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Flexible, but not without principles
Liberalisation in itself does not increase food security
12/2004 |
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[ Promoting the rule of law ]
Flexible, but not without principles
Since the 1990s, promoting the rule of law has been an important element in development cooperation. The idea is that legal principles should help to settle conflicts. One critical issue, however, is how to enhance the rule of law in countries with weak government. To do so, Andreas Mehler of the Institute for African Studies in Hamburg suggests a flexible approach.
As most African states are not in the position to implement a monopoly on the use of force, Mehler is in favour of development agents considering – and cooperating with – traditional institutions of justice. After all, several legal systems coexist in most African regions and law enforcement is rarely left to the judicial branch of the government. Accordingly, it would make sense to cooperate with anyone wielding power legitimate in the eyes of the population in order to strengthen justice in regions deprived of a stable state. Mehler admits that doing so is only a second-best solution entailing the risk of creating a plurality of standards. But, according to him, the more conventional approach of development cooperation focussing on state-implemented law is doomed to fail in many parts of Africa.
Mehler’s view is controversial. At a confercence of Evangelische Akademie Loccum in November, Peter Wittig of the German Foreign Office agreed with the academic’s general assessment, but not with his policy recommendations. Should one work with the warlords, he asked, and, if so, with which warlords? Joseph Marko, a lawyer from Graz, Austria and a former international judge in Bosnia, warned against unintentionally supporting Mafias. Mehler responded that local rulers are not necessarily warlords and that traditional power structures are not always like the clientelistic networks the Mafia is known for. Rather, religious beliefs and other traditional ties might be relevant. According to Mehler, one should assess power structures by their services for, and their legitimacy with the local population.
Another objection to Mehler’s theses was that traditional legal institutions did not respect basic human rights, especially the rights of women. Mehler’s answer was that the worst cases of lawlessness, such as in the Ivory Coast, were not the result of properly functioning traditional institutions, but rather of their collapse. In addition, he argued that modern states do not necessarily respect the rights of women more than does “tradition”. In the end, the question posed by Dagmar Oberlies, a law professor in Frankfurt, remained unanswered: how flexible can development agencies be without forsaking all their principles?
A workgroup in Loccum proposed a set of minimum requirements to promote the rule of law. The list included that any government receiving assistance would have to respect fundamental human rights. The administration would have to be bound by law and the judiciary independent. The state would have to implement its monopoly of force. No agreement was reached on whether the state should also be democratic. The dialogue with China on legal issues was mentioned as a counterexample. However, if these criteria were taken seriously, they would practically mean an end to development cooperation in the field of law. Marko, therefore, concluded that the list should be seen as the ultimate goal and any decision to engage should depend on whether measurable progress was to be expected. Horst Fischer of the University of Bochum stated that development cooperation should not be confined to consulting services for the legislature and training for lawyers, rather, one should also focus on the accessibility of the judicial system.
The most difficult question, however, is to what extent can the rule of law help to settle ongoing conflicts and ensure peace? Trying to prosecute war criminals, for instance by establishing a Truth Commission, may even prevent peaceful settlements. Furthermore, the very scope of crimes – as in the case of the genocide in Rwanda – may make it unviable to deal with all of the cases in official law courts. Dieter Magsam, a defence attorney and director of GTZ’s legal project in Rwanda, explained why he supports such questionable institutions as village courts (gacacas) – the only alternative would be not to prosecute most of the people who committed genocide. While it is underdstandable that the Government of Rwanda is unwilling to accept the fact that many perpetrators may never be sentenced, Magsam believes that it will, in the end, probably do so.
Bernd Ludermann
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