by Ian Reynolds
Written while a MPA student at George Mason University
Introduction to Public Administration - Fall 2009
International rule of law governance is an issue we hear about every morning, day and evening on the news. Wars in Afghanistan and Iraq are constantly highlighting the necessity for local troops to begin taking the reigns, and for a stand-down from the US and other countries involved in these wars. While there is much argument over if the war was just or necessary, there is little argument that these countries need to take responsibility for their own people. What many Americans fail to realize, or perhaps forget, is that The United States has been involved in governance development of foreign nations for many years. Its popularity in spending has ebbed and flowed1, but direct American involvement in a conflict is not the only time America gets involved in how an international government governs.
This paper seeks to examine the American interest with Rule of Law development programs. These are just one, of many types of governance development programs, and as such an explanation of the relationship between these types will also be discussed. We will first examine USAID, its mandates, and its involvement with foreign nations, as well as how Rule of Law programs assist in USAID achieving those mandates.
Once the context of USAID has been explored, we can digest the approach that USAID utilizes in undertaking an ROL (Rule of Law) program. It would be one-sided to ignore the debate that exists toward USAIDs effectiveness. As such, real problems that face the agency in successfully implementing a ROL program are investigated. While much time could be devoted to the morality of state building, this paper will only briefly undertake such a discussion. The nature of USAID involvement with other nations is ultimately a policy issue. We will instead examine how to faithfully execute the mandates congress has passed.
To further apply our understanding of ROL programs, we shall also investigate a series of case studies where USAID undertook an ROL program. The successes, failures, and lessons learned are all helpful to our understanding of ROL implementation. Perhaps most helpful though, is the understanding how to apply the tools in the USAID arsenal, to remedy the failures of past programs. Before we can begin examining USAIDs problems, we must first understand the context in which the agency operates.
The United States of America faces many threats, both internal and external. These threats are what ultimately guide the legislature in generating laws and budgets to protect it's citizens. International threats to America are often the lead story on the evening news, and certainly a great source of fear to the average citizen. This is not a new phenomenon. Prior to the advent of mechanized transportation, outside threats were limited to your borders. When the only way in or out was via land, it was easier to predict where attacks would originate. Technology evolved though, and boats were created. Water facing nations were then at an inherent advantage or disadvantage, depending on their ability to capitalize on their access to shipping routes. Eventually even land and sea weren't your only source of attack. Airplanes were created, and the possibility for a truly global war was finalized.
War has changed a great deal over time. Besides the introduction of new technology, we now face threats from individuals in impoverished countries. For the cost of a plane ticket and some flight lessons, the entire American psyche can be shaken, and thousands of people killed. When the instability of Afghanistan allows individuals to wage war without any government decree, times have changed. Globalism has connected us and we can no longer counter threats through purely military means. This is not a hopeless fight however. America simply needs a new weapon in it's arsenal. This weapon is development.
Terrorism flourishes in faulty or failed states. We can gather this from Weber's requirement that a state have a monopoly on the legitimate use of force to be considered functional.2 Thus logic would argue that we can reduce the incidence of terrorism by reducing the number of failed states. This is one reason for global development, but certainly not the only one. Long before the World Trade Center was attacked on September 11th 2001, Congress passed the 1950 Act for International Development, which would shortly thereafter lead to the 1961 Foreign Assistance Act. President John F. Kennedy would use this legislation to ultimately found the United States Agency for International Development.3 While charitable motives certainly were a part of the reasoning behind these actions, both Truman and Kennedy recognized that we stand to gain much from a general improvement in global conditions.
Evidence as to the necessity of ROL implementation is present outside of large history changing events, such as 9/11. There have also been cases such as the Nigerian oil crisis. In September of 2005, rebel leaders within Nigeria publicly announced their all out attack on the state of Nigeria. Partially due to this, oil prices surged in direct correlation, to $50 a barrel. In more recent history, the pirates launching off the coast of failed state Somalia also give pause as to the impact of failed states on the security of global commodities. Had these countries had greater internal security, crisis such as these could have been avoided. The economic implications of failed states such as this are substantial. The direct losses just in 2008 as a result of these attacks, is estimated to be $150 million.4
Rule of Law programs are often equated to state building in literature, and it is very important that a distinction be made in this. State building is the task of rebuilding a “failed” state. This generally occurs in a post-conflict situation, although we can see very current cases of it occurring during a conflict when we look at Afghanistan and Iraq.5 Its purpose is to rebuild or replace a government that, because of the conflict, simply no longer exists or is completely inept at providing the most basic of protection to it's citizens.
When America removed the entire government of Iraq it was left with only two choices, get involved in state building or leave the country, knowing full well that there was no longer a government in place, and chaos would ensue. ROL programs by contrast, are not the wholesale rebuilding of a government. They are the selective investment in improving performance and accountability, through giving the government the tools it requires.
These tools take many forms, education for local judges in impartiality, improvement of technological communication methods, training of police forces, supplementing of police forces, and much more. This is not the same as drafting new legislation for that country. That is categorized as “good governance” by USAID and is a separate program goal.6 Other types of similar programs that USAID involves itself with are political competition, civil society, anti-corruption and human rights. While all of these fall under “Democracy and Governance”, none of them are categorized as “state building” by USAID.
In every USAID general and country specific primer, its budget requests, and the case studies examined in the research of this paper, there is not one mention of state building. Yet if we look at outside literature that discusses USAID Rule of Law, you will see state building mentioned a great deal. In fact, Shahar Hameiri goes so far as to attack every single component of “state building”, and every agency that undertakes it as being essentially immoral. His assessment is that all governance assistance is purely political, and no other motivations can be even be seen as at play.7 Why the discrepancy? USAID is at it's core an assistance organization. It's name was carefully chosen, and it's logo of two hands meeting, is designed to invoke imagery of lending a hand, because we can and should help, not because we seek to gain. Its assistance should not be political, it should be for the benefit of the host countries citizens. As with every government agency however, reality is more complex.
There can be no question that USAID is used to political aims. The war in Iraq and Afghanistan are a perfect example of this. A stable Iraq and Afghanistan would be big political gains for whoever is in office. When we look at the budget allocated to these two pursuits, it should not surprise us that since 2003, the combined USAID spending for just these countries totaled 2-3 billion a year. Iraq and Afghanistan budget allocations are so out of proportion with other countries, that many statistics have to exclude these countries just to show an accurate picture of program spending.8 That being said, it is by no means the only time USAID has involved itself with ROL programs, and the nature of ROL involvement is starkly different when we are not directly and actively involved in a conflict in the host country.
America is currently deeply involved in ROL programs across sub-Saharan Africa. Twenty-three countries were currently receiving USAID program funds for ROL improvement as of April 2009.9 Outside of Africa, America has had a long history of involvement in South America and the former Soviet Bloc.10 11 The Soviet Union collapse left many countries flying blind in how to operate without oversight from Moscow. Even the satellite countries found their economic systems no longer in favor, and had to quickly adjust to new conditions. America assisted these countries with advising upon a build out of democratic governance. Albeit in very different ways between Afghanistan and Iraq.
A lot of focus goes to the constitution and Bill of Rights in the United States, and for good reason. We have many resources setup to act out this government framework, and it's contents affect our every day lives. This is often not the case in developing countries. Many African countries have a very venerable constitution that has been re-drafted many times, always striving for greater equality.12 Yet we know that the vast majority of Africa is constantly undergoing internal strife of every manner and size. Injustice is omnipresent, and protection under the law is often the exception, not the rule. The reason for this is simple, resources and structures. By itself a constitution means absolutely nothing. It is only useful when a government is effectively organized around that document. Sufficient resources must be available to the executive, judicial and legislative branches. In the case of the developing world, the judicial is often the least funded. Without a judicial branch, you have no rule of law. There can be no justice when you have no police to uphold the laws that the country decides are just. You can have no fair trial when there is no one available to represent you in court, or a prosecutor to try you. Mozambique for example, faces a prison population where 73% of the inmates are still waiting to have their cases heard, but no one is available to hear them.13
There are many “simple” problems in developing countries related to ROL. Lack of human resources is a large one, and can be remedied by programs that assist in training locals with the skills they need to operate as judges, wardens, police officers, and the many other areas of civilian law. Police play a special role in ROL though. They are the public face of any government institution. Americans live relatively safe and secure lives, so police are most visible enforcing laws around driving. By contrast, when you live in a country of violent extremists, where riots occur somewhere within the country on a daily basis, the protection the police offers to its citizens, becomes a critical juncture in maintaining order.
Policing of a country is the only method of preventing chaos. The nature of that policing varies dramatically from one country to another. In many nations the police are actually a branch of the military (similar to our national guard). There may be absolutely no one charged specifically with protecting civilians, as the military is charged with protecting the state.14 Much has been written by USAID representatives as to methods of improving the police situation in states that are border-line failures. Not all suggestions require significant cost investment from donors, or the host country. For example, it is common on developing nations to house police within barracks separate from the population they are pro-ported to serve. This separation breeds animosity between citizens and the police. It encourages the perception that police are outsiders implementing the state agenda upon them, not protectors. It is very difficult to encourage the average citizen to trust their government, when the most visible branch of it is seen to be either corrupt, or not invested in the task to which it has been assigned.
ROL can be hampered by factors besides manpower. In some cases USAID has invested many resources in training local citizens to act as policemen, judges, defenders and other elements of the judiciary. Beyond having workshops and clinics, functioning universities that train the necessary skills after USAID leaves, provide sustainability to that countries' growth. All of this training can be sabotaged if those newly trained workers don't have any interest in dutifully fulfilling their roles, or they don't have to tools to do so. For this reason, USAID will get involved in physical infrastructure improvement related to the judicial systems. Computers that provide randomize case assignments to judges can reduce manipulation possibilities via bribes and other mechanisms.15
Besides local administrators having the knowledge and tools to fulfill their role in providing internal security, they must also be willing and able to operate without participating in the corruption endemic to many developing nations. In the case of places like India, policemen are often not paid enough to live on without taking bribes. Situations like this require a reform of pay structures, a task made exceedingly difficult by the limited resources available to developing nations. Even if all incentives to operate without gaming the system are in place, proper disincentives to corruption need to also exist. Anti-corruption bureaus rarely exist in impoverished nations, until it becomes a mandate for aid distribution. These bureaus, if properly staffed and setup can act as a stop-gap measure while civic motivations have yet to cultivate in the population.16
ROL programs will always be inherently limited or empowered by the beliefs and values of the individual citizens within the host country. A noble constitution, a judicial system to uphold it, sufficiently trained and outfitted police to protect the populace, will invariably assist in maintaining order. It will not necessarily encourage human rights. Without nurturing civility and human rights, the newly reformed state could become a state for the state, instead of a state for the people. For this reason USAID often undertakes human rights programs in unison with capacity improvement.
Developing nations are often guided by value systems that are dramatically different from American ones. In some cases these values are harmless, merely different. Living with your family until marriage is one example. While this is different from American convention, as long as its not a mandate and just a custom, it is just part of the incredible diversity that is our world.
There are cases however, where the local customs and values are not simply “different” from American customs. Issues that are clear examples are genital mutilation, domestic beating of wives, and even searing out of eyes as a punishment for disobedience. These are just one of the many techniques often used in developing nations as a method of controlling and subjugating people. Other practices include the use of children as prostitutes. Selling children into slavery and prostitution is a practice that is disturbingly common in the developing world. These practices are very intricately related to the ROL program objectives that USAID must determine.
An often misunderstood component to these traditions is that they perpetuate themselves. Women don't accept being beaten and burned because they are too weak to do otherwise. Primarily it is because they believe that they deserve such treatment. This is a common problem with domestic violence even in the United States, it is aggravated by additional cultural acceptance of such values and religious traditions. “Untouchables” are a cast sometimes constrained to work in sewers, cleaning houses and making dung patties. It is common for an untouchable in India to believe that they are treated so poorly because of actions in a prior life. Even attempting to make a better life for themselves is tantamount to horrible suffering in future lives.17
The unfortunate problem with customs such as these is that direct “reform” of these values by outsiders is generally ineffective. What USAID can and does utilize as a tool to stop these inhuman practices, is encouraging and financially supporting local NGOs that dedicate themselves to convincing locals that they deserve better treatment.18
In examining some of the problems USAID tackles for ROL we have identified some concrete examples of methods to improve the host countries conditions. Before any plans to reform ROL in a nation can be undertaken, sufficient time to create fully considered plans must be allocated. Jeremy Wilson's Analysis of the UN's interaction in Kosovo offers us some key advice in this area. Planning can be tackled by first assessing the state of affairs. Identifying your key problem areas, the tools currently in place that are (or are not) addressing those concerns.19 The number of police patrolling the streets, the level of competence present within the military, the police, judges and lawyers are some of the inputs into the general outcome of justice for local citizens. Statistics will only take you so far though. The state of human rights within the society and the cultural traditions are also key in assessing potential ways forward.
Once the lay of the land is understood, realistic goals can be formed. Note that goals were not formed prior to understanding realities on the ground. There have been many cases where goals are created without full comprehension of the countries current ROL condition.20 Before any program is undertaken, appropriate measures of progress should be devised so that its progress can be measured both after it is completed and while it is still being undertaken. These measurements can help adjust course earlier on, when items are not proceeding as planned (a common problem in the developing world).
USAID utilizes many measurements designed to assess if their ROL programs are genuinely improving conditions, or if the program is expending resources for limited, to no gain. These can include simple numbers such as, police officers that attended training programs, new graduates of law universities, percentages of prison inmates awaiting trial. Sometimes the best measure of ROL is in the age old tradition of surveying the populace. Since ROL is ultimately a trust relationship with citizens and the state, if citizens respond favorably to questions on corruption, safety and the other areas that ROL affects, it can be assessed that the situation is improving. Citizens that trust their government are much more likely to utilize it's services, and in turn reduce the likelihood of other citizens being victimized.21
The best method of understanding USAID and its ROL mission is to look at specific cases where the agency administered a program. For the purposes of this paper we will examine the improvement of the judiciary within Mongolia and the similar approach taken to improve the African nation of Malawi's security situation. Through contrasting these cases, we can extract how USAID formed project plans based on the general ROL objectives pursued by the agency. Once a plan was formed, how were the tools at USAID's disposal, utilized to achieve the project objectives, and how successful were these tools at driving verifiable change.
In the final project report filed by Jay Carver, we see that Mongolia faced a problem of an ill-equipped judiciary. The actual courts had issues such as insufficient chairs in the court offices for people to stand trial, and just generally unattractive facilities. These issues are obviously simple to solve when resources are expended by USAID, and this is one incentive that was used to push through other objectives. Beyond the poor equipment, judges were also assigned cases based on no predictable mechanism.
Without any real rules in place, judge assignments were commonly used as methods of obtaining a favorable judgment. This is phrased as “judge shopping” within the program review. In addition to corruption concerns and limited resources, there was also the issue of insufficiently trained judges and representative council. While these issues were certainly not the only ones, they had the added effect of projecting an image of incompetence and injustice. With this image, local citizens chose not to trust the judiciary and many problems went unreported.22
USAID looked at all of these problems and created a plan to face them. The general plan involved objectives such as improving transparency, efficiency and accountability within the court system. It also broadly spoke of assisting the Mongolian administration in reforming the fundamental laws to match a more democratic perspective. The plan recognized a need for greater effectiveness in administering the laws already on the books, and raising the qualifications of the local legal professionals. To build trust, and in turn put pressure on the court system to function better, an objective of improving public outreach was created. Finally, improving the base-line level of ethical standards of local justices and legal professionals, was seen as a method of providing overall improvement in every regard.
One of the interesting ways in which USAID assisted in improving transparency, efficiency and accountability, was to implement a technology driven solution. To stop “judge shopping” it was decided that USAID would purchase and setup computers that would electronically assign cases to a judge. By randomizing the process, and taking it out of the hands of humans susceptible to coercion, you reduce corruption. They also setup a system where court decisions would be placed on the Internet, open to the public. USAID was able to remove some control from the judges hands by enticing them with the technology required to do so. Further improvements to the courts appearance, also acted as an encouragement for the host country to accept what they likely saw as a strange way of doing things, at least initially.
To ensure that the lawyers graduating from local universities were of the highest quality possible, electronic grading machines were provided to reduce the ease of grade manipulation. There are of course limits to what technology could do to prevent the teacher from simply changing the answers for the student, but it provides a barrier to cheating and bribery at a low cost to USAID.
Advocacy for the justice system was promoted by perhaps one of the most innovate tools utilized within this program. A new television show was produced locally with USAID assistance called Legal Hour. This drama showed regular people utilizing the new judicial system in an entertaining fashion. As it won an award as the most popular drama in Mongolia, it was clearly reaching people. As many local residents still are constrained to radio for their entertainment, a radio program called Comprehension was created, with similar goals to Legal Hour. To not betray the new trust asked of citizens toward their legal system, USAID also funded a new Judicial Disciplinary Committee. USAID also funded a Special Investigative and a new Anti-Corruption Unit.
These are just some of the tools utilized to reform the judicial system. So did it work? The project summary is a glowing analysis of accomplishments, but with limited data to prove that the changes implemented will continue to be utilized post-project. The review does cite that 23 courts were automated with technology improvements and claims greater efficiency and transparency through that process. It also cites that surveys of public perceptions were regularly taken to judge effectiveness. The results of these surveys is curiously omitted though. It seems quite likely that an omission of a measurement stated to be the cornerstone of effective program execution, does not speak to positive assessments from locals.
Based on the sheer number of changes implemented by USAID, it does appear certain that at least some sustainable changes have been implemented. The Mongolian program stands out in its length of execution, over eight years. This is much longer then a typical USAID program that lasts between two or three. This afforded USAID an opportunity it rarely has,23 experimentation and time for planning. In other respects, it was not that different than prior programs. While its objectives mentioned were broad, their landscape for changes was quite limited.
The court system is only one part of the entire ROL field. The other aspects already mentioned, such as sufficiently staffed, trained and ethically driven police forces are absolutely critical to the ROL picture. This program made no changes to these areas. The conclusion of the analysis is actually a near desperate call for a future program to address this specific issue. It cites the lack-luster facilities police operate with, and the information lost through simple problems such as bad hand-writing. This is resolvable with the use of computers. However one must recognize that such a solution, brings its own set of concerns.
Overall many objectives were addressed, but it is much easier to obtain general improvement in just one area of ROL, then it is to bring about reform throughout the whole picture. The higher courts and legal codes (the areas of interest to this project) are without question the top of the judicial branch. As such, the players involved are limited, and the ease of influencing individuals, greater. USAID's interaction in Malawi shows us another example of the agencies tendency to focus on the low-hanging fruit.
African nations face special problems of development, as a result of their colonial legacy. When imperialism was at it's peak, tribes and groupings of people were broken up based on how far the colonizer could control, without any regard to the inhabitants. Malawi feels this legacy along with all of it's African neighbors. With over 62% of the population illiterate, Malawi is a nation facing many large issues.24 To it's credit, it is a nation that has shown a great deal of willingness to reform its institutions in the interest of receiving aid, and as such, nearly every international development agency has run a program in Malawi at some point. Rule of Law is one of the primary concerns of a great deal of these donor institutions, including USAID.
The report written by Jan Stromsen under commission of USAID, gives a laundry list of issues facing Malawi. With over 12,000 people housed in a prison space designed for 4,000, prison overcrowding is clearly rampant. Unfortunately prison overcrowding is an example of one of the issues that is difficult for USAID to directly assist with. One programs USAID has launched in response to issues such as this, includes paralegal training. As with every nation across the globe, rural areas tend to have lower quality of services from the government, and the justice sector in Malawi is no exception. Much as USAID launched adult education workshops in Mongolia, a similar approach was launched in Malawi.
In an act that had been uncharacteristic of USAID, they also involved themselves with the local police force, through the establishment of a local anti-corruption division. While internal affairs is an intricate part of the American police framework, it's existence in developing nations is a rare gift. Keeping with the tradition of training, USAID also assisted in developing forensic laboratory skills to the local examiners.
The Malawai report shows us that USAID has certainly made a difference, but the mountain of issues is still overwhelming. With courts so small and dilapidated, that people waiting to be seen for trial have to wait outside in the hot sun, facilities improvements similar to Mongolia's are called for. It is also noted that every branch of the judiciary is underpaid and overworked. Lawyers rarely stay on the job for more then the mandatory one year before leaving to work in the private industry. Problems like this could be alleviated somewhat, by focusing on training more lawyers and justices. As it stands now, being seen in court is so difficult, that locals usually rely on tribal elders to mediate concerns. This may make sense in some cases, but this very subjective and typically discriminatory institution is also used in cases such as rape and domestic violence. If citizens had an avenue for real justice, there is no doubt that they would pursue it.
Both the case of Malawi and Mongolia have shown us examples of USAID getting involved in meaningful ROL reform. The ongoing debate regarding USAID, is if its truly aid freely given, or just our method of controlling other countries. This becomes less relevant when dealing with countries in such chaotic straits as Malawi. With it's population so desperate for any and all help, and it's government open to doing whatever is necessary to help it's citizens, it is a stark reminder of how much work is available for USAID to pursue. What appears endemic to the entire international aid arena is a lack of coordination. While the UN, USAID, DOJ, EU Development agencies, The World Bank, The IMF do communicate, it is not reliable and they work at different purposes. USAID rightly claims in it's Africa assessment, that it has the honor of being setup for the general purpose of development. Because of that, USAID can use ROL programs in harmony with it's other initiatives, to truly raise up living standards across the board for other nations. This freedom is a gift provided by the Foreign Service Act. As the programs that receive funding are generally dispersed across the globe though, coordinated efforts in multiple development areas from within USAID, or with other agencies are rare.
USAID's involvement in cases such as Afghanistan and Iraq is quite different then most USAID ROL programs due to the nature of America's involvement in those nations. USAID programs are generally used as a preventative measure when a state is near collapse, not as a remediation method while a conflict is ongoing, and as a direct result of our decision to go to war. Despite this break in tradition, USAID has built up a great deal of experience in ROL and conceivably has something to offer many nations that are looking for ROL assistance. Its tool set of training programs, infrastructure improvement, advocacy and outreach all can play a role in bringing about a greater sense of justice and civility in foreign nations. USAID has exhibited through it's expansive library of documenting its actions, that it is open to improvement. While it's budget resources have always been scarce, applying them effectively and with transparency, is a necessity to this agency. Only the World Bank offers a similar level of documentation, and it's development programs are influenced by a desire for functioning financial markets, and less so with broad based development.
While Mongolia and Malawi exhibit how very little a program changes in the grand scheme of problems facing a country, they also show us how much can be done with very little. For just the cost of a few USAID personnel, some computers, chairs, and trained educators, changes were made that made the country more secure. These examples also show us that US ROL intervention is not new, and the host country is sometimes even grateful for the advice the US offers. USAID literature also shows us that it is common for USAID to allow insufficient time for planning of programs though, it sets it's sights on quick, easy achievements in the interest of obtaining results to legitimize budget requests.
This interference of the political on the administrative is not unique to USAID, but its effects must be limited where possible. By never tackling the “tough” problems, USAID doesn't offer itself opportunity to grow. The toughest problems it face now are in Afghanistan and Iraq. Since USAID is forced into specific objectives, the difficulty of these objectives doesn't denote a general departure from the routine easy program wins. Based on the lack of executive patience for program planning and time-lines, failures can be expected.
International aid is by it's very nature most effective when the host country is receptive to assistance. While a “blank-slate” may sometimes seem like the best way to encourage that receptivity, it brings with it real dangers of limited sustainability. USAID can counter these risks by going in for the long-haul. Setting it's sights on winning the hearts and minds of the host country, not just showing improvements in surface improvements in efficiency. Budgetary constraints will hinder this possibility, but there is always the possibility for improvement, no matter how scarce the resources.
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ibid. p. 20 ↩
ibid. p. 19 ↩
Dobbs, Greg (2009, October 6th). Low Born, High Minded: India's Untouchable Hero World News Report [Television Broadcast]. HDNET ↩
Wilson, Jeremy M (2006). Law and Order in an Emerging Democracy: Lessons from the Reconstruction of Kosovo’s Police and Justice Systems. The ANNALS of the American Academy of Political and Social Science, Vol. 605, No. 152 doi: 10.1177/0002716206286783 p. 105 ↩