Fatmata poverty of speech

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					    SLEEPY JUSTICE: SIERRA LEONE’S LACK OF SELF-HELP IN JUDICIAL SECTOR REFORM
                                              Casey Kuhlman

                                     So many years of independent
                                     Wi still nor know wi direction
                                   Par all di penty election we end up
                                        Pan di same situtation1

I. Introduction

Sierra Leone is one of the poorest countries in the world. It has recovered very little in the five

years of post-conflict rebuilding which have followed its eleven year civil war. Healthcare

services are difficult for most to find, impacting drastically on the infant mortality rate and life

expectancy of the country’s citizens. Its economy is in shambles with inflation outpacing GDP

growth. Many of its citizens feel blessed to have a job that pays US$2 a day, and most survive

on US$1 a day or less. Its government performs poorly and is corrupt, even by West African

standards. The lack of infrastructure in the country is astounding, considering how the people

lived under British colonial rule: there is electricity in the capital, Freetown, for a few hours a

month; the roads and ports and airports are all in complete disarray and most people carry water

to their homes in five-gallon jerry cans.

        Yet despite these challenges, Sierra Leone is a staggeringly beautiful country with iconic

beaches, rugged mountains, dense rainforests and exotic fauna. The people have a sing-song

language that reflects Sierra Leone’s historical links to the Caribbean. The happiness of the

language is matched by the width of the smiles easily offered by most Sierra Leoneans one

meets. The complicating and maddening factor for these courageous and long-suffering people




1
  EMMERSON, 2 fut arata, on 2 FUT ARATA (EMMERSON RECORDS, 2007) (lyrics in Krio. Translation: So many years
of independence, yet we still do not know our direction. After plenty of elections we still end up in the same
situation.)


                                                      1
is that all of the indicators used by international and bilateral aid donors when making aid

decisions are bad.

       This paper argues that the lack of judicial sector reform to strengthen the rule of law has

numerous direct and indirect consequences which affect the ability of both the government and

donors to effectively address the numerous problems, including the rampant poverty in the

country. Drawing from development economic theory, rule of law reform theory, policy

statements of representative donors, and extensive in-country research, this paper will

recommend specific, targeted rule of law reforms which will achieve certain goals while helping

to establish some of the predicates that external donors require for additional aid that will help

the government solidify its rule of law regime. These reforms, if implemented in concert with

other governance reforms will have numerous effects upon the country’s poverty through the

various sectors of Sierra Leone’s economy.

       Section II of this paper will highlight Sierra Leone’s current status viewed through the

lens of various ranking systems and qualitative measures which donors look to when making aid

decisions. This data is augmented by anecdotes gathered over six months of living in the

country. Section III will provide a glimpse of Sierra Leone’s Judicial Sector. Although the

picture is incomplete, the purpose is to provide a snapshot which will humanize many of the

problems in a way that simple statistics cannot. Section IV will examine the links between

governance, rule of law and corruption and a country’s ability to reduce its poverty levels.

Section V will examine the development aid literature to highlight many of the decision points

which donors take into account when they structure aid. Section VI will provide

recommendations to Sierra Leone which will take into account the theory examined in Sections




                                                  2
IV & V and will directly address the problems highlighted in Section III and provide a necessary

predicate to Sierra Leone’s ability to address many of the problems highlighted in Section II.

II. The Current State of the Country

         Sierra Leone is alternately classified as a ―Low-Income Country Under Stress‖ (LICUS),

―Difficult Partnership Country‖ (DPC) and a ―Fragile State,‖ as well as being a post-conflict

country on top of the other classifications.2 These are the generally the worst classifications that

the various academics and donor bodies place on countries. For the most part these definitions

denote a poor country with a bad government. Although the labels connote a difficult state of

affairs for the country’s citizens, when one bores down to the details, the situation decays further.

         According to the United Nations Development Program’s (UNDP) Human Development

Indicators (HDI) Sierra Leone ranks 176 out of 177 countries for which the organization

collected data.3 The HDI is generally a quality of life ranking system which takes into account

life expectancy, literacy, education enrolment as well as gross domestic product (GDP) per

capita. Although the HDI is a derivative ranking system based upon perceptions of others, the

important inherent quality for the purposes of this paper is that it is regarded world-wide as



2
  LICUS is defined by the World Bank as ―weak institutions and high risks of conflict constraining poverty
reduction and service delivery for their own populations and creating potential negative spillovers for neighboring
countries,‖ The World Bank, Fragile States: The LICUS Initiative available at
http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/STRATEGIES/EXTLICUS/0,,menuPK:511784~page
PK:64171540~piPK:64171528~theSitePK:511778,00.html (last visited on July 25, 2007); ―DPC‖ is defined by
Levin & Dollar as ―countries with weak policies and institutions – some of the most difficult environments for aid
programs, although they are also amongst the poorest countries,‖ Victoria Levin & David Dollar, The Forgtten
States; Aid Volumes and Volatility in Difficult Partnership Countries (1992-2002) 2 (DAC Learning and Advisory
Process On Difficult Partnerships, Working Paper, 2005), available at
http://www.oecd.org/dataoecd/32/44/34687926.pdf; ―Fragile State‖ is defined by Patrick & Brown as ―countries
which are disproportionately poor [and] have difficulty performing the core functions of statehood, including the
provision of basic physical security, delivery of basic services, and the provision of legitimate government,‖ Stewart
Patrick & Kaysie Brown, Fragile States and US Foreign Assistance: Show Me the Money 5 (Ctr. For Global Dev.,
Working Paper No. 96, 2006) available at http://www.cgdev.org/files/9373_file_WP96_final.pdf.
3
  United Nations Dev. Program (UNDP), Human Development Report 2006, Human Development Indicators,
Country Fact Sheets, Sierra Leone available at
http://hdr.undp.org/hdr2006/statistics/countries/country_fact_sheets/cty_fs_SLE.html (last visited July 25, 2007)
(hereinafter ―HDI‖).


                                                          3
authoritative, despite some scholarly debate at the margins as to the accuracy of the data. Sierra

Leone’s parity purchasing power is US$561 per capita which places it at 172 out of 177.4 A

decent job for most uneducated people in Sierra Leone will pay about US $2 a day, while many

goods remain almost as expensive as they are in developed nations due to the high importation

costs and the relatively even costs of goods across globalized economies.5

        The life expectancy at birth for the average Sierra Leone is 41 years.6 This ranks Sierra

Leone 170 out of 177 countries.7 These rankings are corroborated by talking to ordinary Sierra

Leoneans and those NGOs who regularly cooperate with ordinary Sierra Leoneans. Malaria

medication costs the equivalent of a week’s salary, if the pharmaceuticals are available at all; a

mosquito net costs almost as much as many will make in three months.8 Because it is a

completely cash-based economy, many Sierra Leoneans are forced to choose between eating and

alleviating their children’s malarial symptoms as there is no access to credit other than friends or

family who are likely to be in similar circumstances.9 The trauma facilities in Freetown are

pitiful and in the provinces are completely non-existent – a serious accident anywhere in the

country brings almost certain death.10 Sam Pieh, a Sierra Leonean-American currently serving

as the executive director of Christian Health Association of Sierra Leone – a cooperative of faith-




4
  Id.
5
  See I. Kravis, A. Heston, & Summers, R, The share of services in economic growth in GLOBAL ECONOMETRICS:
ESSAYS IN HONOR OF LAWRENCE R. KLEIN. (F. G. Adams & Bert Hickman, eds.). (2003).
6
  HDI, supra note 3.
7
  Id.
8
  See Int’l Crisis Group, Liberia and Sierra Leone: Rebuilding Failed States 2 (Report No 87, Dec. 8, 2004)
available at http://www.crisisgroup.org/home/index.cfm?action=login&ref_id=3156 (―As just one example, a recent
World Bank Study estimated that 90 to 95 per cent of pharmaceuticals do not make it from the central state
pharmacy to their intended destinations.‖) (hereinafter ―ICG Report 87‖).
9
  Interview with Ibrahim Suma, in Freetown, Sierra Leone (Spring, 2007).
10
   Id..; Interview with Sam Pieh, Executive Dir, Christian Health Ass’n of Sierra Leone in Freetown, Sierra Leone
(Feb. 10, 2007).


                                                       4
based clinics, has said that Sierra Leone’s level of medical care at the primary and secondary

levels is one of the worst in all of Africa.11

        Sierra Leone performs marginally better in the two educational rankings of the HDI. Yet,

its literacy rate is only 35.1% which places it at 122 out of 177 countries; its education enrolment

ratio is 64.8%, which places it at 119 out of 177.12 Despite this, Sierra Leone has no public

education system that is totally free throughout the primary levels, as parents are required to pay

for books, uniforms and other assorted fees.13 Most times parents simply cannot afford to send

all of their children to school without assistance and are forced to make heart-breaking choices.14

        In UNDP’s other major ranking system, the Human Poverty Index (HPI-1), Sierra Leone

fairs about the same. This ranking system is another quality of life index, but the HPI-1 filters

out many of the developed countries and changes its data points to reflect areas of departure as

between developing countries.15 After this index is aggregated, weighted and sorted Sierra

Leone ranks 95th out of 102 developing countries.16 This is yet another indication of the poor

quality of life for Sierra Leonean citizens, even when scaled against other developing countries

rather than the entire international community.

        The economic statistics are equally bleak. Sierra Leone ranks 168th out of 175 in the

World Bank’s ease of doing business report for 2007.17 This dampens foreign investors’ desire


11
   Id.
12
   HDI, supra note 3.
13
   Interview with Patricia Kamara, in Freetown, Sierra Leone (May 16, 2007).
14
   Id.
15
   These include: the probability of not surviving past age 40 (Sierra Leone evidences a 47% chance, placing it 162
out of 172 developing countries); the adult illiteracy rate (64.9% of persons over 15 are illiterate, placing Sierra
Leone 111 out of 117 countries); percent of people without access to an improved water source (43% of Sierra
Leoneans have no access to improved water, placing it 106 out of 125 countries); and children underweight for their
age (27% of children under 5 years old are underweight for their age, placing Sierra Leone 106 out of 134
countries). HDI, supra note 3.
16
   Id.
17
   Specifically, out of 168 countries Sierra Leone ranks 80th in ease of starting a business, 156th in dealing with
licenses, 171st in employing workers, 168th in registering property, 99th in protecting investors, 124th in trade
across borders, 166th in enforcing contracts, and 138th in paying taxes. World Bank, World Governance Indicators


                                                         5
to enter its market because of unnecessary impediments to their ability to conduct business in

Sierra Leone. Further, the banking system is in shambles as corruption inside the industry is

prevalent and the country’s monetary policy has mandated rising inflation, falling currency value

and a completely cash-based economy, all of which dampen people’s access to credit.18 One

factor which aggravates this is the lack of ability non-nationals have to own property.19

Although many businessmen who want to enter the market simply embark on a nominal

partnership with a Sierra Leonean, or set up strawmen, this lack of property rights also

disincentivizes foreign capital investment in the country.20 While foreign investment is

dampened, mostly by governmental actions, inflation is outpacing GDP growth rate by almost

2% each year.21 The monetary policy adopted by the government is at best, ad hoc; the

government collects very little of the available revenue and seems to have no plan for effectively

integrating the internal revenues it does collect with outside aid and investment money.22

Instead, as one Sierra Leonean diplomat said, ―all our resources have gone toward recreating the

conditions that caused the conflict.‖23

         The governance and corruption indexes show little difference from the other indices.

Using the World Bank’s Worldwide Governance Indicators as indicative (if not authoritative) of

the general structure of Sierra Leone’s governance, there is a fairly flat trend over the three years


2006, Six governance indicators for Sierra Leone (2007), available at
http://info.worldbank.org/governance/kkz2005/sc_chart.asp (hereinafter ―WGI‖).
18
   Interview with Sansige Kanu, owner, Ramada’s Beach Bar in Freetown (April, 2007).
19
   Id.
20
   Id.
21
   International Monetary Fund’s (IMF) projects Sierra Leone’s Real GDP Growth Rate (per capita) at 5.3%, 4.4%,
4.0% for the years 2006, 2007 & 2008, whereas it projects Sierra Leone’s Consumer Price Inflation at 12.4%, 9.3%
and 8.0% for the same years. IMF, Sierra Leone: Poverty Reduction Strategy Paper (Annual Progress Report
prepared jointly by the IMF and the Government of Sierra Leone, Sept. 2006) available at
https://www.internationalmonetaryfund.org/external/pubs/ft/scr/2007/cr0717.pdf (hereinafter ―IMF Report‖).
22
   See ICG Report 87, supra note 8, at 6 (―Rather than the government collecting maximum revenues, using them to
pay for basic services, and then developing a plan to seek specific, targeted assistance where funds are insufficient, it
is outside actors (donors, INGOs or UN) that set policy and perform other state functions‖).
23
   ICG Report 87, supra note 8, at 8.


                                                           6
following the 2002 peace which shifted the country into a post-conflict status.24 In almost all six

of the indicators (voice and accountability, political stability, government effectiveness,

regulatory quality, rule of law and control of corruption) Sierra Leone lags behind its regional

average and its income category averages.25 The flat trend evidenced over the years following

peace shows an inability of the Kabbah administration to focus money and reforms on the

policies and institutions which could raise its rankings in these areas.26

        Particularly notable are the rule of law and the control of corruption rankings. In these

two categories Sierra Leone ranked in the 12.1 percentile for Rule of Law in 2005 and in the 17.2

percentile for Control of Corruption in 2007.27 Additionally, in Transparency International’s

Corruption Perceptions Index for 2006 Sierra Leone ranked so low that only 14 of the 163

countries received a lower ranking than it did.28 Corruption stories from Sierra Leone are

numerous, but one which seems illustrative took place in June, 2007. The Transportation

Minister of Sierra Leone was sacked because he allowed a helicopter company to resume flying

after one of its aircraft had numerous in-flight fires.29 The Nigerian businessman who owned the

company bribed the Minister to revoke the mandatory grounding order even though the company

had neither identified, nor fixed the problem.30 Two months later the same exact aircraft caught

on fire as it was landing.31 The fuel tanks ignited and twenty-two Togolese officials were

killed.32



24
   WGI, supra note 17.
25
   WGI, supra note 17.
26
   IMF Report, supra note 21.
27
   WGI, supra note 17.
28
   Transparency International, Corruption Perceptions Index 2006 (2006) available at
http://www.transparency.org/news_room/in_focus/2006/cpi_2006__1/cpi_table (hereinafter CPI).
29
   Lungi Copter Crash Kills 22, FOR DI PEOPLE (Freetown), June 2, 2007, at 1, 2.
30
   Id.
31
   Id.
32
   Id.


                                                      7
        The Kabbah administration argues that it has been doing much for the country, and that

Sierra Leone is only recently transferring from a post-conflict stabilization status to a developing

country status.33 Further, the administration argues that while these indices paint an extremely

bleak picture of Sierra Leone, they are mainly focused on indicators of note for developing

countries; this government has been forced into focussing expenditures on stabilization efforts

such as enhancing the professionalism of the armed forces and bolstering the police, rather than

on economic development measures such as job-creation programs.34 With stabilization efforts

nearing completion, only now can the government begin to focus on solely development and

poverty reduction programs.35 That said, development aid is still dampened by the

administration’s lack of performance on these indices which donors evaluate when making aid

decisions.36 More importantly, this government spin is of little solace to the people of the

country living in tin shacks without healthcare, water, education or access to a judicial system.

III. The Current State of Sierra Leone’s Judicial Sector

The rule of law has complex links to the overall state of a country.37 Before turning to these

theoretical links some anecdotal context is necessary to set the stage. When donors seek to

strengthen the rule of law, one of the main methods they use is to assist in the reformation of the

judicial sector itself.38 To that end three anecdotes have been chosen as illustrative of the current



33
   IMF Report, supra note 21.
34
   IMF Report, supra note 21.
35
   See Int’l Crisis Group, Sierra Leone: The Election Opportunity 1 (Report No. 129, July 12, 2007) (hereinafter ICG
Report 129) (―Since the civil war officially ended in 2002, Sierra Leone has made significant progress in
consolidating peace and rebuilding basic government institutions.‖); but see ICG Report 87, supra note 8, at 3
(―Now that Sierra Leone has an elected government and once Liberia does too, the primary political role of
international community should be to support and encourage rule of law and civil rights such as freedom of speech,
press and association that will allow government, civil society and the population at large to argue their way to
solutions without fear of reprisal.‖).
36
   Patrick & Brown, supra note 2, at 9.
37
   These links will be analyzed in more detail, infra.
38
   Maria Gonzalez de Asis, Anticorruption Reform in Rule of Law Programs 2 (paper for World Bank, unknown
date) available at http://info.worldbank.org/etools/docs/library/108546/asis%5Fac%5Frol.pdf (noting that


                                                         8
state (or lack) of judicial sector reform in Sierra Leone. The first anecdote illustrates the dearth

of records in the criminal justice sector and the effects that the lack of records has on citizens of

the country. The second anecdote illustrates a few of the effects of the lack of publicly available

judgments. The third anecdote illustrates how local lawyers operate in Sierra Leone and

highlights some consequences of the bar controlling the docket rather than the bench.

A. Fatmata & The Lack of Records

         Fatmata is 24 years old and was recently released, without a trial, after being in prison for

five years.39 She was accused of child stealing, but the story is not simple. Fatmata and her

brother, who is seven years younger than her, were raised in Freetown. When Fatmata was 17,

and her younger brother was ten, their parents were killed in a tragic accident. Fatmata was old

enough to strike out on her own, and she worked for a while as a petty trader selling various

goods that she was able to scrounge out of trash-heaps or pluck from trees in her neighbourhood.

Her brother was young enough that he was not able to take care of himself and he went to a

family friend who volunteered to provide his room and board. The man mistreated Fatmata’s

brother, constantly beating him when he did not do exactly as the man demanded. Fatmata

quickly had enough. In the middle of the night soon after he first went to live with the man she

took her brother from the man’s house, and they boarded a bus for Kailahun. Fatmata used the

only money she had to take her brother to a distant relative across Sierra Leone.

         Fatmata felt a cloud of relief wash over her when she arrived in her family’s village. She

deposited her brother with the family and spent the night. For reasons that are not entirely clear,

the family contacted the local police, who picked up Fatmata during the night. Fatmata was sent

to the women’s prison back in Freetown, where she stayed for five years without ever being

strengthening democratic institutions, legislation and the police are the other aspects of traditional rule of law
reforms).
39
   Interview with Leigh Lawrie, co-founder, ActionAid-Sierra Leone, in Freetown, Sierra Leone (May 5, 2007).


                                                          9
heard on the merits of her case. She was not able to afford a lawyer and the lawyer that was

assigned to her did absolutely nothing during the first five years of her incarceration, as the

lawyer was told by the Attorney General’s office that Fatmata’s file was lost and until it was

recovered no progress could be made on her case.

         This year an NGO called ActionAid became involved with Fatmata’s case and was able

to secure the services of a different defence attorney. This attorney was able to engage with the

Attorney General. The Attorney General discovered Fatmata’s casefile and the new defence

attorney was able to examine it. The defence attorney argued that the file contained zero

evidence, and, in any event, the maximum sentence which Fatmata could serve for child stealing

was four years and she was already an entire year past that. The Attorney General agreed.

Within three weeks of ActionAid securing the services of the new defence attorney, Fatmata

unceremoniously walked out onto the streets of Freetown a free woman. There was no

restitution; there was no renumeration; there was no compensation for the five years of Fatmata’s

life that she will not get back. This gross violation of her ICCPR Article 14(3)(c) rights was

never even broached. 40 Fatmata was simply happy to be enable to return to, and to reassemble,

her life. She has plans to return to Kailahun, where her brother is living with a different family,

and to begin her new life with her brother.

B. Lynn & The Lack of Written Judgments

         The Special Court for Sierra Leone was established in 2002 to bring to justice those who

hold the greatest responsibility for crimes committed against the civilians of that country during



40
   International Covenant on Civil and Political Rights, Art. 14(3)(c)Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc.
E, 95-2 (1978); 6 I.L.M. 368 (1967) (hereinafter ―ICCPR‖) (―In the determination of any criminal charge against
him, everyone shall be entitled to the following minimum guarantees, in full equality: . . . To be tried without undue
delay.‖) (Sierra Leone acceded to the ICCPR on 23 August 1996.); the right to a speedy trial is also a protected right
in the Sierra Leone Constitution. National Constitution of Sierra Leone (1991), Art. 17(3).


                                                         10
its eleven-year civil war.41 As part of its mandate, the Special Court is to look to domestic

sentencing trends (as well as the sentencing trends found in other international tribunals) when

making sentencing decisions against persons found guilty of crimes within the Court’s

jurisdiction.42 Lynn is a Canadian prosecutor working for the Court and was assigned to write

much of the sentencing brief for the Prosecution in anticipation of the judgments being rendered

by the trial chamber.43 She wrote a draft template which the attorneys for each of the cases

modified by filling in aggravating and mitigating factors that had arisen during the course of the

two trials.

        While Lynn was writing the sentencing brief she was able to research from her desk the

international jurisprudence as it was publicly available on the internet and in various publications

in the court’s library. Despite living in Sierra Leone and despite working at a court that was

supposed to integrate international and domestic law she was not able to find any national

jurisprudence either on the internet or in the court library.44

        First, Lynn attempted to contact the Temple of Justice to determine where she would be

able to get national judgments from leading cases. Lynn explained that she did not know the

cases, but thought that the clerk she was talking to on the phone would be able to send her a few

cases. The clerk replied that without a case name he would not be able to produce any

judgments. Lynn later went downtown to explain her situation in person. The clerk Lynn spoke

to at the courthouse was equally unhelpful. He maintained that without a specific case he could

not produce a judgment. When Lynn simply asked for some of the murder judgments the clerk

still was unable to give her any decisions.

41
   S.C. Res. 1315, Art. 1(1), U.N. Doc. S/RES/1315 (Aug. 14, 2000) (hereinafter ―SCSL Statute‖).
42
   SCSL Statute, supra note 41, Art. 19(1).
43
   Interview with Lynn Hintz, Office of the Prosecutor, Special Court for Sierra Leone, in Freetown, Sierra Leone
(April, 2007).
44
   See SCSL Statute, supra note 41, Arts. 2-5.


                                                        11
       After being unable to work through the courthouse, Lynn made an appointment to go

downtown to the Temple of Justice and meet with two attorneys of national repute. She was told

while meeting with the two attorneys that rarely are judgments rendered in written format and

that oral judgments delivered from the bench are the norm in the national court system.

Eventually, she was able to draw more information out of the attorneys, but only after she

surrendered some money to them. They considered the information that they were providing to

her proprietary and were not willing to give it without any compensation. Lynn paid them what

they were asking and in return they provided her with the knowledge that there were very little

sentencing guidelines but that people guilty of murder were routinely (and nearly exclusively)

sentenced to death.

       The few decisions she was able to get out of the lawyers were not very helpful as they

were often dictated by one of the scribes the attorneys’ hire to sit in the courtrooms in Freetown

dictating oral judgments rendered from the bench. Some decisions were typed by the judges or

their clerks, but these were few and far between, and were carefully guarded by the various firms

who had scribes present when the judgments were rendered. Often this is the only way that firms

are able to get written opinions as they are routinely lost after the judgments are rendered by the

bench. They completely lacked any amount of reasoning and often rendered a guilty or not

guilty verdict combined with the sentence. She could find little helpful analysis of mitigating or

aggravating factors in murder cases, even in the extremely rare occurrence when a criminal case

reached the Court of Appeal or Supreme Court level.

C. Elvis & The Lack of Docket Management




                                                 12
         Elvis is a Barrister and Solicitor of the High Court of Sierra Leone.45 He has been

practicing law for about eight years and is the managing partner for the Chambers of Charles

Margai who is now one of the candidates in the 2007 Presidential Election.46 Besides managing

the Chambers he still spends the majority of his five working days in the various courts in Sierra

Leone. Wearing his long black robe and a ratty woollen wig that looks more like a skull cap than

the wigs traditionally associated with anglo-legacy court systems, Elvis floats about the building

from courtroom to courtroom. He often appears in more than six or seven courtrooms in the

building for an equal number of cases in a single day – five days a week. Elvis rarely carries

anything with him, but has an apprentice carry a large bag from room to room for him.

         Most of his arguments are done, like the other barristers with whom he jovially banters,

without the aid of notes or papers of any kind. Even on large, important cases he rarely takes

papers into the courtroom with him – they are too expensive, so he saves them for contracts and

appellate case filings. The methodology Elvis uses to advocate for his clients would not be

foreign to most lawyers with a common-law pedigree. He mixes common law precedent with

the facts of his case and sprinkles in the necessary amount of policy whenever standing before

any of the Sierra Leonean courts (he has argued before every court in the country). 47 What will

be unfamiliar to many lawyers will be the cases that he is forced to use. Binding precedent in a

country nearly without written judgments amounts to British cases decided before Sierra Leone

declared its independence in 1880 as well as the few Sierra Leonean cases where written

judgments are available.48 Since the majority of the cases are not viable for a number of reasons



45
   Interview with Elvis Kargbo, Barrister, in Freetown, Sierra Leone (May 16, 2007).
46
   See ICG Report 129, supra note 35, at 3 (noting that Charles Margai is a Presidential Candidate).
47
   This is not terribly difficult given that there are about seven trial level courts and the Supreme Court in one
building in Freetown, two Courts of Appeal across the street; these courtrooms comprise the entire formal judicial
sector within the country.
48
   Interview with Elvis Kargbo, supra note 45.


                                                         13
Elvis turns to modern British cases and cases from other West African countries as persuasive

authority and ―goes all out‖ arguing for the adoption in Sierra Leone of the case law.49

        A typical day may consist of defending a criminal suit, representing the plaintiff in a

contract dispute and a number of real property cases on either side of various eviction suits. He

enters the courtroom with a flourish, which is not difficult being that he is a linebacker-sized

man, and squeezes his way onto the wooden bench directly below the judge which serves as the

place for the barristers and solicitors to wait.

        Case management is a first-come, first-served process nominally regulated by social

norms that exist among the bar, including privileges which attend to age and/or status. Once a

case or two has finished for the day, Elvis will attempt to call his case next by being the first one

to grab the judge’s attention after the judge has finished taking notes on the preceding case. The

bench does not call the cases, rather the first lawyer who stands and ―mentions the case of‖ will

be the next to be heard by the bench. This creates a market-like environment in the courtroom in

between the time the judge finishes hearing a case for the day and recognizing one of the lawyers

for the next case.

        Outside this flourish of activity, the air in the courtrooms seethes colonial laziness. The

clerks are often fully asleep in the courtroom; the people are jammed into wooden benches

behind the bar, and the lawyers jockey with each other in between laughing with and at each

other. The pace in the courtroom is often tediously slow as the judge seems to take copious

handwritten notes as do the apprentice boys who carry the bags for their supervising lawyers.



49
  Id.; interview with Joseph Kamara, Barrister, in Freetown, Sierra Leone (May 20, 2007); see also Amnesty Int’l,
Sierra Leone: Women Face Human Rights Abuses in the Informal Legal Sector 1 (AFR 51/002/2006, May 17, 2006)
(hereinafter AI Report) (―Formal and customary law coexist in Sierra Leone. Formal law comprises of the
Constitution, laws made by Parliament, and common law. Customary law, part of common law, is largely unwritten
and defined in the Constitutions as ―the rules of law which by custom are applicable to particular communities in
Sierra Leone.‖).


                                                       14
        Unsurprisingly, nothing ever seems to get accomplished. In a typical day Elvis will

appear in at least six or seven cases and maybe one of them will get heard on the merits of the

case, but rarely for more than one witness in any given day. Numerous difficulties exist in

getting everyone that needs to be present in the courtroom on any given day, and at the same

time. These include the difficulties of bringing witnesses and evidence in from the provinces to

the one main courthouse in the country, the practicalities of the lawyers (by running so many

cases in the same day they are not often in the courtroom at the same time as opposing counsel),

and the general lack of notice to everyone involved in the litigation. When lawyers seek leave to

adjourn court until they can work out the difficulties presented they will ask the court to ―take a

date.‖ The judge and the attorney(s) present will mark their calendar for a specific date, but

rarely will a time be established. This enables the judge to bring the file of the case to court that

day, but it isn’t clear whether the case will move forward on that day ―taken.‖

        If Elvis’s clients are solvent he will charge them for each and every appearance, so he is

not terribly bothered whenever he takes a date.50 The payment schema in the country is based

upon numbers of appearances in court rather than on time allotted on a given case.51 If Elvis’s

clients are not solvent he usually lets the bills pile up and then sues the client for unpaid bills and

sends them away to prison for unpaid debts.52 They may or may not get out of the prison before

they serve the maximum sentence allotted for unpaid debts.53

IV. Poverty Reduction Capacity and its Linkages to Governance Sectors




50
   Interview with Elvis Kargbo, supra note 45.
51
   Interview with Martha Bangura, in Freetown, Sierra Leone (June 5, 2007).
52
   Interview with Sabrina Mahtani, co-founder, ActionAid-Sierra Leone, in Freetown, Sierra Leone (May, 2007).
53
   Id.


                                                       15
Strengthening the rule of law is a goal in and of itself. Countries with weak rule of law regimes

routinely violate the human rights of their citizens and find it hard to control corruption.54 It

follows that if Sierra Leone had a strong judicial sector, it may be able to address many of the

problems highlighted in Section III. However, there are also less direct effects of a weak rule of

law; namely, foreign direct investment (FDI) is dampened, and many donors give less

development aid to governments with a weak rule of law – all else being equal.55 FDI and

development aid are the two major external catalysts to growth, and without them most modern

states will find it difficult to reduce the poverty within their countries.56 It follows that if Sierra

Leone had a strong judicial sector, it may be able to efficiently address many of the problems

highlighted in Section II.

        The links between governance, rule of law and corruption will be viewed through the lens

of poverty reduction — one of the overriding policy objectives of development aid. Donors give

money to developing countries for a number of reasons, including: formulating or solidifying

strategic partnerships, poverty reduction, and conflict resolution.57 Traditionally, donors gave

money almost exclusively for the first reason, and, derivatively, for the third.58 This section will

focus solely on the poverty reduction motivation for aid, as the strategic partnerships and conflict

resolution motivations for aid are highly political decisions outside the scope of this paper.




54
   See Asis, supra note 38, at 2.
55
   See Asis, supra note 38, at 2, 5.
56
   See Organisation for Economic Co-operation and Development (OECD), Foreign Direct Investment for
Development: Maximising Benefits, Minimising Costs 3 (2002) available at
http://www.oecd.org/dataoecd/47/51/1959815.pdf (hereinafter OECD). A full vetting of FDI is outside the scope of
this paper.
57
   See Patrick & Brown, supra note 2, at 7.
58
   Craig Burnside & David Dollar, Aid Policies, and Growth, 90 AM ECON. REV. 848 (2000).


                                                       16
         Increasingly, donors are focusing on poverty reduction as the goal of their aid, even

though strategic alliances will likely continue to play a major role in aid decision making.59

Success of aid money invested with a poverty reduction focus is evaluated by the number of

people who are enabled to rise above the poverty line as a result of the development aid.60 This

relatively new focus is the combination of a strict capitalist’s desire to maximize return on

investments combined with an egalitarian’s desire to reduce social disparities by realigning

wealth in an equitable manner.61 Donors such as the Millennium Challenge Corporation who

espouse a poverty reduction focus will channel their money towards those countries who meet

good governance benchmarks to maximize returns on investments in poverty reduction by

focussing that money and capital in only those countries which will be able to bring the most

people out from under the poverty threshold for every unit of money donated.62

A. Links Between Good Governance and Poverty Reduction

         Judicial sector reforms cannot be analyzed in isolation. They must be analyzed as one

sector of an overall governance system.63 Therefore, the analysis must begin with an overall

governance system’s ability to reduce poverty. There seems to be a consensus among

59
   Alberto Alesina & Beatrice Weder, Do Corrupt governments Receive Less Foreign Aid, 92 AM ECON. REV. 1126
(2002) (quoting the World Bank that ―[t]here is no value in providing large amounts of money to a country with
poor policies.‖); see also Burnside & Dollar, supra note 58, at 848 (concluding that ―aid might have more impact on
growth in the developing world if it were systematically allocated toward good policy environments.‖).
60
   Organisation for Economic Co-operation and Development, Development Cooperation Directorate, The DAC
Guidelines for Poverty Reduction 57-58 (2001) available at http://www.oecd.org/dataoecd/47/14/2672735.pdf.
61
   This is a relatively new development, and even to that extent is only prevalent in the margins. See Alesina &
Weder, supra note 59, at 1127 cf. id. at 1128 (noting that donor countries typically give disproportionately to their
former colonies regardless of the corruption level of the donee). Chauvet & Collier have argued that this should be
a more mainstream solution as poor governance does not only reduce a government’s capacity to alleviate poverty,
but often actually increases the poverty level as well as the other dimensions of the Millennium Development Goals.
Lisa Chauvet & Paul Collier, Development Effectiveness in Fragile States: Spillovers and Turnarounds 2 (paper for
Centre for the Study of African Economies, Oxford University, Jan., 2004).
62
   Levin & Dollar find that Difficult Partnership Countries (Lower Income Countries (LIC) with consistently bad
policy environments) receive less 43% aid than their population, poverty and institutional level would have
predicted, 53% less bilateral aid and 34% less multilateral aid. Levin & Dollar, supra note 2, at 10, 13.
63
   Julius Court, Goran Hyden Ken Mease, The Judiciary and Governance in 16 Developing Countries 6-7 (United
Nations University, Wold Governance Survey Discussion Paper 9, May 2003) ("The two concepts of governance
and rule of law are clearly interrelated: without a fair and effective judiciary based on the rule of law one can hardly
imagine good governance.").


                                                          17
development economists that a strong policy environment in aid-receiving countries is usually

necessary for converting the aid money into economic growth and its attendant poverty

reduction.64 As Kofi Anan said, "good governance is perhaps the single most important factor in

eradicating poverty and promoting development."65

         Good governance is less normative than the label may imply at first blush. It implies a

policy and institutional environment that is stable and flexible enough to address the needs of its

constituency.66 Good governance regimes typically receive more money in FDI and

development aid than other regimes in similar population, wealth and geographic brackets. 67

This higher revenue enables the creation of jobs and governmental services which help reduce

poverty as well as catalyzing further growth. 68 Good governance regimes are also more likely to

have expenditure systems focussed on enriching their citizens rather than their bureaucrats and

ministers.69 These regimes will have a vision and overall plan for the future which will

strengthen all sectors in an effort to reduce poverty levels and grow out of its developing country

status.70 Good governance will also have efficient political feedback loops and public

engagement in shaping how the aid funds will be spent.71

B. Links Between the Rule of Law and Poverty Reduction

64
   See Levin & Dollar, supra note 2, at 2 (noting the scholarly consensus).
65
   Kofi Annan, Secretary-General of the United Nations, Partnerships for Global Community: Annual Report on the
Work of the Organisation (1998).
66
   MICHELINE ISHAY, THE HISTORY OF HUMAN RIGHTS: FROM ANCIENT TIMES TO THE GLOBALIZATION ERA 22, 23
(2004) (noting that Confucius taught that "[a]s long as government took an interest in the economic and moral
welfare of its people . . . peace, stability and security . . . would be assured" whereas Socrates taught that "a just
individual, like a just government, keeps in harmony the constitutive elements of his soul").
67
   Patrick & Brown, supra note 2, at 9; but see John Hewko, Foreign Direct Investment: Does the Rule of Law
Matter? 4, 7 (Carnegie Endowment Working Papers Number 26, Apr. 2002) (challenging the "conventional
wisdom" that FDI is dampened in misguided policy and institutional environments because "[s]ignificantly more
important factors for investors are the existence of real business opportunities").
68
   See Burnside & Dollar, supra note 58, at 848 (noting that traditionally ―aid is fungible and tends to increase
governmental spending proportionately‖).
69
   See ISHAY, supra note 66, at 22, 23
70
   See United Nations Development Programme, Democratic Governance Section, Governance and the Millennium
Development Goals available at http://www.undp.org/governance/mdgs.htm.
71
   See id.


                                                          18
         Although most of the effects that the rule of law will have on poverty reduction are

derivative, a strong rule of law is usually a necessary predicate to, and an integral part of, an

overall growth plan that will allow governments to meet poverty reduction goals. 72 Most

scholars find a positive correlation between a strong rule of law and a government’s ability to

reduce poverty.73 The main reasons for this correlation are that a strong rule of law protects

human rights and democratic institutions, incentivizes and protects FDI, and restrains corruption

and other crimes.74 A weak rule of law does not necessitate that a country will find itself in a

dire overall state; however, there are causal linkages between a weak rule of law and a weak

state.75 Some of the links are direct and some are indirect externalities. A weak rule of law will

directly affect a government’s ability to uphold human rights and democratic institutions, it will

affect a government’s ability to attract FDI, and it will affect a country’s ability to control

corruption and other crimes; indirectly, a weak rule of law will dampen additional development

aid.76

          Scholars have found few direct links between a good human rights record (in isolation)

and a government’s ability to alleviate poverty. There are usually consequences of a poor human

rights record other than a country’s ability to reduce its poverty, including internal conflict and




72
   See Court, et. al., supra note 63, at 7 (noting there are two schools of scholarship regarding the linkage between
development and rule of law, one is the constitutive school which argues that "development is defined by the
presence of rule of law" while the other is the instrumentalist school which argues that the "judicial arena contributes
to development [by affecting] economic performance and people's welfare."). This paper will not address these two
schools, but will proceed along the lines of the instrumentalist school since for these purposes the constitutive school
completely subsumes the instrumentalist.
73
   Lars Feld & Stefan Voigt, Economic Growth & Judicial Independence, (CESifo Working Paper Series 906, Apr.
2003); Richard E. Messick, Judicial Reform and Economic Development: A Survey of the Issues, 14 WORLD BANK
RES. OBSERVER 120 (1999) ("Whatever the rationale for judicial reform, it is widely believed that reform will
significantly improve economic performance" by "enforcing property rights, checking abuses of government power,
and otherwise upholding the rule of law.").
74
   Asis, supra note 38, at 2.
75
   See Messick, supra note 73, at 117.
76
   Asis, supra note 38, at 2.


                                                          19
the overall unhappiness of its citizenry.77 However, a strong human rights record will enable a

country to lobby for more development money than a poor human rights record.78 This effect of

a strong rule of law is an externality where the causal relationship is evident only at a remove.

Countries must first use rule of law reforms to strengthen their human rights record and then they

will be able to lobby donors for more money.

        One of the more direct linkages is between a country’s ability to attract FDI and its rule

of law. As far back as the 16th Century Thomas Hobbes argued that ―without a judicial system,

traders would be reluctant to enter into wealth-enhancing exchanges for fear that the bargain

would not be honoured."79 Countries and companies looking to invest capital in a developing

country are much more likely to invest in a country with a strong record of property rights and

protection of contractual obligations.80 The longer it takes an entity to enforce contracts and the

less stable their property rights would be in a given country, the less likely they are to invest

large amounts of capital in a given country.81 This capital brings not only employment, but also

governmental revenues.82



77
   See, e.g., Sierra Leone Truth & Reconciliation Commission Report available at
http://www.trcsierraleone.org/drwebsite/publish/index.shtml (hereinafter ―TRC Report‖) (―[T]he Commission came
to the conclusion that it was years of bad governance, endemic corruption and the denial of basic human rights that
created the deplorable conditions that made conflict inevitable. Successive regimes became increasingly impervious
to the wishes and needs of the majority. Instead of implementing positive and progressive policies, each regime
perpetuated the ills and self-serving machinations left behind by its predecessor.‖).
78
   Messick, supra note 73, at 119 (noting that the Intra-American Development Bank "sees judical reform as an
indispensable element in consolidating democratic institutions in Latin America by protection basic human rights
and promoting harmonious social relations.").
79
   Id. at 120.
80
   Hewko, supra note 67, at 6; Messick, supra note 73, at 121 ("[E]conomic development depends on a legal system
in which not only are contracts between private parties enforced, but the property rights of foreign and domestic
investors are respected and the executive and legislative branches of government operate within a known framework
of rules.").
81
   Hewko, supra note 67, at 6; Messick, supra note 73, at 119 (noting that the Intra-American Development Bank
"sees judicial reform as an indispensable element in consolidating democratic institutions in Latin America by
protection basic human rights and promoting harmonious social relations.").
82
   World Bank, World Development Report 2002: Building Institutions for Markets available at
http://www.worldbank.org/wdr/2001/fulltext/fulltext2002.htm (concluding that governmental income and the rule of
law are highly correlated).


                                                        20
        A strong rule of law has an innate ability to constrain the other democratic governance

institutions of the state. "[T]he judiciary [is] in a unique position to support sustainable

development by holding the other two branches accountable for their decisions and underpinning

the credibility of the overall business and political environment."83 Although using rule of law

as the vehicle for social engineering was proven to be a misguided policy after the US-inspired

Law & Development efforts of the 1970’s, a strong rule of law will enable other (more

democratic) vehicles of social change by constraining them within the boundaries set by a

nation’s constitution or other superior laws as well as maintaining an electorate’s ability to

achieve accountability over the democratic sectors of the government.84

C. Links Between Corruption and Poverty Reduction

        The main linkage between a strong rule of law and a government’s ability to reduce

poverty is through corruption. A strong rule of law that is able to control corruption and other

crimes is also likely to enable the government to focus on poverty reduction, rather than other

economic distractions.85 The relationship between a strong rule of law and corruption is not

necessarily a linear one. Yet it is sufficiently tight that some of the consequences of a corrupt

governance system must be explained to full appreciate one of the major effects of a weak rule of

law. Corruption is a dampening mechanism on aid’s ability to affect the goal of poverty

reduction.86 The most obvious and direct link is that corrupt politicians, by skimming money




83
   World Bank, World Development Report 1997: The State in a Changing World 100 available at
http://www.eldis.org/static/DOC3863.htm.
84
   Messick, supra note 73, at 125.
85
   See Rohini Pande, Understanding Political Corruption in Low Income Countries 6-7 (Center for International
Development at Harvard University, Working Paper No. 145, Apr. 2007) (noting the dual effect that criminalization
of corruption can have, first by the criminal justice system acting as a constraint on corruption, and secondly by
enabling the development of social sanctions due to the stigmatization of the act of corruption as criminal.)
86
   There is a fairly consistent scholarly consensus that corruption has a negative effect upon growth. See, e.g.,
Alesina & Weder, supra note 59, at 1128.


                                                       21
from the national revenues, reduce the real amounts of which a given sector is able to put to

poverty reduction efforts.87

        There are two other, less obvious, links. The first is that many countries who evince high

levels of corruption actually have enabling social norms wherein constituencies acquiesce to the

corruption that is happening either due to approval, ignorance or an inability to act.88 These

environments often cycle corruption to higher and higher levels, and in order to retain power

groups must appease their constituencies, often at a cost to other constituencies.89 When the

deprived constituency acquires enough power it will often perform in a similar fashion only with

a different tribal, clan, racial or cultural favourite. These cycles of deprivation and favouritism

are often the fuel for conflicts, but even when the society does not spiral into conflict it often

stagnates due to the volatility in the education and experience of its workforce.90 When the

educated and experienced members of a ruling class are put into the shanty towns and replaced

by the former inhabitants of those towns the braindrain on the country is appreciable.91 This

braindrain will often dampen a country’s ability to further nascent reforms as well as dampen its

ability to embark on different reforms – at least until the new ruling class acquires the skill set to

govern adequately. This argument can be reversed, however. When favouritism extends over a

long enough timeframe the resulting oligarchy may actually be an efficient system of

governance; however, there is little historical evidence that this system of governance will take


87
   Pande, supra note 85, at 3.
88
   Id. at 3, 32.
89
   See id. at 4 (discussing the systemization of corruption).
90
   Indeed, these cycles were identified by the Sierra Leonean Truth & Reconciliation Commission as one of the root
causes of the war. See TRC Report, supra note 77, (―[T]he Commission came to the conclusion that it was years of
bad governance, endemic corruption and the denial of basic human rights that created the deplorable conditions that
made conflict inevitable. Successive regimes became increasingly impervious to the wishes and needs of the
majority. Instead of implementing positive and progressive policies, each regime perpetuated the ills and self-
serving machinations left behind by its predecessor.‖)
91
   For an example of this in action, see FESTUS B. ABOAGYE, ECOMOG: A SUB-REGOINAL EXPERIENCE IN
CONFLICT RESOLUTION MANAGEMENT AND PECEKEEPING IN LIBERIA 19-31 (1991).


                                                        22
steps to reduce the poverty of the deprived citizens as such empowerment may enable a toppling

of the oligarchy.

        Lastly corruption dampens a country’s ability to alleviate poverty because of the high

correlation between corruption and overregulation.92 Corrupt countries often enact numerous,

unnecessary regulations because it gives bureaucrats an opportunity to supplement their income

with bribes from citizens and companies.93 This loss of potential governmental revenue will

reduce the services a government may have been able to offer with these services. Not only will

overregulation directly disincentivize FDI, but it also is often used as a proxy for corruption by

many bilateral and multilateral donors who reduce their development aid to corrupt governments

as being wasteful, risky expenditures.94

        Although there is strong evidence that corruption has a negative effect upon growth,

many donor nations nevertheless give large amounts of money to corrupt nations.95 This shows

that although corruption may impact a country’s ability to efficiently alleviate poverty within its

territory, it may not hurt it at the bargaining table when it lobbies for more aid or a continuation

of aid.96 When donors do raise aid amounts corruption usually raises.97

V. Theories of Aid Dispensation




92
   See Pande, supra note 85, at 19 (citing numerous studies which point out the high correlation between
overregulation and corruption and hypothesized reasons for that correlation).
93
   ICG Report 129, supra note 35, at 9 (―Often incomprehensible administrative discretion and bogus procedures
create opportunities for graft; bribes are common for even basic government services.‖).
94
   See Mark McGillivray, Aid Allocation and Fragile States 11 (United Nations University, Discussion Paper No.
2006/01, Jan. 2006).
95
   Alesina & Weder, supra note 59, at 1131.
96
   This could be explained by donor’s who focus on strategic alliances.
97
   Alesina & Weder, supra note 59, at 1135 (conceding that their study does not differentiate between a larger
amount of corruption due to a larger overall pot of money and an increase in the percentage of public moneys that
ended up in private coffers).


                                                        23
Donors seeking to help countries strengthen the rule of law and stem corruption must take into

account a variety of factors when they formulate their development plans; these factors can be

generally grouped into questions of timing, type and amounts.

         One of the largest problems with a misguided policy environment is that the country

enters a self-perpetuating purgatal status. One seminal study found that the probability of a

country with a misguided policy and institutional environment reforming itself is only 1.8%.98

Donors giving to these types of countries realize that there is an extremely high risk that any aid

given will not go poverty reduction.99 The willingness of the receiving country to reform itself is

a vital, if not the most important, factor to a given country’s likelihood of eventually pulling

itself out of poverty.100 When a country reforms misguided policies and begins to create a good

policy environment, the direct and indirect effects of such a change are tangible.

         It is important for donors to determine how the aid will be structured no matter whether

the country is in a pre- or post-reform status, but it becomes integral in pre-reform countries.

One major determination is whether the aid should be focused on a specific project or whether it

should be general revenue for the receiving government. Without earmarking, most aid money is

fungible and has traditionally been used for wasteful public consumption, especially in pre-

reform countries.101 Chauvet & Collier have found that the allocation of aid by the receiving

government is a highly political manner where receiving ministers often have huge amounts of




98
   Chauvet & Collier, supra note 61, at 3. Notably, these chances of self-reform are fairly even across regional and
income brackets and are not generally affected by a country’s level of income before reform, nor upon its level of
democracy. See id. at 7.
99
   Id. at 9 (analogizing aid to LICUS countries to venture capitalism rather than to bank lending.); see also Patrick &
Brown, supra note 2, at 2.
100
    See id. at 11; see also Chauvet & Collier, supra note 61, at 9.
101
    Burnside & Dollar, supra note 58, at 848 (―aid is fungible and tends to increase governmental spending
proportionately, not just in the sector that donors think they are financing.‖); Alesina & Weder, supra note 59, at
1127.


                                                          24
discretion in how it is spent.102 This may not be such a problem in good governance regimes, but

in a misguided policy regime the aid becomes fuel for corruption cycles. Earmarked aid is often

more effective. When donors proactively seek out areas of need before donating money and

target their aid money to those ―situations which are ripe for improvement‖ they often

subsequently improve.103 The problem with earmarked aid is that it constrains a country’s ability

to respond to changes since it must be spent on the predetermined project.

        Donors categorize these earmarks into technical assistance, educational assistance,

healthcare assistance and all other aid.104 Technical assistance, which encapsulates most judicial

sector reform efforts, prior to a country beginning to reform itself does not seem to have a

significant effect upon a country’s probability of turning itself around.105 ―Technical assistance

is only really useful when it is provided to governments that want and need to use it.‖106 Simply,

technical assistance ―can help a government get change right, it cannot make change happen.‖107

Educational assistance, on the other hand, has a relatively high correlation with a country self-

reforming, even though this does not usually happen for a long time – a generation or more.108

All other types of aid do have a favourable effect on a country’s likelihood of self-reforming, but

only marginally.109 Again, these types of aid are extraordinarily risky ventures for donors

because of the low probability that they will actually see a return on their investments in the form

of a reforming government.

102
    Chauvet & Collier, supra note 61, at 1.
103
    Id. at 6.
104
    For definitions of each type of aid, see id. at12.
105
    McGillivray, supra note 94, at9 (noting that technical assistance has a negative correlation with effective
development in unreformed countries.); see Messick, supra note 73, at 118 ("[A] judicial reform program typically
consists of measures to strengthen the judicial branch of government and such related entities as the public
prosecutor and public defender offices, bar associations and law schools.")
106
    Chauvet & Collier, supra note 61, at 14.
107
    Id.
108
    McGillivray, supra note 94, at 9 (noting that educational assistance has a positive correcation with effective
development, regardless of the policy environment of the receiving country.).
109
    Chauvet & Collier, supra note 61, at 8.


                                                        25
         The determination of how much aid should be distributed is a complex equation which

economists generalize as a nation’s capacity to receive aid. Precisely, a countries capacity is its

ability to effectively use aid towards its intended goals, whether they be poverty reduction or

otherwise. Studies have found that there is a limit to the amount of aid a country is able to

actually put to use to reduce poverty and beyond this it is wasted on useless governmental

expenditures or is simply spent on the people in government.110 Some studies have found that a

country which has adopted good policies is not affected by the aid volume it receives.111 This

may reflect a higher aid capacity, but it could also reflect the ability of these countries to handle

lower amounts of aid if donors reduce their contributions. Countries with misguided policy and

institutional environments often have a low-capacity for aid for all the reasons explored in the

preceding section.112 This low capacity does not always stop aid coming into the country due to

strategic motivations for aid which still guide many donors. 113 However, as ―reforms proceed . .

. that capacity is put in place and then aid becomes enormously useful.‖114 This aid money given

after a country begins to reform itself is often efficiently put to use to help turn the incipient




110
    For example, low capacity countries are not often given money to improve their infrastructure only after they
have reformed their policy environment and raised their capacity to use such money. See McGillivray, supra note
94, at 2.
111
    Alesina & Weder, supra note 59, at 1127.
112
    Low-capacity countries are often highly susceptible to shocks when aid volumes fluctuate, especially downwards
as they do not have the budgetary surplus to continue many services when donor money runs low. For example,
Sierra Leone’s courthouse was given US$600 by the government for fuel as its entire budget for three months in the
summer of 2007 because many donors pulled their money out. Interview with John Rich, Master, High Court for
Sierra Leone, in Freetown, Sierra Leone (May 22, 2007).
113
    See, e.g., Patrick & Brown, supra note 2, at 9 (noting that US bilateral aid to 49 fragile states for the entire FY07
is US$1.1 billion, or the equivalent of less than US$1 per capita and roughly equivalent to four days spending on the
Iraq war. Iraq is also defined as a low capacity, fragile state by the same study.). Indeed, this may be the case in
Sierra Leone. I ICG Report 129, supra note 35, at 9 (―Development assistance, though modest compared to some
other post-conflict countries, has been substantial.‖ (citing the 2003 donor disbursement as $275M, the 2004 donor
disbursement as $244M and the 2005 and 2006 donor disbursements at $304M for a total of $907M in four years)).
114
    Chauvet & Collier, supra note 61, at 13.


                                                           26
turnaround into a sustained turnaround by solidify the good policies first emplaced by a

reforming government.115

         Lastly, there are divergent views on whether post conflict aid is helpful or not. Collier &

Hoeffler find that ―in the first few years of post-conflict peace aid was not particularly effective,

but that there was a period of high effectiveness in the middle of the decade [following

peace].‖116 However, Levin & Dollar find that ―[p]ost-conflict countries may have higher aid

capacities than other countries at similar poverty and institutional levels.‖117 Whether a country

has the capacity to use the aid money or not is seemingly not in many donors’ minds as post-

conflict DPC’s receive roughly 30% more aid per capita than non-post-conflict DPC’s.118

         The overriding theme of these two sections is that governments offering a misguided

policy and institutional environment will receive less money – and are less able to efficiently use

the money they are given for poverty reduction efforts – than those who offer good

environments, and a strong rule of law regime is integral to a good policy and institutional

environment.119 The tipping point between a difficult policy environment and a good

environment is not always easy to pinpoint. Yet, when a country, for whatever reason, begins to

reform itself by adopting monetary and governance practices which align to good institutional

environments then donors generally follow close behind with the money.120

VI. Recommendations


115
    Id. at 12 (Technical Assistance, in particular has a ―precisely complementary effect‖ in assisting an incipient
turnaround into a sustained turnaround. However, the article notes that other aid has no significant effect on
whether an incipient reform collapse, but if other aid is sufficiently large, it can serve to accelerate the progress to a
sustained turnaround.).
116
    Quoted in id.13.
117
    Levin & Dollar, supra note 2, at 2.
118
    Id.
119
    See id. at 4 (noting that DPC’s receive 40% less money than ―their policy and institutional performance and
poverty would predict‖).
120
    Messick, supra note 73, at 124 ("Absent a high level of support from the ministry of justice, senior executive
branch officials, legislators, and judges . . . judicial reform is unlikely to succeed.").


                                                            27
This paper will end with a few recommendations which will help Sierra Leone move toward the

tipping point and, eventually, further along the spectrum towards a good governance regime.

These recommendations take into account the aid theories examined in Sections IV and V and

are tailored to directly impact the problems highlighted in Section III and indirectly impact the

problems highlighted in Section II.121 Judicial Sector Reforms, like most reforms, must mix

international best practices with a thoughtful evaluation of the specific social and cultural context

of the target country, as some reforms will face harsh opposition due to a social or cultural

condition. The highlighted reforms are divided into Primary, Secondary and Long-Term Reform

Recommendations and are tiered in this manner to optimize Sierra Leone’s current capacity as

well as that capacity as it may grow when each of the Rule of Law reforms is integrated.122

         These reforms do not seek to impose western values on an African landscape via an

intellectual neo-imperial shell game, but rather they seek to incorporate those practices which

have been proven, globally, to be the best practices whereby all cultures and social structures

benefit when integrated into the target country’s cultural and social structure. Similarly, the

overriding purpose of these reforms is not to impose an alien normative overlay onto African

dispute resolution mechanisms, but rather these reforms will achieve those purposes seen

throughout the world as the ends of any judicial sector reform, which include making the judicial

branch independent, speeding the processing of cases, increasing access to dispute resolution




121
    Asis, supra note 38, at 14 (―the one size fits all assumption has not worked.‖).
122
   See id. at 3 (noting two distinct periods of reforms, the first wave focusing on curbing the discretion within
judiciaries by formalizing procedures, modernizing courts, professionalizing judges and strengthening judicial
independence – the primary goals of these reforms are the formalization and transparency of legal systems; the
second wave of reforms focuses on specific anti-corruption measures.); see also Messick, supra note 73, at 124
(reporting that one study found that "training judges, improving management systems, and supplying computers and
other resources tot he judiciary had little impact in countries where a consensus for judicial reform was lacking . . .
these traditional components of judicial reform, often termed 'institutional strengthening' should not be initiated until
more basic reforms have been achieved").


                                                           28
mechanisms, and professionalizing the bench and bar.123 There are five criteria which rule of

law scholars have found which comprise a strong rule of law and vibrant judicial sector: access

to justice which refers to fairness, due process which refers to transparency, judicial autonomy

which refers to accountability, incorporation of international human rights norms which refers to

decency, and non-judicial mechanisms for settling disputes which refers to efficiency; these

reforms are tailored to meet those criteria while retaining a cultural sensitivity and flexibility that

must be maintained when an outside entity recommends reforms outside its cultural sphere of

influence.124

A. Primary Reforms

         Two reforms must begin immediately in order to establish the predicates for the other

reforms to begin and to restore donor confidence in Sierra Leone’s willingness to enter into full-

scale judicial sector reform and thereby fully address many of the root problems that have led to

its impoverished state and its eleven-year civil war.

         The first step Sierra Leone must take is to organize what it has. The written judgments

which have been rendered need to be organized in some sensible manner so that lawyers from

outside the small fraternity are able to research the current state of Sierra Leone’s legal

regime.125 This is a very low-cost reform which will demonstrate to DFID, UNDP, USAID and

other major donors the beginnings of self-reform.126 The impetus for these reforms must come

from within Sierra Leone in order to restore donor confidence in the government’s willingness to




123
    Id. at 118-119.
124
    Court, et. al., supra note 63, at 11-13.
125
    Interview with Joseph Kamara, supra note 49. (noting that there is no organization to the current system and even
lawyers inside the system are not always able to find what they need if they did not have their clerks in the
courtrooms for judgment).
126
    Interview with John Rich, supra note 112; Messick, supra note 73, at 117 ("The recognition that good
governance is essential for economic growth has sparked renewed interest in projects to reform judicial systems.").


                                                         29
reform.127 The only resources necessary are the redirection of those clerks which currently work

at the courthouse, combined with a bit of overtime if that is necessary. There are many

advantages to this reform, namely, judicial efficiency, efficiencies for lawyers, ability of the

legal education sector to professionally and effectively train lawyers, streamlining of the appeals

process, and the ability of foreign entities to research Sierra Leonean law without too much cost.

This reform must happen immediately. In order for Sierra Leone to enable economic growth

rather than stifle it, the judicial sector must be transparent. Organizing the current judgments and

casefiles will increase both access to and transparency of the judicial sector, thereby catalyzing

growth.     Long-term judgments should be published in a publicly available forum, but for the

time being a simple organization will have to suffice due to the costliness of publication.

         Also the criminal records must be examined closely to determine precisely the status of

each person currently held in custody. The records need to contain all the information the court

has as to the procedural history of every person accused as well as those who have been

sentenced. These files need to be centrally located and defence attorneys who have filed

appearances for an accused must be given access to them. Similarly, this reform is a low-cost

reform which should utilize those manpower resources which Sierra Leone already pays for, only

redirected to achieve this end. There may be additional marginal costs in office supplies. This is

an arena where the effects will not be economic development but a reestablishment of human

rights as between the state and its citizenry.128 Although there will likely not be any direct

effects upon the state’s ability to reduce poverty, the value which people place onto justice



127
    ICG Report 129, supra note 35, at 8 n. 54 (quoting Richard Hogg, Head of DFID/Sierra Leone to have said,
―While we acknowledge the constraints and the distance to be travelled . . . the time for excuses is passed. What we
need is a sustained focus on implementation . . . . I welcome the focus of the vice-president . . . on growth and
infrastructure, particularly energy, but we need to move beyond rhetoric to real commitment to change and reform.‖
His speech was given in Freetown in December, 2006).
128
    Court, et. al., supra note 63, at 8 ("[Legal reform] may make a difference to the welfare of ordinary citizens.").


                                                         30
should not be underestimated.129 Organizing the criminal case-files will allow oversight (both by

NGO watchdogs and domestic governmental agencies) of prosecutions which should reduce the

currently exorbitantly high percentage of cases — 90% — that come before judges without

defence representation.130 It will also enable the state to more efficiently use the time of the six

state counsels.131 If the state were to grant internships to current law students and charge them

with discharging cases such as Fatmata’s (where the accused has served more time in remand

than the maximum sentenced the state could impose for the purported crime) it is inevitable that

the current overcrowding of the prison system will be addressed to some degree.132 This

reduction will be achieved mainly by reducing the current number of prisoners on remand or

awaiting trial, who currently comprise 66% of the prison population.133 This will take time, but

considering there are less than 1700 prisoners in the entire country it should not take many years

to achieve a modicum of organization.134 This reform also must begin immediately. Addressing

this reform will begin to address Sierra Leone’s human rights violations, restore donor

confidence in the government, and restore citizen confidence in the judicial sector.

B. Secondary Reforms

          These slightly longer-term reforms will take more time to formulate and solidify and may

require more money either from Sierra Leone’s budget or from external donors willing to make a

high risk aid distribution with the hopes that the investment will strengthen Sierra Leone’s rule

of law.



129
    Id. at 1 ("[I]ssues of justice have intrinsic value to people. Thus, it is not enough to look at the legal system
merely in instrumental terms, e.g. how it contributes to socio-economic development, but that finding fair ways of
administering justice is also an end in itself.").
130
    Confidential Source.
131
    Id.
132
    Id. (noting that the prison in Freetown is operating at 300% capacity).
133
    Id.
134
    Id.


                                                          31
        The judiciary and administrative staffs need to be trained in rudimentary case

management. This will complement the reforms of the criminal record system by ensuring

judicial oversight of the cases. Currently, most judges and their clerks have little to no idea what

their case load is at any given time and they completely rely on the attorneys to move cases

along.135 Such a system, driven from the bar rather than the bench, allows situations like

Fatmata’s to fester, especially when a speedy disposition of a given case is not in the financial

interest of the attorneys.136 This reform will require more resources than the above proposed

reforms, both in the form of financial support and technical assistance. Yet considering the

rather small legal community it should not be prohibitive. The advantages are that systematic

case-management from the bench will begin to clear the backlog of cases thus increasing access

and restoring confidence in the judicial sector. If the case management is transparent enough it

will reduce a current supplemental income of many court clerks who presently take bribes in

order for cases to be heard. It would be fruitless to pursue this reform full-fledged before the

records are organized and vetted, with the exception of education. Once, however, the records

are organized then this reform should progress quickly.

        Although the lack of written judgments is not likely to improve quickly, the courtrooms

in Sierra Leone could easily be wired with a microphone for the judge and a simple tape recorder

to record bench judgments or decisions on motions that are rendered from the bench. These

tapes could easily be labelled with the case number, kept in a central location and referenced in

the casefile. This relatively low-cost option will ensure accuracy in trial judgments, constrain the

judiciary within legal and normative boundaries established by cultural and legalistic authorities.


135
  Interview with Joseph Kamara, supra note 49.
136
  See Linn Hammergren, Uses of Empirical Research in Refocussing Judicial Reforms: Lessons from Five
Countries 3 (World Bank Research Paper, undated) (finding that lawyers operating in systems which lack case
management skills will use the judicial system not to obtain justice but to avoid it through delays).


                                                       32
This reform will enable the appellate rights of criminal and civil litigants.137 Recording oral

judgments in combination with organizing written judgments should normalize the judiciary, at

least in theory, by ensuring appellate oversight of judgments. This would thereby incentivize

further FDI.138 There are few timing constraints; however it does not seem likely that Sierra

Leone will have access to the necessary resources to fully pursue written judgments and full-

scale court reporting until it meets the predicates outlined in the primary reforms. A complete

court-reporting system may be a long way off, but this low-tech solution is a middle-ground to

bridge the gap. Although no cost-estimates were completed as part of this paper, when one

considers that almost the entirety of Sierra Leone’s legal system is contained in two buildings

with less than fifteen courtrooms this cannot cost too much. This court reporting system is likely

to be bolstered when the Special Court for Sierra Leone adjudicates itself out of business and

those few Sierra Leoneans who were trained by the Court enter the job market. Their skills and

expertise, however, may be wasted if Sierra Leone is not able to compensate them to the

appropriate amount.

         There are numerous systemic reforms which must take place to increase access to the

judicial sector.139 Many of the above reforms are tailored to improve access to the judiciary, but

further refinement will be required. Sierra Leone should simplify its filing processes. Secondly,

it should engage with NGO’s to increase the access of its citizens and small businesses to legal

aid schemes. This could be bolstered by engaging with the legal education sector to provide

more legal minds to solve each of the problems brought before the legal aid bodies. Also, the

attorney compensation scheme should be addressed so that attorneys do not engage in

137
    Interview with Joseph Kamara, supra note 49 (noting the lack of appeals for many criminal cases).
138
    World Development Report 1997, supra note 83, at 36 (noting that in a survey of 3,600 firms in 69 countries,
over 70 percent of the respondents replied that unpredictable judiciaries were major problems for their operations).
139
    AI Report, supra note 49, at 23 (noting that 98 per cent of people, living outside the capital had no access to
justice at all).


                                                         33
unnecessary delays simply to further enrich themselves. 140 This reform is likely to require

significant amount of political capital in that it is likely to take money directly from attorneys

who are very powerful politically within the state. Lastly, Sierra Leone should look to

outsourcing some of the non-contentious processes now vested in the judicial sector to

extrajudicial entities such as accountants, civil society and the media.141 Increasing access will

also streamline the judiciary’s ability to resolve conflicts, constrain democratic institutions and

adjudicate criminal claims. These reforms will require varying degrees of resources in the form

of time, technical assistance, computers and other technology, money and education. Yet, these

resources will not be available to Sierra Leone until it restores donor confidence in its

willingness to reform.

        Codification of the criminal code must be completed as soon as possible and refinement

of the Code must continue into the future in order for Sierra Leone’s society to properly police

itself.142 This codification has begun with the help of DFID and other donors, however internal

political willpower, rather than external money, is the only method of ensuring a viable working

solution that will have legitimacy in the eyes of most Sierra Leoneans.143 Hegel wrote that "If a

civilized nation lacks in its eyes and in the eyes of others, a universal and universally valid

embodiment in laws it fails to secure recognition from others.‖144 Codification of the criminal

code will address some of these historical concerns, as well as bolstering transparency and

human rights.


140
    Messick, supra note 73, at 123 ("inefficiencies in court procedures and management often provide opportunities
for rent-seeking by attorneys, judges, and judicial support personnel.").
141
    Id. at 128 ("Judicial reform aims to buttress the rule of law and assure entrepreneurs that contracts will be
enforced. Yet other institutions [such as accountants, creditors, the media and civil socity] perform these same
functions." and they may perform them more efficiently.).
142
    Id. at 123 (noting that the "legal transplant school of comparative law has marshalled an enormous body of
evidence showing that substantive law develops independent of economic and social variables.").
143
    Interview with Joseph Kamara, supra note 49.
144
    Quoted in ISHAY, supra note 66, at64.


                                                        34
         Finally, Sierra Leone must continue to bolster and solidify its nascent anti-corruption

efforts.145 Sierra Leone must not only insulate the Anti-Corruption Commission but it must also

pass systemic legislative measures designed to reduce corruption as well as begin to address the

cultural aspects whereby corruption is not only acquiesced to but indeed endorsed.146 This will

catalyze more FDI since it is more efficient to do business in countries non-corrupt countries, all

else being equal. Major FDI will have a reciprocal effect upon the judiciary by helping to

educate the bench and bar as well as assisting in the refinement of the substantive law within the

country.147 Although anti-corruption efforts are difficult to sustain and systematize, especially in

countries where corruption has become a cultural norm, corruption must be addressed and

minimized to the greatest extent possible because of the high costs to the citizens and

government. Anti-corruption efforts will not only constrain the democratic institutions of

governance but they will also normalize and constrain the judiciary thereby achieving most of

the benefits analyzed above.

C. Long-Term Reforms

         Long-term Sierra Leone must solidify the professionalism of its judiciary by training and

raising judicial salaries. Sierra Leone will inevitably need to systemically ensure insulation and

independence of the judiciary from political meddling by addressing the systems of oversight,

appointment and removal of judges by address each of these systems as part of a holistic

approach to judicial sector reform. This will help in many regards, including hedging against

judicial braindrain whereby trained judges move on to lucrative careers abroad or domestically,


145
    Asis, supra note 38, at 4 (noting that corruption control is an essential component of any judicial sector reform
project.).
146
    For a current assessment of corruption, see ICG Report 129, supra note 35, at 14 (citing two examples of what a
corrupt and/or politicized judiciary is enabled to do.)
147
    See Hewko, supra note 67, at 20 ("Serious foreign investors (largely multinational firms) play a vital role in
training and educating individuals and in developing a cadre of citizens who understand and accept those practices
and concepts that are critical to creating a civil society and a respect for the rule of law.").


                                                         35
usually at the bar rather than the bench.148 Professionalization efforts will also have advantages

in stemming corruption.149

         Sierra Leone must push justice further into the provinces. In regard to this it may be

advantageous to integrate traditional modes of dispute resolution.150 If traditional modes of

dispute resolution are incorporated into the scheme, the state must establish the boundaries

between what lawyers and non-lawyers are able to do and what kinds of disputes may be

adjudicated outside of the judicial sector.151 These judicial sector reforms and extrajudicial

sector reforms must be approached with a strong cultural sensitivity so that the endstate is

harmonious rather than acrimonious. The only reason modern courts exist, according to some

historians, is because of ―growing social differentiation and expansion of economic and political

scale.‖152 In the absence of these, traditional modes of dispute resolution should be analyzed and

system of integration should be determined. These will have attendant effects as to the

legitimacy of the dispute resolution system, especially with undereducated citizens. NGO’s such

as TIMAP for Justice are already working on this integration, but the policy decisions should be

made by the state rather than by NGOs to ensure maximum legitimacy.153 Yet, the state should

not use the opportunity to refine as an opportunity to stall reform.

         Long-term legislative, substantive legal and institutional reforms should continue far into

the future. There is little end state to judicial sector reforms as advanced industrial democracies
148
    Messick, supra note 73, at 124 ("In many cases, once a judge had been trained, he or she quickly left the bench
for a more lucrative position in the bar.") cf Hammergren, supra note 136 (observing that institutional strengthening
can pave the way for broader reforms that, if they had been attempted first, may have seen such strong opposition
that they would have failed).
149
    See Asis, supra note 38, at 10 (finding that corruption research shows a lack of correlation between salaries and
high-level corruption, although there may be a linkage with ―petty‖ corruption).
150
    AI Report, supra note 49, at 2 (noting that the majority of criminal prosecutions outside Freetown are adjudicated
by Paramount Chiefs rather than officers of the law, despite this being patently outlawed by the Constitution and the
Local Courts Act of 1963.).
151
    Messick, supra note 73, at 123 ("The state must therefore specify what tasks are for lawyers and what tasks can
be performed just as well by non-lawyers.").
152
    Court, et. al., supra note 63, at 4.
153
    Interview with Edward Sawyer, case worker, TIMAP for Justice, in Freetown, Sierra Leone (Feb. 2007).


                                                         36
continue to refine their judicial sectors. The process is long and iterative.154 Yet, if the country

is able to take away some of the incentives for people to enter politics by enabling indigenous

business possibilities to materialize political corruption will likely reduce. This will happen only

after the institutions reform themselves to the point where the bottom-line reason why people

enter politics is not a desire for money but rather a desire to govern. However, it is only possible

to tinker with a system that is refined to the point that it allows one to tinker with it. Sierra

Leone has, frankly, a long way to go before it is in a position to tinker.

VII. Conclusions

The epigram at the beginning of this paper is from one of the Sierra Leone’s most famous pop

singers, and it contains a very sophisticated indictment of the status quo in that country. There

are many lyrics in the eight minute song, likely because there are so many things wrong with the

country. In contrast, protest songs are seen as quaint in many Western Countries where their

populations do not die from mosquito bites or bad water. Sierra Leone does not have the luxury

to view political songs as quite the side show that others do because its citizenry is too

impoverished. The peace which has followed eleven years of war may not hold for long if many

of the core causes of the conflict (of which poverty is one, and human rights violations are

another) are not addressed quickly by the government. Although that seems quite fatalistic, the

rule of law reforms offered by this paper will not only curb the human rights abuses and lack of

access to the judiciary that currently exist, but it will have indirect attendant effects that will

allow the country to further reduce the poverty of this scenic and unbelievably optimistic

country.

                                                 ~#~



154
      Hewko, supra note 67, at 4.


                                                   37

				
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