Beyond “It’s What We Do”: Legal Empowerment, Civil Society and Combating Corruption

“It’s What We Do”

Soon after I first arrived in the Philippines in 1987, as Assistant Representative for The Asia Foundation, I asked my supervisor why the Foundation was concentrating so much on top-down judicial administration programs. After all, the country’s 1986 People Power revolution had opened up opportunities for reform-minded civil society groups to flourish, and those groups needed funding. Furthermore, the focus seemed problematic in view of the judiciary’s being plagued by corruption, patronage and excessive personalism.

Her answer to my question about the top-down focus: “It’s what we do.”

My KPSRL-supported paper, “Legal Empowerment, Civil Society and Corruption: Rethinking Governance-oriented Aid in Today’s Challenging International Contexts,” is partly a product of my conviction that the international development field needs to move beyond “It’s what we do.” The paper contends that the field must challenge this path dependence. The proposed shift accordingly points toward supporting civil society, particularly legal empowerment – that is, helping people to know, use and reform the law – in fighting corruption and pursuing other governance goals.

Legal Empowerment Can Constrain Corruption:

A substantial part of my KPSRL-supported research focused on ways in which legal empowerment constrains corruption. For example:

• Prisoners’ rights in Africa. Noting how the poor in particular suffer from legal systems that are corrupt, ineffective or unreachable, Carmona and Donald (2015) describe how many thousands of eligible and suitable prisoners have been released thanks to the efforts of solicitors in Nigeria and paralegals in Sierra Leone. They report similar impact in Uganda and Kenya.
• Health care paralegals in Guatemala. Joshi (2017) discusses the work of the Centro de Estudios para la Equidad y Gobernanza en los Sistemas de Salud (CEGSS) in Guatemala. The NGO deploys a network of “community health defenders” (de facto paralegals) to work with indigenous communities to improve inadequate and corruption-prone health care services.
• Maternal health in India. A study (Schaaf 2018) of a program addressing maternal health in the Indian state of Uttar Pradesh determined that educating women about their relevant rights, including how to lodge a complaint, reduced graft on the part of health services personnel. The program reduced the incidence of women being illegally charged for what should have been free services.
• Pastoralist land use rights in Cameroon. Azuhnwi et al. (2017) document how paralegals in parts of Cameroon have helped pastoralists successfully assert their land use rights in the face of corrupt authorities and otherwise unjust systems. In addition, pastoralists there have combined litigation with protests in order to combat land-grabbing.
• Empowering citizens for accountability in Africa. Feruglio (2017) demonstrates how legal empowerment approaches help increase accountability for NGOs’ partner populations comprising farm workers, sex workers, the urban poor and other marginalized populations..
• Law reform in Tunisia. Yerkes and Muasher (2017) describe the how civil society mobilization helped bring about crucial anti-corruption reforms to a highly controversial draft Law on Administrative Reconciliation.  

The Problematic Government-focused Governance Paradigm

I also explored problems with the approach, pursued by many aid agencies, that prioritizes support for central government institutions in seeking to improve governance and combat corruption. For more than 35 years, since democratizing trends first started to sweep across much of the globe, bilateral and multilateral aid agencies have arguably poured hundreds of billions of dollars into bolstering governance and its associated fields of democratization, accountability and the rule of law. My experience as a consultant for many such agencies and a review of relevant literature indicates that the bulk of the funding has fallen on the governmental side of the ledger.

That government-focused funding has proven highly problematic on the whole, with exceptions for certain countries and institutions. But it is apparent that in many nations, including those at one point considered stable democracies, it is repression, corruption and authoritarianism that are on the march, not accountability and integrity. Thus, the World Bank’s aggregate World Governance Indicators for 1996 through 2018 reflect overall deterioration for most of its six governance categories throughout the globe’s seven regions, as well as for Low Income Countries. The negative trends include Control of Corruption, the category most pertinent here. The World Justice Project (2020) and Freedom House (2020) have reached similar conclusions.

Reflections of a Development Consultant

In addition to springing from the aforementioned research, my conclusions draw on my 35 years of engagement with legal empowerment, civil society, governance, the rule of law, human rights, anti-corruption work and related fields. A few resulting reflections and perspectives, then:

Development hubris. Whether due to internal dynamics or external political pressure, many development agencies tend to overestimate what they can control and contribute to. They similarly though perhaps unintentionally operate on the assumption that reforms devised and promoted from outside the society are better than those that spring from its own reformers. I have been party to too many discussions and reviewed too many documents that assume that a development agency or program can steer a nation’s progress in key regards. Such a perspective pushes many to favor working with governments, on the assumption that doing so is essential to large-scale progress.

The problem, as evinced by the stagnant or negative governance trends discussed here, is that governance of a given country hinges far more on its internal economic, political, social, cultural and historical dynamics than it does on even the most ambitious development interventions. More modest expectations for anti-corruption or other governance programs, framed in terms of benefiting specific populations or policies, would stand the development field in far better stead. Civil society usually offers more fertile ground for such assistance.

Logical frameworks and “indicator madness.” One widely used and counterproductive tool is the logical/results framework and its accompanying indicators, targets and other ingredients. There is nothing wrong and much that is right with trying to quantify the results of development initiatives. But in my experience in working with this tool for three major aid agencies, such frameworks are superficial substitutes for useful applied research, something to which such agencies devote far less funding.

The use of frameworks nudges or sometimes outright pushes development agencies toward engaging with governments on projects that lend themselves to easy, short-term measurement – a kind of “indicator madness,” as one colleague characterized the tendency. In contrast, governance-oriented civil society initiatives often feature long-term advocacy and other processes subject to challenges and changes that cannot easily be charted. As another colleague put it to me, such initiatives fail to gather traction in his agency in the absence of superficial short-term progress and indicators.

The rise of the consulting firm. The rising dominance of development consulting firms represents a negative trend for the field. It has been accompanied by a gutting of many development agencies’ in-house capacities to analyze problems and programs, to select directions and personnel and to operate flexibly.

The difference this all makes for anti-corruption and other governance work is this: It is often easier for consulting firms to generate profits off of complicated state-centered programs than from more self-sufficient civil society organizations. And in contrast with international NGOs, sophisticated national NGOs and some aid agencies themselves, consulting firms are far less concerned with finding, helping and partnering with civil society groups than they are with ticking programmatic and financial reporting boxes.

Recommendations

Core recommendation. Organizations concerned with stemming corruption should consider greater support for legal empowerment and related civil society efforts that help affected populations avoid or reverse corrupt service delivery and advocate for concomitant policy, legal and institutional reforms.

International civil society. Where local NGOs and grassroots groups lack the sophistication to undertake anti-corruption programs or manage development agency funds, international NGOs can serve useful roles in either carrying out anti-corruption projects or serving as intermediaries for local partners that do so.

Flexible funding. Aid agencies of course want to ensure that their funds are utilized honestly and effectively. To the maximum extent possible, though, their support for legal empowerment and related initiatives aiming to constrain corruption should be channeled flexibly, so as to permit civil society partners to chart and adjust their courses with as much freedom as possible.

Applied research. As a constructive alternative to the counterproductive logical frameworks, aid agencies should support applied research that can ascertain whether such programs are having impact. As a complement to problem-driven iterative adaptation, one function could be to help adjust operations over time – though expectations of quick annual results should be cast aside. In addition, retrospective research from two to ten years after a project has ended can cast valuable light and lessons on whether it has had lasting impact, informing later programs.

A response to negative trends. Legal empowerment NGOs and other civil society efforts merit particular political and financial support in the current problematic programming climate. They can help monitor medical and humanitarian aid to preclude corrupt diversion of resources from programs designed to ease the COVID-19 crisis, prevent discrimination against marginalized groups and advocate for more effective and accountable policies. In undertaking these and other actions, they might help pave the way for greater popular participation in governance and enhanced democracy over the long term, despite the repressive practices many governments are adopting and the fragility many states are experiencing.

References

Azuhnwi, B., Gidado, M. J., Nsoh, M. F., Ndamba, M., & Flintan, F. (2017). Making Rangelands More Secure in Cameroon: Lessons Learned and Recommendations for Policy Makers, Development Actors and Pastoralists. [Conference Paper]. 2017 World Bank Conference on Land and Poverty, Washington, DC, United States. https://cgspace.cgiar.org/bitstream/handle/10568/80131/azuhnwi_paper.pdf?sequence=1&isAllowed=y.

Carmona, M. S., & Donald, K. (2015). Beyond legal empowerment: improving access to justice from the human rights perspective. The International Journal of Human Rights, 19(3), 242–259. http://dx.doi.org/10.1080/13642987.2015.1029340.

Feruglio, F. (2017). Do More Empowered Citizens Make More Accountable States? Power and Legitimacy in Legal Empowerment Initiatives in Kenya and South Africa. Institute of Development Studies. https://opendocs.ids.ac.uk/opendocs/bitstream/handle/20.500.12413/13172/MAVC_Feruglio_final.pdf.

Freedom House. (2020). Freedom in the World 2020: A Leaderless Struggle for Democracy. https://freedomhouse.org/sites/default/files/2020-02/FIW_2020_REPORT_BOOKLET_Final.pdf.

Golub, S. (2020) Legal Empowerment, Civil Society and Corruption: Rethinking Governance-oriented Aid in Today’s Challenging International Contexts. Centre for Peace and Justice. BRAC University. [link forthcoming]

Joshi, A. (2017). Legal empowerment and social accountability: Complementary strategies toward rights-based development in health? World Development, 99, 160–172. https://doi.org/10.1016/j.worlddev.2017.07.008.

Schaaf, M. L. (2018). Social Accountability and Legal Empowerment for Quality Maternal Health Care. [Doctoral dissertation, Columbia University Mailman School of Public Health]. Columbia Academic Commons. https://doi.org/10.7916/D8612GRN.

Tamanaha, B. (2011). The Primacy of Society and the Failures of Law and Development. Cornell International Law Journal, 55(2), 209–247. https://www.lawschool.cornell.edu/research/ilj/upload/tamanaha-final.pdf.

World Bank. (n.d.). Worldwide Governance Indicators. [Interactive online dataset]. Retrieved May 24, 2020, from https://info.worldbank.org/governance/wgi/Home/Reports.

World Justice Project. (2020). World Justice Project Rule of Law Index 2020 Insights: Highlights and data trends from the WJP Rule of Law Index 2020.

https://worldjusticeproject.org/sites/default/files/documents/WJP%20Insights%202020%20-%20Online%20.pdf.

Yerkes, S., & Muasher, M. (2017). Tunisia’s Corruption Contagion: A Transition at Risk. Carnegie Endowment for International Peace. https://carnegieendowment.org/2020/04/21/civil-society-and-coronavirus-dynamism-despite-disruption-pub-81592