The prosecutor has the sort of confidence wrested from 15 years of experience against the odds in a country beset by external and internal security threats. When I ask him to describe his justice system in just three adjectives, he quickly declares: “good, needs improvement and practical.” Asked to describe it from a very different perspective, though, his face turns into a grimace.
In a prototype exercise during a new course we’re piloting on the rule of law, the prosecutor and others taking part from the Middle East and Africa had randomly drawn slips of paper, each outlining a different role for them to adopt. After earlier describing their justice systems from their own perspectives, they now must take on the new persona and characterize it again. The prosecutor reads his role description out loud: “You are a 16-year-old girl living in the capital city. You were raped by a man in your neighborhood. Your family does not want you to go to the police, as they believe it will reflect badly on the honor of the family.”
The prosecutor hesitates and tries to demur. But in this course, that’s not an option.
The official was one of 14 participants attending a five-day pilot course developed by the U.S. Institute of Peace and now being tested four times in Malta, in cooperation with the newly established International Institute for Justice and the Rule of Law. Called “Towards a Rule of Law Culture: Exploring Effective Responses to Justice and Security Challenges,” the course is designed for criminal justice authorities, including senior judges, prosecutors, police officers, prison officials, lawyers, civil society representatives and government officials, from across the Middle East as well as North, West and East Africa.
“At the heart of this change is not a new courthouse, but a newly conceived belief … that a society based on the rule of law is, in fact, possible.”
Participants are selected for their influence and authority to achieve change in their local contexts. They are mid- to senior-level justice officials and other representatives with a strong understanding of their own systems. Through the pilot courses, participants explore how a strengthened rule-of-law culture can assist countries to better protect the state and society against modern-day justice and security challenges.
The ‘culture’ part of the course title is important. It is not just another training in rule of law. In fact, the course challenges the traditional technical, law-led, state-focused approach to promoting the rule of law. Many professionals who specialize in helping develop the rule of law will be the first to admit that decades of effort and billions of dollars spent on reforming justice systems in transitional societies to uphold and promote the concept have produced unimpressive results. It seems clear that something has been missing from the traditional approach.
The Three P’s
That missing element is what we can call the “3 P’s” – people, power and politics, or the “culture” component of the rule of law. Now, your first reaction could be to say, well, that’s obvious -- those three elements apply in all fields of peacebuilding, and we know that already. So why is it then that work in rule of law has persisted for decades in putting the vast majority of its limited resources into purely technical activities such as drafting new laws, building new courthouses, training legal professionals or funding legal aid? Why, when we undertake to empower local leaders to better promote the rule of law in their own countries, do we ignore the 3 P’s?
The course curriculum resulted from an extensive needs assessment conducted to explore those questions and make sure that this course would be relevant within the target countries of the Middle East and Africa. In-country consultations were held with more than 70 local justice and security officials; an additional 70 responded to online surveys; and over 100 additional interviews were undertaken with rule of law, justice and security experts around the world.
USIP developed the curriculum and course content in consultation an advisory group of scholars and practitioners from Iraq, Kenya, Lebanon, Libya, Nigeria and Somalia. Their experience in criminal justice, security-sector reform, Islamic law, judicial reform, political analysis, training and facilitation, and transformation and change management, helped ensure the relevance and resonance of the course.
The feedback from these processes was unanimous: (1) there is a need to move beyond narrow, technical issues to acknowledge the highly political nature of criminal justice and the rule of law in any context; (2) gaps in knowledge and skills related to rule of law are not limited to substantive, technical areas but extend to the non-technical aspects -- skills such as dialogue and communication, strategic thinking and problem solving, change management, and leadership; (3) the course should encourage the exchange of ideas, to explore the root causes when the rule of law is weak in an environment, and to “disrupt assumptions” and challenge mindsets and the status quo.
Asking the prosecutor to describe his justice system from the perspective of the young girl was one of many moments during the course when I challenged participants to reassess their assumptions, to think differently about the system in which they work, to consider things from a different perspective.
The needs assessment had revealed that those with a stake in criminal justice have a generally weak understanding of what an effective system looks like, including the roles and responsibilities of various state and non-state players within that system. Being able to recognize that the system exists for and because of people, not for the sake of institutions and laws and buildings, is a critical first step in understanding what makes a system effective or not.
Operating in silos, it is rare that justice officials are asked to consider the impact of their actions on the system as a whole. Yet just like the Rubik’s Cube puzzles I hand out on Day 1, making any one change to the system – whether negative or positive– has a correlating impact elsewhere. To effectively promote a culture supporting the rule of law, it is important to first be able to see and anticipate this impact and calibrate your actions accordingly.
“At the heart of this change is not a new courthouse, but a newly conceived belief … that a society based on the rule of law is, in fact, possible.”The course still provides myriad technical information for professionals -- comparative approaches to combatting corruption, addressing the weak administration of justice, improving access to justice, to name a few. But, fundamentally, we spend five days building analytical, strategic-thinking and problem-solving skills and applying them to rule of law challenges.
Through exercises, group work, case studies and problem scenarios, we take participants on an exploration of the missing element: the “culture” of the rule of law. Because of the participants’ positions of influence, we discuss what it means to be an effective change agent, how to address resistance, how to analyze challenges and how to garner support for a proposed change. They all arrive at the course with a challenge they want to tackle, and during the five days they refine their analysis of that problem and ultimately design a project that they will undertake when they return home.
After some coaxing, the prosecutor finally comes out with his idea of how the young rape victim would see his country’s system: “The system is just; there is no privacy; it won’t protect family honor.” Those words and the prosecutor’s struggle to articulate them illustrated perfectly the tensions at play in cultivating the rule of law. The system may be fair, it may be staffed by technically competent professionals, and yet if people do not trust the system to protect them, if it is seen as being out of touch with the social, cultural or political reality of the context in which they live, then is the system really effective? And what impact does this have on efforts to strengthen the rule of law?
Creating a culture supporting the rule of law requires time and more than a little discomfort. It will not follow a linear path to success. It will be resisted because the shift will threaten often deeply entrenched power dynamics and challenge political and financial interests. It will test assumptions and require a change in behavior.
At the heart of this change is not a new courthouse, but a newly conceived belief held by both the state and its people that a society based on the rule of law is, in fact, possible.
One five-day course cannot achieve all of this. However, it is a beginning. Before he walked out of the room, the prosecutor came over to me, smartphone in hand. “I’ve already signed up to the online course alumni group,” he said energetically. “You need to log on and accept me to the group, now.”