Growing Good Law: Discussing development law versus development and the law

Melanie Phillips

A friend mentioned to me recently that he was thinking of doing a course on development law. My highly eloquent response to that was, “Eh? What’s development law?” “No idea,” said my friend. Out of curiosity, I read few course descriptions and different words and phrases appear: creating legal institutions, international law, rule of law, and, of course, development theory. My first (and rather ungainly) response was to (mentally) snort and think, “well that’s all a bit rich – why is it that I spend a large chunk of my time giving legal advice about the legality of development activities?”

We seem to be willing to discuss justice, development theory, compliance, rule of law. But what about the boring everyday law that doesn’t come with a glamorous title? The rote stuff that is part and parcel of good governance and decision making in every previous job that I have held? While I may have my doubts about the purpose and function of this thing called development law, there is a beast called law and development that I think desperately needs to be talked about.

Development law versus law and development

In my experience, the law touches development in two ways: it is both the subject of development – of justice, rule of law, and legal institution programmes – and it is the fabric against which development programmes operate. The problem with these two initiatives is that they often operate in contradiction to each other – the law and justice programmes look at supporting the legal institutions of a country and promoting good governance, while other development programmes are often designed with little or no understanding of the legal framework of the country and with poor governance mechanisms.

I have observed that there is no, or at best very little, understanding of the law and legal compliance in development practice. When I have raised issues of the law with donors about some of their programmes and activities I am met with a blank face and the seemingly honest perception that the law is something extant from development; that it does not apply because ‘this is development and we are making the country better’.

A brief mention of the law in project design documents appears to be where it so often ends. The rush to be seen to be carrying out programmes and activities often seems to preclude effective planning, especially when it comes to understanding the legal and cultural context of a country. I can hear your voices now saying, but, really, is it that big a deal? Is this just one more lawyer thinking that they and the law are the centre of the world? I understand these criticisms. I do. But I would like to offer a defence of the law. Both the law and development have, at their core, the same goal – justice. To continue working in this crevasse of mutual antagonism does nobody any good, let alone those on the receiving end. You be the jury.

In defence of the law

Now, in my defence, most of the times my legal advice has been ignored has not been for lack of a sound argument. Instead, many of the times I have been ignored has been when someone has read my advice, taken it in the context of the particular situation, and believed that to follow my advice would cause a greater injustice. This is totally acceptable and shows good decision-making skills.

Good debate about the law is important. In my previous work place, I drove our communications people crazy – “Can I use this word?” “No, that would be prejudicial.” “What about this?” “No, because it distorts the facts.” “Well, what CAN I say?? How about this?” “No, too boring, nobody will read that.” Any lawyer (or other overly precise person) who has ever worked in communications knows this conversation. It is a conversation repeated all around the world, where two people try to find a balance between their mutual positions.

We are each focused on justice. I was focused on making sure that our organisation was not compromised by making statements that were untrue or misleading. Our communications guy wanted to get a story out to make sure that nobody else suffered the same fate. These are healthy conversations (aside from the risk of me being punched in the eye). It is two professionals debating their respective positions and reaching a mutual point of agreement.

However, when you translate these discussions to a developing country context, it seems that donors sometimes feel like they can give such discussions a pass. They say, no thanks, we’ll just go about our business because it’s in the interest of justice and therefore that’s alright. But it’s not alright. I spend a significant amount of my time trying to get donors to engage with the legal process. This is not because the law is so wonderful (it isn’t always, as I have written previously). It is because engaging with the law, for all its failings, is important. And it is important for a number of reasons.

Sorry, you are not above the law

Putting aside questions of reform, the existing laws are, for all their perceived failings, still the law. Now this may sound puritanical, but it is not for a donor (or anyone else really) to simply pick and choose which laws they want to follow, and which just get in the way. Don’t get me wrong, there are certain practical considerations that need to be taken into account when giving legal advice – trying to apply old British Colonial legislation is often an exercise in ridiculousness – but this is part and parcel of giving good advice. But creating a double standard whereby it is OK if a donor breaks the law but not if somebody else does it brings the sustainability of reforms and practices into question.

It also creates illogical outcomes, particularly when donors apply their own (country’s) rules in lieu of the local ones. My favourite is a community development programme, funded by the European Union, which has, as its grievance management system, a right of redress to Brussels. Putting aside the ridiculousness of (probably) functionally illiterate people from a remote island community who have struggled to raise their community contribution actually appealing anything to Brussels, there is the issue of sovereignty but also, importantly, duplication.

Duplicate systems

Donors have woken up in recent years to the need to work with local organisations to implement their activities. At least this is what their rhetoric would have you believe. Some donors work through local NGOs, and others through the Government. While this partnering is important from a sustainability point of view (embedding positions and transferring knowledge to people within the system) this appears to be the point where the partnership ends.

I have seen many a donor simply park themselves in a local office but continue to run almost the same system as they would if they implemented directly. This often means duplicate financial systems, duplicate human resource systems, duplicate IT systems, and so on. It is not the duplication that I have issue with in this case (although I do, believe me), it is the acceptance that it is completely OK to do this and, in doing so, ignore the laws of the country they are working in.

But this is something that we need to talk about. Donors often argue that country or organisational systems are inadequate for the level of accountability required to authorise the money transfer. This isn’t a good enough argument. It is not good enough because I regularly think laws are rubbish and should be rewritten; but this does not mean that I don’t follow them. I try to follow them as much as I can. You don’t strengthen a system by working around it. You strengthen a system by working within it, finding its weaknesses, and shoring those up.

Duplicate systems are also akin to the cut and paste model that I have written about in Theory in Practice previously. It is practical, granted, but it is designed to respond to the need for more aid, not better aid. Better aid, in my view, needs to be focussed on a sustainable outcome and a sustainable outcome is, in my experience, not achieved by doubling up work. I have seen money pour into supporting these newly created systems, usually at the expense of the existing ones or, even more illogically, in contradiction to other programmes focused on strengthening existing accountability systems. Given that many developing countries already have multiple legal systems operating – common law and any number of customary legal systems – adding another legal system to the mix seems to be making an already confusing system worse.

Now let’s get realistic… what are we talking about here?

This is my argument: there is no such thing as development law. There is only working as a lawyer in a developing country. Or any country really; they are all different and have their own challenges. Don’t make it out to be bigger, better, or ‘sexier’ than it actually is because the word ‘development’ is attached. All the discussions that any lawyer would have as part of their normal work are things that are equally applicable in a developing context. Having these discussions and finding a balance in order to reach a good outcome is not geographically unique. They are fundamental to making good decisions and we need to remove the special favours that we apply to development.

It has been my observation that the main difference between (so-called) developed and developing countries is that developed countries focus on how they can do things better, how they can use what they have more efficiently and developing countries build more – more schools, more clinics, more accountability institutions. There is an idea that to develop is to increase, to build, to create tangible things that can provide evidence of development. And yet in my experience the intangible are often the things in need of investment.

Justice is about more than rule of law or access to justice programmes. If you start treating developing countries like you would a developed country and focus more on enabling discussions as part of the everyday business of the country, then it is my belief that things will evolve over time in a natural and culturally relevant way. And in doing so donor organisations need to stop seeing themselves as above the law, have the hard conversations and be willing to take the option that may be a little more uncomfortable, a little more brave. This might mean you need to take a little bit longer. This means you might need to plan a little better. But it is a necessary ‘evil’ to doing things well and ensuring that they are outcomes that are genuinely needed.

What I am saying is: have those debates like I used to have with my communications guy; don’t fear them. Organisations that purport to promote accountability and good governance, but fear both, are no good to anybody. Have the hard conversations and ask the hard questions and be prepared to change your opinion or approach depending on the answers and responses you receive. This will strengthen decision making both within country institutions and within development agencies, and making better decisions is something that will last beyond anything you can put a sign next to or attach a plaque to.

 

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