to find ways to do a better job of improving justice systems in the region:
Knowledge is a must. No decision about the area, content, size, timing or amount of a project should be made without detailed knowledge of the subject in the country where the work is to be done.
Learn what others produced. To gain knowledge of the prevailing conditions mainly requires: collecting the information that already exists, paying attention to national actors’ perceptions and analysis, taking advantage of the knowledge of international experts who have gained experience in that particular country, and evaluating other agencies’ experience in the field.
National actors and a clear strategy are needed. The conditions required to develop a project include: a core of national actors who are truly committed to the reform goals, and a strategy —to be designed jointly with national actors— with well-defined short, medium, and long-term goals within the project.
National actors have a crucial say. The implementation phase of any project needs to have a partnership of national and international actors, but the last word should be said by national actors who know better and ultimately are responsible for the reform process in their country.
Monitoring and evaluation are indispensable. Project implementation needs continuous monitoring and project evaluation presents opportunities to learn about both achievements and failures. External reviews of the projects —including work done by academic researchers— are powerful tools for a critical analysis on what works and what does not. Reticence to share information with capable peers is, in the long term, a way of wasting resources.
If these remedies —and other possible changes— are introduced to alter the performance of international actors and agencies, they may dramatically increase the level of quality of the outcomes of justice reform projects.
Some of us have quirky habits. I happen to love etymology and thoroughly enjoy doing research. As my children can well attest, I drilled into them never really to believe what they read or are told is fact; always verify the information and go to the source, whenever possible. Even those “experts” in their fields, whether in government or out, make mistakes or may not know their subject matter as well as they think they do.
One of the things I learnt working on U.S. Government programs, whether they be contracts or grants, is that the Offices of the Inspector General (OIG) of the various government agencies put out some interesting reports that have a wealth of information.
I find these audits/reports very useful to understand:
- what a particular agency’s strengths and weaknesses might be,
- what the contractor/grantee can do to help the agency overcome its weaknesses,
- what the competition’s competencies and limitations are.
Even if the audit or report pertains to a certain agency or distinct area of performance or a specific geographical place, many of the issues usually addressed do apply across the board.
For example, the latest OIG audit on contract invoicing review by the Bureau of Narcotics and International Law Enforcement Affairs (INL) actually explains the invoicing process as well as the regulations that apply to invoicing. Program implementation benefits immensely from having program managers or contracts representatives aware of these resources.
Of course, keeping abreast of all these resources requires an enormous amount of time devoted outside of the regular work day. However, if you are quirky, like me, it is extremely rewarding!