For office holders’ to be held accountable

The legal system of former colonial powers has a lasting effect in many developing countries today. However, often only the elites understand legal texts written in English, French or Portuguese, and they take advantage of such knowledge to safeguard their power. To many people, therefore, laws seem to be instruments of the arbitrary discharge of office holders’ power rather than a means to hold officials accountable. Unless there is a broad understanding of all regulations officially in force, the judiciary is unlikely to bind the executive branch of government to the law – as must be the case in a democracy. Justice and the rule of law are thus important topics in development policy.

Germany’s Federal Government stresses that a constitutional state is a prerequisite for economic prosperity. After all, legal uncertainty makes investments especially risky – and therefore unlikely. Germany is offering support for reforms in this area, as was declared once again at a conference held by the Foreign Office in Berlin in January. The bilingual (German and English) brochure “Law made in Germany” provides information about the principles of German law.

In addition to the laws that are officially in force, moreover, traditional and religious norms often shape people’s everyday life. Such “unwritten” law cannot simply be superseded by formal legislation, warns Jerzy Montag, member of the Bundestag for the Greens and member of the German Foundation for International Legal Cooperation (IRZ), which is active primarily in the former Eastern Bloc.

Afghanistan is an example of a country where there is no functioning government in many regions. The people settle conflicts according to with Islamic Sharia law or through local assemblies of elders (jirgas). Tom Koenigs, former UN Special Representative for the country, says that anyone who wants to achieve anything in Afghanistan must take this legal reality into account. According to Germany’s Foreign Office, 71 % of the approximately 80,000 Afghan police officers are illiterate. As a result, the rule of law suffers because efficient investigative, judicial and penal institutions require a minimum level of education.

Moreover, according to legal experts, the constitutional state cannot coincide with any kind of legal vacuum. Therefore, Afghanistan’s warlords and the Taliban have to be integrated into the legal system somehow, even though that will require compromises, which, in turn, is likely to weaken some important formal norms. A viable approach to escaping from this dilemma might be to develop the country’s legal system bottom up, whereby the law and the actors would develop in parallel. Sam Muller, Director of the Hague Institute for the Internationalisation of Law (HIIL), stresses that the rule of law is a process and not a finished product.

Muller maintains that the starting point must always be the predominant local culture, which can be developed further through critical and constructive dialogue. Rolf Knieper, Professor at the University of Bremen, agrees. Without discussion and debate, he believes, there will also be no acceptance of new rules. Prevalent local notions of justice can only be changed by engaging in dialogue with local communities.

In this perspective, Germany cannot simply design law as a product and offer to export it developing countries. What matters most is to initiate and support processes. Experts agree that without democratic legitimacy, the constitutional state has no lasting substance.

The new task force for the promotion of the rule of law, that was set up by Germany’s Foreign Office, will certainly find the impetus of the “21st Forum on Global Issues” useful. After the human rights scandals of Abu-Ghraib and Guantanamo, industrialised nations have to work on restoring their credibility in order to present an attractive model of the rule of law and the constitutional state in future. (jw)