Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Happy New Year everyone! I am starting the year off with an interview I’ve been looking forward to doing for some time now! Wade Channell is a rule of law expert at USAID with over 20 years of experience on commercial law, legal reform, and economic development. Currently he works as the Senior Economic Growth Advisor for Gender in USAID’s Office of Gender Empowerment and Women’s Equality. Read below to learn his thoughts on integrating rule of law into other sectors, publishing lessons learned without harming organizations, future trends and more!
The opinions expressed are solely those of Wade Channell’s and are not official comments on behalf of or for the sake of the US government or USAID.
Many local practitioners have commented that justice and rule of law objectives should be integrated into other sectors such as education and health, since it is a cross-cutting issue. It is also believed that this would perhaps make governments less antagonistic to rule of law reform. What challenges and advantages do you see to this approach?
I say absolutely it should be integrated. It doesn’t stand alone by itself. It’s really part and parcel of the economy, the health system, the education system, and all the subsystems. Just like the human body has multiple systems running at the same time, there are certain things without which, all the others fails. Without rule of law, the system breaks down. With that said, the biggest challenge is getting people to figure out what we’re talking about and what they means when they say rule of law. There is an unhelpful tendency for people to hear that phrase and think about laws and to focus on rule of law as something to do with laws: good laws, better laws, enforcing laws. Rule of law is about rule and the underlying relational structure within a society that produces rules that everyone agrees to obey. Without that structural set of rule, rule by might for example, which is the primary form of rulership in most of the world, or it certainly has been until the 20th century. It’s not based on individual rights; it’s based on the privilege of those who are in power. And as long as you’re trying to focus on rights, based on legislation, without questioning the underlying foundations of the power system, you’re probably not achieving much. The first challenge is to re-define what we’re doing in rule of law and to understand that and then to ask the questions about how do we know when we got it, what do we look for?
There’s a paper that looks at governance and what I call PITA. Participation, Inclusion, Transparency, and Accountability. Of those four, accountability is a part of rule of law, but you aren’t going to get it, without the other three as well. We can put those into every project we do. We can ask how is this project being done? Are the processes and results transparent? And when they don’t meet what the participants expect them to meet, is there any accountability? At that level, there’s no reason why we cannot start, and I mean it quite literally tomorrow, with anyone who’s thought about it to start asking those questions.
What are the biggest challenges for USAID to redefine what we’re doing in rule of law?
Well they’re working on it. I think one of our biggest issues is the stovepiping. It’s not just how we’re organized. I consider stove piping to be a naturally occurring phenomenon, especially among busy specialists. You don’t have time to think about rule of law in health and gender and this and that. You’ve been hired to think about one particular area and there’s always more work than you can do. After awhile, stovepipes grow. And then sometimes they get structured formally. That is a challenge for us, the formal structure of stovepipes and how do you get this cross-disciplinary knowledge needed.
I would guess one of the things we could learn from would be the Mayo Clinic. Mayo Clinic doesn’t give you a doctor, they give you a team of doctors and it’s cross disciplinary. One may end up with most of the work, but until they figure out what the problem is and whether it’s just one, they all work on it and they’re known as one of the finest medical institutions in the world. And it’s not just from having the best doctors, it’s their approach. And there have been others who have done that. I do think as long as we treat something as oh that’s an economic growth problem, oh that’s a democracy problem, oh that’s a medical problem, we’re being ignorant at best because it’s never true and it’s never enough to say that. I think re-formulating our approach analysis through a cross-disciplinary mechanism would be fantastic but I don’t know what it would take to get that.
What future trends or initiatives do you predict will become increasingly important for the rule of law sector 3-5 years from now?
Laws don’t implement themselves. We should focus on implementation. Better laws are nice if you can get them, but even if you can get good substantive laws, you need a system to implement them. The other is, I would like to think, and there are a few proponents out there pushing this, is a more nuanced approach to reform instead of foreigners coming in and re-writing codes. My friend Olin McGill promotes what he calls “aggressive incrementalism” – make small changes as often as necessary to solve the problems. Find out what’s needed today and fix that. One of the things we’re up against is re-defining success internally from a project standpoint. I think we have the opportunity with design and within our larger programs to stop asking for wholesale replacement of existing legislation and create another more nuanced approach, or I’d like to think in the next 3-5 years that’s going to rise more to the surface.
A report published earlier this year on Rule of Law Evaluations found that many organizations don’t pursue evaluations of lessons learned because it could impact their funding. In what ways do you think USAID or other donors could further support the publication of lessons learned without potentially harming the organization?
Keith Crawford is overseeing a rule of law assessment and a lot of the questions you’re asking are in that assessment, which I think is fantastic. The problem of course is to what extent that gets published if it says our work isn’t effective, which it might. As long as everything’s considered a failure or success, we have no way of learning. What we have to do is something along the line of evidence summits, which is very popular. What promotes rule of law effectively? What has been shown not to work effectively? And now you’re calling it not a failure, but evidence for certain things. So we can have evidence of what doesn’t work well. That’s not failure, is it? That’s evidence!
The bigger issue within development is our ability to talk openly about the experimental nature of what we do. We have hypotheses, we’re testing hypotheses. The experiments don’t fail, the hypothesis fails. And if a hypothesis fails, then we’re better off knowing that. So there’s no failure to speak of. We’re trying to get to a better hypothesis upon which we can work. “Lessons Not Learned: Problems with Western Aid for Law Reform in Postcommunist Countries” is an article I wrote on that some years ago. There’s an unintended incentive system that keeps us from having that kind of dialogue. Everything is based on failure and no failure and we don’t want to do that. I do think that by re-framing the issues in terms of evidence summits, by what is most and least effective in rule of law [this would help].
What lessons would you say USAID has learned from their rule of law projects in Afghanistan and Iraq?
One of the lessons we should’ve learned is that process in legal reform is just as important as the laws themselves, and indeed more so. That is slowly percolating through our own political economy of assistance, and many projects have adopted an approach more conducive to local ownership and consensus building. When we approach legislation as urgent (and it seldom is), we miss the most important parts of process, leaving us with little consensus as a basis for implementation.
It’s been found that synthesis reports distilling lessons learned from donor evaluation reports are useful since few donors read each other’s evaluations. What challenges do you see for USAID participating in this kind of effort and can you comment on the usefulness or effectiveness of such an initiative by USAID?
I think that that takes you back to the evidence summit idea. If you have a date and a specific goal, you can get this done. If it’s just a good thing to do, some will happen and some won’t. That’s just the nature of the work. Coming up with a goal and timeframe and specific deliverables would allow you to produce something for each other.
Many practitioners have also commented that if more rule of law programs worked with religious institutions, they would have more success implementing projects. To what extent has USAID worked with religious institutions on the ground and what was the result?
I haven’t seen it much. I just listened to a woman, who works on a project to reduce child marriage and violence against women in Afghanistan. This was an Afghan, not a USAID person, she worked closely with religious leaders to bring about change. We’ve certainly seen the potential for it. There’s a fear of it because of our separation of church and state, which in my lifetime, has been reinterpreted as a freedom from religion. However I know there are projects where we do some of that, I just don’t know where, and I don’t know the results of it.
What kind of collaborative projects on rule of law is USAID doing now (with World Bank, IADB, GTZ, CIDA, etc.)?
We collaborate in the field in most places, where we work; we find ways to work together. Sometimes, it doesn’t work out. Sometimes we’re at odds on an approach or something like that. But overall, there are attempts to collaborate. But the question that needs to go in there, to what extent do the government and local counterparts define the collaboration. In other words, is it a group of providers coming in and saying “Okay, we’ll do courts, you guys do banking or something else” or is the government saying “we’d really like help from the Americans on this and from the Germans on that.” Do they have a say in what they’re getting? That’s country to country and limited in most places. The local government has a limited say in whose providing what services. Even if we’re collaborating, is that enough? Well yea, we have meeting with the Ministries and our local counterparts, but is it meaningful? Yes and No. Again, this is country by country, but it’s one of the things we have to be aware about throughout.
In many developing countries, the influx of foreign aid and NGOs has created a marketplace where locals are being paid more by outsiders thereby leaving government-run systems with less capacity. What are your thoughts on the sustainability of this and what can be done about it?
It is a market issue, and people with qualifications get the best jobs they can get. They do whatever works best for them. I’m a little hesitant to recommend putting a price cap on it because it’s not going to happen. The question then is, are we providing services back to the government. It seems to me if you’re going to take the best, then we should have a way of shifting responsibility to provide some of the services that are now being lost or at least to buttress them, or mentor or do something so that we’re not undermining the goals we’re setting out to do in capacity building.
How do rule of law programs affect poverty?
As I noted earlier, rule of law is foundational for healthy economies. There are a couple of reasons for this. First, economies grow when businesses grow, and businesses grow when they can balance their revenues against their costs and risks. Rule of law lowers both costs and risks by reducing uncertainty and instability, which have a terrible impact on investment and commerce. Rule of law also serves as a tool to open up competition by providing rights, not just privileges. Where rule of law is weak, you tend to find a higher incidence of monopolies, cartels, crony lending and other economic practices that profit the few at the expense of the many. In other words, poverty thrives where rule of law doesn’t, something you can see from even a cursory look at any of the economic welfare indices of the world. Two hundred years ago, we were all poor – even the wealthy – and there were a number of causes. There are still many causes of poverty, but today, the number one cause by far is inappropriate governance. Period.
On another note – good rule of law allows greater opportunity for women in the economy as well. We are now seeing very strong evidence of the positive correlation between inclusive systems and broad-based prosperity.