United Nations Nations Unies

ENHANCING GLOBAL RULE OF LAW ASSISTANCE

20-21 APRIL , NEW YORK

Background Material Towards a New Consensus on Justice Reform: Mapping the Criminal Justice Sector 2

Improving Global Donor Coordination and Coherence in Rule of Law Assistance: An Issues Paper 14

National Strategies and Programming for Rule of Law Development 51

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Towards a New Consensus on Justice Reform:

Mapping the Criminal Justice Sector

This is a summary of a report released in July 2008. The report was commissioned by the Open Society Justice Initiative as part of a project funded by the United Kingdom’s Department for International Development (DFID), entitled Towards a New Consensus on Access to Justice. The views contained in this report do not represent the official policies of DFID or the Open Society Justice Initiative. For a copy of the full report go to: http://www.justiceinitiative.org/db/resource2/fs/?file_id=20398

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Executive Summary This report explores the existing body of knowledge among the donor community regarding support for justice development around the world, principally in the field of criminal justice. It aims to assess and identify the quality and quantity of information on those efforts, identify some information gaps, and offer proposals for steps the international development community can take to further a coherent concept of the scope of justice development aid and donor coordination. Over the last fifteen years, international donors have come to embrace justice reform, and particularly criminal justice reform, as an integral component of support for democratization efforts in transitional societies and development in less-developed countries. What is lacking is a common vision of what a “comprehensive criminal justice strategy” might look like. To promote a coordinated approach to the implementation of projects at the country, regional, and international levels, more regular and systematic communication within and among donor organizations is necessary. Donor investment in justice is a growing area of activity. Donors are dedicating time and financial assistance to encouraging justice reform from a variety of perspectives (human rights, civil society strengthening, post-conflict peace-building and reconstruction, governance, and legal and judicial development). However, donors lack the appropriate tools to ensure coherent and effective aid activities in the field. 1. Introduction Criminal justice reform is part of a broader “rule of law” reform movement that began almost thirty years ago in Latin America. The focus on rule of law originally arose from the idea that justice reform could generate changes in society in linear fashion. That, in effect, the problem was deficient laws or deficient application of the law, and that reform efforts should be directed strictly at a state’s formal institutions of justice. Over time, it became evident that formal justice institutions were merely a part of a larger, more complex machinery of change. However, it was also clear that the legitimizing function of the justice system was an essential component for the success of that overall change. As a consequence, participants learned that the justice system cannot right all wrongs; its function is geared more toward calibrating the balance of the social pact than toward changing it. The rationales for supporting justice reform have shifted, as a result of two factors. First, a readjustment in emphasis by the development aid community, as ideas have changed about how development actually occurs. Second, the experience acquired in justice reform, which has demonstrated its extremely complex social and political nature, reflected in the challenges faced by projects seeking to fundamentally alter existing justice systems and practices. The consequence of this second factor has been an uneven expansion in the definition of the scope of justice reform. While some justice programs continue to be perceived as promoting rule of law and security, other efforts emphasize protection of human rights as a justice function. Still

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others concentrate on resolving conflicts in society. These differing goals of justice reform require different indicators; this has been a source of some confusion regarding the effectiveness of justice reform work. Justice work is carried out under a number of rationales. It is firmly ensconced in human rights promotion activities and as part of the modernization trend (professional career legislation for justice sector actors). It can even include actors from the informal justice sector (such as members of indigenous justice systems who operate outside the formal state justice sector). Finally, management and efficiency standards have also been incorporated as principles for guiding institutional development in the justice sector; these principles sometimes conflict with more value-centered goals of justice reform. In an important shift, donors today are proposing a more development-oriented approach to justice reform. This is in part due to a global shift in donor thinking centered on the UN-backed Millennium Development Goals, which establish poverty reduction as the official objective of development policy.1 Donors have identified a need to devote increased resources to ensuring the safety and security of the most vulnerable and marginalized, and are defining increased access to justice as a precondition for economic growth. Demonstrating this interdependence in practice, however, is more difficult.2 Today justice reform permeates the development world. It is instrumental in negotiating change and establishing a balance that allows other activities to take place. All these factors—shifting conceptions of the scope of justice reform, reform’s relationship to concepts of society and politics, and its interaction with other areas of development—contribute to the lack of a coherent understanding of, or agreement on, which kinds of interventions have been successful and which have not, and why. This report is part of a broader long-term effort by the Open Society Justice Initiative to better document the global situation regarding alternatives to pretrial detention and the provision of legal services, with an eye towards generating more dynamic and widespread efforts on these justice-related issues. This report is not an analysis of the success or failure of any one donor or project. It seeks, rather, to provide a global snapshot of donor support for justice development and to identify actions that donors can take to ensure a regular and thorough exchange of information, which will result in better donor coordination and more effective development aid for justice.3 1 A World Bank report, Deepa Narayan, Voices of the Poor: A 23-Country Study for the WDR 2000/01 on Poverty, Stiglitz Summer Research Workshop on Poverty, Washington DC (1999), highlights the importance of fear of crime in the lives of the very poor. A recent paper in the World Bank Legal Review refers to the “growing acceptance among scholars and practitioners that reducing high levels of crime and increasing access to justice among the poor are important aspects of governance with significant implications for development.” Caroline Mary Sage and Michael Woolcock, eds., Law, Equity, and Development, vol. 2 of World Bank Legal Review (Martinus Nijhoff Publishers, 2006). 2 “Order in the Jungle,” The Economist, March 13, 2008. 3 Information for this report was initially collected through publicly available online research. In addition, selected donors participated in telephone or in-person interviews about their policies and practices, projects, modalities, expenditures, and collaboration with other donors. To supplement this research, two regional visits were conducted. The first took place in October 2007 in Chile and Peru, where meetings were held with donors and NGOs working in Latin America. The second took place in February 2008 in Kampala, Uganda, to meet with donors and NGOs

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2. Existing Information on Donor Support for Justice Development This section explores the quality, accessibility, and quantity of information available in the public domain about donor activity in justice development. Generally, online searches found little detailed, easily-accessible information about donors and their activities in the justice sector. Even where donors have excellent internal search engines, compiling a comprehensive list of criminal justice projects presents a challenge. Donors set forth their policies and objectives on their websites, but consideration of the relationship between overall policy goals and the projects being implemented is generally lacking. The OECD’s database4 is an excellent resource for information on areas in which bilateral and multilateral organizations provide aid and amounts being spent in various countries and regions. The OECD database allows searches by donor, recipient, and theme. However, only brief, general descriptions of the projects can be found in the database. Some substantive information on projects is available on websites that systematize studies and analyses of justice programs, such as the World Bank Thematic Group on Justice and Legal Institutions. Some foundations direct funding towards the study of advances in justice development and lessons learned in the countries in which they work, as a means of supporting civil society involvement in policy making. However, it is unclear how that information is assimilated beyond country-specific venues. Some smaller donors, such as private foundations, provide full lists and summaries of projects they support, but these tend to be limited to the past two- to three-year period, which likely reflects funding cycles. On the other hand, some have made efforts to publish materials on lessons learned from their approaches to justice work.5 Individuals with extensive project experience in various countries often possess a wealth of practical knowledge and analytical observations about their activity that is rarely recovered and systematized or replicated in a format that could inform future project design, implementation, or coordination among donors. As a consequence, few “lessons learned” reports or other reflective documents are available from donors for public consumption. Those reports that do exist are not widely distributed or assimilated even within the supporting institutions. It is often necessary to speak directly with donor representatives working on the ground to obtain this kind of qualitative information.6 Regular exchanges that analyze the relationship of policy to both project design and implementation may help to bridge this information gap and provide guidelines for developing

working in East Africa. In sum, a broad spectrum of actors in justice development from the donor, recipient, and civil society sectors provided input for this study. 4 Development Cooperation Directorate (DCD-DAC), Development Database on Aid Activities: CRS Online, available at http://www.oecd.org/document/0/0,2340,en_2649_34447_37679488_1_1_1_1,00.html. 5 See, e.g., Mary McClymont and Steven Golub, Many Roads to Justice: The Law-Related Work of Ford Foundation Grantees around the World (Ford Foundation, 2000). 6 The United Nations Department for Peacekeeping Operations has a Lessons Learned Unit. While donors may contribute to studies carried out by academic institutions, their internal evaluations of projects tend to be oriented towards verifying compliance with project terms, rather than entering into a broader analysis.

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appropriate indicators. If these analytic discussions were based on concrete experience in the field, they would generate a more cohesive view of justice sector development. 3. Donors that Support Criminal Justice Reform The pool of donors that support criminal justice reform is limited, largely due to the complexity of this area of work, as well as the fact that it requires a concentrated approach in a specialized area of knowledge and a long term commitment to see even modest results. In addition, some donors are reluctant to participate in an area of development that may be compromised on occasion by repressive policies and human rights violations in recipient countries. While it is not possible to compile a precise list of donors, as they fluctuate over time, a relatively consistent group of donors has maintained its involvement in criminal justice development. Among them is the United Nations, which has a Rule of Law Resource and Coordination Group. Also in this group are a substantial number of bilateral donors.7 Multilateral contributors include international financial institutions and the European Commission. Finally, private foundations, such as the Ford Foundation and the Open Society Institute, have specifically designated programs for developing justice initiatives. In general, donors can be divided into five groups:

• Bilateral Aid Agencies • International Financial Institutions • International Foundations • Multilateral Aid Agencies • United Nations

Aid assistance, including donor support for justice and criminal justice reform, is not straightforward. Bilateral and multilateral organization may provide grants directly to a recipient country or organization, but they may also provide aid through other organizations, both national and international, that in turn provide support to justice efforts in the countries they hope to assist. This includes U.N. agencies, international and NGOs, academic institutions, and private contractors. These organizations may then become “donor” agencies to recipients such as local NGOs, provide technical assistance to government and local actors, or may receive funds to implement projects. 4. Donor Policies With some exceptions, donor rationales justifying support for criminal justice development aid are based on one or more of the following five primary aims and approaches:

7 The top five bilateral donors, measured by gross disbursements overall for the years 2002 to 2006, measured according to the OECD CRS database are: (i) Legal and Judicial Development: United States, Australia, Sweden, Germany, and the United Kingdom; and (ii) Human Rights: Sweden, United States, Norway, United Kingdom, and Germany.

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• Promoting poverty reduction, with a focus on access to justice, particularly civil justice, to ensure economic and social rights (Poverty).

• Protecting against human rights abuses within justice systems, and investigating and prosecuting human rights violations more effectively (Human Rights).

• Improving inefficient justice systems, or introducing justice systems as a function of government, or promoting civil society participation (Governance).

• Combating perceived insecurity (Safety and Security). • Conflict prevention and post-conflict peace building, which often focuses on developing

policies and strengthening or even creating justice institutions (Countries in Transition). In some situations, even when donor policies are similar, the types of projects they choose to support may be vastly different. Decisions about where in the justice system to direct support seem to be tied to institutional history, experience, and the development over time of general policies within a donor’s area of expertise. Certainly, the contexts in which donors have operated will influence their perspectives on how best to achieve institutional goals as a component of development aid. Although donors still follow widely varying policies, increasingly the major bilateral and multilateral donors are explicitly linking justice reform to poverty reduction. This is not surprising, given the apparent relationship of justice to many other development goals: democracy, human rights, equality and non-discrimination, transparency and accountability, and strengthening civil society, among others. While some donors, and especially private foundations, have maintained a focus on justice principally from a human rights perspective, others are shifting from more politically-based rationales for justice work (such as governance, democracy, safety and security) to an economic analysis, focusing on poverty reduction and public demand for justice services as an overarching goal. Another factor that influences donor focus is domestic policy concerns. As a consequence, programs concerning transnational crime have become something of a conflicting concern: they require concentrating programs on terrorism, narcotics, and arms trafficking, which often generates specialized legislation in countries receiving aid that can test the limits of due process and human rights guarantees. Some donors interviewed for this report pointed to a frequent disconnect between a donor’s policies and the actual projects that are ultimately implemented. In countries where the donor and the recipient country’s politicians, lawyers, and civil society all shared similar goals for a project, it was more likely that the end result would reflect the donor’s original intent. However, in countries where politicians and lawyers did not share the policy directives of the donor institution, projects often turn out quite different from the ones initially proposed. Project negotiation, the concerns of national counterparts, and the political situation all influence project design. 5. Countries and Regions Receiving Aid Donors decide to support projects in specific countries and regions based upon their own policies and objectives, the political mandate of the donor country (for bilateral donors), and internal

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policies (for private foundations). Donors often target specific countries independently of coordination with other donors. At bilateral agencies, donor decisions about where to direct funding are sometimes determined by the donor country’s political climate. Some bilateral donors tend to support countries in the same region in which they are located. Private foundations, which have limited resources and staffing, often choose to support a specific region. Decisions about where to fund are further influenced by changes in political leadership in recipient countries. When changes occur at the national level, donors report that this sometimes causes projects to falter and forces them to reassess their plans for continued giving and support. It appears that a relatively small number of bilateral and multilateral donors, financial institutions, and private foundations are working on criminal justice reform in a small number of countries around the world. 6. Modes and Channels of Assistance Guidelines for international assistance are often provided by policy statements at the international level. For example, the Paris Declaration acknowledges the primary importance of “country ownership,” with effective developing-country leadership over their development policies. Developing country partners agree to develop effective national development strategies to which donors will respond. To achieve these overarching goals, the Declaration sets some specific objectives, with measurable indicators, including greater alignment with country strategies, improved harmonization of donor procedures, and a commitment to mutual accountability for development results.8 The aspirations of the Paris Declaration are already being manifested in practice. In Uganda, for example, the national government is responsible for deciding how to spend all donor funds allocated towards justice reform, while donors take a secondary role. In Vietnam and Kenya, the international community has supported programs that promote national leadership with regard to the implementation of donor assistance. However, reliance on this trend means that, in countries where there is no “demand” from government for criminal justice reform, it may not occur. What projects donors ultimately decide to support in countries that rely on this national leadership model may depend upon whom they consult. Many donors seem to be shifting towards a “demand driven” approach to criminal justice reform. This approach runs counter to the idea that justice reform should be driven by state institutions, with the NGO role limited to monitoring and evaluation. The demand driven approach suggests that the traditional model of state justice as a provider of services is not sufficient. Justice reform must involve the public and be based on an understanding of the demand for justice services.

If donors are increasingly looking to support “demand driven” projects, what types of projects top the list? Just as “hot” countries may be identified in terms of donor support, “hot” trends exist among justice reform projects. Because donor staff members working on criminal justice are often lawyers, they tend to focus on the formal justice system, including the courts, prosecution services, and police. Specifically, donors continue to place particular emphasis on

8 See “The Reality of Aid: Key Messages on The Paris Declaration,” Reality Check, available on the website of The Reality of Aid, http://www.realityofaid.org/rchecknews.php?table=rc_jan07&id=1.

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working with the judiciary, even though it constitutes only one part of the justice system. Donors have also focused on case management and court administration activities directed at improving the system’s efficiency. Ultimately, this focus on the courts has diverted attention from what happens before cases reach the courts. In Africa, where at least 80% of disputes are resolved by non-state structures, such as the intervention of chiefs, few donors pay serious attention to this phenomenon.9 Support for alternative justice10 is a burgeoning field, however, with justice experts beginning to explore support for non-state or informal conflict resolution mechanisms. NGOs interviewed for this report observed that donors tend to support urban-based projects, with some exceptions, while most justice problems arise in villages and rural areas. At a meeting with NGOs and donors organized by the Justice Initiative in Uganda, NGOs urged donors to take a long-term approach to justice reform projects. Another NGO asked whether it would be possible “to get long-term commitments (3-5 years) from donors instead of a year or less?” Many NGOs contacted for the writing of this report expressed frustration with donors for following trends in justice reform, instead of staying the course and helping build capacity and institutions. Specific areas that appear under-funded include pretrial detention, legal aid, restorative justice, juvenile justice, and crime prevention. Although a number of donors include juvenile justice in their list of priorities, both UNICEF and Human Rights Watch’s Children’s Rights Division reported that this area is under-funded, as most support is directed toward the formal justice system, while the vast majority of children in conflict with the law never reach the courts. 7. Donor Expenditures Donors provide assistance to the criminal justice sector in a wide variety of ways, including:

• grants; • loans; • technical assistance in planning, policy, management, and substantive skills; • training and capacity building; • conferences and publications; • fellowships and scholarships; • equipment and infrastructure development; and • sector-wide approaches (SWAps).

The choice of modality depends on the type of donor (banks versus bilateral or multilateral development aid) and their policies and strategies for implementation. Choices about which modalities to engage—they are not mutually exclusive—also depend on the context of the recipient country, including other donor activity. 9 Laure-Hélène Piron, Donor Assistance to Justice Sector Reform in Africa: Living Up to the New Agenda?, Justice Initiatives, Open Society Justice Initiative, (February 2005), pp 4-11. 10 This may include restorative justice, mediation, arbitration, indigenous legal systems, and similar alternative processes.

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While no single reference point exists to determine the amount of donor spending dedicated to criminal justice reform worldwide, the OECD database provides arguably the most comprehensive source of information in this regard. Spending falling under ‘Legal and Judicial Development’ was $127.9 million USD in 2002, representing $121 million in bilateral and $6.9 million in multilateral aid.11 For 2006, the total was $589 million, representing $475 million in bilateral and $114 million in multilateral aid. See Table 1 below for a regional breakdown in donor spending in 2002 and 2006. Given the significant growth in funding, it is safe to conclude that this area of development has become established, despite remaining questions concerning how best to implement it and what it should entail. For the human rights category, bilateral aid nearly doubled12 during the same period (2002-2006), while the amount of multilateral aid increased almost nine-fold.13 However, aid in human rights continues to be overwhelmingly bilateral, as in the case of legal and judicial development aid. These OECD statistics do not yet include aid for justice reform by private donors. Table 1: ‘Legal and Judicial’ aid, 2002 and 2006, by region (USD millions)

58.5

18.4

12.2

11

2.3

9.5

16.3

179.4

105.3

103.2

95.9

84.6

38

24.2

0 40 80 120 160 200

Africa

Asia

Europe

Oceania

Middle East

South America

Ctrl. America

2002 2006

Source: OECD CRS database 8. Donor Collaboration

11 OECD database disbursement information by year is only statistically reliable from 2002 onwards. 12 From $237 million in 2002 to $482 million in 2006. 13 From $17 million in 2002 to $146 million in 2006.

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Both a need and an opportunity exist for better communication and coordination among donors working on criminal justice reform. Conversations with donors around the world indicate an interest in the creation of a network of donors that would meet regularly to share information. Some donors proposed an interactive, user-friendly electronic mechanism for knowledge management and sharing. All donors agreed that, while their own institutions’ agendas kept them extremely busy, information sharing and collaboration were key to the success of their individual efforts. The review of donor spending on criminal justice reform has led to four possible options for collaboration among and between donors. 8.1 Policy coordination among donors Policy coordination in this field should not focus primarily on justifications for justice development, but rather on establishing a coherent, functional definition of the field and on methodologies for the design, implementation, and evaluation of projects. Additionally, joint indicators should be developed that are sufficiently flexible to incorporate varied experiences.14 These basic tools would help donors to better orient their projects towards fostering collaboration in the field. There is general agreement on the need for donors to collaborate under the Paris Declaration, but this must be developed further. It would be wise to generate indicators not tied to specific project evaluations. In this way, information could be collected on the progress of justice development that would serve all donors and recipient countries, without compromising the internal dynamics, including fiscal requirements, of different aid institutions and organizations. Such efforts would go far toward sustaining a level of policy coordination based on empirical information and including the flexibility needed to incorporate new lessons learned over time. 8.2 Country level coordination between donors Donors in a number of countries are moving towards sector-wide approaches (SWAps), sometimes funded by “basket funds,” due to the complexity of working with the wide array of institutions that make up the justice system. While this approach varies between countries and donors, it aims to foster the kind of national leadership to which the Paris Declaration refers, so that donor countries can align their aid programs with the priorities of recipient countries and better harmonize aid efforts. A similar sector-wide collaborative process was implemented in Kenya. The Governance, Justice, Law and Order Sector (GJLOS) Reform Programme, according to one person interviewed, “puts all the money in the hands of the Justice Ministry.” The Ministry became the donor to NGOs, eliminating most direct funding of these organizations by donor agencies. “All worked well until government started backsliding on reform,” according to one donor. As a result, NGO funding shrank, and the NGO voice was diminished. Donors asserted that donor coordination under a SWAp model resolves some of the challenges

14 Efforts directed specifically at donor coordination and information sharing are limited. Examples include Indicators of Safety and Justice: Their Design, Implementation and Use in Developing Countries, Summary of a Workshop Held at Harvard University, March 13-15, 2008; Towards a New Consensus on Access to Justice, Summary Brussels Workshop, 29-30 April 2008; and Study for the Support to the Justice Sector in ACP Countries: Review of Past Experiences and Guidelines for Future Interventions, European Union Programme ACP Countries (HTSPE Limited, 2008).

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faced by NGOs and governments when donor staff rotates frequently. It allows greater continuity in programming, funding, and follow-up. However, one donor argued that the success of a SWAp remains “personality dependent” and relied both on the quality of donor coordinator and the disposition, leadership qualities, and political will of government personnel who implement the funded activities. 8.3 Regional collaboration on lessons learned and information sharing Donors seem ready to grapple with the challenges presented by collaboration and information sharing between countries and regions. While there have been some efforts to systematize lessons learned, challenges of communication and coordination remain, presented by differences in language, culture, legal tradition, and level of economic development. These challenges are of particular concern to justice reform efforts, given the “tremendous particularity of legal systems” and the complex manner in which law functions in different societies. Only a few years ago, little or no data could be found measuring the success of justice development. A recent push by some donors and NGOs to create common “justice indicators” to be applied across systems and countries is an important first step toward improved communication. For example, the World Bank’s Worldwide Governance Indicators project gathers data on more than 60 indicators, including crime levels, quality of police, and judicial independence. 8.4 Lessons learned and information sharing across agencies Some donor institutions are making strides in sharing lessons learned within their own organizations. However, project evaluations should not be confused with lessons learned studies. Each of these modalities has different goals and purposes. Moreover, agencies are often reluctant to share evaluation reports outside their institutions, and even at times internally. On the other hand, they may be open to joining a lessons learned exercise from which all donors can benefit, as well as national institutions and NGOs in recipient countries or at the international level. The challenge is to achieve a level of information-sharing that permits the critical examination of empirical and experiential information about projects in the field. Almost all donors agree that some form of central data collection point or database of donors and projects in the justice reform field would be helpful, “even if only the names of donors and contact details” were available. The challenge is to identify specific goals of coordination that go beyond information sharing. Some possible concrete objectives could include agreement on modes, frequency, and content of communication among donors working in a single country; developing a shared vision on appropriate implementation methodologies; and oversight and evaluation of overall progress in the justice sector in a particular country in which donors are working together. However, for any of these exercises to be successful, donors must, agree as a matter of policy, on the defining characteristics of this area of work. This exercise may, for example, ultimately help to clarify, in a more concrete manner, the nexus between justice development and democracy, governance, and human rights.

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It is in any case clear that, in addition to developing a more formal network of donors and NGOs engaged in justice reform, groups involved in this area must define the skill sets required to engage in these activities, train substantive experts for work in the field, and conduct independent analyses of justice sector development that go beyond project evaluations to a more empirical understanding of how the systems work. 9. Recommendations The following recommendations seek to identify some actions that can be taken in the short-term to enhance the level of donor coordination and effectiveness in promoting justice development. More effective policy coordination among donors Coordination should occur between headquarters and regional/country levels within donor institutions, and at the headquarters policy-making level. Donors operating in a country or region that are engaged in justice-related reform should formalize their coordination around a shared vision. To ensure the success of these activities, donor institutions must explicitly identify personnel responsible for coordination at the policy, programming, implementation, and evaluation stages of project development. Create common indicators and central repositories for data The work on indicators can only begin once the field is effectively defined, even if some terms of the definition are broad. Indicators should relate to the goals and functions of justice systems. Information sharing on programming and activities should be carried out with the goal of developing more substantial lessons learned and collecting best practices in this area of development. These types of substantive linkages will provide a more coherent context for understanding donor efforts in a particular region or country. Encourage transparency in sharing “lessons learned” reports It is important that donors provide avenues for regular exchange of reports generated by their activities. Dynamics that can aid in information sharing include linking experts on implementation on the ground with those working in different regions through visits, meetings, and blogs. The information garnered from these exchanges should lead to more formalized activities that feed into policy development, program design, and the creation and application of indicators.

Develop common elements of a comprehensive criminal justice strategy Donors should determine the ideal common elements of a comprehensive justice strategy, taking into account the varying country contexts. They should develop strategies for sequencing activities in the field in a way that creates the greatest potential for forward movement. At http://www.justiceinitiative.org/db/resource2/fs/?file_id=20398 readers will find the full-length (42-page) version of this report, including two appendices to the report. The first appendix is an analysis of key sources of systematized information on donor

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activity with a focus on the following: • World Bank directory on law and development; • International Development Law Organization: Rule of Law Assistance Directory; • OECD Credit Reporting System database on aid activities; • AiDA: a directory of development aid assistance; and • IGLOO: a web-based knowledge exchange. The second appendix is a 65-page compendium of international justice sector donors and lenders. The compendium contains basic information on international foundations (private donors), bilateral and multilateral donors, international financial institutions (lenders), and agencies within the United Nations system, supporting justice related work internationally.

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IMPROVING GLOBAL DONOR COORDINATION AND COHERENCE IN RULE OF LAW ASSISTANCE: AN ISSUES PAPER

Meeting On Enhancing Global Rule Of Law Assistance 20-21 April, 2009 By Rajeev Pillay Abacus International Management L.L.C.

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................................................ 15 GLOSSARY OF ACRONYMS................................................................................................................................ 16 I. RATIONALE AND PURPOSE OF THIS PAPER:...................................................................................... 17 II. THE CHALLENGE............................................................................................................................................. 17

II. A THE NUB OF THE PROBLEM................................................................................................................................................17 II.B. DIVERGENCES, RIGIDITIES AND CENTRIFUGAL FORCES.....................................................................................20

III. THE SUBSTANTIVE PARAMETERS........................................................................................................ 22 III.A: SCOPE .............................................................................................................................................................................................22 III.B. THE INSTITUTIONAL FRAMEWORK ...............................................................................................................................24

IV: LESSONS LEARNED IN THE COORDINATION OF DEVELOPMENT ASSISTANCE............ 28 IV.A. GENERAL PRINCIPLES...........................................................................................................................................................28 IV.B. MECHANISMS FOR COORDINATION ..............................................................................................................................29 INTERNATIONAL LEVEL ..................................................................................................................................................................30 NATIONAL LEVEL ................................................................................................................................................................................31 IV.C. FUNDING FRAMEWORKS: LEVERAGE FOR COORDINATION............................................................................36 ALIGNMENT, HARMONIZATION AND NEW FUNDING MODALITIES.........................................................................36

V. MONITORING AND EVALUATING PERFORMANCE ......................................................................... 43 VI. A WAY FORWARD?........................................................................................................................................ 48 ANNEX: DAC/OECD PROCESS INDICATORS OF AID EFFECTIVENESS........................................ 49

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GLOSSARY OF ACRONYMS

ACRONYM FULL FORM CG Consultative Group CIDA Canadian International Development Agency DBS Direct Budget Support DDR Demobilisation, Disarmament and Reintegration DFID Department for International Development (United Kingdom and

Northern Ireland) EU European Union GJLOS Government Justice Law and Order Sector-Wide Programme (Kenya) HIPC Highly Indebted Poor Country IMF International Monetary Fund ISAF International Security Assistance Force (Afghanistan) JSA Joint Staff Assessment MINUGUA United Nations Mission for the Verification of Human Rights and of

Compliance with the Commitments of the Comprehensive Agreement on Human Rights in Guatemala

MOJ Ministry of Justice NATO North Atlantic Treaty Organisation NATO North Atlantic Treaty Organisation NGO Non-Governmental Organization OECD Organisation for Economic Cooperation and Development OECD/DAC Organisation for Economic Cooperation and

Development/Development Assistance Committee OSCE Organisation for Security and Cooperation in Europe PRGF Poverty Reduction and Growth Facility PRSP Poverty Reduction Strategy Paper PRT Provincial Reconstruction Teams SIDA Swedish International Development Agency SSR Security Sector Reform SWAp Sector Wide Approach UN/DPA United Nations/Department of Political Affairs UN/DPKO United Nations Department of Peacekeeping Operations UNAMA United Nations Mission in Afghanistan UNDAF United Nations Development Assistance Framework UNDOCO United Nations Development Operations Coordination Office UNDP United Nations Development Programme UNGA United Nations General Assembly UNSC United Nations Security Council USAID United States Agency for International Development

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I. RATIONALE AND PURPOSE OF THIS PAPER:

The magnitude of donor assistance for the rule of law has grown dramatically. Donor assistance to justice sector reform in Africa alone increased from US$17.7 million in 1994 to over US$110 million in 200215. The need to ensure coherence in policies, approaches, modalities and management is needed more than ever. The United Nations is, therefore, in close cooperation with DFID, hosting a meeting of stakeholders to begin a concerted dialogue on donor coordination and coherence in rule of law assistance on 20-21 April 2009. This paper, prepared at short notice16, is intended to frame the problem and to serve as a springboard for discussion and more in depth policy work on the coordination of rule of law assistance. The paper takes it for granted that coordination of policies and programmes is a good thing from a developmental standpoint. The paper is not intended to provide an exhaustive inventory of approaches, models or mechanisms in a thematic area that is rapidly evolving and has seen a plethora of country-specific approaches. Nor is it intended to be prescriptive in its own right. Rather, it is intended to focus attention on areas that require further, in-depth review and policy work.

II. THE CHALLENGE

II. A THE NUB OF THE PROBLEM

Coordination has been the bugbear of development and humanitarian assistance for the best part of the last 3 decades. “The purpose of aid coordination should be to integrate external assistance with the development priorities of the recipient country. Responsibility for aid coordination should reside primarily with the recipient government. Both recipients and donors should adhere to strategic objectives and investment programs.”17 While calls for coordination have abounded, in practice, truly coordinated action has been hard to come by. The reasons are many. Personal incentive structures within agencies are skewed against coordination with other stakeholders; with the exception of the most senior officials, staff of development agencies are rarely held accountable or promoted for tangible results achieved in improving her/his agency’s performance in coordination. Senior managers at agencies give out mixed signals on the extent and intensity of coordination. Structural differences in programme and budget cycles, policies and procedures have frequently been cited as obstacles to joint programming. Coordination is a highly consultative and slow process that can reduce the rapidity of action, negatively affecting the perceptions of many stakeholders. But the most important reason may unfortunately be even more fundamental; in a competitive world, development agencies receive more funding when they can take credit – hopefully sole credit -- for results. Furthermore, in the case of bilateral aid programmes, foreign assistance is still viewed in terms

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Piron, Laure-Hélène, National Criminal Justice Reform, Donor Assistance to justice Sector Reform in Africa: Living Up to the New Agenda? Human Rights and Justice Sector Reform, Open Society, 2003. 16 Prepared by Rajeev Pillay, General Partner, Abacus International Management, with DFID sponsorship. The views and conclusions contained in this pape are those of the consultant and do not necessarily reflect those of DFID or the United Nations. 17 Erikson, John, The Drive to Partnership: Aid Coordination and the World Bank, Operations Evaluation Department, World Bank, Washington DC, 2001

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of bilateral national interest. For both these reasons, planting one’s “flag” is therefore of critical importance. In the case of rule of law, the problems become even more complicated and the schism is deeper. Indeed, the rule of law brings together stakeholders in the development sphere, human rights sphere and security system. These three areas have long been managed separately and in isolation. There is no multilateral agency that has an explicit mandate spanning all three spheres. Worse, development actors have argued that a close association with agencies advocating or reporting on human rights is likely to compromise their relationship with government institutions. Development agencies and human rights organisations for a long time saw it as essential to keep their programmes separate and distinct from military and security system related activities for fear of the consequences of associating their programmes with military activity, at times linked to unsavoury regimes. Military and armed forces, in turn, are generally not trained to operate in a democratic, communicative manner. Indeed, it has generally been in their culture to keep their plans and activities secret. Communicating their plans with development agencies, let alone programming jointly with them, would, up until a few years ago, have been anathema. Yet, despite these institutional differences, some 10 years ago, there was a clear realisation that rule of law is central to the stability, development and economic growth of any country. This inevitably requires coordination across development, human rights and security system activities.

A failure to coordinate has, in the past, led to:

• Donor programmes applying contradictory policies and approaches that can reduce the overall effectiveness of external assistance;

• The placing of competing demands on the allocation of domestic resources reducing overall effectiveness and sustainability;

• Duplication of effort and in particular capacities and functions in multiple national entities; • The application of modalities such as the payment of salary supplements in uncoordinated

ways and the introduction of distortions that tend to skew priorities and reduce sustainability; • The transfer of systems and procedures from donor countries with minimal adaptation to

local conditions or to corresponding systems and procedures being introduced with assistance from other donors thereby reducing relevance and effectiveness;

• Lost opportunities to exploit synergies between donor programmes and a consequent waste of resources; and

• A loss of reform momentum, particularly in areas such as human rights, transitional justice and anti-corruption where domestic vested interests are likely to result in resistance to change.

Four principal challenges present themselves in ensuring effective coordination:

i) Defining common objectives: Establishing the reasonable and measurable objectives of assistance in the rule of law field and a common conceptual understanding of the essential institutional building blocks that need to be in place to ensure long-term stability and development, “alignment”;

ii) Achieving policy and programmatic coherence: Translating the basic objectives into coherent, mutually reinforcing policies and programmes of assistance in a thematic area

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Monitoring, evaluation, learning, fine-tuning

that straddles security sector reform, governance and institutional reform, empowerment and social change and fundamental economic development, areas with a wide array of agencies sub-themes that have traditionally been isolated from each other with distinct coordination and management mechanisms on the donor as well as national side;

iii) Implementing rule of law assistance in a coordinated and coherent manner: Coordinating and effectively managing programme and policy development and implementation requires approaches and modalities that are at the very least compatible and mechanisms that can effectively ensure coherence in design and implementation “harmonisation”; and

iv) Monitoring and evaluating performance: The development of common indicators and measures of performance at the individual as well as aggregate level that can facilitate a results based approach to the delivery of technical assistance in the sector.

Figure 1 Key Challenges in Effective Coordination

Coordination in the general areas of humanitarian assistance and development operations has proven difficult enough over the past several decades and most practitioners would agree is still woefully sub-optimal. Rule of law is an even more politically contentious area, in which donor foreign policy objectives and national interests and domestic political and power structures are juxtaposed. If it is accepted that to make developmental sense, the scope of the rule of law (see discussion in the next section) must span the purview of security forces (army, police, etc.), the judiciary, relevant executive bodies, relevant legislative institutions and civil society organisations, it must bring together institutions that have a history of secrecy and a tradition of not collaborating except within the framework of close military alliances, with development agencies, ministries and civil society organisations that operate in sectors where “coordination” and “aid effectiveness” have been the by-word and the (unattainable) Holy Grail for years. Each have their own distinctive jargon, practices, mechanisms and ways of operating. The fundamental challenge is therefore to

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radically alter the existing culture to coordinate and to ensure that assistance is implemented in line with best practice for long-term capacity building. II.B. DIVERGENCES, RIGIDITIES AND CENTRIFUGAL FORC ES

In addition to the scope of the rule of law and the range of agencies involved, there are many systemic factors that render coordination difficult and that will need to be taken into account:

• Political will: Domestic political will to take hard decisions with respect to institutional reform is a major factor in determining the extent and scope of rule of law assistance and indeed the way in which it is designed and implemented. Where weak institutions exist, the reform of such institutions and the creation of new ones inevitably entails the redistribution of power and as a result tends to affect existing vested interests and in several cases (as in Liberia and Sierra Leone) this may even include off-budget funding of private militias and other semi-legal institutions.

• The short-term objectives of international stakeholders: In both Iraq and Afghanistan, for instance, the war on terrorism has resulted in some major donors focusing on the training and equipping of national police to perform counter-terrorism rather than civilian police functions such as community policing, crowd control, etc. In other cases, donors are under pressure to demonstrate visible results in sensitive areas of assistance and for the sake of expediency resort to measures such as direct support and salary supplements at the expense of sustainability.

• Other donor-specific objectives: In many post-conflict settings under Security Council mandates, there has been a tendency to carve out geographic responsibilities based on the location of the troops of troop contributor countries. Funding for aspects of rule of law assistance is therefore skewed geographically according to the volume of assistance available to each donor. For instance, in Afghanistan, Canada has now focused all of its development assistance on Kandahar province where its peacekeeping forces are located.

• Level of funding available: High levels of funding are generally linked to countries that are in the political limelight. Lower levels of funding can lead to either a need for greater focus and perhaps place greater burden on national entities to undertake the bulk of activities.

• Fragmented management of peace operations. In most peace operations in past, military and police components have been separated from civilian pillars. In Kosovo, relevant pillars of the peace operations were divided between NATO, the OESC and the UN complicating coordination and coherence in areas such as rule of law. In Iraq, basket funding (trust funds) was split between the World Bank and the United Nations and each were managed quite separately. In the Afghanistan model, although the number of pillars has been reduced to two, the peacekeeping forces are entirely separate and under NATO command. Provincial Reconstruction Teams, a new modality consisting of joint military and civilian units were introduced for implementing programmes in governance, physical reconstruction and security in insecure areas. They are likely to be replicated elsewhere as they have proven popular in capitals providing added legitimacy for the deployment of troops focusing as they do on easily publicised, concrete outputs. Approaches, strategies, priorities and standards vary widely as PRTs carry different bilateral flags reflective of the distribution of military responsibilities for peace operations. PRTs also tend to move significant but varying degrees of responsibility for development into the hands of the military, changing the character and sustainability of the assistance provided. PRTs have no unified chain of command. Civilian agency representatives report to their superiors in embassies or capitals. Personalities, local environment, domestic politics, capacity and funding of the lead nation all determine PRT priorities and programmes. Moreover, there is no rationale for distributing resources among provinces. To the extent that PRTs respond to military direction, NATO commanders may be able to effect some coordination, but there is no one providing direction regarding

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their civil functions. Finally, since there are no agreed goals and objectives for the PRT programme, as provinces have been divided among the constituent forces in ISAF, the volume of assistance received is dependent on the wealth of the contingent in charge.18

• Externally imposed timetables: Particularly in the context of Security Council mandated countries, internationally agreed timetables tend to be firm but established on political grounds and do not always fully reflect the exigencies of domestic social considerations or the realities of capacity building. Implementation based on externally driven deadlines tends to undermine national ownership and reduce effectiveness and sustainability and at times has international and national entities working out of step.

• Divergent definitions: To date, different donors and agencies have adopted different definitions of the rule of law. Yet the scope and content of rule of law assistance and its coordination depends very much on whose definition of rule of law is involved. Indeed, depending on the definition, the national institutions involved can straddle multiple branches of government.

• Different approaches to capacity development. Some agencies still have a short-term understanding of capacity development and field external experts for short periods of time to transpose systems from a donor country with little adaptation or consideration of either national systems or other systems being transferred at the same time. Other agencies, for example have a narrow (and outdated) approach to capacity building, focusing, for instance, just on training of personnel. To be effective, their contribution will need to be supplemented with assistance from other sources to develop systems, laws and other integral aspects of capacity development to be effective and sustainable. This requires intense collaboration and coordination.

• Donor restrictions on the use of resources – Although long decried as negative for developmental results, several donors persist in tying their assistance. They result in hugely differing standards, approaches and policies and often leave the recipient country with long term problems of rationalisation and alignment.

• Phased responses – Donor agencies are structured around a phased approach to post-conflict recovery (peace operations, early recovery, rehabilitation, development). The consequence is that rule of law assistance is generally sporadic during the early recovery phase, often resulting in a vacuum, loss of momentum and the creation of conditions (such as corruption) that are difficult to overcome later.

• Plethora of mechanisms for coordination: On the global level there are a variety of different coordination mechanisms for development that vary by country. Each has a different underlying mechanism and any coordination framework for rule of law needs to take this into account.

• Varied funding sources: Rule of law assistance, involving, as it does, a wide array of institutions19, comes from a variety of different budgetary sources, rendering coordination more difficult as sourcing corresponds to expected success criteria and objectives.

• The number of organs, organisations and institutions that need to be covered for the effective management of rule of law assistance (national and international) straddle donor and host country institutions in the security sector, justice sector and development. As such, they present a problem of

18 There is no overarching concept of operations or organizational structure for PRTs in Afghanistan. In the relatively peaceful north and west, PRTs are operated by European countries and engage in peacekeeping. The German PRT in Kunduz has more than 300 personnel and a large economic assistance unit located separately from a military force that operates under restrictions that severely circumscribe its operations. In the south and east, U.S., British, Canadian and Dutch PRTs provide the civilian side of PRT operations. Typically, U.S. PRTs have 80 personnel: military leadership, two Army civil affairs teams, a platoon-size force protection unit and representatives from the Departments of State, Agriculture and USAID. 19 For instance, donor assistance may come from the equivalents of the overseas development ministry, the ministry of justice and/or the ministry of interior. Some assistance may even come from the military.

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ensuring conceptual, policy and operational coherence between a wider array of institutions than any other area in post-conflict recovery.

• Comprehensive mandate: There are few operational agencies with a comprehensive mandate that straddle the security, human rights and development aspects of the rule of law. Exceptions to the rule are probably the OECD, the European Union, some regional unions such as the African Union and the United Nations. These differ primarily in terms of the extent of inclusiveness of their membership and their inherent capacities. In the case of the United Nations, capacity exists in virtually each area, but is spread across several agencies, departments, funds and programmes.

III. THE SUBSTANTIVE PARAMETERS

III.A: SCOPE

There is no unique, universally accepted definition of the rule of law. The operative definition, however, determines the range of stakeholders and institutions that need to work together and the complexity of coordination. In general, the rule of law is a principle of governance in which all persons, institutions20 and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It also requires measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

In post-conflict countries on the path to recovery and transition and many fragile states, rule of law assistance is central to the establishment of physical security, a return to fair and transparent justice, the attainment of basic stability and the establishment of the legitimacy of an elected civilian government. It is required to ensure that the basic institutional building blocks of a stable (democratic) State are put in place, that capacity to design and promulgate and enforce laws (criminal and civil) with all due

transparency and accountability is in place. Furthermore it is often

intended to ensure that past wrongs are set right and there is no fear of impunity for perpetrators of serious crimes. Armed conflict is resorted to when disputes cannot be settled peaceably within

20 Throughout this paper, the wide definition of “institution” in use by development agencies is applied, encompassing organisational structure, established law, custom, practice, system or social organization. As such, the term institution applies not only to organizational structure, but to established legal or procedural mechanisms, established customs and mechanisms of social organization.

Figure 2 Major Components of the Rule of Law

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the institutional framework of the rule of law; armed conflict is therefore the ultimate manifestation of the failure of the rule of law. For fragile states and even more stable countries on the path to development, rule of law assistance and a coordinated approach to it is essential because, as stated on the website of Government Justice Law and Order Sector (GJLOS) Reform Programme in Kenya21:

“For the development agenda to succeed further, there is need to restore investor confidence in the country. Investors require a stable and predictable environment devoid of patronage, an environment of certainty and predictability of the law as well as quick and fair arbitration of disputes. To achieve this there is need to develop an efficient and effective legal and judicial system, a democratic and stable political environment, a corruption-free public service and a human rights- respecting state.”

Rule of law is thus a problem of governance that straddles the security forces (security system), governance and development and human rights, addressing issues (see below) as wide ranging as the strengthening of institutions in legislative, executive and judiciary, reform of the security sector and reintegration of ex-combatants and the coordination and management of transitional justice. This inevitably forces agencies in both donor and recipient country that have rarely needed in the past to work together coherently and in concert; it requires Ministries of Defence and Interior to work with Ministries of Finance, Development Agencies, Ministries of Justice and the Judiciary. More than any other thematic area, the rule of law exemplifies the close relationship between institutional capacity, the security sector, stability and long-term development. It therefore requires comprehensive solutions that address political, security sector and development dimensions. Reflecting this close association, the Development Assistance Committee of the Organisation for Economic Cooperation and Development (DAC/OECD) has stated that the overall objective of security sector reform (SSR) is to ‘create a secure environment that is conducive to development, poverty reduction and democracy’ – all of which are foundational elements needed to sustain peace. The overall objective of security system reform22 is to create a secure environment that is conducive to development, poverty reduction and democracy. This secure environment rests upon two essential pillars:

i) The ability of the state, through its development policy and programmes, to generate conditions that mitigate the vulnerabilities to which its people are exposed; and

ii) The ability of the state to use the range of policy instruments at its disposal to prevent or address security threats that affect society’s well-being.

The traditional concept of security –which revolves around the protection of states from military threats– is being redefined in three important respects that provide the basis for the security system reform policy agenda:

21 http://www.gjlos.go.ke/gjinner.asp?pcat=agencies&cat=minjust 22 OECD, Security Sector Reform and Governance, A DAC Reference Document, OECD Paris 2005, p.16.

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• The focus of security policy itself is broadened from an almost exclusive focus on state stability and regime security to include the well being of their populations and human rights.

• Security and development are increasingly seen as being inextricably linked opening the way to mainstreaming security as a public policy and a governance issue. This invites greater public scrutiny of security policy.

• State institutions involved in providing security are being re-evaluated. The military is now seen as only one instrument of security policy with traditional legal, social and economic instruments receiving greater attention.

III.B. THE INSTITUTIONAL FRAMEWORK Based on the above a wide range of key national institutions are relevant. There must be procedural rules for law making and laws must be prepared and promulgated by an entity with the authority to make laws in accordance with such rules to be valid. laws must be transparent, public and readily accessible; laws must be prospective, relatively clear, consistent and stable; laws must be enforced fairly and impartially, with the gap between the law on the books and law in practice narrow; laws must be reasonably acceptable to a majority of the populace or people affected (or at least the key groups affected) by the laws.23 The promulgation of laws assumes a legislature and the government machinery necessary to make the laws publicly available. It also assumes rules for making laws. Congruence of laws on the books and actual practice assumes institutions for implementing and enforcing laws. The fair application of laws implies normative and practical limits on the decision makers who interpret and apply the laws and principles of due process, such as access to impartial tribunals and a chance to present evidence and rules of evidence. It also assumes the existence of effective enforcement mechanisms. The issues that need to be addressed may be categorised in several different ways, but may be summarised under the following headings:

Rule of Law and the Creation of Physical Security: • National Police Force: A respected, impartial and fair police force to enforce laws and ensure

physical security and with the required right to legitimate use of force in accordance with strict limitations of the law when necessary.

• Armed Forces: Reform of the armed forces so that they are placed under civilian control, realigned in terms of numbers and unofficial militias and other groups disbanded. This component often involves Disarmament Demobilisation and Reintegration.

• Judiciary and the Courts: A fair and impartial judiciary and functioning court system, perceive by the public to be applying an enforcing laws with financial, political and social independence. To ensure this degree of transparency, courts and the judiciary, should, at the very least, possess, financial independence from the executive branch and have guarantees of their own physical security. Courts and their functioning need to be fully transparent and measures need to be taken to eliminate corruption from the court system.

• Access to Justice: Key institutions such as public prosecutors, public defence lawyers, courts and police need to be readily accessible and commensurate in number with the population they are serving. The cost of accessing justice needs to be acceptably low to enable the public to have ready access to justice. Other socioeconomic barriers to access need to be overcome. If official forms of justice are not sufficiently accessible, informal, customary and traditional forms of justice need to be formally codified and adjusted where necessary – particularly in terms of procedures and penalties to be brought as closely in line with international conventions as possible, and their role within the system clearly defined.

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Rule of Law and the Creation of State Legitimacy:

In post conflict and many fragile states, government legitimacy is hard to acquire and preserve. Free and fair elections constitute only a first step. Institutions that address the following issues are often viewed as essential to the preservation of legitimacy: • Constitutional Law and the Legal Framework: The creation of institutions for deliberation

and the transparent promulgation of laws that are aligned with international conventions.

• Elections and Democratic Institutions: Democracy and elections do not automatically lead to legitimacy. Yet, the creation of the core institutions of democracy that facilitate and ensure conflict resolution by peaceful and legal means is essential. Institutions that create, revise and promulgate legislation also need to be viewed as transparent.

• Establishing the Legitimate Use of Force: Particularly when emerging from a protracted period of conflict, bringing the use of force under the authority of civilian institutions and realignment of the role and function of the armed forces.

• Minority Rights: The enforcement of human rights and the empowerment of minority groups is essential to establishing state legitimacy and the rule of law in a post conflict setting. This covers ethnic, regional and religious minorities.

• Women’s Rights: Covering basic civil rights, inheritance, property rights, employment, gender and sexual based violence.

• Transitional Justice: In an environment in which judicial and security institutions are too weak to provide rapid, transparent and fair redress, transitional justice institutions or processes of a temporary nature can be introduced in order to eliminate the perception of impunity on the part of mass violators of human rights. In some instances, tribunals may be established to prosecute those most responsible for human rights abuses. In others, truth and reconciliation processes are gaining acceptance where the lack of judicial capacity or wide range of offences makes it difficult to prosecute all perpetrators. Transitional justice mechanisms help increase confidence in the political environment and the possibility for subsequent peace building.

• Corruption: In most fragile and post-conflict environments, state salaries and rapid inflation renders even multifold increases in state salaries insufficient to enable officials to make ends meet. Positions of authority either within bureaucratic processes (licenses, clearances, certification, etc.) or within security services (e.g. traffic police checking for violations) offer opportunities for rent collection. This insidious practice, if unchecked spreads, increases in volume and scope and rapidly challenges the very legitimacy of state institutions in the public eye. Corruption in rule of law institutions is particularly insidious in that it most directly undermines public confidence in the State. Public administration reform aimed at eliminating opportunities for corruption, civil services reform aimed at raising absolute salary levels and decompressing salary scales and the strengthening of the institution of auditory general (or its equivalent), independent special prosecutors and ombudsmen are all elements that can contribute to reducing the level of corruption.

• Civil Law and Contracts: For long term development of a country, the recognition of contracts, property rights and the ability of enforce them is a crucial demonstration of the rule of law. Failure on this score or the abrogation of contracts with impunity results in loss of domestic and international investor confidence and is a severe deterrence to development.

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CATEGORIES OF STAKEHOLDERS/INSTITUTIONS INVOLVED IN THE RULE OF LAW INTERNATIONAL

Political Missions Departments of Justice Embassies and Ministries of Foreign Affairs Ministries of Interior Peace operations Police Bilateral/ Multilateral Development Agencies Armed Forces Human Rights Advocates Courts for Transitional Justice and

international criminal courts Regional Organisations International Organisations Non-Governmental Organisations Multilateral Development Banks

NATIONAL Legislatures. Legislative bodies at the national and local levels.

Ministry of foreign affairs

Legislative select committees Ministry of Finance Judiciary/courts system National security advisory bodies Ministry of Justice Budget Office Human rights commissions Planning Office or Ministry of Economy and

Planning Public prosecutor Ministry of defence Special prosecutors Ministry of the interior/internal affairs Audit bodies Police forces. Institutions of traditional justice/customary law

Secret services

Lawyers Bar Association Legal Aid Paralegals Civil society watchdogs Correctional services/prisons Civil society advocates Social services (domestic violence support

etc) Private bodyguard units Militia Security companies Militias of political parties

Coordination and coherence in the management of rule of law assistance is therefore dependent not only on international stakeholders, but on a range of national institutions as well. The range of institutions is dependent on the definition of the rule of law that is adopted, but is likely to have to be very broad indeed, straddling all three branches of the state and including civil society organisations. For the purposes of exploring ways of ensuring coordination and coherence in this field, any coordinated management mechanism must, with obvious adaptations to reflect country-specific situations, straddle the following range of national institutions:

In most countries, there is a tendency for individual agencies within the executive branch of government to operate with a degree of isolation irrespective of their level of development. In democratic countries where coalition government is resorted to, ministries are often divided between members of the coalition. In post-conflict countries, political accord often involves the dividing up of ministries according to party affiliation in the interest of securing political buy-in and an end to armed conflict. All this can result in competitiveness among agencies of government and greater difficulty in ensuring effective coordination. In general it is essential to identify a strong lead agency for coordination on the government side with significant political backing and clout so as to reduce the added risk of fragmentation by

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having to deal with many agencies. For general development assistance, the counterpart is most frequently the Ministry of Finance but occasionally the Ministry of Economy and Planning. The Ministry of Foreign Affairs also plays a less substantive role in tracking the allocation of foreign assistance. For instance, in large countries such as Brazil, India, Indonesia, Mexico, Nigeria and South Africa, the principal counterpart is the Ministry of Finance. China does not have a formal aid group to coordinate its external assistance. As part of the Government’s 1998 reorganization, steps were taken to streamline foreign aid management. Responsibility for major lenders (e.g. ADB; World Bank; Japan Bank for International Cooperation-JBIC; and most bilateral export credit agencies) was consolidated in the Ministry of Finance. The Ministry of Foreign Trade and Economic Cooperation is responsible for most of the agencies that provide grant funding. The State Development Planning Commission (SDPC), under the guidance of the State Council, acts as the coordinating arm of the Government for the review and approval of projects proposed for external assistance24. To be effective as a coordinator of assistance, the lead agency for coordination has to have sufficient influence to be able to pull together a range of agencies, sometimes with divergent powerbases with significantly differing levels of political influence. In general the Ministry of Finance has been resorted to because of the universal importance of the national budget and resource allocation as a coordinating tool. For the rule of law, this has its downside in that the Ministry of Finance is not a repository of relevant substantive expertise and the basis of coordination is dominated by fiscal concerns. In countries that have weaker institutions, the apex of government in the form of the Prime Minister or President’s Office or the Cabinet, often in the form of the Council of Minister’s has been resorted to as the locus for development coordination. None of this should detract from thematic leadership under one or more relevant line institutions in the executive as well as in other branches of the state that are involved. Within the overall umbrella of the coordination of development assistance, the technical ministry concerned generally leads sectoral or thematic coordination. So, in the case of education, health and agriculture, for instance, sectoral coordination is led by the Ministry of Education, Ministry of Health and Ministry of Agriculture respectively. In the case of the rule of law, the situation becomes more complex as ministries of defence and interior tend to be relatively powerful in comparison to ministries of justice. Furthermore, other branches of government are involved, including both the judiciary and the legislature. In the interest of preserving, or at least encouraging a separation of powers, it is questionable whether thematic coordination for all three bodies should be unified. In practice, most often military and police development has been split between the Ministry of Defence and the Ministry of Interior and other aspects of the rule of law has tended to be coordinated by the Ministry of Justice, though there are examples of the judiciary coordinating its reform programmes independently. However, the role of lead agency has tended to vary from 24 It should be noted in this context that many larger countries have shown some ambivalence about aid coordination, particularly as aid becomes an increasingly insignificant component of their resource flows. On the other hand, with Less Developed Countries (LDCs) and “fragile states”, dependency on foreign assistance is high and the importance of aid coordination is correspondingly significant.

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country to country as has that agency’s influence and effectiveness. Lead agencies have often been supported by thematic groups involving donors and a range of national and international stakeholders and have fed into broader coordination forums (see section on thematic groups below).

IV: LESSONS LEARNED IN THE COORDINATION OF DEVELOPMENT ASSISTANCE

IV.A. GENERAL PRINCIPLES

Over the past 3 decades, repeated evaluations of coordination have indicated that to be effective, coordination must involve activities ranging from the setting of norms and standards to the downstream implementation of programmes. More specifically, coordination must ensure:

• Coherent policies including norms and standards; • Common sectoral or thematic objectives; • The coherent allocation and management of domestic as well as external resources; • The coherent (if not joint) management and implementation of programmes; and • The joint monitoring and measurement of performance and the continuous sharing of

information. Coordination centred on the sharing of information only occasionally leads to concrete results. True coordination needs to be based on the development of joint strategies and policies. In other words, to be effective, coordination need to be managed within a substantive framework and needs to be as demand driven as possible. It has also been found that to be effective, the substantive framework on which coordination is based must have strong national ownership. Indeed, it could be said that purpose of aid coordination should be to integrate external assistance with the development priorities of recipient country. Responsibility for aid coordination should reside primarily with the recipient government. Both recipients and donors should adhere to strategic objectives and investment programmes25. Like good governance and democracy, the rule of law is not a static condition but requires continuous adjustment and improvement. Unless limits are established in the form of clear objectives, therefore, rule of law assistance could potentially end up as an open-ended commitment. The challenge is therefore to understand what needs to be achieved with international assistance before national institutions can be expected to continue to develop; what essential institutional building blocks need to be in place as priorities to enable continued evolution of the sector over time. In often contentious areas such as the rule of law, ownership needs to be balanced off against the ability of coordination mechanisms to have a degree of leverage that enables donors and other stakeholders to ensure momentum, particularly in terms of structural reforms without unduly breaching sensitivities pertaining to national sovereignty. Most often, leverage has been secured either through the allocation of external resources (multi-donor trust funds, direct budget support in the form of SWAps, etc.) or through political means (e.g. through Security Council action).

25 Erikson, John, The Drive to Partnership: Aid Coordination and the World Bank, Operations Evaluation Department, World Bank, Washington DC, 2001, p. xvi

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Years of experience and lessons learned in the effective management of development assistance, culminated in March 2005 with the adoption of the Paris Declaration26, by over one hundred Ministers, Heads of Agencies and other Senior Officials who agreed to continue to increase efforts in harmonisation, alignment and managing aid for results with a set of monitorable actions and indicators. More specifically the Paris Declaration recognised the following as the key elements for effective aid utilisation, coordination and management:

• National Ownership: Developing countries must set their own strategies for poverty reduction, improve their institutions and tackle corruption;

• Alignment: Donor country assistance must align behind these objectives and use local systems. • Harmonisation: Donor countries must simplify and unify procedures and practices as much as

possible in order to reduce transaction costs and render effective aid management easier; and • Results: Developing countries and donors must shift focus to development results and measure

them and monitor their achievement effectively. • Mutual Accountability: Both donors and national partners are jointly accountable for development

results. The importance of national ownership emphasises, among other things, the importance of placing national institutions and priorities at the very centre of the management of external assistance. The selection of, and support to, an appropriate coordinating agency at the national level and its participation at all levels – including global level is of central importance. To the extent possible, experience with development assistance and capacity building also emphasises the importance of:

• People centred/locally owned development programmes; • The fostering of cross-sectoral, thematic dialogue and coordination; and the • Building of linkages between development and other actors

Finally, there is a need to strengthen coordination at the level of global policy and practices, at the regional level where rule of law is heavily affected by cross-border interactions, and at the national level where national policies, resource allocations and operational activities need to be more coherent and effective.

IV.B. MECHANISMS FOR COORDINATION

Coordination forums for external assistance have been dominated by development and humanitarian actors and the range of mechanisms that have been employed are quite broad. In general they have attempted to ensure coordination across three levels; i) At the global or international level, where overall policies are set, large-scale funding is pledged, best practices are shared and disseminated and aggregate performance is monitored and reviewed; ii) At the national level, where in general attempts are made to place national institutions at the centre, national plans are developed, national polices are established and promulgated, resources are allocated and implementation is monitored in the national aggregate; and iii) At the sub-national or local level where, modalities are selected, operations are coordinated and implementation is monitored in detail. Each has its strengths and each has its weaknesses.

26 OECD/DAC, Paris Declaration on Aid Effectiveness: Harmonisation, Alignment, Results and Mutual Accountability, High Level Forum, Paris, February 28-March2, 2005

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International, Global Organs: Global organs such as the Security Council, the European Union and NATO have, particularly in the case of countries with peace operations, served as the locus for the development of political goals, establishment of targets, the pledging of resources for the peace operation (but in

general not for development operations) and the

monitoring of progress against those targets. This level of coordination is largely limited to political and security issues (Afghanistan, Iraq, Kosovo, Timor L’Este), occasionally humanitarian assistance particularly for reintegration (Cambodia, Kosovo, Bosnia & Herzegovina), but almost never development and capacity building priorities. INTERNATIONAL LEVEL

International Conferences: Generally employed in post-conflict countries where international political interest is high, these conferences tend to be hosted internationally and structured around comprehensive transitional programmes that include the rule of law. Transitional programmes have been developed in country, but usually with very heavy external involvement – often in the form of joint missions led by multilateral institutions. Examples include the Tokyo and Paris Conferences on Cambodia and the Bonn and London Conferences on Afghanistan. Similar conferences have been held for virtually all of the countries which have Security Council mandated peace operations. In the case of Iraq, Afghanistan and Sudan, extensive needs assessment/programming missions were mounted jointly by the World Bank and the United Nations and served as the basis for the international conference. A synthesis report has generally been used as the basis for discussion and the individual sectoral or thematic reports that feed into the synthesis are rarely discussed; these conferences are therefore not set up for a detailed discussion of the needs in the rule of law.. The conferences have tended to be jointly chaired by the host country and the United Nations and with either a transitional authority or elected government in a lead role. Such forums are intended principally as a show of political commitment and a forum for the pledging of resources, rather than a mechanism for active coordination. Indeed, they are intended to ensure alignment between political priorities (especially transitional priorities) and the allocation of resources. They have also been used as a forum to urge the elected or transitional recipient government to follow certain courses of action. In general, such conferences have not been a substantive forum for the discussion of debt. In the best cases, (for instance, the London Conference on Afghanistan), the forum has led to agreement on a set of common principles and targets for implementation of the process of transition, many of which can be used to guide external assistance including in the rule of law. The conferences are important in that they set expectations and the targets and timetables that subsequently have a major impact on the

Figure 3 Coordination as an Interlinked, Three-Tiered Process

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implementation of rule of law programmes – most often in the areas of elections, strengthening of the legislature, the approval of constitutional frameworks, DDR and security system reform. Special International Coordination Conferences on The Rule of Law: Thematic international conferences on the rule of law have been exceptions rather than the rule. The Berlin Conference in Support of Palestinian Civil Security and the Rule of Law (June 2008) was convened by the Chancellor of Germany within the overall ambit of the European Union and secured financing for a consolidated, rapid-impact Implementation Package aimed at sustainably improving security in the West Bank. For example, pledges were made for the training of 6000-7000 Palestinian Civil Police and the renovation of police facilities. Pledges for support to the office of the State prosecutor and the courts were also included in the final agreement. As with more general International Conferences for specific countries, the Berlin Conference served principally as a forum for making a strong political statement of support rather than a forum for substantive coordination or discussion of policies, approaches or programmes. Similar to the Berlin Conference, the Rome Conference on the Rule of Law in Afghanistan (July 2007) was based on the “Justice for All” document prepared in-country by a “consultative group” chaired by the Ministry of Justice. The principal purpose was, once again, to re-emphasize political support for the transition process in Afghanistan at a time of increasing human insecurity, to pledge funds for programmes and to regenerate momentum for reform of a sector that is crucial to the transition process, but had been lagging over the first 7 years of the ongoing post-conflict transition period. Restricted multi-agency/multilateral mechanisms The United Nations Development Group in each country has its own coordination mechanism that has, in the past two decades been bolstered through the harmonisation of procedures, rules and regulations and aligned through increasingly genuine programming within scope of a United Nations Development Assistance Framework (UNDAF). This coordination mechanism is mirrored at the global level by the United Nations Development Group under the chairmanship of the Administrator of UNDP which is supported by a dedicated secretariat (the United Nations Development Operations Coordination Office, UNDOCO). The UNDAF and the UN Development Group has also in several recent cases, been brought under the leadership of a Deputy Special Representative of the Secretary General in post conflict countries with UN peace operations (Afghanistan, Democratic Republic of Congo, Iraq, Liberia and Sierra Leone). Also, in countries with peace operations UN agencies along with other participating entities are, to some degree brought together under the leadership of the Special Representative of the Secretary General (e.g. Kosovo which brought together the EU, the United States, the OSCE and the UN). To some degree, the OECD/DAC also constitutes a forum in which broad policy decisions can be taken. NATIONAL LEVEL

Consultative Groups and Poverty Reduction Strategy Papers Over the past four decades, numerous mechanisms have been developed as substantive frameworks for the coordination of development assistance. These have included Donor Roundtables (UNDP/Government led), Consultative Groups (World Bank led), Comprehensive Development

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Frameworks (World Bank led) and most recently, Poverty Reduction Strategy Papers (World Bank and IMF led). The various other mechanisms appear to be gradually fading out of the picture in favour of Poverty Reduction Strategy Papers and Consultative Group mechanisms. Each Bank country team that supports a CG or similar mechanism works with the government and other development partners to formulate a strategy for moving to country leadership. Each strategy would demonstrate how the Bank and other donors help the government nurture policy reform, strengthen aid coordination capacity, and reach partnership agreements with donors that delineate mutual responsibility for development outcomes and the distinct account-abilities of each partner. High priority should be given to implementing these recommendations through the PRSPs27. PRSPs are the policy framework used by international financial institutions to determine debt financing and relief for low-income countries. Debate remains over their formulation, as well as their policy content. Many analysts suggest that they tend to continue the trajectory of structural adjustment policies. According to the World Bank and the IMF, PRSPs are based on:

• Country ownership and broad-based participation • Pro-poor results-orientation • Recognition of poverty's multidimensional nature • A long-term poverty reduction perspective

An evaluation conducted by the World Bank’s Operations Evaluation Department in 2003-200428 found that while the PRSP initiative is an "improvement" over the policy framework papers of the 1990's, it has "yet to fulfill its full potential". Changes are suggested "to reduce or eliminate uniform requirements, encourage PRSPs to explore wider range of policy options and define clearer partnership frameworks for better accountability". The evaluation acknowledges the tension between conditionality in Bank programs and the principle of country ownership. Self-censorship means PRSP documents contain standardised strategies. Rushed preparation of documents "to meet BWI deadlines" was cited as a problem in Cambodia, Mozambique, Nicaragua and Tanzania. The review commended the involvement of new actors in the policy dialogue process. But noted that this falls short of exerting a significant influence over the content of PRSPs. There is also little discourse on possible policy trade-offs and alternative macro-economic frameworks. Due to weak country monitoring mechanisms, there is a tendency towards donor-focused monitoring. This results in skewed accountability. Efforts for donor coordination around the PRSP remain “under-realized”. The review suggests Bank staff should not "impose a particular World Bank view point". A tall order considering the enormous influence of joint staff assessments (JSAs), Bank economic sector work and the final power of sign-off retained by the

27 Erikson, John, The Drive to Partnership: Aid Coordination and the World Bank, Operations Evaluation Department, World Bank, Washington DC, 2001, p. ix

28 World Bank Operations Evaluation Department, The Poverty Reduction Strategy Initiative: An Independent Evaluation of the World Bank’s Support Through 2003, World Bank, Washington DC, 2004.

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IFIs. In this respect, the evaluation acknowledged the contradiction of a Washington sign-off: "the Bank management's process for presenting a PRSP to the board undermines country ownership". The IFI boards must endorse interim PRSPs, PRSPs, annual progress reports on the basis of JSAs. "The JSAs have shortcomings that undermine achievement of goals" - they tend to be descriptive rather than analytical. The review suggested "a major redesign or discontinuation of the JSA" and proposed interactive means such as stakeholder workshops. The evaluation highlighted other key civil society critiques of the PRS initiative namely persistence of structural adjustment policies, little parliamentary involvement, non-institutionalised participation mechanisms, weak implementation of impact assessments and poor donor coordination. PRSPs are not mainstreamed in national policy-making processes and are disconnected from budgetary and electoral processes. Finally, the evaluation pointed out that the PRS process has meant different things to different actors - governments see it as added conditionality, civil society as offering scope for leverage and voice in policy-making, while for donors it offers a mechanism for better aid delivery. These varied interpretations have implications for coordination and implementation. A parallel evaluation by the IMF's Independent Evaluation Office of the PRGF29 It concludes that the PRSP approach has the potential to encourage country-owned development, but that achievements so far fall considerably short of their potential. This echoes the OED evaluation findings. National Development Plans/Frameworks To maximise national ownership and ensure coherence with the national budgets, national development plans have as often as possible been used as the centrepiece of any aid coordination effort – particularly in countries that are not in transition. The downside is that national development plans tend to be very broad in their coverage and detailed discussions of policy, programme requirements, approaches, modalities and operational concerns have generally to be conducted in thematic groups that often feed into a broader coordination framework that uses the national plan as its frame of reference. As drafted, many national development plans are not highly realistic and present targets and goals that are unachievable from the very outset. In this context, the Millennium Development Goals have become an important factor and a focus of attention for coordination purposes, but in general have relatively little relevance to the rule of law. In a few instances, National Development Plans have been merged with the PRSP, a fact that renders it a more reliable framework for overall coordination. In the unusual, but instructive case of Afghanistan, a national “Justice for All” plan was prepared under the aegis of national “justice sector consultative group” which worked in parallel with the Afghanistan National Development Strategy, a wide ranging national plan that served essentially as that country’s PRSP and as such was perhaps not sufficiently prioritised to focus on the transitional requirements30. The Ministry of Justice chaired the Justice Sector CG.

29 IMF, Independent Evaluation Office, Evaluation Report on the Poverty Reduction Strategy Papers (PRSPs) and the Poverty Reduction and Growth Facility (PRGF), International Monetary Fund, Washington DC, July 2004. 30 UNDP Evaluation Office, Assessment of Development Results, Islamic Republic of Afghanistan, by Rajeev Pillay, Erin McCandless and Mohammad Saeed Niazi, UNDP, New York, April 2009.

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Government participation included the Attorney General’s Office, the Supreme Court, the Afghan Independent Human Rights Commission, and the Ministry of Women’s Affairs. Donor participants included Italy (originally the designated lead donor in the sector) US, UK, Germany and Canada. At the UN level, the agencies involved were UNAMA, UNDP, UNICEF, UNODC and UNIFEM. With the functions of the Judicial Reform Commission, established by the Bonn Agreement, having devolved to the three permanent national justice institutions, the Government through the Minister of Justice was to lead this process. UNAMA and the Italian Justice Office in addition chaired ad hoc working groups of UN agencies and international stakeholders to coordinate international community input/feedback on key draft legislation. The Justice Sector CG initially focused almost exclusively on information sharing on the progress of activities and failed to engage stakeholders at the strategic policy level. This was due to lack of understanding among government and stakeholders as to the purpose of the CGs and how to effectively facilitate focused discussions on key issues. The situation was initially hampered by poor leadership from the Ministry of Justice, lack of support to building ministry capacities in the areas of policy development, programme monitoring, and management of the CG process, poor communication and cooperation between the justice institutions and poor inter agency/donor coordination and transparency31. Donor failure to properly consult with the justice institutions and strong divergent viewpoints among the donors themselves that were not drawn together into a coherent strategic framework nevertheless resulting in an ad hoc, fragmented approach to the justice sector32. Insufficient attention was paid to substantive government engagement in strategy development, programme design or prioritization. While there were a number of strategy papers prepared by Government and others, there was no generally accepted strategic framework to guide justice reform. Country Level Thematic Groups: Thematic groups have been resorted to in most countries as a more manageable mechanism for technical operational and policy discussions, and generally feed into a larger forum or mechanism that encompasses rule of law as a whole or even the overall development of the country (e.g. PRSP, National Development Plan, . Generally chaired or “convened” by a government official from the sectoral coordinating ministry and sometimes co-chaired by a representative of the international community appointed by the larger forum, several thematic forums may at times be established within the ambit of the rule of law. For example, in Kenya, multi-sectoral, cross-departmental thematic groups provide a forum for implementation tracking, experience sharing and early problem resolution. These thematic groups have the role of spearheading and coordinating the implementation of the GJLOS activities, and achievement of planned results consistent with the programme’s broader strategic results framework. They are knowledge and information-sharing forums capable of recommending changes in implementation processes and content to a higher body. Seven thematic groups have been established around the following seven themes:

31 UNAMA, Afghanistan, Justice Sector Overview, April 2007, p. 2 32 Ibid.

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• Theme 1: Ethics, Integrity and Anti-Corruption • Theme 2: Democracy, Human Rights and the Rule of Law • Theme 3: Justice, Law and Order • Theme 4: Public Safety and Security

• Theme 5: Constitutional Development • Theme 6: Quality Legal Services to Government and the General Public • Theme 7: Capacity for Effective Leadership and Management of Change

Generally thematic groups of this type are tasked with information and knowledge-sharing and cross-institutional collaboration during workplan and budget preparation, reviewing results and ensuring that they are in accordance with national plans, acting as a focal point and clearing house for workplans, and mobilizes peer organizations to assume responsibility and execute actions appropriate to their mandate in the implementation of the programme. Thematic groups also provide guidance to stakeholders responsible for thematic outputs and outcomes to effectively communicated and coordinate their implementation to reduced duplication and maximise synergy and mutual reinforcement. Thematic groups may also be used as a mechanism for mobilising participatory monitoring and evaluation of programmes. In Afghanistan, the Afghanistan National Development Strategy (the nation’s PRSP or national plan) is in the process of setting up a thematic structure for managing plan implementation under joint Government of Afghanistan and UNAMA leadership. However the entire coordination and monitoring mechanism of the ANDS is predicated on “three interdependent pillars” of i) security; ii) governance, rule of law and human rights; and iii) economic and social development33, reflecting the difficulty in getting the principal stakeholders in different sectors

33 Islamic Republic of Afghanistan, Afghanistan National Development Strategy (2008-2013): A Strategy for Security, Governance, Economic Growth and Poverty Reduction, Kabul, 2008, p. 165

The International Coordination Group for Justice Reform in Afghanistan

The International Coordination Group for Justice Reform (ICGJR), the relevant thematic group in Afghanistan, is composed of representatives of the main international donors and UN agencies involved in Justice Reform in Afghanistan.

The aim of the Group is to co-ordinate international support and assistance to the Government of Afghanistan to enable it to develop and implement its justice reform strategy and achieve the benchmarks contained in both the Afghanistan Compact and the Afghanistan National Development Strategy (ANDS). The Group will have an overview and country-wide perspective of all international and Afghan justice reform programmes and their linkages with other reform efforts within the wider rule of law agenda.

The Group’s principal objectives are to: • Strengthen international support to the Afghan led ANDS technical working groups; • Enhance the level of information exchange among international agencies and donors

concerning ongoing and planned justice activities at national and provincial level; • Identify gaps, constraints and challenges; • Facilitate policy discussions; • Encourage and recommend a coherent, structured and strategic approach to rule of law

programming at national and provincial level based on long term planning, prioritization, sequencing, cooperation and synergy of activities;

• Where appropriate raise critical rule of law issues at the political level.

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to work together, but also establishing an artificial distinction between governance and economic and social development. Transitional justice has tended to always have its own thematic group for operational and policy coordination. Only relatively rarely has it been used as a springboard for broader coordination in the rule of law. Perhaps the best example of this is the case of Guatemala where transitional justice and human rights were placed at the centre of the entire peace process. The principal coordination forum for joint action, was in the form of “Dialogue Tables” established for conflict resolution and verification of past injustices and transitional justice. In general these Dialogue Tables, convened by MINUGUA with strong support from UNDP and bilateral donors were considered a great success and led to the strengthening of courts, the judiciary, the penal system and security sector reform (including the police, se IV.C. FUNDING FRAMEWORKS: LEVERAGE FOR COORDINATI ON Most countries with weak institutions or those emerging from conflict are heavily dependent on external

assistance. Data is very incomplete, but the following table provides examples of countries where aid as a percentage of central government expenditure exceeds double digits. It is not surprising, therefore, that control over external funding continues to be a significant source of leverage for coordination and the modalities applied in the management of external funds can go a long way in establishing an environment conducive to effective coordination. Indeed, it is now not unusual to see funding as the central frame of reference for aid coordination at the national level.

ALIGNMENT, HARMONIZATION AND NEW FUNDING MODALITIES

The 1980s saw a shift in many development agencies from project funding to programme funding, laying the foundation for broad, programme objectives to be used as the basis for improved coordination. The shift to programme level modalities by most agencies, however, was also, subject to funding, intended to encouraged partnerships between stakeholders for the achievement of higher – sectoral thematic or national – level objectives and results. While several donors do continue to operate at the project level, the shift towards programmes has been clear. Nevertheless, such programmes, much like individual projects, have remained very much the domain of individual development agencies as there continued to be structural and cultural resistance to joint programming. Programmes, as conceived in the 1980s and early part of the 1990s were therefore, relatively fragmented and could rarely serve as an effective basis for coordination. The last decade has seen increased harmonization of rules and procedures among similar or related agencies such as among members of the United Nations Development Group and those within certain groups of donors (the Nordic Countries, for instance).

Country Aid as a percentage of Central Government Expenditure (FY 2005)

Afghanistan 316.9 Cambodia 112.6 Burkina Faso 108.9 Nicaragua 71.7 Eritrea 58.0 Nepal 34.4 Benin 32.9 Georgia 27.9 Togo 25.5 Sri Lanka 24.1 Bolivia 23.5 Armenia 21.7 Bosnia & Herzegovina 15.2 Jordan 13.9 Pakistan 10.4

Source: World Bank

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Experience gained by development agencies in the 1970s and 1980s led to an increasing realization that national ownership and integration into national procedures and systems is essential to the effectiveness of all development programmes and capacity building efforts in particular. As a part of the effort to align and harmonize foreign assistance with national systems, the international community has, over the past decade, resorted increasingly to different forms of direct budget support, channeling funds through national treasuries in conjunction with the national budget. While this presents considerable risk – particularly where institutional capacities are weak and corruption is a significant factor – it is considered a valuable contribution to coordination in that it: i) ensures coherence in the allocation of domestic and foreign resources; ii) strengthens national systems; iii) ensures consistency in standards and norms and provides leverage in improving national standards; and iv) supports the creation of downstream capacity through local subcontracting. Risks have often been offset by having a multilateral institution closely manage disbursement in the case of basket funding or support capacity building for expenditure management in the Ministry of Finance and in implementing agencies.

There are three main forms of direct budget support as follows:

• Budget Support. General budget support: Financial support from a donor that is channeled into the general treasury account of a recipient country where it co-funds the national budget. The support is thus not earmarked, and it is used according to the national public expenditure management rules and procedures.

• Sector budget support: Financial support from a donor that is channeled into the general treasury account of a recipient country where it co-funds the national budget of a particular sector. The support is thus nominally earmarked, and it is used according to the national public expenditure management rules and procedures.

• Basket funding Basket funding is the joint funding by a number of donors of a set of activities through a common account, which keeps the basket resources separate from all other resources intended for the same purpose. The planning and other procedures and rules governing the basket fund are therefore common to all participating donors, but they may be more or less in conformity with the public expenditure management procedures of the recipient government. A basket may be earmarked to a narrow or a wider set of activities (e.g. a sector or a sub-sector). The term ”pool(ed) funding” is sometimes used instead of basket funding. Variants on Basket Funding have included muli-donor trust funds that have been established in post-conflict country settings (examples include Afghanistan, Iraq, Timor l’Este, Sudan). Either delivered as direct budget support through the government or, more commonly as a parallel source of (mostly grant) funding, these multi-donor trust funds have most commonly been managed either by the World Bank or UNDP and have involved often complex subsidiary coordination mechanisms – often termed cluster groups – that have been frequently criticized because of their focus on the funding aspect of coordination. The experience with such funds has varied greatly.

• SWAps (form of basket funding) emerged originally in low-income and aid dependent

countries to address problems of aid fragmentation and lack of coordination in development interventions they are currently also found in middle income countries with low aid

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dependency ratios. They developed in the early-to-mid 1990s, in response to the perceived failure of existing aid practices – particularly the fragmentation and lack of coordination of development interventions resulting in high transaction costs and poor efficiency in the use of resources. SWAps were intended to enhance aid effectiveness by coordinating donors and government in a comprehensive approach to an entire sector, under government leadership and using government procedures. SWAps are a form of programme aid directed to particular sectors. A single SWAP can incorporate a variety of different funding mechanisms, whether sector budget support, off-budget pooled funds, or projects. Funding modalities under SWAP may range from budget support to basket funding delivered as sector or programme earmarked support. It also includes the possibility of funding activities through NGOs and private sectors, but under modalities where the recipient government is maintaining access to information on disbursement and some control over how donor funds are being utilised. Within a SWAp, government and donor funding for a sector is directed towards the achievement of a holistic sectoral strategy that has been matched to available resources and implementation capacity. The existence of a robust national framework for the sector is one of the main prerequisites for the introduction of a SWAP. Ideally, a SWAP should involve:

o A comprehensive sector policy and strategy o Jointly agreed monitoring parameters and joint monitoring mechanism o An annual sector expenditure programme and medium-term sectoral expenditure

framework o Government-led donor co-ordination o Major donors providing support within the agreed framework. o In addition, it should meet at least one of the following criteria: o A significant number of donors being committed to moving towards greater

reliance on government financial and accountability systems. o A common donor approach to implementation and management. o Technical assistance is commissioned directly by governments rather than donor

agencies. Although it has been deployed under other names, direct budget support is not new. Governments have been provided with balance of payments support – primarily, but not solely, in the form of credits for at least the past 20 years. What is different today, is that budget support is now principally in the form of grants, and intended largely to supplement domestic resources targeting priority themes or sectors (as jointly defined by the donor and the partner government), comes with policy advice and has resulted in the integration of many development activities previously undertaken off budget into the national budget. Indeed, it is also now closely associated with ongoing efforts to harmonize donor policies and procedures with those of partner governments with the objective of simplification and reduction of transaction costs. The intended objectives of budget support have therefore changed. Among the largest donors, the firmest proponents of budget support are the UK (DFID), The Netherlands, Sweden (SIDA), Norway, Denmark, Finland, Canada (CIDA). Those in the other camp include the US (primarily USAID), Japan, France and Italy. Among multilateral donors, the EC is providing budget support and in view of its own modalities of programme lending, the World Bank is also accepting of the modality, particularly as it facilitates accounting and monitoring of capital flows as such budget support is either channelled through the national

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treasury and the national budget, or as an added clearly identifiable and trackable fund managed in parallel with the national budget. Although budget support as a modality has been used in other countries, the pilot countries designated by OECD/DAC for the harmonization and alignment of donor practices as well as budget support were primarily LDCs and largely in Africa34 Most were PRSP and CG countries, and many – particularly in Africa – were subject to HIPC debt relief. They are also, generally speaking, among what DAC/OECD has informally designated as “problem partnerships” –countries with institutional and developmental shortcomings and low absorption capacity. Direct budget support is channelled through the central treasury of the partner government in either grant or credit form to spend using the government’s own financial management, procurement and accountability systems. It has so far been deployed in three main forms: unearmarked or general budget support; sector-wide approaches (SWAp’s); and basket funding.

Figure 4: Funding Modalities

Most of the development frames of reference used by donors for the deployment of DBS are led by the Bretton Woods Institutions and the World Bank in particular. In most of pilots, the PRSP is the dominant development planning framework and has proved particularly useful in that it adopts a structural perspective. Indeed, many of the documents reviewed discuss the use of DBS as a tool for poverty reduction as well as a lever for strengthening essential institutions and systems35. DBS is deployed within the framework of the ongoing PRSP process in which the 34 Bangladesh, Cambodia, Ethiopia, Ghana, Fiji, Kenya, Morocco, Mozambique, Niger, Senegal, Tanzania, Vietnam and Zambia. 35 For instance, in its policy paper on DBS, DFID explicitly states: “DFID now uses PRBS explicitly to link the provision of financial aid to the partner government’s commitment to poverty reduction. When circumstances are appropriate …. PRBS is the aid instrument most likely to support a relationship between donor and partner that helps to build the accountability and capability of the state.”

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donors, relevant NGOs and others have participated. In the case of a few countries, donors have begun discussing possibility of developing joint country assistance strategies within which DBS is programmed. Effective use of DBS requires full integration of national economic planning and budgeting processes. Failure to integrate economic planning with budget management will not result in the assignment of the additional resources for priority purposes. The promise of DBS therefore often comes with active involvement on the part of the donor in the review of economic plans and budgetary allocations and expenditure options. Indeed, it is viewed as an essential part of fiduciary risk assessment which generally requires: (i) A thorough evaluation of public financial management and accountability systems, and associated risks, has been carried out; (ii) The government must have a credible programme to improve the standards of these systems; and (iii) the potential development benefits justify the fiduciary risks. In most of the countries considered it is clear that the donors are aware that particular attention needs to be paid to strengthening capacity in each of these areas. To date, donors have turned principally to the World Bank and private consulting firms to provide assessments of fiduciary risk and to strengthen capacities in the essential areas, but in general such assessments have been conducted jointly with the active participation of the interested donors themselves. A move towards budget support will also require a reorientation toward results based monitoring and evaluation that is based on broader, national targets that are defined in national plans as a part of the national budget. In all of the countries considered, this requires extensive additional capacity building. A DFID policy paper notes that: “Few of the expected benefits (local ownership; alignment; harmonisation) are automatic. Complementary measures (appropriate technical assistance and policy dialogue) are needed.” 36 Another assessment by the EC found that: “The main general constraint as regards budget support has been weak macro-economic management, weak financial and public expenditure management. An audit of EC structural adjustment in February 2000 highlighted serious deficiencies in Ghana’s public expenditure and financial management systems.”37 One of the objectives of direct budget support is to augment resources dedicated to priority areas or sectors identified during the budget process or associated planning and programming. It is difficult to make a direct correlation between DBS and an increase in allocations to priority areas, however. Even in the case of general budget support, partner governments tend to distinguish among the sources of revenue and make allocations accordingly. A public expenditure review conducted by the World Bank in 2001 found that the Zambian Government opted to use budget support to insulate the domestic budget by implementing a two-tier budget system with domestic expenditures covered by domestic revenues while direct budget support

36 DFID, Poverty Reduction Budget Support: A DFID Policy Paper, May 2004, p.1 37 European Community, Republic of Ghana, Country Strategy Paper and Indicative Programme for the Period 2002-2007, DEV/054/2002-EN

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was used mainly to pay for high external debt requirements. Budget support therefore did not, at least initially, target priority sectors identified by the donors38 for poverty reduction. It is also difficult to say that DBS has improved the predictability of donor funding. Indeed, in some instances it may have resulted in sudden shifts and declines (see Zambia for instance), and in the case of others, may have resulted in extensive delays in the commitment of aid pending agreement on conditions and prerequisites with the government. DBS has undoubtedly improved coordination by explicitly linking it to resource allocation. It has also resulted in the creation of new forums and mechanisms for joint decision-making that are more directly integrated with domestic policy and resource allocation and management mechanisms. By reinforcing the centrality of the budget process, all forms of budget support have tended to empower Ministries of Finance while disempowering line ministries that have, as a consequence, had their ability to negotiate directly with donors curtailed39. This in part, along with broader macroeconomic policy interests on the part of donors and their leadership of the PRSP and CG processes, explains the central role that the World Bank has played in most of the countries reviewed. Direct budget support has increased government control over external assistance and externally funded activities. In Uganda there is emerging evidence of greater government control over externally funded activities and resources, with a relative strengthening of the Ministry of Finance (MFPED), the Cabinet and Parliament as drivers of public resource allocation. In turn, however, in most countries the key donors have increased their own influence over the budget process, priority setting and government policy making through the imposition of conditionalities. These conditionalities appear to be most stringent in the case of SWAps and least intense in the case of generalised budget support. Its ease of disbursement means that budget support can be stopped more quickly than other aid instruments. Events, such as an incident of human rights abuse or increased military spending, can raise political or public opinion concerns on the part of donors. Programme country governments have raised concerns about the predictability of budget support and the impact of fiscal adjustments if it is stopped or reduced. A recent study40 showed that predictability of funding has not increased in Uganda or Mozambique and in Vietnam it has not been possible to provide medium-term predictability of General Budget Support disbursements. Disbursements in these countries have, as a result tied to one-year support instruments of the IMF or World Bank. Coordination of aid has been greatly enhanced through direct budget support as it actually positions the Government to take decisions on the actual allocation of donor resources that under

38 World Bank, Zambia Public Expenditure Review, Public Expenditure, Growth and Poverty: A Synthesis, Macroeconomics I, Southern Africa Region, Report No. 22543-ZA, December 2001, pp. 62-63. 39 Overseas Development Institute, General Budget Support Evaluability Study: Final Synthesis Report, Report to the UK Department for International Development, 30 December 2002. p 32. 40 Overseas Development Institute, General Budget Support Evaluability Study: Final Synthesis Report, Report to the UK Department for International Development, 30 December 2002.

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a projectised system would have been undertaken directly with contractors and would in many instances not even have been recorded centrally with the government. Placing government fully in the driver seat, will however, in many of the pilot countries, require further strengthening o f capacity within the Ministry of Finance, Prime Minister’s office or wherever the coordination function is located in the country concerned. Using the PRSP as the overall frame of reference for prioritization has resulted in further strengthening the influence and effectiveness of the PRSP. Channelling funds through national budgets presents new challenges in ensuring that the use of development funds adheres to ODA policies and priorities. While project-based assistance is easier in general to target and justify because of its case-by-case nature, effective targeting in the case of DBS entails the effective orientation of national policies in general. It becomes more difficult for bilateral agencies to report on the achievement of their ODA goals unless they are in a position to influence the use of partner budgets and policies. In the long run, this could lead to difficulties in continued domestic justification of ODA budgets.

Increased Exposure In summary, what are the benefits of using funding mechanisms linked to the national budget? It allows development partners to contribute to a national programme of development instead of piecemeal project specific development. It increases donor coordination and reduces the likelihood of overlapping and duplication of initiatives. It further enhances the possibility of the government to ensure uniform practices and reduces the administrative burden of dealing with a number of donors applying different policies and administrative practices – in particular in relation to financial management. It enables the government to move away from implementing multiple parallel schemes- financed by different agencies- which often result in islands of success or some programs undermining the others. It provides a consistent development approach and a more firm and predictable expenditure framework and sources of finance for the government to implement state-wide scaling up of reforms. The main benefit is that it should lead to more efficient use of limited funds from donors, from national budgets. Yet, direct budget support results in marked risk exposure that, unless mitigated, may in the long run render it difficult for donors to sustain because of domestic political concerns. Some donors such as the US have resisted direct budget support because of concerns over public and political opposition to the potential loss of control and increased exposure involved. Donors face increased exposure to fiduciary risk resulting from:

i) Weak financial management systems; ii) Weak systems of accountability; iii) Political influences or pressures brought to bear on the incumbent partner

government; iv) Political changes; v) Shifting domestic budget priorities; vi) Uncertainties in the domestic revenue base that can result in the reallocation of

relatively predictable revenue received from external sources; vii) Ineffective management and weaknesses in the legislative environment within which

the budget is implemented; and

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viii) Government policies that may run contrary to the ODA policies of the donor concerned.

Perhaps paradoxically, linking direct budget support to macro policy prescriptions related to the PRSP and HIPC, can increase the volatility of aid resources for development. For instance, in the case of Zambia, disputes with the IMF over fiscal indiscipline not only resulted in suspension of the Poverty Reduction and Growth Facility (PRGF) and delays in the attainment of the HIPC completion point, but an almost complete suspension of the resulted in almost complete suspension of budget support.41 DBS is, unless effectively facilitated and managed, likely to result in significant problems of delivery and backlogs. The nature of the inadequacies vary considerably. In a number of LDCs there are still insufficient management systems in place, insufficient substantive personnel and insufficiencies in the capabilities of the managers and administrative personnel available. In other instances in which capacity may be considerable, the sheer complexity and inefficiency of national processes and procedures are such that delivery is affected. The latter may be the case even in some middle income countries. And then there is the phenomenon of ingrained corruption. While they may decline over time, as budget support becomes a standard practice, there currently are high costs of negotiating and maintaining budget support policy agreements, particularly where there is a lack of consensus on policy within and between the Government and the donor community. On the other hand, given the ease of disbursement of budget support, the marginal costs of expanding budget support once established are potentially lower than those of expanding project finance. In cases such as Afghanistan, to mitigate donor exposure, the UNDP has served as a conduit for funds channelled through the national budget (Law and Order Trust Fund for Afghanistan, LOTFA and the Counter Narcotics Trust Fund, CNTF), ensuring transparency and accountability in the use of the funds and also helping to develop national capacities to manage direct budget support of this type to minimise risks. Capacities were developed both in the Ministry of Finance and in the National Police of Afghanistan, which falls under the Ministry of Interior. Although some leakages in the payment of salaries under the NPA are still acknowledged, the systems put in place have put in place an electronic funds transfer system where banking infrastructure did not exist and increased the percentage of payments issued by wire transfer to over 80 per cent.

V. MONITORING AND EVALUATING PERFORMANCE

“If you cannot measure it,” Lord Kelvin once remarked, “you cannot improve it”. Over the past 10-15 years, there have been dramatic conceptual developments in the monitoring and evaluation of development assistance that may be summarized as follows:

• A shift from project-based monitoring and evaluation to programme-based and sector-wide monitoring;

41 Ministry of Finance and National Planning of the Republic of Zambia, Poverty Reduction and Growth Facility (PRGF) for 2004-2006. The Highly Indebted Poor Country Initiative (HIPC) Completion Point, Statement of Hon. Ng’andu P. Magande M.P., Minister of Finance and National Planning, June 2004.

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• A shift from input and activity-centered, to results-based monitoring and evaluation; • A shift from a focus on donor agency based monitoring and evaluation systems to a

recognition that if the DAC Principles are to be applied, such capacity needs to be creating in national institutions and continue beyond the duration of any individual source of development assistance; and

• While considerable experience already existed with the monitoring of relief and humanitarian assistance and economic growth and production parameters, considerable additional conceptual work has recently also been done on the measurement of results in that relatively intangible and slow yielding area of capacity building.

Perhaps the most significant and challenging shift is the one from input and activity based, to results-based monitoring and evaluation. In general, results are defined in terms of “outcomes” and “impact” and are particularly difficult to measure when it comes to governance and rule of law programmes.

EXAMPLES OF INDICATORS OF PROGRAMME RESULTS IN THE RULE OF LAW Output (s) Outcome Impact Commercial law drafted, ratified and promulgated by Parliament

Law promulgated by Parliament. Number of abrogated commercial contracts declines. Foreign direct investment rises.

Lower courts fully equipped and judges and law clerks trained and assigned. Court fees and charges reduced/aligned.

Case load of lower courts increases. Case load of traditional courts relieved.

Reduction in number of incidents of conflicts being resolved with arms.

Special prosecutor’s office established for corruption.

Number of number of serious cases of official corruption under prosecution increased.

Public trust in the fairness and legitimacy of state institutions increased. Incidence of corruption declines.

Human rights laws drafted, ratified and promulgated by Parliament.

Number of reported cases and prosecutions of human rights violations increases.

Incidence of human rights violations decline.

While results-based monitoring for programmes in the humanitarian sector had developed extensively already because of their relative conceptual simplicity (for example in measuring the results of child vaccination programmes), the measurement of the outcomes and impact of governance programmes only really got off the ground about one decade ago. Monitoring and evaluation of rule of law assistance has, for the most part, been subsumed under governance and capacity building. With particular reference to the latter, a dozen years ago, virtually no internationally comparable measures of governance or corruption existed. Since then, there has been an explosion of empirical research aimed at measuring governance, monitoring country progress, understanding the causes and consequences of good governance for development, and learning from successes and failures. The following are examples of some of the monitoring systems that have been developed for measuring aspects of governance in general:

• The Doing Business Index: Produced annually by the International Finance Corporation (IFC) of the World Bank, economies are ranked on their ease of doing business, from 1 – 181, with first place being the best. A high ranking on the ease of doing business index means the regulatory environment is conducive to the operation of business. This index averages the country's percentile rankings on 10 topics, made up of a variety of indicators, giving equal weight to each topic. The index has been

45

hugely criticized, not least by the World Bank’s own Independent Evaluation Group as a being heavily biased towards deregulation and does not measure the impact on economic performance.

• World Governance Indicators (WGI) project: Also produced by the World Bank, the WGI measures 6 dimensions of governance – i) voice and accountability; ii) political stability and absence of violence; iii) government effectiveness; iv) regulatory quality; v) rule of law; and control of corruption;

• Global Integrity Index: Assesses whether or not key national anti-corruption mechanisms are set in place, work properly and are accessible to citizens to hold governments accountable.

• Freedom House Freedom in the World ratings: The Freedom in the World survey provides an annual evaluation of the state of global freedom as experienced by individuals. The survey measures freedom—the opportunity to act spontaneously in a variety of fields outside the control of government and other centers of potential domination—according to two broad categories: political rights and civil liberties. Political rights enable people to participate freely in the political process, including the right to vote freely for distinct alternatives in legitimate elections, compete for public office, join political parties and organizations, and elect representatives who have a decisive impact on public policies and are accountable to the electorate. Civil liberties allow for the freedoms of expression and belief, associational and organizational rights, rule of law, and personal autonomy without interference from the state. The methodology is grounded in the Universal Declaration of Human Rights and applies to all countries and territories, irrespective of geographical location, ethnic or religious composition, or level of economic development. The survey operates from the assumption that freedom for all peoples is best achieved in liberal democratic societies. The survey does not rate governments or government performance per se, but rather the rights and freedoms enjoyed by individuals. Freedoms can be affected by state actions, as well as by non-state actors, including insurgents and armed groups. Thus, the survey ratings generally reflect the interplay of a variety of actors, both governmental and non-governmental.

• World Bank's Country Policy and Institutional Assessment (CPIA) ratings: For low income countries, the CPIA is a diagnostic tool that is intended to capture the quality of a country’s policies and institutional arrangements that support sustainable growth and poverty reduction, and consequently the effective use of development assistance.

A more specific review conducted for the United Nations Rule of Law Indicators Project42

identifies, and critiques some 31 rule of law instruments that, as a group, include indicators of performance for the judiciary, law enforcement, corrections and informal justice mechanisms. Only six instruments included explicit information on post conflict countries such as Liberia and Haiti. Of these, only the Afrobarometer included in-country data collection. Instruments that offer particularly interesting methods were found to include the Afrobarometer, Arab Barometer, Asian Barometer and Latinobarometer. They use large sample surveys to collect detailed information, including demographic data that allow for disaggregation by region and cultural groups. In fact, the regional barometers are the only tools identified that provide this level of detail. However, much of the raw data collected by Afrobarameter is publicly available only years later, and given that opinions and experiences change frequently – particularly in fragile states and post-conflict situations, old data is unlikely to reflect current conditions. Because these

42 Parsons Jim, Monica Thornton, Besiki Kutateladze, Hye Eun Bang and Aminou Yaya, Rule of Law Indicators: A Literature Review, A Report of the Steering Committee of the United Nations Rule of Law Indicators Project, VERA Institute of Justice, November 2008.

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instruments are designed to be useful in particular regions, they include questions that reflect some of the nuance of local conditions and concerns. The Afrobarometer, for example, includes indicators of the role of traditional justice systems and Arab Barometer includes large sections on the relationship between religious organizations and the state. Few indicators measure capacity. However a few tools were found to offer some useful examples. The UK Police Performance Assessment and the Vera-Altus Justice Indicators Project were found to achieve a balance between measuring public perception and institutional capacity. The ABA Judicial Reform Index and Prosecutorial Reform Index were found to offer similar templates for assessing the operation of the courts on both dimensions. Some of the tools were found useful because they offer off-the-shelf sources of data, a valuable commodity in countries with little existing information. The Cingranelli-Richards Human Rights Dataset, Democracy Index, Global Competitiveness Index, Global Peace Index, Political Terror Scale US State Department Reports and the World Bank’s World Governance Index were cited as examples with a global (or near global) reach. They were, however, found to lose local specificity with most using the same questions across continents and a number relying on compilations of secondary data sources. While these instruments contribute much of value, the study found their gaps and weaknesses are just as helpful in revealing what is still required of indicators:

Measuring access to justice. Most instruments do not specifically measure and report on the experiences of minority groups, women, or others who may have limited or no access to justice or who are particularly vulnerable to abuses. Similarly, few instruments collect comparable data from both urban and rural areas. In some cases this is because instruments rely on expert opinions or present existing information in a way that obscures such differences. To measure access to justice requires a disaggregated approach to data collection and, of course, an awareness of which groups are likely to be marginalized and the ways in which justice systems are likely to fail them. Combining measures of capacity and public confidence. Many of the instruments identified are based on public surveys designed to assess opinions about key criminal justice institutions. Rule of law indicators need to tap and report on public opinion data while also describing the capacity of justice institutions to function and the existence of specific reform efforts. If tracked together and over time, information on capacity and perceptions, can be used to monitor the impact of reforms on confidence in justice system and actual access to justice. Including post-conflict indicators. The way core criminal justice services are delivered in a post-conflict setting can be quite different from how the same services are provided in more stable environments. For example, in many post-war countries, paramilitary groups or international peacekeeping forces perform important law-enforcement functions. Existing indicators are not designed to capture this nuance and tend to base policing measures on the existence and functioning of stable state justice institutions. Similarly, the role and functioning of military courts and special tribunals has been overlooked by existing instruments. Only one instrument of the 31 identified, the Global Peace Index, contained items measuring safety and militarization. Including checks on government data. A paucity of reliable data is a common but particularly

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acute in fragile states and post conflict settings. In such environments, data provided by government must be checked against other sources of information (e.g. expert panels or public opinion surveys). Assessing informal justice mechanisms. In many communities, informal justice mechanisms supplement or provide an alternative to state justice systems. A number of instruments (the Afrobarometer, Arab Barometer, the Vera-Altus Justice Indicators Project and the World Governance Assessment) reflect the important role these mechanisms play by including several indicators measuring public and expert opinions of their fairness and, in particular, the presence of corruption. While the variety of informal mechanisms presents a challenge to creating uniform indicators, it is impossible to gauge the health of systems upon which so many people rely for justice without measuring their role and prevalence. An assessment of informal justice mechanisms also provides valuable information on gaps in the delivery of state justice systems and the reasons people choose not to use them. It is worth noting that many of the above indicators that have been developed involve the indexing of survey results, enabling them to be aggregated at the national, regional and global levels as necessary. While elements of each are relevant to the needs of the rule of law, it is apparent that systematic monitoring of the results of rule of law assistance will require a dedicated programme of work to develop a dedicated monitoring and evaluation framework that can support a coordinated and coherent approach on a global as well as a national basis. The dedicated project would need to develop the following elements of a monitoring and evaluation framework: • Agreed performance dimensions: Based on a general policy agreed on by all major stakeholders, the

principal dimensions of performance in the rule of law need to be identified and agreed upon. (e.g. increased physical security, improved adherence to the principles of human rights, increased accountability and transparency in rule of law institutions, etc.). Obviously performance dimensions need to be defined in terms that are readily measurable.

• Agreed indicators: Indicators for each performance dimension need to be identified and ideally extracted from existing tools. Such indicators should ideally be simple, inexpensive to collect and ideally based on data sets that are already being collected. Ideally they should be possible to aggregate at the national level and then the regional or global basis to facilitate cross-comparisons and performance at each level. Methodology on the calculation and the units of measurement of each indicator need to be standardized for this purpose.

• Monitoring mechanisms: Monitoring mechanisms, independent of programmes of assistance need to be established either in each country or on a regional or sub-regional basis with a view to collecting, collating, analyzing and drawing conclusions from data time-series of the indicators collected. It is essential that capacity created for the purpose be located in one or more independent institution, be sustainable and nationally owned if they are to be collected on a regular basis into the future. Capacity of this type could be housed in non-governmental (non-state) institutions, but needs to be clearly recognized as transparent, fair and reliable on the part of all stakeholders affected. Monitoring reports need to feed into policy-making and management mechanisms at the national and international levels for them to be of operational value. The costs of monitoring, including the mounting of regular surveys need to be funded on a sustainable basis so that there are no breaks in data.

Performance data collected may ultimately be linked to resources flows – particularly where both domestic and development assistance resources are jointly tracked – with a view to determining cost efficiencies and influencing policy decisions and the efficient and effective allocation of

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resources. Any such linking of resources to performance needs to take into account variables that may as well as those that may not be controlled.

VI. A WAY FORWARD?

The mechanisms established for the coordination of development assistance discussed above are helpful in that they potentially enable the rule of law to be analysed and viewed in conjunction with other relevant themes in development and governance, and also provides a suitably long-term perspective so essential for effective capacity development. It is important to note however, that the majority of frameworks, mechanisms and forums that have been established thus far have been in the sphere of development and the often explicit assumption is that the highest level objective is poverty reduction. While this could be viewed as an ultimate effect of the achievement of the rule of law, it cannot be viewed as its principal objective and is less than useful from an operational perspective. To be effective, under the overall umbrella of development coordination found in PRSPs, National Plans and direct budget support, there is a need for narrower, thematic coordination mechanisms at the national and global levels that are geared specifically to the needs of rule of law assistance. It is recommended that stakeholders need to urgently:

1. Agree on priority institutions and capacities that need to be created in all countries; 2. Agree on a catalogue of best practices including modalities and approaches that maximise

national ownership, are aligned with national conditions and maximise impact and sustainability. 3. Agree on a coordination structures covering global/international as well as the country level and

encompasses forums, dedicated secretariats, and policy frameworks/instruments that can accommodate substantive dialogue on a continuing basis.

4. Assign responsibilities for coordination based on existing mandates and capacities. 5. Identify and implement priority countries to serve as pilots for a more coherent and coordinated

approach to rule of law assistance. 6. Agree on and develop a standalone monitoring mechanism with dedicated capacity for rule of law

assistance covering aggregate results-based monitoring requirements at the global, regional and national levels.

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ANNEX: DAC/OECD PROCESS INDICATORS OF AID EFFECTIVENESS

The OECD issued a basic template of indicators for the monitoring of aid effectiveness in conjunction with the issuance of its DAC Principles (see table below). These indicators pertains more to compliance with the principles than with the results achieved, but are nevertheless useful.

Indicators of Progress in the Implementation of DAC Principles To be measured nationally and monitored internationally OWNERSHIP TARGET FOR 2010

1. Partners have operational development strategies – Number of countries with national development strategies (including PRSs) that have clear strategic priorities linked to a medium-term expenditure framework and reflected in annual budgets.

At least 75% of partner countries have operational development strategies.

ALIGNMENT TARGETS FOR 2010 (a) Public financial management – Half of partners countries move up at least one measure (i.e. 0.5 points) on the PFM/CFIA (Country Policy and Institutional Assessment) scale of performance. 2

Reliable country systems – Number of partner countries that have procurement and public financial management systems that either (a) adhere to broadly accepted good practices or (b) have a reform programme in place to achieve these. (b) Procurement – One third of partner countries

move up at least one measure (i.e., from D to C, C to B or B to A) on the four point scale used to assess performance for this indicator.

3 Aid flows are aligned on national priorities – Percent of aid flows to the governments sector that is reported on partner’s national budgets.

Halve the gap – Halve the proportion of aid flows to government sector not reported on government budget(s) (with at least 85% reported on budget).

4

Strengthen capacity by co-ordinated support – Percent of donor capacity development support provided through co-ordinated programmes consistent with partner’s national development strategies.

50% of technical cooperation flows are implemented through coordinated programmes consistent with national development strategies.

PERCENT OF DONORS Target

All donors use partner countries’ PFM systems. (Score: 5+) 90% of donors use partner countries use partner countries’ PFM systems. (Score 3.5 to 4.5)

PERCENT OF AID FLOWS Target

A two-thirds reduction in the % of aid to the public sector not using partner countries’ PFM systems (Score 5+)

5a

Use of country public financial management systems – Percentage of donors and of aid flows that use public financial management systems in partner countries, which either (a) adhere to broadly accepted good practices or (b) have a reform programme in place to achieve these.

A one-third reduction in the % of aid to the public sector not using partner countries’ PFM systems. (Score: 3.5 to 4.5).

PERCENT OF AID FLOWS TARGET

All donors use partner countries’ procurement systems. (Score: A) 90% of donors use partner countries’ procurement systems. (Score: B)

PERCENT OF AID FLOWS TARGET

5b Use of country procurement systems – Percentage of donors and of aid flows that use partner country procurement systems that either (a) adhere to broadly accepted good practices or (b) have a reform programme in place to achieve them.

A two-thirds reduction in the % of aid to the public sector not using partner countries’

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Indicators of Progress in the Implementation of DAC Principles To be measured nationally and monitored internationally

procurement systems (Score A) A one-third reduction in the % of aid to the public sector not using partner countries’ procurement systems. (Score: B).

6 Strengthen capacity by avoiding parallel implementation structures – Number of parallel project implementation units per country.

Reduce by two-thirds the stock of parallel project implementation units.

7 Aid is more predictable – Percentage of aid disbursements released according to agreed schedules in annual or multiyear frameworks.

Halve the gap – halve the proportion of aid not disbursed within the fiscal year for which it was scheduled.

8 Aid is untied – Percent of bilateral aid that is untied. Continued progress over time.

9 Use of common arrangements or procedures – Percent of aid provided as programme-based approaches.

66% of aid flows are provided through programme-based approaches. (a) 40% of donor missions to the field are joint.

10 Encourage shared analysis – Percentage of (a) field missions and/or (b) country analytic work, including diagnostic reviews that are joint. (b) 66% of country analytic work is joint.

MANAGING FOR RESULTS TARGET FOR 2010 11 Results-oriented frameworks – Number of countries with

transparent and monitorable performance assessment frameworks to assess progress against (a) the national development strategies and (b) sector programmes.

Reduce the gap by one-third – Reduce the proportion of countries without transparent and monitorable performance frameworks by one-third.

MUTUAL ACCOUNTABILITY TARGET FOR 2010

12

Mutual accountability – Number of partner countries that undertake mutual assessments of progress in implementing agreed commitments on aid effectiveness including those in this Declaration (Paris Declaration on Aid Effectiveness).

All partner countries have mutual assessment reviews in place.

Source: OECD/DAC, Paris Declaration on Aid Effectiveness: Harmonisation, Alignment, Results and Mutual Accountability, High Level Forum, Paris, February 28-March2, 2005

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National Strategies and Programming for Rule of Law

Development

Thomas F. McInerney[1]

Enhancing Global Rule of Law Assistance Meeting

United Nations Rule of Law Unit

United Nations, New York

20-21 April 2009

[1] Director of Research, Policy, and Strategic Initiatives, International Development Law Organization.

The author wishes to thank IDLO staff for assistance on this paper, including Anne Baussand, Sumit

Bisarya, and Lisa Hunter. The views expressed in this paper are solely those of the author and should not

be attributed to the UK Department for International Development or the United Nations.

52

Introduction

In the years since the Paris Declaration was agreed in 2005, development agencies and

aid recipient countries have begun aligning their practices with its normative framework. Yet

evidence is that efforts are falling short. Preparatory reports for the Accra conference to review

implementation of the Paris Declaration found that six objectives of the Declaration were “off-

track and will be difficult to achieve unless partner countries and donors seriously gear-up their

efforts.”[2]

In the years since the Paris Declaration was adopted, there has been relatively little

analysis among rule of law practitioners on how development assistance to these sectors

achieves the goals of the Declaration. This paper seeks to map out an agenda for the study of

national strategies in the rule of law field. It begins with an overview of the type of aid

mechanisms that have come into use in the past ten years. Next, it examines how rule of law

concerns have been divided into different and overlapping sectors. The paper then examines

various aspects of the use of development strategies in the rule of law field. In the last section it

problematizes and draws some of the implications of these approaches and experiences. The

discussion that follows is not exhaustive, but instead is intended to raise questions and provoke

discussion with a view to identifying paths for future research.

The paper is based on desk research and relies heavily on published reports relating to

implementation of the Paris Declaration and current development assistance practices. Because

these documents do not relate to the justice and security sectors specifically, the paper seeks to

translate what research exists in the field of development assistance generally into the justice

and security sector context. The paper attempts to understand the general situation in the field

and point the way to future research. Counterexamples can likely be found for many of the

generalizations drawn.

National and Sectoral Development Strategies

A variety of devices for national development planning have come into widespread use.

The approaches include national development strategies, Sector Wide Approaches (SWAps),

program based approaches (PBAs), and peace-building plans. Generally speaking, donors and

development partners following these approaches view them as broadly compatible with the

Paris Declaration.

National Development Strategies

Generally, national development strategies refer to any number of development

strategies that countries adopt. It is a generic term that encompasses a wide variety of

[2] OECD, Development Assistance Committee, Working Party on Aid Effectiveness, 2008 Survey on

Monitoring the Paris Declaration: Making Aid More Effective by 2010 (2008), p.24.

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instruments. National development strategies and goals exist as sui generis national, sectoral,

and thematic approaches and also include Poverty Reduction Strategy Papers (PRSPs).[3]

Poverty Reduction Strategy Papers are the agreed framework for international development

assistance that were initiated by the International Monetary Fund (IMF) and the World Bank in

1999 under the auspices of the Comprehensive Development Framework. PRSPs are prepared

by governments in low-income countries through a participatory process involving both

domestic actors and external development partners. PRSPs describe “the macroeconomic,

structural and social policies and programs that a country will pursue over several years to

promote broad-based growth and reduce poverty, as well as external financing needs and the

associated sources of financing.”[4] The PRSP approach is by now well established in a

substantial number of countries.

Sector Wide Approaches

Sector wide approaches refer to the manner in which donors provide aid to particular

sectors. As one donor has noted, SWAps are not specific modality for aid provision but instead

are merely an “approach” or a “philosophy” upon which aid is distributed to development

partners.[5] The UK Department for International Development (DFID) has defined a SWAp as:

a process in which funding for the sector – whether internal or from

donors – supports a single policy and expenditure programme, under

government leadership, and adopting common approaches across the

sector. It is generally accompanied by efforts to strengthen government

procedures for disbursement and accountability. A SWAp should ideally

involve broad stakeholder consultation in the design of a coherent sector

programme at micro, meso and macro levels, and strong co-ordination

among donors and between donors and government.[6]

SWAps can be distinguished from national and sectoral strategies by the extent to which they

are budgeted as a whole, funded through a single policy and expenditure program, and

strongly coordinated.

Programme-based approaches

Program-based approaches (PBAs) include aid arrangements that fund entire programs.

Like SWAps, PBAs are not aid modalities but are a way of organizing national and external

[3] Paris Declaration on Aid Effectiveness (2005), para. 13, fn. 2. [4] IMF, “Factsheet – Poverty Reduction Strategy Papers (PRSPs)”

http://www.imf.org/external/np/exr/facts/prsp.htm (2008). [5] NZAID, “What is a SWAP?” available at: http://nzaidtools.nzaid.govt.nz/sector-wide-approaches-swaps/what-is-a-swap. [6] DFID. 2001. “Sector-Wide Approaches (SWAps)” available at:

http://www.odi.org.uk/resources/specialist/keysheets/policy-planning-implementation/7-sector-wide-approaches.pdf.

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resources to support a particular sector or type of activity.[7] PBAs contrast with project-based

approaches, whereby donors fund ad hoc or discrete projects. Like SWAps, PBAs entail a

greater degree of partner country ownership. The programmes that PBAs fund are defined by

the domestic constituencies in the partner countries, as opposed to donor-driven approaches.

The OECD defines three different levels at which PBAs may work. In the first case, a

partner country defines a “clear, country-owned programme (e.g. sector policy)” and

establishes a single budget framework that includes both domestic and external funding.[8] In

the second level, donors take steps to use local systems for program design and

implementation, financial management, and monitoring and evaluation.[9] In the third level,

partner countries and donors share responsibility for establishing formal processes for donor

co-ordination and harmonization.[10]

Peacebuilding Strategies

Peacebuilding strategic frameworks can be defined generically as mutually accountable

and time bound agreements between a government and international partners, for directing

scarce foreign and public technical, financial and political resources toward building national

capacities to address the root causes of violent conflicts.[11] Key features of peacebuilding

strategic frameworks are consultation and participation, cross cutting commitments (including

targeted commitments across mutually interconnected areas of security, governance, justice,

human rights, and socioeconomic development), concrete, measurable, and time bound

indicators for sequencing priorities and tracking the potential risks of a return to conflict,

nationally led monitoring, building on existing frameworks (PRSPs and Post-Conflict Needs

Assessments), and aid effectiveness (adhering to the Paris Declaration).[12]

Approaches to Rule of Law Sectoral Strategies

The key difficulty in considering experience with sectoral programming in the area of

rule of law is the wide range of approaches to defining the relevant sector. Rule of law cuts

across a number of sectors. While experience in other sectors such as health show the range of

institutions that can be encompassed in a sector, rule of law appears even more dispersed.

Institutions ranging from law schools to courts to police to the military all relate directly. The

international community has created a variety of constellations of these institutions within

sectoral approaches to address rule of law concerns.

[7] OECD, supra note 2 at p.52. [8] Id. [9] Id. [10] Id. [11] Peacebuilding Support Office, “Lessons learned from Peacebuiding Strategic Frameworks since the

late 1990s”, PBSO Briefing paper, 19 Sept. 2007, p.3. [12] Id. at 5.

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Before turning to sectoral approaches to rule of law, it is useful to consider what

international actors view as falling within the category of rule of law promotion at the national

level. The Secretary-General’s 2006 report “Uniting Our Strengths: Enhancing United Nations

support for rule of law” identified a range of matters as falling within the category of rule of

law in the context of conflict and post-conflict situations and long-term development. He stated

that rule of law included work to strengthen legal and judicial institutions (e.g. prosecutions,

ministries of justice, criminal law, legal assistance, court administration and civil law), policing,

penal reform, the administration of trust funds and monitoring, customary, traditional and

community based justice and dispute resolution mechanisms, victim and witness protection

and assistance, combating corruption and organized crime, transnational crime and trafficking,

and drug control, legal education, public law issues (e.g. land, registration, national

identification, citizenship and statelessness), interim law enforcement and UN performance of

executive judicial functions, and national police agencies.[13]

Justice Sector. Under the auspices of national development strategies and peacebuilding

strategies, a number of countries have created justice sector reform programs. The scope of the

justice sector strategies can include: institutional capacity (management, human resources,

information systems), coordination with other state institutions (legislative processes, legal

education and training etc.); transparency (anti-corruption), equity and capacity in the delivery

of justice services notably to improve access for vulnerable groups and increase public

confidence in general (whether criminal or civil justice systems – including land, family

matters); strengthening the police, public prosecution and prison services.[14]

The UNDP has identified the following matters as within the scope of internationally-

sponsored justice sector reform activities; traditional judicial organization strengthening;

traditional human rights protection (including work with judges, prosecutors, public defenders,

the police, and penitentiary managers); environmental protection and bio-genetics law;

economic globalization legal structures; public safety (including fight against crime, including

terrorism and organized crime); and access to justice.

Security Sector. The security sector is said to include criminal justice (including the police,

judiciary, prosecution, lawyers, probation workers, oversight institutions, and community

justice providers), the intelligence system (including police, intelligence, and military), the state

security system (including police, military, border guards, immigration, gendarmerie, and non-

state security), and accountability systems (including internal, external, and parliamentary

systems).[15] The SSR Handbook states that “the OECD DAC views ‘security system’ as

encompassing a number of sectors” and that justice is in no sense “subordinate to security”.[16]

[13] United Nations, Report of the Secretary General, “Uniting Our Strengths: Enhancing United Nations

support for rule of law”, A/61/636-S/2006/980, p.13. [14] Information obtained through an analysis of the IDLO Rule of Law Assistance Directory. [15] OECD-DAC, Handbook on Security Sector Reform: Supporting Security and Justice (2007)(hereinafter

the “SSR Handbook”). [16] Id. at p.5.

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To reinforce this point, the SSR Handbook at times speaks of “justice and security reform” and

of “justice and security development” instead of “security system” and “security system

reform”.[17]

In contrast, the Secretary General’s report on security sector reform stated that the

security sector is “a broad term often used to describe the structures, institutions, and personnel

responsible for the management, provision and oversight of security in a country….[it] includes

defence, law enforcement, corrections, intelligence services and institutions responsible for

border management, customs and civil emergencies….Elements of the judicial sector

responsible for the adjudication of alleged criminal conduct and misuse of force are, in many

instances, also included.”[18]

Security and Justice Sector. Security and Justice Sector Reform has developed subsequent

to the understanding of SSR, and is intended to “underscore the fact that security and justice

work occurs under the same umbrella.”[19] It combines work on security sector reform (SSR)

and safety, security and access to justice.[20] This sector includes “all key security services, the

justice system, and security and justice management and oversight bodies.” It also includes

informal and traditional justice providers where they exist.”[21]

Specific National Examples

Afghanistan National Justice Sector Strategy

The Afghanistan National Development Strategy (ANDS) is a Millenium Development

Goals-based plan that serves as Afghanistan’s Poverty Reduction Strategy Paper. The three

‘pillars’ of the strategy are: (i) Security, (ii) Governance, Rule of Law and Human Rights and (iii)

Economic and Social Development.

Each pillar is broken down into sectors, each one with various strategies and processes

for reaching the high-level benchmarks laid out in the overarching national development

strategy, for example the National Justice Sector Strategy (NJSS) addresses the justice and rule

of law benchmarks. It is interesting to note that security is a different pillar of the ANDS, with

its own sector strategy.

The NJSS is implemented by a National Justice Program, managed by an oversight

committee formed by representatives of the three main Afghan justice institutions involved in

[17] Id. [18] United Nations, Report Secretary-General, “Securing peace and development: the role of the United

Nations in supporting security sector reform”, A/62/659-S/2008/39, p. 5-6. [19] DFID, Security and Justice Sector Reform Programming in Africa, Evaluation Working paper 23 (2007)

at p.7. [20] Id. at ix. [21] Id.

57

the design of the strategy: the Ministry of Justice, Supreme Court and Office of the Attorney

General. The document was signed and finalised in July, 2008.

Funding comes from a variety of sources including the Ministry of Finance, bilateral

international donors and a pre-existing multilateral trust fund managed by the World Bank (the

Afghanistan Reconstruction Trust Fund, or ARTF). Monitoring and evaluation of progress

against the benchmarks is conducted by the oversight committee and, at the cross-strategy level,

by a Secretariat set up for the ANDS and housed at the Afghan Ministry of Economy.

These characteristics of national ownership and design, a performance monitoring

system, a medium term program that reflects the sector strategy and a systematic process for

allocating resources in the sector all seem to characterise a SWAp, but it should be noted that

several bilateral and multilateral justice reform interventions still exist outside this framework.

Papua New Guinea. The Government of Papua New Guinea in partnership with the

Australian government created a Law and Justice Sector Program (LJSP), which constitutes a

SWAp. The Law and Justice Sector is being guided by the White Paper on Law and Justice in Papua New Guinea and National Law and Justice Policy and Plan of Action. The LJSP involves NGOs,

CBOs, and other CSOs, relevant formal state institutions, and customary dispute resolution

practices. The formal sector agencies include: the Department of Justice and Attorney General,

the National Judicial Staff Services, the Ombudsman Commission, the Royal Papua New

Guinea Constabulary, Correctional Services, Magisterial Services, Office of the Public

Prosecutor and Public Solicitor and the Department of National Planning and Rural

Development, which plays a major role in this coordinating process. [22]

Sierra Leone. In Sierra Leone, the justice sector reform is being carried out under a Justice

Sector Reform Strategy and Investment Plan (JSRSIP) 2008-2010. According to the plan, the

justice sector includes: the police, the judiciary, the magistracy and prisons systems, ministries

of justice, Internal Affairs, Social Welfare, Gender and Children, Local Government, Law

Officers, the Legal Profession, the Registrar General’s Office, and traditional and customary

forms of policing and justice. It is intended to complement the government’s security sector

project (SILSEP). It thus treats justice and security sector concerns as related, though distinct.

Uganda. The Uganda Justice, Law and Order Sector (JLOS) process is often cited as an

example to a SWAp in the justice and security sectors. Under JLOS, all agencies involved

support a single policy and expenditure reform program under the government’s leadership.[23]

The need for a unified policy framework arose in part due to the fact that ten institutions are

involved in the sector.[24] These include:

[22 Available at: http://www.lawandjustice.gov.pg/www/html/41-overview.asp. [23] E. Edroma, “Sector Wide Approach in Justice, Law and Order: The Uganda Experience”, presentation

at ALRAESA Annual Conference, Sept. 4, 2005, p.1. Available at:

http://www.doj.gov.za/alraesa/conferences/papers/ent_s2_edroma.pdf. [24] Id. at p.1.

58

• The Ministry of Justice and Constitutional Affairs,

• The Ministry of Internal Affairs,

• The Judiciary,

• The Uganda Police Force,

• The Uganda Prisons Service,

• The Judicial Service Commission,

• The Directorate of Public Prosecutions,

• The Uganda Law Reform Commission,

• The Ministry of Local Government (Local Council Courts),

• And the Ministry of Gender, Labour and Social Development (Probation Services).

All participating institutions are represented in a governing council, which manages the

process. The program interfaces with donors through a unified JLOS Development Partners

Group, which creates a unified group to respond to the various donor interests.[25] While CSOs

have participating extensively in developing the JLOS program and have partially benefitted

from it, there has been no comprehensive donor-CSO arrangement to harmonize strategies and

approaches.[26]

Analysis of differences

While the precise demarcation between justice and security sectors is hazy, it is clear that

they overlap to a degree. Clearly, there is much work in the rule of law context that is uniquely

related to the justice sector. It is not, however, possible to confine rule of law concerns to the

justice or security sectors. Civil and public law matters clearly fall outside of the range of both

sectors. Between the OECD DAC and the UN, it appears that the UN is construing the justice

sector aspects of security sector reform narrowly to include only matters involving criminal

conduct and misuse of force. The difficulty in distinguishing the two fields will complicate

efforts to evaluate the effectiveness of both justice and security sector development

programming.

Cross-cutting and non-sector specific rule of law perspectives

In addition to sectoral strategies, cross-cutting strategies have been defined for matters

falling within the ambit of security and justice sector strategies. These cross-cutting strategies

include human rights, gender, access to justice, and legal empowerment issues. The existence

of these diverse strategies will complicate efforts to formulate clear strategies for cross-national

comparisons.

Developing, Implementing, and Financing Rule of Law Sectoral Strategies

[25] Id. at p.3. [26] Id. at p.10.

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As the analysis above showed, the rationale for sectoral approaches to rule of law

concerns stems from the extensive linkages between the institutions involved. The Swiss

Agency for Development Cooperation characterized this situation well. In a 2008 Concept

Paper on Rule of Law, Justice Sector Reforms, and Development Cooperation, the SDC found

that

“the justice sector is not composed of isolated or formal institutions…Rather it contains a

number of interconnected formal and non-formal, state and non-state institutions and

procedures. The interdependence of these institutions means that improvements in one

institution may be undermined by inadequacies elsewhere. Rather than working on

institutions in isolation, the adoption of a systemic perspective involves understanding

the linkages between institutions, and the procedures they are working in.”[27]

The key to a systemic perspective, SDC contends, is “a systemic analysis and assessment that

identifies gaps and linkages between different parts of the system and appropriate entry

points.”[28]

Defining Sectoral Strategies

The extent to which sectoral strategies have been elaborated for the rule of law, justice,

and security sectors is unclear. Even where sectoral strategies have been used, it appears that

relatively fewer strategies meet the standard of SWAps or PBAs. While evidence is anecdotal, it

seems that sectoral strategies have been used more frequently in fields of health, education, and

agriculture than in the rule of law sector.[29] This situation is probably due to the dominance of

the Millennium Development Goals (MDGs) in many PRSPs.[30] IDLO has found that out of 52

states studied (45 with PRSPs and seven with national development strategies) in its Rule of

Law Assistance Directory, 18 had developed sectoral strategies dealing with justice, law, and

order. Of those, five fully developed SWAps were developed (five Fully fledged SWAPS have

been identified in Afghanistan, Sierra Leone, Uganda, Kenya, and in Papua New Guinea.

Another problem stems from the translation of national development strategies into

sectoral approaches. A number of studies have found that countries frequently face difficulty in

using national strategies to determine sectoral strategies.[31]

[27] Swiss Agency for Development and Cooperation, “Concept Paper on Rule of Law, Justice Sector

Reforms, and Development Cooperation” (2008), at p.12. [28] Id. [29] OECD, Aid Effectiveness Report: A Progress Report on Implementing the Paris Declaration (2008) at

p.106. [30] Secretary General, Report to ECOSOC, Trends and progress in international development cooperation,

E/2008/69, para. 79. [31] OECD, supra note 35; see also B. Wood, D. Kabell, F. Sagasti, N. Muwanga, “Synthesis Report on the

First Phase of the Evalaution of the Implementation of the Paris Declaration” (2008) at p.xi.

60

Ownership

Development policy today firmly supports the notion of national ownership of

development policy. The Paris Declaration’s call for national ownership has been affirmed by

the Doha Follow-up to the Monterrey Consensus and Accra Agenda for Action.[32] The OECD

DAC has recently affirmed that ownership is a sine qua non for development progress. Citing

the Paris Declaration, the 2008 DAC Aid Effectiveness report stated that “development will be

successful and sustained, and aid fully effective only where the partner country takes the lead in

determining the goals and priorities of its own development and sets the agenda for how it is to

be achieved.”[33] Expanding on this point, the report states that “the single most important

determinant of progress in moving forward with the commitments is vigilant and pro-active

leadership.”[34]

Experience in implementing the Paris Declaration suggests that the principle of partner

country ownership is largely being validated.[35] In eight partner countries surveyed, the OECD

found that all had strengthened their national development strategies from 2005 to 2008.[36] The

Doha Follow up to the Monterrey Consensus found evidence that developing countries are

strengthening leadership on development and engagement with parliaments, citizens and

CSOs.[37] Despite these successes, there appears to be a wide divergence between countries:

some demonstrate strong ownership while others only weak. A key problem of ownership is

that where it does exist, it is often narrowly based.[38] Moreover, ownership tends to be

concentrated at the national level in central government, with corresponding less ownership in

specific sectors.[39]

Ownership is increasingly seen not as a technical matter of defining a strategy document,

but inherently a political one. Achieving national ownership requires some degree of political

freedom and civil liberties.[40] Countries in which such liberties barely exist may be unable to

generate the kind of national ownership the Paris Declaration calls for. There appears to be a

reciprocal relation between countries’ abilities to adopt and implement development strategies

and the existence of rule of law.[41]

[32] Report of the Follow-up International Conference on Financing for Development to Review the

Implementation of the Monterrey Consensus, A/Conf. 212/7, para. 46; Accra Agenda for Action (2008)

available at: http://www.oecd.org/document/6/0,3343,en_2649_3236398_18638150_1_1_1_1,00.html. [33] OECD, supra note 2 at p.11 (emphasis added). [34] OECD, supra note 29 at p.25. [35] Id. at p. 20. [36] Id. at p. 35. [37] Supra note 32 at para.46. [38] OECD, supra note 29 at p.11. [39] Id. at p.106. [40] Id. at p.39. [41] Cf. Jurgen Habermas, The Inclusion of the Other 253 (1998)(arguing that “human rights legally enable

the citizens’ practice of self-determination”).

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The ownership question suffers from significant definitional and conceptual problems.

The notion of ownership over policy instruments as complex as national development plans is

amorphous. It is not quantifiable and cannot be ascertained using a checklist. There is also a

threshold problem. At what point can development plans be considered nationally-owned?

A further problem is the involvement of constituencies outside of government. The

involvement of civil society in the formulation and implementation of national strategies

appears uneven. Some countries seem to have done relatively well, while others have

conducted top-down exercises. In light of these shortcomings, the Accra Agenda for Action was

designed to broaden national participation in development strategies.

One priority the Accra Agenda advanced is the need to strengthen the involvement of

national parliaments and local authorities in designing, implementing, and monitoring national

development policies and plans.[42] Donors, on the other hand, are to work to increase the

capacity of wider segments of the public to participate in dialogue on development policies and

objectives. In addition, the Accra Agenda seeks to broadly improve civil society organization

involvement in processes designed to improve development effectiveness. Given the recent

adoption of the document in September 2008, it is probably too early to tell if it is having its

intended effect.

Capacity

There is general experience of a lack of domestic capacity to develop development

strategies among partner countries. The problems of lack of capacity are greatest in post-

conflict situations. In situations where state functions are weak to non-existent, the ownership

principle barely applies.[43] The priority in such situations is capacity development. In addition,

the Bonn Workshop Consensus on capacity development cited the need for donors to provide

fragile states with “tailored and co-ordinated capacity development support for core state

functions earlier and for a longer period.”[44] Until sufficient state capacity develops, it is

generally agreed that international actors must assist countries in developing strategies.

Among approaches that are being explored are using multi-stakeholder mechanisms to

substitute for state institutional capacity.[45]

Financing Development Strategies and Alignment

The DAC survey reviews “operational development strategy” of the target countries. It

reviews a composite of comprehensive national strategies, implementation plans, and linkage of

plans to budgets. By disaggregating the national strategies into these three components, the

[42] Accra Agenda for Action available at: http://www.oecd.org/dataoecd/58/16/41202012.pdf, para.13. [43] OECD, supra note 29 at p.23. [44] Id. at p.47. [45] Id. at p.38.

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survey offers a wide persepective. Overall, countries with “operational development

strategies” (i.e. strategies linked to budget formulation and execution) represent only 20% of the

55 countries surveyed by the OECD.[46] Unless there is a clear linkage between strategy and

budget, countries’ abilities to achieve their strategies will be far from assured.[47]

SWAps and PBAs are two key ways of align donor funding to partner country

priorities. Evidence suggests, however, that only 47% of all aid flows were delivered in

accordance with these arrangements.[48] While the DAC survey found that over 60% of technical

assistance met the goal of alignment and coordination, it discovered that these results were

somewhat misleading. “Interventions are often ad hoc or not sequenced,” it stated.[49] This

finding is consistent with the Secretary-General’s 2008 report to ECOSOC on “Trends and

Progress in International Development Cooperation”, which stated “an increasing number of

donors are turning to budget support” but “it is growing only slowly.”[50] The report found that

in 2006 budget and sector support represented only approximately 10 per cent of total aid.[51] In

addition, non-DAC aid sources, including Southern donors, continued to use project funding

approaches.[52] Even within the context of sectoral strategies, donors are said to seek out those

sectors which are “strongest, and/or attuned to donor priorities.”[53] In response to this

experience, the DAC has called for further work on prioritizing and communicating capacity

development objectives and ensuring that interventions are institutionalized within partner

strategies.[54]

Experience in countries such as Uganda suggests that with the creation of operational

development strategies, decision-making becomes more holistic and reflects the types of

analysis that are typical of public policy making outside of the somewhat artificial donor-driven

development context. The JLOS program in Uganda exemplifies the changed dynamics that

can occur under a SWAp. Given the competing priorities and resource constraints, “the JLOS

has prioritized activities and reconceptualized justice constraints in a holistic manner.” As a

result “the JLOS has agreed that the strategic imputs that yield cross-institutional benefits

should receive higher priority than any other.”[55] The creation of the JLOS program in Uganda,

however, did not result in increased resource allocation. JLOS competed with education and

health sectors for a share of the national budget. The move to sectoral programming in the

justice and security sectors will mean that development objectives in these areas will need to

hold their own against competing concerns in other sectors. Within the justice and security

[46] OECD, supra note 2 at p.17. [47] Id. at p.33. [48] Id. at p.15. [49] Id. at p.17. [50] United Nations, supra note 30, para 44. [51] Id. at para. 44. [52] Id. at para. 91. [53] Wood et al., supra note 31 at p.17. [54] OECD, supra note 2 at p.17. [55] Edroma, supra note 23 at p.6.

63

sectors themselves, efforts will need to be prioritized. In this context, sequencing becomes a

more critical concern.

Generally, public financial management (PFM) and procurement systems have shown

some signs of improvement, however, these improvements are by no means across the board.

Progress on PFM has outpaced other areas.

Even where these improvements are substantial, donors have not increased their use of

national systems.[56] At the same time, assistance does appear to be more geared towards

national development strategies, medium-term expenditure plans, budgets, and sectoral and

thematic strategies.[57] Yet these different strategies may not be clearly linked, internally

consistent or politically durable enough to channel aid through them.[58]

Unresolved Questions

Designing, Implementing, and Financing National Strategies

• From national to sectoral strategies. More study needs to be done on how national

development strategies are being translated into sectoral approaches. If, as evidence

suggests, only a subset of countries have sectoral strategies, what can/should be done to

encourage their adoption? Are justice sector actors facing any unique challenges

inhibiting their ability to translate national justice strategies into sectoral strategies?

• Participation and ownership of justice and security sector strategies. Specific information on

whether sectoral strategies in justice and security sectors are owned in any meaningful

degree needs further study. A danger is that these areas are viewed technocratically

with relatively less involvement from relevant stakeholders. Are the justice and security

sectors living up to the Accra Agenda?

• Quality. What is the quality of justice and security sector reform strategies? Do they

adequately address national concerns and priorities? Do we observe any cross-national

patterns? Is the lack of analytic clarity in distinguishing between justice and security

sectors undermining the effectiveness of strategies in these sectors? Are strategies

ossifying or are they being used in a flexible manner? Are governments able to adjust

development goals in light of changed circumstances?

• Scope. Are sectoral approaches for justice and security sectors excluding other important

aspects of rule of law development? Are those other aspects receiving adequate

attention?

[56] OECD, supra note 2 at p.13 (“There is no strong evidence to suggest that donors make use of country

systems where systems are of good quality.”) [57] OECD, supra note 35 at p.44. [58] Id. at p.44.

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• Top down or bottom up approaches? Are legal empowerment and access to justice concerns

receiving sufficient attention in justice and security sector strategies?

• Holistic perspectives, priorities, and tradeoffs. As SWAps and PBAs are used in the justice

and security sectors, new perspectives will emerge. The trade-offs between competing

priorities involved in implementing a SWAp as opposed to project interventions, means

that there will be a much more realistic basis upon which to judge success or failure.

Experience with the LJSP in Papua New Guinea came to see the operational

independence of different parts of the overall law and justice system. Delays in courts

were viewed in the context of contributing to an increase in the number of pretrial

detainees. Likewise, in Uganda, experience showed that addressing the issue of prison

overcrowding required attention to delays in court proceedings.[59] These types of

interdependences are crucial in making decisions on priorities. Disputes will be likely

between governmental actors as they seek to achieve their own programmatic aims.

Viewed in the context of implementing operational strategies, the choice of program

options will ultimately be about resource allocation, thus putting a premium on

prioritization and sequencing. As noted above, the dynamics of development program

implementation will change as these approaches are taken.

• Harmonization and sectoral approaches. One main goal of harmonization is to limit the

number of donors in a give country/sector so as not to complicate or overcrowd. Does

the SWAp make it more difficult to coordinate/consolidate donors? Is this

rationalization occurring? Is there lack of funding harmonization in terms of SWAp

components? I.e, are only certain components getting funded and not others?

• States’ capacity to achieve ownership. The OECD notes that ownership is linked to building

of effective and robust states.[60] Stronger states, including democratic states, are able to

achieve greater degrees of ownership over development objectives. Yet with this

analysis we are faced with a familiar causation problem. Do states achieve greater

ownership because they are more developed or do they achieve greater development

because they own their development processes? The risk is that national ownership is

self-selecting.

Use of National Systems

• Implications of PFM and procurement reform for justice and security sectors. Experience with

reform of national systems of PFM and procurement is useful in gauging the likelihood

of progress in justice, security, and rule of law. On the encouraging side, the OECD

survey does show some improvements. These results bode well for institutional reform

[59] Edroma, supra note 23. [60] OECD, supra note 2 at p.31.

65

efforts. Yet these improvements are far from across the board. Evidence suggests that

they are the result of concerted action by donors and partner countries. Moreover,

unlike the justice or security sectors, the institutional environment surrounding PFM

and procurement is less dispersed. One question is whether use of country systems has

spillover benefits to other institutional reform issues. Do countries with well developed

PFM or procurement systems have any greater ability to improve their judicial and

security sectors?

• Donor reluctance to use country systems. The implications of the non-use of partner

country systems in such areas as PFM and procurement for the justice and security

sectors are unclear. Assuming that the reluctance to use national systems is not

intentional, the question remains: after creating all of the architecture to support

national ownership and alignment, if donors still wish to dispense aid in the old ways,

will anything really change? Does this situation reflect judgments about the accuracy of

indicators used to assess the efficacy and integrity of PFM and procurement systems? If

so, what are the implications for our ability to monitor and access progress on rule of

law?

• Budgeting justice and security sector reform. The OECD has graded the quality of different

partner countries’ national development strategies in terms of operational value.[61] A

similar analysis for the justice and security sectors has not been developed. Such an

analysis would be an improvement on simply knowing whether a country has a justice

or security sector strategy, because it would be tied directly to an analysis of the efficacy

of such approach in terms of implementation and budgeting.

Monitoring and Evaluation

Monitoring and evaluation supports both overall aid effectiveness and mutual

accountability, yet it is one of the indicators farthest off-target for 2010. According to the OECD

survey, fewer than 10% of countries have sound frameworks to monitor and assess

development results.[62] The Secretary-General’s ECOSOC report highlights the apparent lack of

recipient country ability to evaluate results.[63] Where these capacities exist, they are often

onfined to finance and planning ministries. Moreover, there is a tendency for partner

governments to work with multiple evaluation frameworks at the expense of national

monitoring frameworks.[64] Nevertheless, an evaluation of the Paris Declaration suggests that

[61] OECD, supra note 2 at p.30-31 (noting that the grade for the quality of National development strategies

was mainly derived from the World Bank report “Results-based National Development: Assessments

and Strategies Ahead”). [62] OECD, supra note 2 at p.13. [63] United Nations, supra note 31 at para. 70. [64] Id. at para 41.

66

progress towards establishing result-oriented development frameworks is stronger at the sector

level.[65]

Unresolved Questions

• Are justice and security sectors lagging? Monitoring and evaluation in the justice and

security sectors may lag that of other development sectors. Is this true, and, if so, why?

• Developing national capacity. Are domestic institutions developing capacities to monitor

national justice sector reforms? What are the constraints to doing so?

• Unique challenges. What are the particular challenges to monitoring the implementation

of national justice strategies? To what extent can existing monitoring and evaluation

tools be used, and where do they fall short?

[65] OECD, supra note 29 at p.106.