Category: Opinions Written by The Nation Mirror Admin
By Kuyang Harriet Logo Mulukwat
In recent years, the focus of the United Nations and other international partners has shifted to building and strengthening the rule of law, particularly in transitional and fragile countries. The entrenchment of the rule of law and delivery of justice in post conflict situations is becoming a vital requisite to measure the levels of stability and state take off. Both capital and human resources are employed to improve the functionality of nascent rule of law institutions – sometimes in extreme situations where the rule of law system was problematic, technical assistance focuses on introducing radical changes, so that fragile states can adopt systems which are progressive, rule of law sensitive and democratically inclined to improve citizens participation and the enjoyment of basic rights. In South Sudan, where the pre existing rule of law culture was undesirable, an overhaul of the whole system ensued – with the adoption of a common law system, capacity development and the strengthening of rule of law institutions became an area of high demand for both the government and donors – for over 10 years an array of programmes have been initiated and the question that the author poses relates to whether these programmes on institutional strengthening have been effective? And whether these interventions have made any changes in the way the rule of law institutions function? While the rule of law is a principle of governance, it is also a fundamental aspect of peace building and related efforts to build effective and credible criminal justice and rule of law systems – yet if no clear definitive indicators are designed, it becomes problematic, if not impossible to be in position to measure the effectiveness of interventions. Indicators are elements when taken together can be used to access progress towards specific goals and objectives and have the dual role of spurring reforms and holding institutions accountable for their past performance. Indicators are becoming increasingly necessary to allow a synthesis of complex information to produce easily interpreted measures that are well suited to track changes. The usefulness of indicators lie in their simplicity – while this is considered a good thing, it has the potential impact of masking important differences and similarities. For the effectiveness of indicators, they should be complimented with a credible source of data – data alone is particularly useful for tracking institutional progress over time. The United Nations indicators are designed to be flexible allowing for implementation in diverse settings- its effectiveness is strikingly visible when used to track changes and progress within a country over time rather than to make comparisons across countries with similar situations. They should be tailored to suit particular national situations – for instance when some of the indicators were applied in South Sudan, the unique particularities of the legal system, culture and tradition of the respect for the rule of law and other prevailing political realities were taken into account – such flexibility makes it possible to adopt the instrument to the local context at the beginning of the implementation phase. However, there are major dimensions to the strengthening of the rule of law institutions and subsequent measurement of progress and challenges. Indicators are usually grouped into three categories – the police and other law enforcement agencies, the Judiciary comprising of judges, the traditional authorities, court personnel, prosecutors, prisons and a broader institutional indicator for the Ministry of Justice programmes. The relationship between these institutions is central to a successful implementation of rule of law programmes. An effective transformation of the justice system requires a flourishing relationship of all the actors within the justice system since a strained relationship will be clogged with red tape on mere procedural constraints and will frustrate the linking up of the entire justice system to deliver as one. It is equally nearly impossible to anticipate all the possible organizational variations. A blank indicator covering the enhancement of relationships, independent functions of the components of the justice system might be critical in creating a workable environment and possibly improve the functionality of the justice system.
Overally to measure performance, indicators should supplement the measurement of resources and activities with measures of performance such as public confidence in the justice system, the extent to which the public approaches police for services. It is obviously important to monitor the activities of the capacity of the criminal justice institutions and it is equally important to understand their ability to deliver justice and how their overall performance has improved. The constraints of the justice system in South Sudan have been very profound and little progress has been tracked over the past decade. While the UN and other partners have played their part, government needs to bolster these efforts by consistently developing their own indicators to measure the progress of the institutions concerned and for the government side to be a part of the measurement process.
The author is a South Sudanese lawyer and senior consultant, a continuing legal scholar and writer on Democratic Governance and the Rule of Law and lectures at the College of Law, Juba University on a part time basis.