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”!).
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
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!
As I have mentioned many a time, I have a soft spot in my heart for Afghanistan, and the work I was involved with for years opened a window into a fascinating world of beauty and history. I used to pester colleagues with my “Of Interest” emails, in which I would relate things that made me ponder. Now, I shall not just ponder, but actually read The Book of Kings:
Samangan is one of Afghanistan’s 34 provinces. What I did not know, is that it is also the setting of an epic love story, that comes from the Persian equivalent of the Odyssey and the Ilyad: The Book of Kings, or Shahnameh.
The story, written in verse around 1,000 years ago by Persian poet Ferdowsi, tells how a mighty warrior, Rustam, makes it all the way to Samangan, seeking his lost horse. While the guest of the king, Rustam retires to his chambers, after enjoying a sumptuous meal with the king, only to be woken up by the king’s daughter, Tahmineh, who declares her love for the warrior. That one night of passion, that results in a marriage, yields a son, whom Rustam will only meet in battle many years hence.
The woeful story of Rustam and Tahmineh and their son Sohrab starts like this:
STORY OF SOHRÁB
O ye, who dwell in Youth’s inviting bowers,
Waste not, in useless joy, your fleeting hours,
But rather let the tears of sorrow roll,
And sad reflection fill the conscious soul.
For many a jocund spring has passed away,
And many a flower has blossomed, to decay;
And human life, still hastening to a close,
Finds in the worthless dust its last repose.
Still the vain world abounds in strife and hate,
And sire and son provoke each other’s fate;
And kindred blood by kindred hands is shed,
And vengeance sleeps not—dies not, with the dead.
All nature fades—the garden’s treasures fall,
Young bud, and citron ripe—all perish, all.
And now a tale of sorrow must be told,
A tale of tears, derived from Múbid old,
And thus remembered.—
What a beautiful translation! It is so true that “All nature fades–the garden’s treasures fall, young bud, and citron ripe–all perish, all.”
Rustam in Samangan meets the King’s daughter, Tahmineh.
When we talk about the legal systems of the world, there comes to mind Cannon Law (Roman Catholic), Hindu Law, Jewish Law, and Islamic Law (Shariah), to name a few.
In Afghanistan, for example, in the hierarchy of laws, Shariah rules supreme, above the country’s Constitution. I have never been an “expert” on Islamic Law, but I have found plenty of written resources that have helped me understand the natural tension between the religious law and the secular law.
Here is an interesting compilation of “religious laws in a nutshell” from NYU’s Hauser Global Law School Program. And here is the Practitioners’ Guide on Islamic Law written by Mr. Hamid Khan for the International Network to Promote the Rule of Law (INPROL), which I highly recommend to anyone who is interested in the Rule of Law.
The Special Inspector General for Afghanistan Reconstruction (SIGAR) produced an audit of a Department of Defense (DOD) $635 million program in Afghanistan -the Task Force for Business and Stability Operations (TFBSO), which yields some self-evident and interesting points:
Taking the following actions might improve such an entity’s ability to implement programming and achieve results:
• Define the entity’s mission, scope, and objectives in clear and measureable terms.
• Authorize the entity for longer than 1-year intervals to reduce uncertainty about its future and allow it time to plan ahead for its projects.
• Direct the entity to:
o Develop contract planning policies that emphasize the importance of understanding host-country or local dynamics and obtaining buy-in from all stakeholders before executing a project;
o Develop and implement action plans to minimize the award of oncompetitive and sole-source contracts;
o Develop and implement action plans to ensure that its staff has adequate training and experience in developing contract requirements and providing contract oversight;
o Work with a single primary contract administration office when developing performance work statements to ensure consistency in drafting requirements;
o Develop management systems to track project metrics, civilian travel, and government-furnished equipment;
o Develop and implement a document retention policy; and
o Develop monitoring, evaluation, and sustainment plans for all projects so that their economic impacts can be accurately measured and sustained, and if necessary, assets can be transferred to an enduring partner.
SIGAR mentions that DOD was given the opportunity to comment on the audit. Something that struck me was SIGAR’s comment to DOD’s comment, which -in my experience- is the crux of development aid or foreign assistance (emphasis in bold below is mine):
It is important to understand the difference between projects that met or partially met their contractual deliverables and projects that actually met or partially met their program objectives. DOD is correct in observing that this report finds the contracts directly supporting 16 TFBSO projects generally met their contract deliverables and that contracts directly supporting 12 projects partially met their contract deliverables (or in one case, met them after significant delay). However, just because some TFBSO contractors met their contract deliverables in whole or in part does not necessarily mean that the projects they supported had successful or sustainable outcomes. For example, there are several documented cases where TFBSO contractors completed construction and equipment of a facility, but TFBSO was unable to locate a private company able to operate and maintain it, leading that facility to fall into a state of disuse or disrepair. Furthermore, as we note in the report, because TFBSO did not consistently track outcomes data, such as the jobs created and government revenues generated by their projects, TFBSO was generally unable to demonstrate whether its projects met its overall objectives to “reduce violence, enhance stability, and support economic normalcy in Afghanistan.”
At the end of the day, what worries me is that many in government and the private sector voice these concerns; however, not often are the solutions offered taken into account, or, worse still, they are quickly forgotten. In my own experience, these concerns and suggestions have been made for decades. I have a theory -which I will try to articulate later- as to why we seem to reinvent the wheel…