7.5 Necessary Condition: Just Legal Frameworks
7.5.1 What are just legal frameworks? Why are they a necessary condition?
Just legal frameworks refer to the body of domestic or international laws203 that apply in a particular country, that give structure to the relationship between the state and the population, and define the parameters for legal conduct. Under this condition, laws are consistent with international human rights norms, legally certain, drafted in a transparent way, publicly promulgated, and ensure the separation of powers, including judicial independence. Just laws will vindicate the rights of persons and punish wrongs committed.204 Just laws are also fair, equitable, responsive to the needs and realities of the host nation205 and benefit the entire population, not just powerful elites. This condition is necessary for stabilization and reconstruction as just laws define the role of justice sector institutions and actors; form the basis for social, economic, and political order; help a society overcome the legacy of official abuse of power; and protect the rights of vulnerable and marginalized groups.
7.5.2 Guidance for Just Legal Frameworks
7.5.3 Approach: Legal Framework Assessment
Understand the existing legal framework as the first step in working toward a just one. Laws may be chaotic, meaning it is difficult to answer the question of what law applies. They may also be deficient, meaning they contain provisions that are inconsistent with human rights or are antiquated and fail to address common S&R challenges, such as property rights, human trafficking, and organized crime. In most war-torn states, the legal framework frequently exhibits signs of neglect and political manipulation, contains elements of discrimination and seldom meets the requirements of international human rights and criminal law standards.206 Legal framework assessment involves a comprehensive mapping of all laws and decrees—formal and informal—followed by an analysis that identifies areas that require urgent attention or longer-term treatment.
7.5.4 Gather, catalogue, and distribute the applicable laws first. Reach out to legal practitioners, ministries, the courts, the police, the prison services, law schools, academics, NGOs, and legal diaspora to collect applicable laws. This will involve multiple sources of law. Identify and collect core documents including the constitution, criminal code, civil code, commercial code, civil procedure code, administrative law, citizenship law, and property law.207 Also, look for regulations, acts, bylaws, internal procedures (e.g., police procedures), and laws and decrees regulating the customary justice system or parallel justice systems (e.g., rebel laws). Catalogue the laws gathered and translate and share them among host nation and international colleagues.
7.5.5 Conduct a comprehensive analysis of the applicable law. The laws gathered need to be analyzed to ascertain compliance with international human rights law, criminal law, civil law, and commercial law (e.g., treaties on organized crime; drug trafficking; the International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child); to assess how religion impacts the law; and to understand what problems are not addressed in the laws. One body or organization should coordinate this analysis. Have a mixed team of academics and practitioners, legal and nonlegal, who can contextualize the law as it relates to the host nation. The analysis should be carried out by both host nation and international actors, and the team should consult widely within and outside the justice system. Start the assessment early; a full assessment can take up to one or two years.
7.5.6 Realize the inherent constraints of new laws if they are not enforced. New laws are essential in these environments, but law reform can be a fatal attraction for those wishing to bring about changes in war-torn states. New laws will remain paper tigers if they do not result in changes in patterns and behavior and if they allow continuation of impunity for prominent spoilers or criminalization of the state and legal system.
7.5.7 Approach: Short-Term Law Reform
Consider whether short-term law reform is necessary. Short-term measures may be necessary to address deficiencies in the law that will impact stability and to address laws that are inconsistent with human rights conventions and standards. While criminal justice laws usually receive the most attention, the majority of disputes and procedural issues that arise—and directly affect the population—initially involve nonviolent offenses that may escalate into violence if victims have no legal recourse. Short-term reform should also address gaps in civil and commercial code and procedure. In this context, short term refers to the first two years after the cessation of hostilities.
See Gap/Challenge: Section 7.11.4, Non-criminal justice assistance.
7.5.8 Consider the need for legal restatement in the aftermath of conflict. Where there is no agreement on what laws should apply, legal restatement that designates what body of law applies should be considered by competent legislative authorities. Legal restatement aims to ensure legal certainty and may have been addressed in a peace agreement. But designating a particular body of law, typically mandated to be compliant with human rights, has proven challenging in practice. Lawyers end up applying provisions that meet international human rights law, disregarding those that do not, and substituting others—in effect rewriting the law. Understand the complexity of this undertaking and try to ensure that the designated law is clear. The designated law should also be politically acceptable to the legal establishment and the host nation population or it will risk being ignored.208
7.5.9 Undertake discreet legal reform in the short-term if necessary. Whether law reform should be conducted in the short term will depend on the context. Reforms may be deferred because changes to the law may make little difference. New laws that have been drafted in haste may not have been researched sufficiently, or political will for reform may be lacking. In either case, work with what is there and find creative legal solutions to filling gaps in the law or addressing deficient provisions of law (e.g., where there is no criminal offense for trafficking, use tax evasion provisions). Short-term reforms should involve discreet changes to existing laws rather than a long-term overhaul. Address urgent problems such as laws that grossly undermine human rights or inadequate laws for pretrial detention. In the economic arena, providing for predictable contract enforcement, including oral and informal contracts, is critical.209 Dealing with real and personal property claims, developing mechanisms to resolve property (especially land, livestock, and commercial) disputes, and determining inheritance rights will always be an urgent need.210 Be aware of the impact that new laws or legal provisions will have on other laws and justice institutions.
7.5.10 Approach: Law Reform Process
The process by which laws are drafted is as important as the content of the new laws. In fact, experience shows that the process of making and reforming laws determines effectiveness, not content.211 The process should be transparent and participatory and involve the adoption of a reform strategy, designation of a coordinating body, and the establishment of a sound program for promulgating and publicizing laws.
7.5.11 Support and engage in a transparent and participatory process. The law reform process must be procedurally transparent and participatory. Procedural transparency should prevent laws from being drafted behind closed doors. Declare who is responsible for the drafting of new laws and describe publicly any formal process for public comment. Participation is recognized as a human right212 and is defined as the process through which people with a legitimate interest (stakeholders) influence and share control over initiatives and the decisions and resources that affect them.213 Participation makes the population more invested in new laws, bringing the laws increased acceptability and public legitimacy. This buy-in is vital to effective enforcement of the laws. Involve a broad spectrum of society (justice actors, civil society, marginalized groups and the general population) in settings that are not overly formal or intimidating. Depending on the context, engage in public consultation using a system of written comments or open meetings. Use local media, television and radio to raise awareness of draft laws and invite comments. This consultation process may need to be preceded by a public education and awareness campaign to apprise the public of the law reform process and what potential reforms are being discussed.214 For more on civic participation and empowerment, see Section 8.8.
7.5.12 Decide upon a reform strategy and establish a coordinating body. Law reform should be part of a broader justice sector reform strategy, but it needs its own strategic plan. Without a strategy, an uncoordinated, ad hoc approach can lead to the promulgation of overlapping or conflicting laws. Ensure the strategy is locally led and created in a transparent, coordinated manner with international partners. It should also take into account other reform measures (e.g., the drafting of a new constitution), reforms that are pending, and how the planned reform will affect other areas of law. The strategy should:
  • State the vision and desired outcomes.
  • Designate a body responsible for implementing the strategy and coordinating the drafting of new laws.
  • Determine the personnel and other resources available to draft new laws.
  • Define how the coordinating body will work with stakeholders within and outside the justice system.
  • Determine a participation strategy with a timetable for consulting on, drafting and vetting the new laws.
  • Decide how the process will be reviewed, monitored, and evaluated.
The coordinating body may be a working group, a division of a line ministry or a law reform commission. A coordinating body will require a secretariat to support its work, along with essentials like office space, supplies, research tools and research support.
7.5.13 Set realistic time frames. In these settings, unrealistic time frames often govern law reform processes and overlook the importance of assessment, participation, and consultation. Laws drafted in haste are often replete with mistakes or omit key issues. Remember that a law reform timeline is between two and seven years.215 Inevitably, there is a tension between the need to reform bad laws and the need to ensure a comprehensive law reform process. However, there is no way to accelerate the law reform process.
7.5.14 Use outside experts wisely. Foreign experts have led many law reform processes in societies emerging from conflict, and solutions to legal problems are often externally conceived.216 In some instances, international actors draft laws or transplant laws without consultation. A coordinated, supportive, partnership-approach to law reform, with international actors providing support, should be established. International actors can bring rich experiences from other countries and act as resource persons or providers of comparative knowledge and information. Facilitate exchanges between those who have been involved in law reform in similar environments and those currently engaging in reform efforts.
7.5.15 Engage multidisciplinary, multi-skilled teams. The idea that law reform is too important to be left to the lawyers is well accepted. Cultivate a broad community of practitioners and legal and academic experts. Engage generalists (meaning they have a general knowledge of the whole areas of law, e.g., criminal law) and specialists (they have knowledge of a specific area, e.g., addressing organized crime).
7.5.16 Conduct an impact assessment of new draft laws, and factor training into the strategy. Countless laws have been passed in war-torn states that are never implemented or enforced. An impact assessment can look at the costs, consequences, and side effects of new laws.217 It can determine whether new provisions are financially or systemically viable. For example, if the criminal code requires juveniles to be detained in a non-prison environment such as a juvenile detention center, do such centers exist? If not, how much will it cost to build and to sustain them? Impact assessments look at whether new provisions will necessitate other reforms (e.g., a new law on money laundering will require certain banking laws) or secondary legislation (e.g., standard operating procedures, judges “bench books,” administrative protocols). Moreover, an impact assessment will also evaluate human resource implications from new legal provisions and the level of training required for new or existing justice actors.
7.5.17 Ensure a sound promulgation and publicization process. New laws should be publicly promulgated. This means that they should be officially proclaimed, published, and generally publicized so that the population at large is aware. The official proclamation is usually done by an official act of the government or legislature. Once promulgated, publish new laws so they are available to justice actors and the population. Conduct public awareness campaigns to ensure the population is aware of new laws. New laws should not come into effect immediately but be followed by a period of time between the promulgation of a new law and its enforcement. This allows training and publication to occur. Understand the strong implications of new laws on the curricula of any national academic institutions or training centers, such as universities, police academies, or magistrates’ schools.
7.5.18 Approach: Content of New Laws
3e legitimacy of laws is based on societal consensus.218 The determination of content involves thinking about the principles, values and approaches that will underlie new laws based on dialogue with the host nation population. Old laws may have been repressive or may have violated human rights and only benefited the rich. In drafting new laws, there is an opportunity to redefine key principles and take a rule-of-law and human–rights-based approach to lawmaking.219
7.5.19 Think about the details of drafting early on in the process. Technical drafting of codes is integral to creating laws that are understandable and workable. Consider who is drafting new laws. The process should be led by a single, trained legal drafter,rather than a drafting committee, to ensure a consistent style of drafting. Another consideration is a new “plain English” style, which seeks to move away from lengthy and complicated sentences and archaic legal expressions that are inaccessible to the ordinary person.220 This style can support legal certainty and transparency. In war-torn states, many novice justice actors may apply the law to ensure that the new laws are sufficiently detailed. Leaving provisions open to interpretation or relying on forthcoming secondary legislation for detail that may take years to draft may not be wise.
7.5.20 Use international standards as the normative framework for law reform.221 The assessment of the pre-existing legal framework discussed in Section 7.5.3 will reveal where the existing laws are consistent with international standards and what standards are binding on the state. It is easy to remove provisions from the preexisting law; it is harder to draft new provisions that comply with international standards. Those involved in the drafting process should be aware of the international legal standards by which the host nation is bound and integrate them into new laws. Capacity development initiatives, such as training or consultation with outside experts on international standards, would be useful in this regard.222 It is especially important to integrate key international standards for marginalized groups.
7.5.21 Forget the common law and civil law debate, and think about hybridization. Many of those involved in law reform processes think of legal systems in black and white terms: they are either civil law or common law. This may be historically accurate but in a contemporary context, this distinction is less clear. So-called civil law systems vary greatly, as do common law systems. There has been so much borrowing across systems that the divide that once existed is now blurred.223 Now there is a trend toward hybridization. Drafters should choose and blend features and legal provisions from many traditions that work best in the context of the host nation.
7.5.22 Consider how to appropriately use foreign laws to inform the process.224 Be careful about how foreign laws are used in the law reform process. Where a law is not adapted to local conditions, is imposed through an external process, or is unfamiliar to the population, its acceptance may be weak. Conversely, voluntary borrowing of external provisions, where states make an informed decision to copy them fares much better. Consider alternatives and undertake extensive comparative research in advance of adopting a foreign provision of law.
7.5.23 Consider the relationship between the formal and informal justice sectors when determining new content. When undertaking reforms of certain areas of law (e.g., criminal law), consider whether these cases are dealt with through informal systems rather than through the formal system or whether certain new provisions will apply to these systems (e.g., a bill of rights in a constitution). In some instances, it may be appropriate to consider creating or modifying the legislative relationship between the formal and informal justice systems. 3is may involve deciding what crimes fall under the purview of which system or providing for appeal rights from the informal system to the formal system.225