Out of Africa

The United Nations risks again overlooking the rule of law in African development, says Suella Fernandes.

I first visited Rwanda in 2008 with a group of volunteer lawyers as part of the Conservative Party’s Project Umubano. I went with Andrew Mitchell MP to teach advocacy, legal drafting, negotiation and substantive law to judges, government lawyers, community justice lawyers and law students. After further projects in sub-Saharan Africa, I co-founded the Africa Justice Foundation (AJF) with Cherie Blair CBE QC, which aims to build legal capacity in the public, private and not-for-profit sectors through education and professional skills training. We work in partnership with governments, academic institutions, Bar associations, and legal bodies in sub-Saharan Africa and around the world. We are driven by the desire to contribute to the development of robust, stable and predictable legal systems that meet the needs of both the citizens of those countries and the regional and globally competitive environments of which they are a part.

In an open letter to the president of the UN General Assembly this May, AJF and Advocates for International Development (A4ID) called for the inclusion of the rule of law within the post-2015 development agenda, which will succeed the millennium development goals (MDGs) next year. Our letter underlined the critical role which the rule of law plays in guaranteeing peace and security, ensuring a just society, and facilitating economic development. While encouraged by the support we received, we now fear that the UN risks making the same mistake it did in drafting the MDGs.

Ahead of the adoption of these new goals by the UN General Assembly in September 2015, an open working group (OWG) held a series of discussions and consultations to finalise the proposed goals and targets. This part of the process is now drawing to a close as the OWG held the 12th of their 13 sessions in June. Their recommendations are expected to closely reflect what the final goals will look like.

Zero-draft

On 2 June 2014, the two co-chairs of the OWG, the permanent representatives of Hungary and Kenya, released the preliminary zero-draft. This featured the rule of law in both the preamble (emphasising its importance at both the national and international level), as well as within Goal 16 (“Achieve peaceful and inclusive societies, rule of law, effective and capable institutions”).

While this focus is welcomed, we consider it critical that the drafts reflect the fundamental definition of the rule of law, rather than isolated elements. It is surprising, for example, that the extremely narrow “legal identity” is included, but there is no mention of contract enforcement or property rights, despite the latter being acknowledged as important in the poverty reduction goal.

As the British NGO Saferworld has argued in recent “informal comments” on the zero-draft, the targets within the peace and governance goal need to be less process- and more outcome-focused. By focusing on the outcomes desired (such as people feeling safe within their society), rather than focusing on a suggested process (such as reforming the police service), one avoids prescribing how countries meet these targets. Being overly prescriptive in this regard would, we fear, alienate some member states and thus inhibit successful adoption.

At the most recent OWG session, the debate continued on whether the goal to “Achieve peaceful and inclusive societies, and strengthen the rule of law and effective and capable institutions” should remain as a standalone goal; some believing it may serve better as a cross-cutting element in the preamble, while others referred to a standalone goal as “a must”. Often the arguments against a standalone goal repeat a familiar, and now outdated argument, regarding the difficulties of measurement.

Meeting at the African Union (AU) on 11-12 June, a group of experts, including representatives from 24 African national statistical offices, data specialists on peace and governance, AU Commission officials, policymakers, CSOs and UN agencies, concluded that “governance, peace and security are important to measure – and they are measurable”.

The zero-draft is currently being updated before the final OWG meeting on 14-18 July. To hear that there is uncertainty around the retention of this goal is worrying, especially if the rule of law is not then included prominently in the preamble. The rule of law is essential to sustainable development, the overarching aim of these new goals; it protects peace and security, enables a just society and provides the basis for economic growth.

AJF continues to call for the rule of law to remain as an integral part of this document and the post-2015 agenda as a whole. Please show your support for this by following us on Twitter @AfricaJF and using the hashtag #RoL2015.

Author details: 
Suella Fernandes

Suella is a barrister, specialising in public, planning and commercial law, practicing from No 5 Chambers, London.