Law expert evaluates applying justice reform to development strategies

By Natalie Lovenburg

April 27, 2017

The rule of law is a fundamental aspect of peacebuilding to establish effective and credible criminal justice institutions, according to a United Nations report. But in places where restoring the rule of law is most critical—such as post-conflict or high-violence countries—it can also be the most difficult to achieve.

Creative Associates International’s Senior Rule of Law Advisor, Jenny Murphy, discusses the importance of integrating the rule of law into broader development initiatives in these contexts.

Murphy leads Creative’s rule of law initiative, as well as supports training on rule of law and justice sector reform to increase transparency, improve accountability and prevent corruption within government.

Working hand-in-hand with law enforcement, governments, communities and families, Creative’s programs empower citizens and institutions to implement holistic and effective strategies that bolster security, protect citizens’ rights and restore the rule of law.

What do we mean when we say “rule of law” and what’s the connection to development?

Murphy: There have been several cycles in judicial and legal reform in international development. Following the work of the Alliance for Progress, an initiative of U.S. President John F. Kennedy to alleviate poverty and boost economic cooperation between the U.S. and Latin America in the late 1960s, there began to emerge law and development projects targeting the revision of legal frameworks and codes in several Latin America countries.

These programs grew in the 1970s and 1980s to include institutional and capacity building of justice sector institutions mandated to enforce the newly promulgated legal frameworks and codes.

Institutional and capacity building continued during the 1990s and 2000 and the legal reform programs were labeled “administration of justice” and/or “rule of law” programs. These programs also began to expand geographically outside of Latin America and the work included civil society organizations dedicated to the promotion of justice sector reforms as well as cross-training of all justice sectors actors (judges, prosecutors, defense attorneys and police).

How do conflict and crisis disrupt the rule of law?

Murphy: Conflict and crisis are disruptive to the delivery of services by state institutions. In this environment, the justice sector cannot operate, and police cannot properly do their investigations. Cases are not being prosecuted, defendants do not have representation, and independence of the judiciary is limited or non-existent if judges are intimidated or threatened.

In communities experiencing high levels of crime and violence, where does rule of law come in?

Murphy: High levels of crime and violence are usually an indicator that the justice sector is not functioning properly. Police may have insufficient resources to investigate or access the crime scene; prosecutors may have insufficient training and practical experience to bring a case to trial; judges may not be applying the law or be able to apply alternative measures to incarceration; and the corrections system may not have sufficient resources for incarceration or rehabilitation. However, the justice system does not operate in a vacuum and significant contributing factors to high levels of crime and violence is the lack of economic opportunities.

What can governments and civil society groups do to support the rule of law in challenging environments?

Murphy: Governments can provide political will and budgetary resources to implement changes brought by legal reforms such as a national implementation of a criminal procedure code. Civil society is an instrumental player in a host country to represent a citizen’s voice in justice reform efforts and create coalitions of support.

What are the primary tools used to strengthen and perpetuate rule of law in a particular country?

Murphy: A 2011 World Bank study stated that rule of law reform takes about 40 years to fully implement in a host country. Respecting the legitimacy of legal traditions of a host country (formal laws, informal or customary laws and religious law), political will and enforcement and application of laws contributes to the sustainability of rule of law programs.

What do you predict will be the biggest challenges to rule of law around the globe in the next three to five years, and how can we prepare and respond?

Murphy: If I had a crystal ball, we will witness a transformation in rule of law programming to respond to the changing foreign assistance environment. Rather than focus on institutional and capacity building of justice sector institutions, rule of law programs will be more targeted to address foreign policy challenges. For example, corruption and countering violent extremism will be a lens on future rule of law development work.