Justice Sector Support Programs – Resources

As an autodidact, I always am looking for material to read, absorb, analyze, and re-purpose for my own benefit.  Maybe it is a result of my life, moving here, there and yonder, having to adapt to new environments, and wanting to learn all about them.

I look forward to studying this amazing and free Manual on Independence, Impartiality and Integrity of Justice: A Thematic Compilation of International Standards, Policies and Best Practice.

The CEELI Institute produced this massive tome, supported by the Bureau of International Narcotics and Law Enforcement Affairs (INL) at the US State Department.  If you have the time to look around, you will find there are many terrific resources for those interested in international development and justice sector support programs.

The Rule of Law – an Australian Perspective

No one seems to have the definitive answer to what “Rule of Law” (ROL) actually means.  There are all sorts of interpretations derived from interpretations of that term of art.   I have found that, depending on one’s background, education, and life experiences, there are some variations of what we might define as “ROL”.  After all, totalitarian states have been ruled by law, whether they might be draconian laws or laws never to be applied to the rulers.  Here in the US I find that -more and more- many a lawyer and legal professional mention that laws are being applied to the “little” people, and that the powerful and rich get away with circumventing the law.  Alas, the way I see it, and because we are flawed human beings, as long as we can talk about this and not end up in a torture chamber or dark cell, we are alright.

From a philosophical perspective, though, I am intrigued by what other societies’ perceptions are about the ROL.  Below is the ROL pyramid that the Rule of Law Institute of Australia has developed:

Screenshot_20180125-095254

As I perused the site, I came across The Rule of Law:  Its State of Health in Australiawritten by University of Sydney Professor Kevin Lindgren, where he points out in his introduction key concepts as to the meaning of the ROL:

The expression signifies not a legal rule, but more generally rule by “law” as distinct from rule by power, free of legal constraint, whether by a democratically elected government, a tyrant or otherwise. So, the ideal signifies that the institutions of the state, and in particular, the individuals and bodies that are invested with power by the state, should be subject to the law rather than above it.

There are narrow and broad meanings of the rule of law. According to the narrow meaning, the rule of law is not concerned with whether a law is good or bad, but only with whether the law is applied equally to all. According to the broader meaning, the ideal embraces human rights standards. On any reckoning, both the rule of law and human rights standards should be respected, observed and protected. The only question is the semantic one of whether we properly treat the former concept as encompassing the latter.

It is quite fitting to recall that these “human rights” that involve the broader meaning of the ROL were drafted by representatives of nations of different legal and cultural backgrounds and became the Universal Declaration of Human Rights, which was proclaimed by the United Nations General Assembly almost 70 years ago, on December 10th, 1948, as a common standard for the world.

SIGAR’s Advice on Program Implementation.

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…

 

State’s OIG’s Work Plans.

You may be as quirky as I am, and enjoy knowing what the State Department’s Office of the Inspector General (OIG) plans on auditing/inspecting this year and the next (Work Plans for 2018 and 2019 from the State Department’s OIG).  I have found that, through the years of reading audits and reports from the various US Government OIGs I have learnt a lot, especially how the US Government manages its contracts and personnel, as well as what are some of the contractors’ weaknesses and strengths.

For example, I have often marveled at how bad all parties to a contract can be with poor record keeping, despite knowing that, invariably, a government contract will be audited down the road.  It is amazing to me that we do not make an extra effort to ensure that records are easily accessible.  When working on rule of law programs in other countries, we stress the importance of accountability and transparency, with good record keeping being essential to fight corruption.

 

An Afghan Prison, a Loom, a Heater, and Cinderella’s Slipper.

My Afghan friend sent me an article from The Economist today, with the harsh comment: NO COUNTRY imprisons a larger share of its people than America.” , which made me thing of my Afghan experience…

A few years ago I thought that one day I would be able to write about my experiences visiting an Afghan prison.  I am one of those lawyers who has never seen the inside of a prison, except for some, like Robben Island, that today are museums.

Despite the time that has gone by, it is still all too fresh in my mind and I cannot quite capture the myriad of emotions I went through while visiting this place.  It had to be one of the strangest, most surreal, perturbing, curious, worrying, enigmatic, perplexing, and frankly- bizarre yet hopeful experiences of my entire life.  Am sure there are more adjectives to describe my emotions.

I had the rare opportunity to visit the cells, talk to the prisoners -the young ones in English, the older ones with an interpreter- and observe a selected few in their rehabilitation or vocational environments that involved working with metal, leather and wool.

The prisoner cobblers were working on creating charming women and girls’ shoes.  There was something touching to see these men (all convicted hard-core criminals) cutting and gluing and nailing together all these shoes.  There was a master cobbler who was teaching the prisoners how to be shoemakers.

We did not speak the same language.  We come from different worlds.  They were making useful and pretty things; some prisoners seemingly delighting in the novelty of a visit by strangers… others oblivious to anything other than tending to their craft with serious and meticulous concentration.  One of these days I will share the entire experience.  Indeed, it has all to do with Rule of Law.  I just need to figure out how best to share this…  These not-so=good photos were taken by yours, truly.

A prison cobbler tending to his trade. A prison cobbler tending to his trade.

Made in prison: a Cinderella slipper. Made in the largest prison in the world:  a Cinderella slipper.

A prison loom. A prison loom.

Hand-made water heaters from corrugated metal. Hand-made water heaters from corrugated metal.

Understanding Corruption

I just discovered Sarah Chayes’ long study about corruption and Honduras, which can apply to other countries.  I have not been able to read it all, yet.  From an international development perspective, I don’t think we have made many great inroads.  The problem of “corruption” or “anti-corruption” is that it is not an anomaly.  Nowadays, it is “au courant”.

 

But, What Is The Rule of Law?

I still cannot fully articulate what it is for the world at large.  I know that I understand the Rule of Law to be what I identify as core principles endemic in my education, philosophy, culture and world view.

However, when I worked in the Soviet Union, despite my rejection of what I found lacking or horribly disappointing in the USSR’s understanding of what was the “rule of law” for them, not to mention the miserable record of their own citizens’ human and other rights, there were international standards that the Soviets maintained, so that if you were involved in a commercial transaction with the USSR -like I was-, you could count on the Soviets to adhere to certain “international” norms.  There was a “rule of law” of a certain kind.

I still believe those involved in international development work in the “rule of law” field cannot quite come to terms with what they actually mean by “rule of law”.  During the “first generation” of international development specialists who did work on “rule of law” issues, the emphasis was on foreign assistance on commercial aspects of the law, because, for example, the USSR and Warsaw Pact countries did not know how to negotiate commercial/international trade transactions.  The “second generation” of international development specialists thought they had a better understanding of the “rule of law”, but, in reality, they were looking at things through their own prisms.  “Rule of Law” is not just criminal justice issues, nor the “mot-du-jour”:  anti-corruption.  More on this later…

So, I share with you Louise Arbour’s speech on the “rule of law”.