Category: Development Management

Project management might appear sometimes as a technical job. I believed so a decade ago. As I got responsibilities for interventions in development contexts, I discovered that my approach and practices were challenged. Internal and external influences may lead to sudden changes in scope, budget, and schedule of projects. These indicated a need to develop an understanding of those contexts, and grasp skills necessary to negotiate them and to navigate through them, if I wanted to continue working in development contexts and contribute meaningfully. I thus discovered Development Management.

Rule of Law is coming back (?)

This piece was written in 2012. I did not publish it thinking it will be outdated in couple of months. Sadly, I was mistaken.

Aside from policy implications, the turn of events impacts projects’ implementation in development context. A few reflections, worth revisiting.

***

Rule of Law is coming back: how to make it sustainable (original title)

June 2012

On the eve of EU-Moldova association negotiations, the Rule of Law is back to the forefront of regional EU politics and Moldova’s reformist aspirations. After eight years of semi-autocratic governance, which culminated with an outburst of many defective governance symptoms, including law enforcement abuses (George Dura and Elena Gnedina, Moldova’s ‘wannabe democracy’ is worth rescuing, CEPS Policy, Brief No. 185, April 2009), the EU message on good governance to Moldova seems to find a fertile soil, welcomed with encouragement both internally and externally.

“Am I the only economist guilty of using the term [rule of law] without having a good fix of what it really means” asks Dany Rodrick of Harvard University. “Well, maybe the first one to confess it” (The Economist, Economics and the rule of law, Order in the Jungle Mar 13th 2008). Many political leaders and rule-makers in this part of the world ought to confess to the same. Rule of Law is not an abstract concept or a lifeless slogan in a discourse and further more it’s not only a political or legal matter.

Rule of Law is meant to be the heart-piece of any form of human organization. It’s the ultimate check against which decisions shall be made and governance measures approved. This paper is complementary to all “rule of law matters” arguments (Daniel Kaufman, Aart Kray and Massimo Mastruzzi, Governance Matters IV, the World Bank) and the debate around the link between the Rule of Law and development, with a dedicated focus on how to make it sustainable in a context of wondering democracies such as Moldova’s.

The objectives of this article are to (i) reiterate the importance of Rule of Law in an evolving country and regional context and (ii) provide rule makers with a sustainability strategy towards a Rule of Law governance system in evolution.

This article is addressed to national decision-makers, as well as sponsors and project manages of Rule of Law initiatives and programmes to help them prepare for a better, prosperous and just future of a nation’s development.
1.Why Rule of Law matters: a necessary reiteration

Recent history triggered by the Fall of the Berlin Wall and in particular Central and Eastern European countries adherence to the EU model of Rule of Law provide many inestimable paradigms and lessons learned. In the meantime, regional and local circumstances have changed, new factors interceded and unforeseen challenges creped up. These changing paradigms and trends require acknowledgement in order to prepare for the future of a Rule of Law country. This is the role of experts and advisors to those in power, the mission of whom is to make educated forecasts about the changing nature of Rule of Law paradigms, without falling into the trap of wishful thinking, presumed history’s repetition – the Berlin Wall will not fall again – and fruitless discourses on benefits of Rule of Law. One of first and most valuable lessons-learned in changing regional paradigms is the that Rule of Law is first of all a national project, the success of which will lead to benefits that come with development and, as a positive desired side-effect, may lead to a win-win result in the Eastern Partnership (Nicu Popescu, Re-setting the Eastern Partnership in Moldova, CEPS Policy Brief, No. 199/4 November 2009) and eventually to a long-term but firm EU integration agenda.

The debate around the link between Rule of Law and countries’ development is hardly new. Some argue that understanding and promoting Rule of Law is cornerstone to development (See for example World Bank, World Development Report 2006: Equity and Development,Washington, DC: World Bank, 2005. EU-Central Asia Ministerial Conference, “Rule of Law – Cornerstone of Development”, Brussels, 28 November 2008, 16513/08 (Presse 350)). Others find that “as the high correlation between government indicators and the level of economic development suggests, the weakness of the institutional infrastructure might be due to the low level of per capita income. Once the income levels of countries increase there could be also convergence of the governance indicators” (The Economics of Enlargement – Presentation of a special issue of the Rivista di Politica Economica in Economic Policy, Daniel Gros, Director CEPS, Fabrizio Coricelli, University of Siena, Adviser, DG ECFIN, European Commission, Tito Boeri, Bocconi University, Director Rodolfo De Benedetti Foundation, Date: 14 November 2000).

Either way one looks at it, Rule of Law and sustainable development go hand in hand. Economic growth, political modernisation and the ability to attract foreign investment hinges to a great extent on strengthening Rule of Law in transitional states. Rule of Law may not automatically lead to higher levels of per capita income or increased foreign direct investments or an immediate solution to the break-away region of Transnistria in Moldova, yet a sustainable and demonstrated track of Rule of Law will certainly pave the way to development benefits and desired external policies’ objectives.

As far as Rule of Law external policies pay-offs are concerned, it’s useful to remember that the approach to the Rule of Law in the context of accession of new Member States has been formulated mainly by the European Commission, through the assessment mechanisms initiated in the mid-1990s further enhanced by more than a decade of practice in applying it. The Commission also formulated the concept of Rule of Law in external relations in respect of cooperation, aid and trade, including the Eastern Dimension of the Neighborhood Policy, and jointly with the Council and its Secretariat as regards other foreign policy measures (Dr. Erik O. Wennerström from the Swedish Ministry of Foreign Affairs, The European Union and Rule of Law – applying different standards? Speech at a World Bank event, 15 October 2009). Thus, the EU external requirements on Rule of Law, in particular after 2007, became more and more challenging in terms of stability of institutions guaranteeing democracy, human rights and respect for and protection of minorities, including in the context of Neighborhood policies.

Rule of Law has been crafted and cultivated in some more civilized parts of the globe for decades and are a product of modern development. It’s beauty comes, on the one hand, from original works of modern times (Universal Declaration of Human Rights, European Convention on Human Rights, to quote but few), and a constant up-grade and evolution generated by world-wide governance development lessons learned. In some respects, its implementation does not require the reinvention of the wheel in respect of the role of law in defining an economic and social order based on contract, property and rights. Thus, today’s committed leaders can fully benefit from a body of knowledge, shall there be political will and technical capacity to take action and adapt it with innovation and courage to their own countries’ context.

Accountability, effectiveness and Rule of Law indicators present a poor performance in Moldova (Daniel Kaufman, Aart Kray and Massimo Mastruzzi, idem). A quick diagnosis of Moldova’s state of affairs in mid 2009 depicts widespread corruption, bent courts, dysfunctional public institutions, an empty public budget, a sick economy, a country estranged from its historic partners and neighbours and frozen relations with IMF (his is exemplified by a rejection of needed IMF programme claiming that a USD 500 mln preferential loan is immediately available from Russia and an increase of public spending through unaccounted commitments to raise public sector salaries, which proved nothing but a communist party’s pre-electoral move) and other development partners. Instead of advancing reforms, the previous communist government has captured power and assets, blocking any emerging attempt from civil society and opposition parties to call for justice and Rule of Law.

Eight years of governance by an autocratic party in Moldova provide numerous examples of how “rule of law” shall not be applied. The criminal justice system is just an example selected for reasons of indicators of law enforcement and citizens’ security. A recent Soros Foundation Moldova report found a worrying lack of public trust in various parts of the criminal justice system, and the deep levels of fear among people of Moldova equaled only in countries with far higher crime rates; a lack of respectful processes and procedures; an unreformed in policy and practice police; inappropriate prosecution procedures; an overburdened judiciary which also suffers legitimacy challenges; a Bar and a legal aid system which fail to deliver adequate legal assistance (Soros Foundation – Moldova, Criminal Justice Performance from a Human Rights Perspective. Assessing the Transformation of the Criminal Justice System in Moldova, Chisinau, November 2009).

Recently reinstalled commitment to Rule of Law starts to pay off and Moldova’s case demonstrates it with the following examples: approval of the first Common Declaration on 21.12.2009 at the Cooperation Council between EU and Moldova supportive of Moldova’s European reforms aspirations with commitments to Rule of Law and good governance paid due tribute to[1]; highest ever meetings levels with EU officials, including the new President of the European Council; IMF and subsequent EU financial disbursements; opening of EU association negotiations on 12 January 2010 after almost a year of stalemate; swift negotiations and entry into force of the Small Border Traffic Agreement between Moldova and Romania.
1. How to make Rule of Law sustainable

The importance of the Rule of Law is now widely accepted and commonly invoked by politicians and rule-makers. What is missing is a thorough understanding of how to build a sustainable system that embodies all its attributes, including fair laws that are effectively enforced and that bind even the state itself. The following aims at addressing the issue of how to make Rule of Law sustainable in Moldova’s current internal and external environment for the sake of development and European integration.

Strategic alignment

To be successful, Rule of Law initiatives need to be connected with country’s development agenda, if decision-makers want Rule of Law to be viewed as a critical proponent of country’s development objectives. To enable such a strategic alignment, decision-makers at local level should connect and get involved with decision makers at regional and national level to create strategic alliances. Such strategic alliances enable common strategic planning sessions, e.g. on the occasion of Medium Term Expenditure Framework (MTEF) and annual budget planning, give access to specific country’s long-range goals and provide understanding of how those goals are to be implemented at regional and local level. Local moguls resisting central power and central authority exercising pressure on local power, usual practices under the previous government, are not win-win alliances and definitely not a best case scenario for ordinary citizens.

Central policy coordination is expected to enable strategic alignment of national development agenda and MTEF with Rule of Law initiatives. Despite efforts since 2005 when the central public administration reform has been launched, such a policy coordination mechanism is yet to be fully enabled in Moldova. Negotiations with EU on a new agreement, which will encompass a wide range of internal policies, will make decision-makers revisit the importance of policy coordination and hopefully strengthen it and make it operational.

The identification of Centers of Excellence for Rule of Law based policy coordination and implementation will help promote best practices and encourage rule of law behavior in public administration.

Rule of Law is a complex export-import item

Democracies-to-be are in a way naturally looking for models. The need to be anchored in a sustainable democracy model is ever more acute in countries which used to vacillate between Western and Eastern governance models. New states in the quest for Rule of Law, either return to legal pre-soviet traditions, if they have it, or import foreign legal and economic concepts or follow a “gravity model of democratisation”.[2] EU member states share a commitment to common values, such as democracy, respect for human rights, Rule of Law. The power of attraction of the EU value system has been so strong as to profoundly transform the societies of Central and Eastern Europe.[3] In spite of its own internal “democracy deficit” or some of its external policies plight, which is a subject-matter of other research papers, EU continues to have the merit of a Rule of Law power of attraction.

Rule of Law is now being viewed more and more as a key policy goal amongst international development actors. Donors’ contributions take the form of donors’ funds, budget support, EC and/or Members States individual programmes and projects. Examples are many: a World Bank managed Public Administration Reform Trust fund in Moldova (2006-2010); EC Capacity-Building for Reform in Periods of Transition’ programme in over 20 states; EC or World Bank budget support programmes in particular on economic governance.

International development agencies have tended to frame the Rule of Law issues as predominantly technical concerns. Accordingly, the policy response has therefore favored the input of technical solutions (e.g. expert missions, the sharing of best practices, training programs) but the outcomes often fail to meet expectations. Western legal systems are held up as models to aspire to, but little historical interrogation is undertaken of how these systems developed and the underlying bargains they represent[4]. Hence the increased responsibility of Rule of Law exporters and the need for a balanced and tailor – made approach of importers. On the former, donors’ self-assessments of their development programmes[5] or internal performance assessments[6] to inform discussions with the government and development partners are becoming a more and more common practice. A fresh look from civil society, for example, can further increase the understanding of need for customer-made development programmes.[7]

For the sake of quality of development aid supply the essence and to a lesser extent the form of intervention are valued by end-beneficiaries. Small by duration but with high and immediate impact as well as content-rich projects are better appreciated by both the donors’ states tax payers and development destinations.

Increased accountability

Leaders must understand the internal and external dynamics of their countries, but also the regional and global environment. A rule maker shall be prepared to serve beyond his decision making powers to embrace the role of a Rule of Law provider, facilitator and serve as an example of accountability through checks and balances. An increased and proven accountability will also prevent the disheartening effect on Rule of Law reforms.

After almost a decade of drawbacks and compromised reforms, Moldovan authorities elected in July put more and more emphasis on Rule of Law. Every second official speech and interview by Government officials is now highlightening it. While bringing it verbally back in public speech is important for communication purposes, the Rule of Law discourse needs to be translated in visible deeds and deliverables.

The current Moldovan Executive is giving encouraging signs of reinstalling, or better put it, installing Rule of Law. Joined and supported by an effective and performing justice and a balanced and accountable law-making, it has increasing chances to succeed. The prosecution is now submitting to courts the outcomes of investigations of April 2009 events accompanied by police abuses and alleged cases of torture in detention. 6 court cases initiated out of 43 pending cases under investigation[8] is a beginning, which needs to evolve according to merits of cases and bring justice to victims through due court procedures.

Hundreds of secret documents on questionable distribution of public funds and public procurement unjustifiably approved by the previous government are now made public. Again, applying Rule of Law checks in these cases would mean handing over the investigation to law enforcement bodies, strict application of criminal and civil law procedures and due court procedures with final court verdicts. All the above is paramount to securing the legitimacy and credibility of declared Rule of Law initiatives.

Last but not least, carefully and comprehensively crafted checks and balances of high European value are expected to be at the centre of a constitutional reform recently initiated by the chairman of the Moldovan Parliament[9], if or when one shall indeed take place, after carefully balanced legal and political considerations.

Rule of Law is a cross-cutting theme

Rule of Law is not an abstract legal or political concept. Rule of Law is meant to be the heart-piece of any form of human organization and interventions be it environment protection, social security, trade, economic governance, justice sector, private and financial sectors. It’s the ultimate check against which decisions shall be made and governance measures approved in all development areas.

Rule of Law issues should be looked at across all aspects of development. Ideally, Rule of Law is best designed and implemented not as stand-alone program or concept, but together with the whole range of development projects and reform processes undertaken by the Government and supported by development partners in every single area of society development.

Gradual versus overnight reforms*

Rule of Law in Moldova finds itself in the fragile condition of a fragile state. Careful planning, followed by thorough execution and monitoring both during and ex-post implementation will help prevent fallbacks risks and the “here we go again” syndrome.

Recent examples include justice sector reforms initiated and promoted by the Ministry of Justice. The first one is the proposal to the Parliament to dissolve commercial courts through the transfer of commercial jurisdiction to common courts as the only viable currently available solution to dismantling the nest of perceived flourishing corruption and court bad practices, which resulted in a poor track record at the European Court of Human Rights (ECHR) in Strasbourg and additional expenditures to the meager State Budget. Leaving aside the objective, the rightfulness of which is not contested, the following implementation questions remain open: procedural guarantees for parties on pending and new commercial cases, preparedness of common courts to swiftly take over new complex cases, the status of commercial court judges and their appointment to common courts.

The second example is the replacement of public bailiffs with a private bailiffs institution in view of limiting and preventing the effects of “justice delayed – justice denied”, which dominated the Moldovan justice system for the past decade giving to the ECHR in Strasbourg solid reasons for condemning the Government in a series of landmark costly cases.

Both examples of reforms will work provided a thorough implementation plan is designed, gradually implemented and constantly monitored and evaluated to ensure that the declared objective of reforms, i.e. “a better served private sector”, is achieved and the end-beneficiary understands and is satisfied with their outcome. Moving from public to private enforcement systems, if chosen to be implemented as an overnight reform, which so far is how it looks like, may have numerous undesirable consequences. The experience of countries which have chosen to implement a private enforcement system, as an anticipated panacea to a defaulted public system, shows that the objective may be delayed or is unachievable due to high entry barriers, subsequent monopolies and as a result – secured income and low incentives to act[10] leading to even lengthier enforcement procedures.

A gradual and iterative approach to internal reforms helps also in the context of European Integration and regional dynamics that need to be born in mind by the Government. Because “it takes two to tango” the EU’s message to Moldova is crystal clear on how important are long-terms perspectives accompanied by gradual steps and steady and agreed progress, for example in relation to a long term goal of visa-free travel of Moldovan citizens to the EU and a “shared objective to establish a Deep and Comprehensive Free Trade Area”.

Rule of Law is everybody’s business

One of classic definitions of Rule of Law is “Government based on the general acceptance of the law”[11]. Ideally. Bottom-up and top-down, all layers of the civil society, local and central government, academia and education establishments, think-tanks, the judiciary, the private sector are all stakeholders of the Rule of Law fair-play, equally bound to serve it and entitled to benefit from it. Hence concepts and actions of “community empowerment”, “citizens’ participation” and the like emerge. When a mayor of a town is “playing” with budget numbers, going around procurement rules, citizens should initiate and exercise public scrutiny over the local budget spending. An example of how it can actually work has been given by a group of citizens in a 18,000 population-town of Moldova who organized themselves to demand accountability from an un-transparent, un-open and unaccountable local administration and took it to court for irresponsiveness to citizens initiatives (trial pending)[12]. Isn’t it an inspiring example of “Yes, we can”?

The role of local-level institutions in development is more and more acknowledged worldwide and there are no reasons why Moldova would be an exception. Opportunities for community driven development arise after the former centrally-controlled system is being dismantled.[13] A considerable investment into building a trust-worthy and pragmatic relationship between the central and local power will be necessary.

There is much talk around the importance of the judiciary for Rule of Law, none of which is minor. The Moldovan judiciary received a “failed” mark from the Moldovan Parliament.[14] Yet, the emphasis placed on the paramount role of the judiciary needs to be weighted against and seen as an integral part of the performance and legitimacy of all other Rule of Law stakeholders: the Executive, prosecution and police, legal services market and private sector.

The role of Rule of Law professionals

Leaders are usually politicians, who often tend to forget or ignore the background they come from: legal, academic, business or, on the contrary, take a unilateral or biased view on Rule of Law promotion and implementation that can present even more dangers to development.

A Rule of Law initiative is better served if enhanced by technocrats. Sending a group of high-level external policy advisors on reforms, with a special emphasis on Rule of Law, is an approach tabled by EC[15]. The key to success of such an endeavor is to secure at least the following conditions: (a) an open and transparent policy environment is in place; (b) Rule of Law efforts are supported and applied by a civil service committed to performance and reforms; (c) external advisors work jointly with, not as substitutes to, civil servants. An often quoted successful example is the EU Border Assistance Mission to Moldova and Ukraine (EUBAM) with more than one hundred customs and border guard experts from 22 EU Member States working together on a daily basis with Moldovan and Ukrainian borders agencies’ employees to provide an wealth of best and smart practices.

The objective of Rule of Law advisors would be to prepare, train on and apply Rule of Law checklists in each area they work on. Each checklist will aim at providing multiple constituencies, decision and law-makers, civil society, researchers and donors with many of the key indicators needed to assess, report and monitor the progress of Rule of Law initiatives, to develop road maps, action plans and recommendations and communication strategies for consensus building around priority reforms, based on international norms, lessons learned and emerging best practices per area.

Unequivocal clarity on the end-beneficiary of Rule of Law

Rule and decision-makers may use mixed methods in an attempt to more closely discern and understand processes of change, and starting from the perspective of governance users will bring better support to Rule of Law initiatives. Moldovan citizens are not yet sufficiently informed and legally empowered to demand change and foster development. In such a context, it’s the ultimate responsibility of authorities to apply accountability, transparency and create forums for ascertaining rights.

Rule of Law initiatives need to be primarily undertaken for the benefit of the citizen, accompanied by legible, well designed and targeted communication strategies. One of examples on how this could be applied relates to the entry into force of the Small Border Traffic Convention with Romania where the distribution of information leaflets and posters in all Moldovan bordering regions concerned, designed by the Ministry of Foreign Affairs and European Integration and implemented with local authorities and border management agencies will help citizens to ascertain their legitimate rights and responsibilities.

A Rule of Law centered on  people will also discipline the Government. A private sector perspective on a customer-centered strategy will help the Government design and implement its approach vis-a-vis the end-beneficiary of Rule of Law initiatives. Such an approach would include the following steps: (a) establish and communicate the view on the end-beneficiary – Government relationship for the present and future development; (b) establish a system to, preferably, quantitatively monitor end-beneficiary satisfaction through e.g. surveys; (c) solicit ideas for improvement from the civil society and citizens and provide a follow-up on the above; (d) communicate continuously on all levels of the public administration on the relationship with the end-beneficiary of reforms, as a sort of “mantra in the public administration DNA”[16]; (e) make progress on reforms visible to the end-beneficiary through regular communication; (f) reward exceptional end-beneficiary treatment and set the example through e.g. Centers of Excellence for citizens in the public administration and public services institutions.

Rule of Law is incompatible with state capture

State capture is defined as the efforts of firms to shape the laws, policies, and regulations of the state to their own advantage by providing illicit private gains to public officials. [17] Recent investigations reveal a number of wrongdoings and private sector attempts to go legit, which functioned for the last eight years in Moldova in conjunction with the public sector. Examples come from numerous monopolies (meat and fish imports e.g.), limited competition, non-transparent public procurement (renovation works of Parliament and Presidency buildings damaged during April 2009 events). One of recent examples is a group of well organized customs officials who have been prodigiously involved in smuggling goods and laundering money on behalf of a number of import companies, causing approximately USD 2 million damage to the State Budget.[18] Although seemingly incomparable with Russian oligarchs, Moldovan “big sharks”, as baptized by the press, attempt to close “under the counter” deals with the new Government, according to a recent interview by the Moldovan Prime Minister who pledged to go public and follow the law on every single illegal case happening in the business environment involving state authorities.[19] Stakes are high, therefore expectations need to be met with as little as possible room for public disappointment.

Transparency of public procurement is evermore important in anticipation of important investment for example in road infrastructure to be financed by the U.S. Millenium Challenge Corporation[20] and an increased direct budget support provided by the World Bank and EU.

Cost of Rule of Law

Rule of Law initiatives are resource-intensive and as such need to be acknowledged. It’s worth perhaps looking at the other side of the coin: the cost of non-rule of law, for example in human capital terms. Every third Moldovan is contemplating the idea of leaving Moldova, in addition to hundreds of thousands already abroad, according to a recent Gallup survey[21].

Investments into court infrastructure, judges and law enforcement trainings, public sector salaries etc are to be made from public funds. Proving its commitment to Rule of Law with deeds, the Parliament maintained the same amount allocated to the judiciary for 2010 as in 2009, in spite of scarce public finances. The culture of both citizens and Government consciousness of costs of Rule of Law has to be continuously promoted and the notion of “return on Rule of Law investment” to be introduced in the public administration. External financial support packages, recently released after successful IMF negotiations, will help secure enough cash to finance the cost of Rule of Law complementary to internal resources.

The regulatory impact assessment, as a tool to assess information-based analytical approach to assess probable costs, consequences, and side effects of planned policy initiatives, is an important aid to political decision-making. Although successfully initiated in Moldova couple of years ago, it has been abandoned and/or only formally applied. Clearer guidelines, trained staff and demonstrated benefits of systematically applied practices will help bring regulatory impact assessments back and increase their value, in particular in the context of scarce public financial resources.

Conclusions

It’s true that not much empirical work has been done to verify the various claims made on Rule of Law behalf, because of inter alia the difficulty to measure it. Yet, the above needs not to discourage the pursuit of Rule of Law, especially in a country aspiring to democratic standards. Actually, an increased governmental, judicial, law enforcement, public policies transparency and recordkeeping will help gather data and measure Rule of Law progress and its impact. Surveys of the business community done locally or internationally (e.g. IFC annual Doing Business surveys) combined with data produced e.g. by integrated court case management system introduced in all courts in 2009 in Moldova have a great potential to finding growth and advancement of the European integration agenda positively correlated with the Rule of Law.

Moldova and its people cannot afford another democracy failure, an ultimate reason for Rule of Law to become a national project. Its implementation is a necessary time-consuming process that requires commitment beyond the time frames typically provided for by the electoral cycle or development projects timelines. Its success does not settle for outside advisors to provide their knowledge of “best practices” only via intensive short courses for senior civil servants, government officials and jurists. These will have much durable effect and credibility if also grounded in a committed and accountable national civil service. A community driven demand and an empowered citizen will set the stage for an increased Government accountability and effective public service supply.

The Parliament finally succeeded to elect the country’s president and no major political constraints are on the way. That’s being an important achievement, all Rule of Law projects need to be steadily and stubbornly continued for the sake of growth and successful European integration.

* to be read in the context of 2012.

[1] Full text Council of the European Union, EU – Republic of Moldova Cooperation Council

Brussels, 21 December 2009, Brussels, 17732/09 http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/er/112025.pdf .

[2] Michael Emerson and Gergana Noutcheva, Europeanisation as a Gravity Model of Democratisation, CEPS Working Documents, 1 November 2004.

[3] What values for Europe, CEPS Annual Conference, 2005, on http://www.ceps.eu/content/what-values-europe-ceps-annual-conference-2005.

[4] Caroline Sage, Nicholas Menzies, Michael Woolcock, The World Bank, Taking the Rules of the Game Seriously: Mainstreaming Justice in Development, The World Bank’s Justice for the Poor Program, Justice and Development Working papers series, 7/2009.

[5] An example: The World Bank, Moldova: Results and the World Bank, December 2006.

[6] European Court of Audit, The effectiveness of EU support in the area of freedom, security and justice for Belarus, Moldova and Ukraine, January 2009, http://eca.europa.eu/portal/pls/portal/docs/1/2016214.PDF.

[7] An example, ADEPT, Governance Priorities 2009, http://www.e-democracy.md/en/publications/prioritati-guvernare-2009 .

[8] According to General Prosecution Office, http://www.procuratura.md.

[9] Decree nr. 83-V, 1 December 2009.

[10] The World Bank, Poland Country Brief 2010, http://www.worldbank.bank/Poland.

[11] L.B. Curzon, Dictionary of Law, Pearson Education Limited, 2002.

[12] More info on http://civicauseni.com/.

[13] A redundant Ministry of Local Public Administration has been dismissed, a new procedure for appointment of Government representatives in territories with different powers is being put in place.

[14] Moldovan Parliament decision on state of affairs in the Judiciary, 30.10.2009.

[15] “European Commission provides High Level Policy Advisors to Republic of Moldova

…, at the EU – Republic of Moldova Cooperation Council, representatives of both parties signed a Memorandum of Understanding concerning an intention of the European Commission to provide the Government of the Republic of Moldovan with a High Level Policy Advisory Mission”. More on.

http://europa.eu/rapid/pressReleasesAction.do?reference=MEX/09/1221&format=HTML&aged=0&language=EN&guiLanguage=en

[16] Phrase coined by Michael E. Gordon, PhD, How to Turn Your Idea into a Money Machine, Trump University, John Wiley and Sons, Inc, 2007.

[17] The World Bank, Joel Hellman and Daniel Kaufmann, Confronting the Challenge of State Capture in Transition Economies, http://info.worldbank.org/etools/docs/library .

[18] At the end of December, the Prosecution initiated the case in courts.

[19] Interview with Moldovan Prime Minister Vlad Filat on National Television, 26.12.2009, quoted on http://www.jurnal.md/ro/news/vlad-filat-mediul-de-afaceri-mai-este-incoltit-de-marii-rechini-102030/ .

[20] A USD 130 million agreement is to be signed in Washington by the end of January 2010.

[21] 700 Million Worldwide Desire to Migrate Permanently, by Neli Esipova and Julie Ray, November 2, 2009, http://www.gallup.com/poll/124028/700-Million-Worldwide-Desire-Migrate-Permanently.aspx .

Thought of the week

Work will expand to fill the time available for its completion, Parkinson’s Law.

Gender mainstreaming: a ladder

I was in gender mainstreaming training some time ago. Two hours into the learning, a participant exclaimed: “but we deal not only with women in our projects!”. You can picture the facepalm of the trainer.Quite often I also hear what a hurdle it is to ‘mainstream gender” and other cross-cutting issues into development work. There are a number of simple approaches to befriend what became a standard requirement in projects.Use a “ladder” for instance.Step 1. Find out if gender matters. A gender impact assessment (GIA) will bring the answer. GIA will identify answers to:

  • is the project objective linked with gender inequality patters? The most common patterns relate to differences in the: access to decision-making, representation; access to resources; social/legal/financial status and entitlements.
  • will reaching the project objective affect women and men in a different way/women and men of different age groups in a different way?
  • will the above cause inequality? if yes, take Step 2.

Step 2. Get data. I know, “Lies, damned lies, and statistics”. And it is not about numbers. It is about the way they influence things and decision-makers.  “Figures often beguile me” wrote Mark Twain. Yes, numbers can charm or deceive. Triangulation can help break the charm sometimes.

Step. 3. Prevent/solve inequalities at the levels they manifest themselves. It can be project organisation matters (for example, the membership of Steering Committees) or policy matters influenced by the project (for example, through expert opinions on a draft law).Across all three steps, check you assumptions. Is what we know true/valid? Is this what both genders want/aspire to…? I came across “Testosterone Rex” by Cordelia Fine. See if this review “Goodbye, beliefs in sex differences disguised as evolutionary facts. Welcome the dragon slayer: Cordelia Fine wittily but meticulously lays bare the irrational arguments that we use to justify gender politics.”—Uta Frith, emeritus professor of cognitive development, University College London” will serve as in invitation to read it. Or, this article “A Feminist Biologist Discusses Gender Differences In The Animal Kingdom” by Suzanne Sadedin, Evolutionary Biologist on https://www.forbes.com/sites/quora/2017/04/13/a-feminist-biologist-discusses-gender-differences-in-the-animal-kingdom/

Each project/development work is different and many gender complexities will arise. And it is rare to reach the 100% gender mainstreamed target. It is still possible to bring a meaningful change/two and by starting small.

Sometimes, it is about giving the floor or creating a forum for all voices to be heard equally. It reminds me of an organisation 50% made of women who had less then 10% representation in decision-making bodies. Supporting an inclusive strategic planning exercise for both the organisation and the women association helped put a first stone into the road towards a more equitable representation and inclusive decision-making.

Life behind bars: look beyond

I visited once a prison. I keep it in my collection of stories as a reminder of cognitive biases when I prepare projects. And how easy it is to fall into the traps of conventions and assumptions.

***

It was in a former soviet country. It’s a travel in time. Once the gate closes behind you, the air, the walls, the smell, people looks all say “welcome to urss”. Not a very welcome “welcome” though.

It was a planned trip. The administration knew we are coming. White table cloths on meeting tables betrayed it. You cannot come in an unannounced visit to a prison, unless gifted with invisibility skills. What I could not have planned were my feelings and sensations. It does not help being a lawyer trained in human rights in this case.

After a dull meeting with silent and very tense staff, a guided tour was offered by the administration. After the first wall, the family reunion hall opened its door in front of us. A hall with seven doors: a kitchen, five  bedrooms with king size beds, and a bathroom. It’s the dream land for any inmates. For good behavior they get up to five days of family time per year with one of their loved ones. In the kitchen we found a beautiful, big eyed young women. She was cooking a meal for her husband who was sentenced to 20 years in prison. I saw sadness and commitment and no trace of resentment in her eyes. Will she be coming every year for the next 18 years to cook meals for her husband? They retrieved to “their” room. Tears filled my eyes.IMG_0778

After the security zone, en-laced in barbed wire, where a cat seemed chez-soi, we were taken into the heart of the prison. The prison has three blocks. The first one we were taken to was presented as exemplary: clean and all beds were made. It was remarkable as it was a large room, 70 by 100 feet, beds one by one, with tiny passages between the endless rows. I asked whether it looks so orderly because they knew that we were coming. No, assured me the head of prison, it’s a norm now,  after quite „a lot of invested effort and time into discipline”, whatever that means. It was the mine workers block, who get paid for their work and also get their term cut: a day for three days worked in a nearby mine. The room was filled with testosterone. Me and my other female colleague were safe, behind our colleagues from headquarters and their wide shoulders. In parallel, what I found striking was how relaxed were inmates compared to prison staff. After all,  they got it right, it was not them who were inspected!

What followed were a cascade of feelings. An overwhelming feeling of saturation, when I entered the canteen, the feeling of gratitude for my health, when I stepped on the white floor of the medical care unit, the feeling of dignity when the head of administration persuaded us against visiting the remote inmates block, the feeling of bounder-less creativity when I entered the church the walls in which were being painted by an inmate, the feeling of family connection when I looked in the eyes of a 70 old inmate who stabbed his wife, the feeling of enough when have seen two women surrounded by packages of food to fit into a wagon waiting for clearance to enter the prison and feed their dear ones, the awareness of the gift of freedom on the tiny, dark corridors of the solitary confinement ….

We were then taken to a workshop where some inmate were filling their days with wood crafts. Good behavior was a ticket to the wood workshop. I noticed the sharp objects they were using and asked whether there are any incidents/accidents involved. No, assured me again the head of prison. I’ve seen sad portraits, icons and toys cut into wood. I asked an old inmate what is he crafting. “A toy for my daughter” he said. It was a beautiful wooden horse. He was dreaming of freedom…

In this country now the head of prisons is a women. I would like to believe that she sees and feels beyond a wooden horse. And that so do we, those who craft interventions to help.

Keep the passion by Gloria M. Grandolini| Voices – re-post

These are reflections from a long career of a development professional about the importance of passion, the inherent nature of bureaucracies in big international organisations and innovation through learning.

http://blogs.worldbank.org/voices/keep-passion

I wish there were stories behind the big and impressive numbers. And the insights into how she kept the passion and her commitment to innovate alive. Perhaps in a new post… Still those who would like to embrace a career in development management might find the article and advice useful.

 

Project assumptions:  national and international regulation of commercial activity – from will to done deal

Idealists among project managers are not a rare species. We want to fix it all, in one go, in a year and within a budget. We pencil in our partners support, commitment and will to respect human rights as firm assumptions. And we proceed, sometimes with a big noisy launching event. I, for one, am guilty on all above accounts.

It’s no news that projects operate in more and more complex environments. When events like the Bhopal industrial accident hit the global news, we start wondering about that complexity, and where on Earth are the traces of the good governance, corporate responsibility and rule of law. Then the question of where are our firm assumptions now crawls in. There are many views on events and project assumptions such as the above. Here are the two cents of mine:147470096

The degree of effectiveness of legal regulation of commercial activity is at the mercy of individual states. Given that the role of international law is still limited in this regard, those in countries with poor governance substantially remain disadvantaged in a global market.

The objectives at a project design phase would be to explore the development of the legal regulation of commercial activity on a national basis and consider the limitations of this for multinationals operating in a global market. The effectiveness of domestic legal regulation in this area needs to be considered, along with limitations of any international approach to the issue. The industrial accident in Bhopal and the extractive industry in Nigeria could be considered among relevant case studies.

Projects designed for Commercial activity have repercussions on fundamental human rights, including the ‘right to life’. More people are killed worldwide by industrial accidents and diseases each year (2.2 million) than are killed in wars (Slapper, 2011). With the progress of globalization the effectiveness of individual jurisdictional safeguards against crime, projects designs need to embed the understanding that financial malpractice and health and safety dangers become severely attenuated, because risk can be simply shifted to the jurisdiction of least resistance (idem). As a consequence, hazardous enterprises move into developing parts of the world, with daunting consequences. This was the case of the defective chemical plant in Bhopal.

The Bhopal case study is illustrative on a number of accounts, showing an interplay between projects and public policies.  It shows that such projects can have a far-reaching and detrimental impact on people and on the environment. It provides insights into Government and corporate behaviors, important for stakeholders analysis. The company in question was able to distance itself from the operations of its subsidiary in India. This was also possible due to a certain reluctance of and procrastination on behalf of the government to enforce laws against it in order to protect their citizens. The fear of discouraging inward investment on the part of multinationals was seemingly among factors explaining the government attitude.

The picture becomes even more complex due to a combination of legal, jurisdictional, political, diplomatic and commercial reasons for which the governments and courts of developed nations rarely hold multinationals based in their countries to account for their foreign misdeeds. The arrest of management with their subsequent release, officials’ press statements condemning the management were soft responses to a tragedy of such a scale. Overall, the success in holding those responsible legally accountable has been limited and adequate financial compensation for the victims has not been achieved in Bhopal case.

In such situations, the question whether the international community can provide more effective protection for the vulnerable through the implementation and enforcement of human rights obligations arises. Governments do adhere to international instruments and international organisations. The government of India was no exception in this case. The Indian government had acceded to the United Nation’s International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1979 and so at the time of Bhopal the Indian authorities were in theory bound to ensure the implementation of the rights contained in these covenants. These rights include the right to life (Article 6 ICCPR), the right to enjoyment of the highest attainable standard of physical and mental health (Article 12 ICESCR) and the right to an effective remedy (Article 2 ICCPR). India committed to minimum standards for health and safety by being a founding member of the International Labour Organisation (ILO) since 1922. These are all nicely articulated aspirations. The reality is that as it is ultimately the responsibility of each state to incorporate international human rights obligations into national law, and this can be a challenge for the governments of most nations. Political and economic considerations may drive courts and governments into exercising a fair degree of latitude in the implementation and enforcement of these rights, impacting the effectiveness of protection for future generations from the risks of another Bhopal.

The extractive industry is another area to dwell on the effectiveness of regulation of commercial activity. Leading economies rely on oil and gas and this renders oil and gas companies very powerful, leading to an asymmetric relationship between developing countries and these companies. In Nigeria, e.g., this asymmetry is further exacerbated by “administrative neglect, crumbling social infrastructure, high unemployment, social deprivation, abject poverty, endemic conflict (Amnesty International, 2009). Local communities have a double disadvantage: the tremendous wealth generated from oil is not benefiting them and they suffer from the resulting pollution caused by oil spills, dumping of waste and gas flaring. This kind of commercial activity impacts people’s ability to enjoy their livelihoods, as fishing and farming is affected, the soil is contaminated and thus many dimensions of human rights e.g. to health, to food, to water, to a healthy environment, to work get abused (Amao, 2011).

Community complaints were directed not only at the activities of corporations, but also at the government for not effectively protecting their interests as stakeholders and not controlling the multinational corporations in question (idem). The Government in his case was openly siding with the foreign oil companies (deploying military forces to protect their infrastructure and personnel e.g. in return for arms supplied for government security forces). Amnesty International in its 2009 report places the responsibility for the human, environmental and economic damage on the Nigerian government for failure to regulate the oil industry effectively despite the many statuts that potentially give the government the legal muscle to do so. The fact that the government is a partner of oil companies and benefits from their activities leaves people and communities without effective access to redress. Even the legal recourse to protest through the ballot box is more theoretical than real given that patronage, political clientelism and populism are underpinning the system in Nigeria (Oxfam, 2009). The government there needs to first meet basic governance prerequisites to be able to effectively protect its citizens. Greater transparency, operating systems and public institutions to monitor and ensure accountability, a free media are needed for a start. In such circumstances, corporations commitments to “comply with applicable laws and regulations … and… give proper regard to health, safety, security and the environment’ (Shell 2006:6) leave the door open to selectivity and allow them to escape oversight (Amao, 2011).

Nigeria signed the African Charter on Human and People’s Rights and International Covenant on Economic, Social and Cultural Rights. It still does not lead to an automatic and effective enforcement of human rights, as in India’s case above.

States have the duty to protect human rights. It may be ideal, but still aspirational to conclude that government failure to enforce laws or to implement international human rights obligations does not diminish the expectation that corporations honor human rights. And these assumptions need to be subjected to close scrutiny in any related project.

My thanks to Rianne C. ten Veen for the inspiration in the WB822 course at The Open University.