By Abdul Tejan-Cole
As we look towards the future, our world is in trouble.
The financial crises that continue to rock Europe and the United States are reverberating around the globe, plunging many families into poverty and despair. Aid budgets are shrinking. The gap between the “haves” and the “have-nots” is widening. The hopes that poured out on the streets with the Arab Spring were ignited by one young man’s desperation that the law – and institutions that enforced it – were not fair, accountable or accessible. But the reforms prompted by the massive upheavals in the Middle East and North Africa remain uncertain, fragile and prone to setbacks.
And yet, this narrative of global uncertainty and fear poses the possibility of a counter-narrative-- a positive, bold and imaginative vision for the future. To realize this, however, we will need to come together and unite behind a common purpose. Such a task is not easy. All these sources of on-going instability and crisis can, and do, act as hindrances to development. A stabilizing, and in fact, a positive force amid this global insecurity, however, is the rule of law – and it needs to be a central tenet of any post 2015 world.
As an international civil society organization with deep country-based roots around the globe, the Open Society Foundations works with governments to pursue a vision of the world where everyone, including the poor and marginalized, has access to fair legal structures and can have their grievances heard and addressed equitably; where legal systems operate according to clear rules and do not arbitrarily deprive people of their freedom; where those victimized by unspeakably brutal acts during conflict can have their day in court and have their violators account publicly for their actions. There are many uncertainties in our present world, but one thing holds true: that legal tools and effective, fair and functional legal institutions can help create the stability and security that are needed around the world, particularly by the poorest among us. This stability and security, in turn, gives all of us hope for the future, and allows us to develop resilience against the shocks and setbacks that the world throws at us.
When we come together at the United Nations, we use a lot of terms that can become catchphrases, if we are not careful. Development is one of those words. What do we really mean by the word “development”? We must challenge ourselves to remember, constantly, that the word development has human content and human application. Development is, and should be, all about realizing human potential and freedom. But development doesn't achieve itself. We must work to enable people to achieve their potential and freedom, and for this, we need a range of legal tools that aim to recognize and respond to these emerging “big picture” challenges while empowering people and improving their lives in a meaningful way, every day.
To give an example from my own beloved country, Sierra Leone: it is a country in which poverty is pervasive and where two thirds of the population live on less than 2 USD a day. The country’s legal profession is severely undersized, with fewer than 200 practicing lawyers mainly based in the capital Freetown serving a population of about 6 million. Legal services are unaffordable and inaccessible for the vast majority of people, especially those in rural areas. Although the overall prison population is not large, it is growing – doubling since 2004 -- and 57% of those in prison are remand prisoners awaiting trial. And of those, the vast majority are male, married, and income earning, supporting an average of four dependents at the time of arrest, mostly young children. In short, they represented the average man riding the Freetown poda poda in Sierra Leone.
We know this because, in 2011, we surveyed 128 detainees in three major prisons in Sierra Leone who were waiting for their day in court. They were overwhelmingly poor and without the cushion of extra resources to fall back on in times of trouble. With no safety net, the impact of their brush with the law was, in nearly all cases, devastating – not only for them as individuals but also for their families as well. Detainees spoke of the social stigma they and their families suffered, the serious economic consequences, including debt and the need to sell household goods to survive, and the contraction of life-threatening illnesses while in detention. On average families spent the equivalent of eight months of earnings on expenses associated with a family member’s detention.
To address this problem, we are working with a local organization, Timap for Justice, on a pilot project which has employed 10 paralegals to work at police stations, prisons and courts in three districts of Sierra Leone. It is part of a much larger community legal empowerment involving 75 paralegals – but in this pilot, the paralegals provide basic
information and assistance to suspects immediately after arrest and during their journey through the criminal justice system.
Despite the small number of paralegals, we have been able to reach and assist more than half of all people who came through the police stations in the three target districts since the project started in 2009. An independent assessment of this pilot by Oxford University conducted during 2009-2010 found that this project “produced impressive impacts on
the system as a whole.” Specifically, in those prisons where the paralegals work, the pilot resulted in a 20% decrease in the share of prisoners held in pre-trial detention. In addition, the pilot intervention has resulted in a 13% increase in detainees at police stations who are released on bail or who have the charges dropped against them entirely.” Oxford concluded that these impacts were “remarkable given the small amount of resources available to the pilot and demonstrate the crucial importance of recognition and institutionalization of paralegal services in Sierra Leone.”
This example shows what is possible for families and communities when modest resources are placed into legal empowerment efforts. Significant impact can also be seen in the Democratic Republic of Congo, where we support a
different type of legal empowerment effort -- the work of mobile gender courts, which operate to address the sexual violence that was so pervasive against women during the DRC’s horrific conflict. Women who would otherwise never see, let alone access and participate in, a justice mechanism, are now having their day in court. Alleged rapists are forced to answer for their actions, and if found guilty, are punished. To date, the court is South Kivu has heard over 300 rape cases with a conviction rate exceeding 70%. Local justice for international crimes is providing the basis for stability and justice that has been missing from the community in eastern Congo for so long.
These types of efforts make us excited about the prospects of a post 2015 agenda which incorporates justice as a core element. The beauty of this new post 2015 process, which succeeds the Millennium Development Goals, is that it represents the opportunity to address the shortcomings of the MDGs. The lack of recognition of the rule of law as a critical element for promoting development, and justice as a goal, is surely one. The rule of law are the "missing MDG" or the "9th MDG". Not only is it a goal, it is also a means to achieve all 8 MDGs. It is a founding and cross-cutting principle for the achievement of all MDGs as outlined in the Millennium Declaration.
We are eager to work with governments, the UN and the High Level Panel of Eminent Persons to develop a vision of the post 2015 agenda which is reflective of open society values, incorporating human rights, accountable governance and the rule of law. The commitment to equity, and particularly, the need to include marginalized groups, is both implicit, and must be made explicit, as a part of these values.
In the context of the post 2015 thinking, OSF would be interested in exploring a variety of options for incorporating the rule of law into the agenda – whether through analysis of what it would mean to seek a specific post 2015 goal that has the rule of law at its core, or whether the rule of law could be seen as an indicator cutting across other new
goals.
But while civil society has a crucial role to play in these deliberations towards creating a post 2015 agenda, it is really governments who have the final say. The government here with us today has demonstrated a commitment to promoting the rule of law in their own country as a means of promoting development. They have also demonstrated
leadership in international and regional contexts by for example joining with the African Union to try to address international crimes.
Leadership by countries such as Senegal will be crucial in putting the rule of law on the post 2015 agenda. Senegal can do so in a variety of ways. Showing leadership within the African Union discussions on shared values could be one avenue towards building a strong continental dialogue and set of recommendations on the linkage between the rule
of law and development, which could in turn feed into the post 2015 process. We would be interested to hear ideas from the minister about how she might view her own role in national, regional, cross-regional and international contexts.
One only need open a newspaper, listen to the radio, or step outside, to be reminded of the challenges we face in this twenty-first century world. We have a crucial opportunity, with the post-2015 development agenda process, to advance a positive vision of a world where freedom, opportunity, and stability are available to all. How we undertake this process, what commitments governments make, and how we communicate this vision, matters to those who will never set foot in the UN. In this room, we may feel, right now, that the people for whom we undertake this work are very far away from, but we must resist that distance. Those who are furthest from us right now—the poorest, the most marginalized, and the most disenfranchised in our countries—desperately need us to create the platform of stability and security that translates into freedom and opportunity. That platform is built on the rule of law. Let us work together to make it strong.
This is a Speech by Abdul Tejan-Cole – Africa Regional Director, Open Society Foundations at the Panel Discussion on “The Rule of Law and the post 2015 agenda” organized by the Republic of Senegal, the Bingham Center for the Rule of Law and Open Society Foundations on Thursday September 27th, 2012 at the UN Secretariat.
