Description

Legal system reform and development strengthen a country’s judicial system and develop a more impartial, effective, and well-organized judicial/legal system.

Objectives

Rule of law (ROL) programs aim to strengthen weak civilian legal institutions to provide a fair legal system to which all have access and in which all have confidence, regardless of social status, ethnic or regional group, or wealth.

Expected outcome or impact

Successful ROL programs develop a sustainable system of justice and law-enforcement providing equal treatment under the law. Channels and mechanisms for resolving disputes and strengthening the rule of law are strengthened or created through measures such as judicial reform, ombudsman, civilian police force, human rights protection, or methods of adjudicating disputes over property rights.

ROL programs enhance the judicial/legal system’s capabilities to investigate and process legal issues speedily and fairly and develop the administrative and management capabilities of law enforcement agencies. Civilian governance is facilitated and strengthened, providing an impartial political climate for opposition parties, political dissenters, and mass organizations outside government control.

Relationship to conflict prevention and mitigation

Poorly functioning or biased judicial/legal systems contribute to conflict when they support the arbitrary use of political and economic power and help maintain the status quo by denying citizens legal recourse against the state or against privileged non-state actors for wrongs against individuals or groups, including genocide, torture, expulsion, persecution, or other political violence. Political violence thrives where there is insufficient legal protection, failure of judicial/legal procedure, and a lack of professionalism among judicial/legal system personnel. "The principal purpose of the courts in virtually any system is to serve as a forum for the peaceful resolution of disputes... By addressing normal, everyday disputes between people... the courts will ultimately contribute to an overall culture which resolves its conflicts through such non-violent means."

Deficiencies in the judicial/legal system can exacerbate inequitable political or economic situations. Disparate treatment by authorities can undermine non-dominant groups’ confidence that the system will redress their grievances, leaving no alternative to violence. For example, where access to and transparency of the judicial system is limited to those who speak an official language, ethnic groups who speak a different language are left outside the legal system.A functioning judicial/legal system is important for sustained democracy. In some conflict situations, "dealing effectively with the injustices of the past is critical to breaking the culture of impunity that provides incentives for violence."

Implementation

Organizers

Judicial/legal reforms can be initiated or encouraged by various sources:

· Foreign government entities—legislative committees, executive departments, federal agencies.

· National NGOs, who typically provide technical and financial assistance.

· Private foundations, often those involved in sponsoring NGO legal reform efforts.

Other organizers of judicial/legal reform include think tanks, university centers, single-purpose organizations, and private groups focussing on a specific country.

Democratic governments occasionally carry out reforms on their own. Reform programs can also be implemented by international agencies of justice or academic specialists.

Participants

National and local government officials, law enforcement agencies, academics, legal interns, and other public and private legal agents participate in judicial and legal reform. NGOs are often involved, some in policy, others primarily administrative managers.

Activities

ROL activities include legal system strengthening, access creation, structural reform, and constituency and coalition-building. These strategies can be pursued singly, simultaneously or sequentially.

Legal system strengthening activities focus on enhancing government judicial institutions’ capacity to render justice more effectively and efficiently. Strengthening the legal system involves introducing new systems of court administration such as improved record-keeping and budget and personnel management; designing and conducting pre-entry and post-entry training programs for judges, court staff, and lawyers, and acquiring modern technology, such as computers for case tracking. Support for legal system strengthening can include:

· Technical assistance.

· Exchange programs for legal/judicial professionals.

· Conferences of legal/judicial professionals.

· Grants for study.

· Training offered in-country and by rotating judicial personnel for training and practical experience abroad. Training can be offered to current personnel and to new recruits to legal service. Training provide technical knowledge about the legal system and intensive indoctrination in judicial ethics, professional standards and principles of ethnic impartiality.

· Interim human and financial resources such as foreign judges, prosecutors, investigators, and administrative personnel. In some situations, these people could serve observers or advisors to their host country counterparts, adding objectivity and credibility to the process while respecting concerns of national sovereignty. Foreign jurists can also serve actively within the host country judiciary, increasing the timeliness and credibility of judicial proceedings. A program to use foreign jurists in active roles should be complemented by an intensive training program for host country jurists. Judges and prosecutors should come from countries with similar legal systems, though not necessarily foreign investigators, clerks and police.

· Increasing the number of judicial police, clerks, bailiffs or process servers to improve civil and criminal court functioning.

· Reviewing the process for nominating judges and considering nomination by an independent, impartial, multi-ethnic board rather than political nominations by the executive branch.

· Improving prison conditions and security.

· Changing ethnic representation in the judicial/legal system to reflect more accurately the country’s ethnic balance.

Access creation encompasses efforts to make legal services more available and affordable, especially to those who lack the means and knowledge for seeking resolution of disputes or redressing of grievances when their rights have been violated. Such activities include:

· Legal aid.

· Paralegal training.

· Alternative dispute resolution (ADR) such as mediation boards, neighborhood counseling centers and binding arbitration schemes. ADR mechanisms divert some types of cases from the regular court system and show "promise as a low-cost measure for providing expeditious and accessible services for settling grievances, particularly for lower income people."

· Legal literacy campaigns.

· Support for legal advocacy NGOs.

· Educating citizens about the legal system and their rights to bring legal complaints.

Structural reform reviews and changes the rules governing the legal system, usually reflected in constitutional provisions and laws. Structural reform is generally a preliminary step in ROL development, requiring follow-on access-creation and/or legal system-strengthening.

Constituency and coalition-building. Constituency-building means "donor support for citizen, commercial, and professional groups engaged in mobilizing public pressure for legal reform and in helping oversee government performance in executing reform measures. Coalition-building refers to donor efforts to help forge reformist coalitions and alliances among NGO leaders and senior government managers." Where host government commitments to genuine legal reform are weak and uncertain (a common problem in Horn countries), constituency-building strategies aim at increasing public pressure and political support for legal reform. Constituency and coalition-building include assistance to increase civilian government accountability to its constituents and military accountability to civilian law.

Cost considerations

Costs depend on the type and extent of reform and assistance needed. Effective ROL projects can range from $100,000 to $200,000. One study points out how a bilateral donor with limited funding can serve effectively as a risk-taking innovator to develop effective approaches that can be taken over by multilateral donors willing to make substantial investments.

Other resource considerations

Judicial and legal reform can require translators, foreign legal personnel, training and technical assistance, offices, office equipment, and legal texts.

Set-up time

The time required to plan and organize judicial or legal reforms depends on the scope of the mandate; set-up can be as short as several weeks.

Timeframe

to see results

Creating or altering judicial/legal institutional structures may occur relatively quickly, but actual reform normally requires time. Education and training the people working with the judicial/legal system is a slow, incremental process. Efforts to achieve ethnic balance within a country’s legal system can take years because of the dearth of appropriate individuals to be recruited and trained for such positions, especially after a conflict in which large numbers of intellectuals from underrepresented ethnic groups have been killed and others were denied access to the educational system.

Conflict context

Stages of conflict

Judicial/legal reform can be used at any stage of conflict, but is most often used at the beginning of conflicts or during a post-conflict transition. Leaders are unlikely to marshall the political will needed to carry out legal reform during a violent conflict.

Type of conflict

Causes of conflict

Successful judicial/legal reform contributes to long-lasting, structural conflict prevention by removing or reducing a major source or aggravant of conflict.

Prerequisites

Legal development requires political will by political elites and the legal bureaucracy, or sufficient public pressure to make and enforce actual change. Where political will for reform is promising but still relatively weak donors will need to pursue constituency- and coalition-building strategies, especially those that generate support for ROL reform by stimulating public pressure through legal advocacy groups or businesses and by strengthening the freedom and professionalism of the media.

Free and effective media are needed to build coalitions or constituencies for legal reform: people need a free flow of information to mobilize to hold the legal system accountable and to press officials for reform. An informed public debate on a justice system requires sound court statistics and data on the legal system’s operations to enable the public and reformers to identify precisely the nature of judicial deficiencies and to formulate specific, well-grounded proposals for improvement. Political and economic conditionality may also encourage a government who does not have sufficient commitment to the reform process to proceed with judicial/legal reforms.

Legal reforms often require that foreign states or international organizations intervene directly into sensitive domestic institutions; government permission and participation—national, regional, and even local, depending on the situation—is often a prerequisite. Prior to investing in rule of law programs, donors should consider whether their policy leverage and influence can elevate the importance of ROL reform in the country’s political agenda. A necessary component of the judicial reform process is for the legislative and judicial branches of power to become independent from the executive, and their powers strengthened.

ROL projects frequently require intensive staff involvement "...to facilitate the process of dialogue and change within host government institutions and constituencies."

Past practice

Within the Greater Horn

Burundi. Local authorities do not have the capacity to deal with assassination and terror through law enforcement. This contributes to vengeance and vigilantism. Belgium, in cooperation with the European Union, has provided assistance to Burundi’s judicial administration. The UN Commission on Human Rights received funding to send 15 monitors to Burundi to be involved in judicial reform. The Burundian government has expressed interest in having the United Nations send judges to assist in legal matters.

Outside the Greater Horn

Colombia. USAID appropriated $6.5 million in FY1992 to help redefine judicial organization roles, modify legal codes and other legislation, establish a judicial information system in the Judicial School, finance studies for the Ministry of Justice, and expand the training of judges and other court personnel. In Colombia, USAID undertook a concerted and protracted effort to bring together reformist elites who became leaders in making major changes in the judiciary.

Eastern Europe. Under the US Information Agency’s "Professionals in Residence" program, US judges and legal experts spent up to 6 months at the Ministries of Justice in Albania, Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Romania, and Slovakia, providing advice on constitutional and legal procedures. USIA also brings foreign professionals to the US to help establish democratic judicial systems and sponsors lecture tours and consultations by US experts.

The US State Department has supported rule-of-law programs in Eastern Europe.

The American Bar Association provides pro bono legal assistance to emerging democracies throughout the world. Its Central and East European Law Institute linked each law school in the region with at least three American schools, conducted numerous legal assistance workshops, assessed more than 172 draft laws, and provided over $20 million worth of legal expertise by volunteer lawyers, judges, academicians, and interns. The Institute works with advisory committees in central European countries which are familiar with local needs. Based on these needs, the Institute holds professional workshops on specific democratic principles of law. The American Bar Association’s International Criminal Law Committee assisted eastern and central Europe in the process of drafting new criminal codes.

In Russia, an NGO, the Free Trade Union Institute’s (FTUI) rule-of-law project is helping to reform labor legislation and assist unions with registration, local disputes, and illegal dismissals or privatization schemes. In Poland, FTUI has given technical and financial support for the Solidarity to safeguard worker rights during the economic reform process by exposing corruption, assisting management in enterprise restructuring, and assisting local unions in negotiating equitable contracts.

Australia. Establishment of Community Justice Centers, an Alternative Dispute Resolution (ADR) Center program, has proven successful in preventing and mitigating ethnic conflict. These centers employ multilingual staff to handle intake, use interpreters, and recruit and train mediators representing various national and ethnic backgrounds.

Africa. USAID has supported several African countries in establishing a fund for small judicial training programs.

Evaluation

Strengths

Successful judicial/legal reforms produce long-lasting effects when the institutional overhaul addresses some of the root causes of conflict and insecurity. Emerging legal frameworks in a state undergoing political or post-conflict transition often become overburdened with the disputes and disagreements arising with the rapid changes and collapse of old structures. While "the establishment of an effective rule of law may spark conflict, in the long run an effective rule of law is undeniably beneficial" in its impact on mitigating and preventing violent conflict.

Creating and strengthening indigenous and regional institutions charged with judicial/legal reform and training can enhance local capacity to continue reform progress once foreign aid declines. Funneling assistance through these regional institutions can reduce the supporting country’s direct profile in sensitive areas of judicial/legal reform in host countries. Legal advocacy NGOs can be effective in empowering communities to take action to defend their rights, reducing passivity and dependency by targeting specific issues and groups seeking through legal means to reform structures perpetuating poverty and oppression.

Weaknesses

Strategies to strengthen legal systems have contributed to important improvements in judicial performance in some places, speeding movement through the courts and increasing conviction rates for terrorism. Elsewhere, despite upgrades in skills, legal professionals are still constrained by inefficient judicial procedures.

Reform measures emphasizing legal system strengthening and structural reform oriented towards improving legal service provision—the "supply-side approach"—can be hampered by indifference or by opposition from political elites and the judicial bureaucracy. Structural reform initiatives can require constitutional changes or legislative enactments; this is time-consuming and likely to encounter opposition from entrenched political interests. A demand-driven approach seeks to build constituencies and create access to generate public pressure for reform.

ADR mechanisms are often limited in their reach and impact if pursued as discrete efforts. Legal literacy campaigns can motivate disputants; however, their acquaintance with the law generally remains too rudimentary to empower them to act effectively or to gain access to individuals who can act for them.

International donor policies can constrain bilateral actors to support ROL initiatives even when necessary preconditions have not been met, forcing support to strengthen the legal system even when such assistance offers little chance of succeeding. Constituency and coalition-building and access creation activities might improve the political environment for future success in such situations.

Lessons learned

Activities to carry out judicial/legal reform can be politically sensitive and require clear and specific agreements over program contents.

If principles of criminal accountability are implemented, a method must be adopted to ensure the that number of those being prosecuted remains within that which the judicial system can reasonably handle.Without pressure for accountability and enforcement and governmental political will to carry through such reforms, efforts in judicial/legal structural reform will be diluted or their impact undercut. Continuous public pressure can influence this political will and help consolidate structural reforms. If structural reforms meet with strong resistance from entrenched interests, donor investments to help create new institutions may be more effective than trying to reform existing ones such as devising ADR mechanisms to bypass court systems which may be unresponsive to reform.

The commercial sector can be a potentially important constituency for legal reform. NGO coalitions for legal reform can be difficult to build but may become another strong force for reform.

References and resources

Department of Justice: The International Criminal Investigative Training Assistance Program (ICITAP).

Weighing in on the Scales of Justice: Strategic Approaches for Donor-Supported Rule of Law Programs, USAID Evaluation Highlights No. 27, April 1994, Center for Development Information and Evaluation, US Agency for International Development (USAID), Washington, DC.

Donald L. Horowitz, Ethnic Groups in Conflict, Berkeley, CA: University of California Press, 1985.