The rule of law is broadly recognized as necessary for good governance, peace and security. The UN 2030 Agenda recognizes this dynamic in all countries, rich or poor. However, the impact of the rule of law – or its absence – is most strongly felt in countries struggling with conflict and crisis.
As part of its work in Liberia, the FBA has supported local partners to apply rule of law principles in public administration. This reflects a broad view of rule of law that goes beyond the work of courts, and it responds to key development challenges in Liberia, including unresponsive governance, and stark rural inequality.
The rule of law can be both politically sensitive and hard to explain. It boils down to the principle that everyone, including the powerful, should be equal before the law. However, in practice, the rule of law consists of a bundle of related but disparate principles such as legal certainty, transparency and accountability.
Accountability implies that leaders should be held to account for crimes and violations. However, it can be defined more broadly. According to the UN human rights office (OHCHR), it extends to everything states should do to safeguard human rights, including preventing abuses and promoting peace, security and development. Accountability can often boil down to the work of ordinary civil servants. FBA’s work with the UN Development Programme (UNDP) on integrating the rule of law in public administration reflects this insight:
Public service providers are the main interface between individuals and the state, and are responsible for a wide range of issues that are fundamental to development and peacebuilding goals….
Accountability can be oriented either upwardly or downwardly. Downward accountability involves the idea that officials are primarily responsible to the constituencies they are meant to provide services to. By contrast, upward accountability implies that the loyalty of officials is primarily to their political superiors. A Care Netherlands report describes the risks of upward accountability in fragile settings:
In conditions where accountability is higher upward than downward, and where transparency is disregarded, the connection between power and corruption strengthens and takes priority to building the elements of inclusive governance.
While downward accountability is the ideal, upward accountability is the reality in many developing countries. One common explanation is overcentralization of power. Where power is concentrated to the highest-level politicians and felt primarily in the capitals of developing countries, this can have a strong effect. Public officials can become dependent on pleasing higher management, rather than ordinary people, in order to try to retain valuable public sector jobs.
Demand for downward accountability can explain the persistence of legal pluralism, whereby formal judiciaries coexist with customary and informal justice systems. Whether elected or not, customary leadership achieves legitimacy by delivering the goods to local communities. As a result, ordinary people may prefer to go to chiefs and elders rather than to unaccountable state authorities. A report on Liberia by the International Legal Assistance Consortium (ILAC) found that:
Customary justice has proven to be resilient and effective. Where formal courts drive away justice seekers by imposing the full cost of justice on them, customary chiefs and elders provide an affordable, legitimate and accessible form of justice that has flourished during one of the most difficult periods of Liberia’s history.
The prevalence of upward accountability can contribute to a gap, a “missing middle” between the state and local communities. Fortunately, in countries like Liberia, civil society organizations (CSOs) can help to bridge the gap, connecting grassroots communities with the state. Where CSOs enjoy trust, they can play a complementary role to state authorities in responding to crises. By doing so, they help the state respond more effectively, and more broadly defined, they strengthen accountability downwards and promote a “broad” form of accountability focused on preventing and mitigating harm.
However, CSOs also have a crucial role in criticizing abuse of power, mismanagement and corruption. CSOs help to ensure that the state is accountable in the broad sense – they not only assist the state in actively doing its job, but also hold it to account when it fails to do so. CSOs are “critical partners” in every sense of the term. Wise governments understand this dual role and accept that both support and criticism are necessary to help them do a better job.
International partners are part of this dynamic. Donors have recognized the crucial role CSOs can play in supporting peace, security and sustainable development, and fund CSOs in developing countries. However, where governments are stung by CSO criticism, they may label international support as interference and close the space civil society needs to operate.
The role that CSOs can play is particularly important in times of crisis. In a report on the COVID-19 pandemic, the Pathfinders for Peaceful, Just and Inclusive Societies noted that the global crisis was widening the gap between the justice needs of ordinary people and the means available for addressing them. In responding to this crisis, the Pathfinders highlighted the role of civil society and other grassroots justice actors:
They are well placed to share health and other information with communities, including with vulnerable populations, to help communities to monitor, report on, and influence the delivery of public services, to help ensure those most in need receive treatment, to identify and respond to abuses by the security services, and to help those with employment, family, housing, and other problems that are exacerbated by the pandemic and the response to it.
The COVID pandemic raises critical issues for the relationship between the state, civil society and local communities. States that are able to accept criticism and work constructively with civil society can increase downward accountability, improving their ability to respond effectively and building renewed trust and legitimacy. States that seek to freeze civil society out must understand that by doing so, they may also distance themselves further from local communities that depend on them for help – and that they depend on for legitimacy.
Note: This post is the first of two – the next post will examine how the accountability dynamic and the role of civil society has played out in Liberia during the COVID crisis.