Transnational Law Blog

Rethinking the Washington Consensus on Trade Liberalization

"‘Stabilize, privatize, and liberalize’ became the mantra of a generation of technocrats who cut their teeth in the developing world and of the political leaders they counseled"- Dani Rodrik, Professor of International Political Economy, Harvard University

Across legal and economic disciplines, there have been many arguments regarding the benefits of free trade on developing countries. At the heart of such discussion is the controversial result of the Washington Consensus “describe[ed] a set of ten specific economic policy prescriptions that … constitute a "standard" reform package promoted for crisis-wracked developing countries by Washington D.C based institutions such as the International Monetary Fund (IMF), World Bank and the U.S. Treasury Department.” (Wikipedia).  According to Dani Rodrik (2006) the ten commandments of Washington consensus were:

1. Fiscal discipline
2. Reorientation of public expenditures
3. Tax reform
4. Financial liberalization
5. Unified and competitive exchange rates
6. Trade liberalization
7. Openness to FDI
8. Privatization
9. Deregulation
10.Secure Property Rights

In an assessment of the literature on the theory and empirical research relating to the benefits of trade liberalization, Deraniyagala and Fine (2001) found that much of the works were flawed, and concluded that the extent to which free trade benefits economic development is unknown. As the result, the past three decades since 1980s found many political economists arguing for a better approach toward trade liberalization in order to minimize its negative impacts of economic backwardness as in the case of Latin American or income distribution and regional polarization as the case of China.

Mexico is an example of a failed economy that followed the conventional wisdom of trade liberalization rigidly. Here, we find that more than one lesson could be learned. The country started its economic reform in 1985. Under tremendous pressure from the U.S. and the IMF, Mexico radically opened up its economy to the world market without sufficient institutional reform to accommodate the economic adjustment. “Import penetration increase from an average of 11.3 percent in 1080-85 to 14.5 in 1986-90. By 1990, import penetration had already reached 17 percent.” (Dornbusch, 1992). The sharp rise in imports, which was not accompanied by immediate gain in exports and foreign direct investments damaged Mexico’s domestic market and defy many infant industries. (Dornbusch, 1992). It is argued that Mexico, as well as Latin America as a whole, did worse than its pre-1980s period, when import substitution, protectionism and macroeconomics populism were enforced. (Rodrik 2007). As Rodrik asserts: “That the region did better with these discredited policies than it has been under open-market policies is a fact that is quite hard to digest within the conventional paradigm.” Such paradox reinforces the importance of a new approach to trade liberalization where country’s institutional and historical background are all too significant to be ignored and total trade liberalization alone may not generate the growth that its creator promised. Here, the role of the government and some forms of targeted protectionism at the beginning of the reform may be useful. South Korea and China offered excellent case studies for its usage of the new trade theory to their economic benefits.

Korea did not play by the orthodox wisdom (nor it has ever accepted the Washington Consensus to be therapeutic during the Asian crisis) when it started to integrate into the world economy. In contrast, the country successful economic reform involves two major key strategies- market orientation coupled with central planning in developing and protecting infant industries while strategically opened up other industries to the world market. During the reform, Korean government, indeed, acted as an entrepreneur to induce desirable private investments toward targeted industries. Korean trade liberalization, therefore, was a selective process instead of being driven solely by global marketization. Many major sectors were deliberately protected and excluded from trade. By using selective export strategy and heavy government intervention, Korea was able to develop many highly competitive manufacturing industries such as automobile, electrical appliances and shipping which respectively hold their own names in the world market.

China started its reform by first rejecting the conventional wisdom of global liberalization and calling its reform “Socialism with Chinese Characteristic.”  Unlike Latin America, Chinese government moved cautiously from central planning to gradual adoption of institutional and mechanism of market economy. Rodrik (2004) argues that China reformed its incentives in a “two-track manner” by grafting a market system on top of a central-planned system, rather than abandoning the latter altogether. The country also underplayed private property rights and relied instead on township-and-village enterprises owned by local governments as well as opened up to the world partially by establishing special economic zones. (Rodrik, 2004). Without following the Washington consensus blindly, the result of Chinese economic progress has been impressive. China’s GDP performance has been consistently stayed at 8-10% growth rate in the past 20 years. Here, China’s success challenged the conventional wisdom total trade liberalization and market orientation.

Despite how countries have been benefiting from trade, there exist multiple issues created by export growth strategy itself such as income inequality and regional polarization. According to Ocampo and Taylor (1998), globalization has intensified the income gap and income distribution especially in countries with comparative advantage in skill-intensive products. The authors offer examples of African economies whose comparative advantage in peasant production has worsened income distribution. Similarly, despite China’s conservative approach toward trade liberalization in accordance with government intervention, the country has been facing serious issues regarding income inequality and regional polarization. Prior to the eruption of the global financial crisis, labor migration had moved rapidly to export processing zone set up mostly along the West coast region of the countries. As the result, wage labor and prosperity appeared to increase drastically faster than the interior regions in which agriculture remained to be the dominant means of production and income creation. Here trade liberalization on its own cannot effectively solve social problems created by export-oriented strategy.

Don’t get me wrong. I am not against free trade or market liberalization. I am wholeheartedly against the IMF’s “one size fit all” formula and see the importance of a thorough understanding of country’s historical and political background before any economic policy is prescribed. Market failures are deeply embedded in economic system, which can’t plainly and ignorantly be corrected by Washington’s 10 commandments.

One may then ask: “So, what is the IMF doing these days given our ongoing financial crisis? Has there been a “new” Washington Consensus?” My next entry on this topic will follow.

*Bibliography with attached pdf files on hyperlinks

Deraniyagala, Sonali, and Fine, Ben, “New Trade Theory Versus Old Trade Policy: a Continuing Enigma,” Cambridge Journal of Economics, Vol. 25, pp. 809-825, November 2001.

Dornbusch, Rudiger, “The Case for Trade Liberalization in Developing Countries,” Journal of Economic Perspectives, Vol. 6, issue 1, pp. 69-85, 1992.

Ocampo, Jose and Taylor, Lance, “Trade Liberalization in Developing Economies: Modest Benefits but Problems with Productivity Growth, Macro Prices, and Income Distribution,” Economic Journal, Vol. 108, pp.1523-46, September 1998.

Rodrik, Dani, “How to Save Globalization From Its Cheerleaders,” KSG Working Paper No. RWP07-38, September 2007.

Rodrik, Dani, “Rethinking Economic Growth in Developing Countries,” John F. Kennedy School of Government, Harvard University, October 2004.

Rodrik, Dani, "Goodbye Washington Consensus, Hello Washington Confusion? A Review of the World Bank's Economic Growth in the 1990s: Learning from a Decade of Reform," Journal of Economic Literature, 44(4): 973–987, December 2006.

A Response to Omrie Golley

Although the underlying premise of blogs is that someone out there will eventually read the posts, the sheer enormity of the internet provides a sense of anonymity that promotes throwaway gestures and irreverent commentary.  As recent events have demonstrated this anonymity is an illusion.

In a recent post I looked briefly at the situation of Omrie Golley, the former spokesman for the Revolutionary United Front ("RUF").  Golley had been imprisoned by the Kabbah government for 22 months without any semblance of due process for allegedly plotting to assassinate the President or Vice President.  Golley was only recently released from prison after the new Koroma government declared that there was insufficient evidence to proceed to trial.  I focused on Golley's case as a symbol of the failed legal system that characterized the post-conflict Kabbah government.  I concluded that the price of a legitimate legal system is the prohibition of arbitrary and indefinite detentions, even where the detainee is a "bad dude."

Apparently, my choice of words was not appreciated.  A couple of days after the post, I received an e-mail comment purportedly from Omrie Golley himself, the entirety of which can be read below.  Mr. Golley took objection to my post, accused me of being "unprincipled and biased" and implied that my motivation for working in Sierra Leone is the "fat salaries" that are received by lawyers at the Special Court.

I would like to use this space to respond to a number of issues raised explicitly by Mr. Golley before addressing a more substantive issue that his role in the Sierra Leone conflict raises.  Before this, however, I want to comment briefly on the nature of blog posts.

Compared to published articles and papers, blogs are relatively informal.  I am using this blog to provide periodic updates on my research and to offer brief commentaries on issues in Sierra Leone.  Due to the restrictions on the format and limited attention span of internet users, blogs are not the ideal medium for comprehensive analysis.  I generally try to infuse my posts with humor and boil down the commentary to quickly digestible bites.  My research will eventually be published in a far more comprehensive form and I have purposefully omitted from the blog information that would be more suitable for academic and policy papers.  However, in responding to Mr. Golley I will have to engage in a more extensive discussion.

In Mr. Golley's criticism he states that there is a lot to learn from his detention and that "[I] could best possibly serve [the rule of law] in Freetown by simply focusing on [his] case."  On this point I partially agree with Mr. Golley, and that is why the original post focused on how he had been a victim of a corrupt and illegitimate legal system.  His case is a primary example of the failings of a legal system and the difficult process of legal reform.  However, with all due respect  to the noteworthiness of Mr. Golley , rule of law issues in Sierra Leone go far beyond his case.  This is why my research will be examining variety of subjects including the capacity building efforts of the Special Court, the Ministry's of Justice's Legal Reform Plan, customary law practitioners, the Sierra Leone Bar Association and NGOs involved in providing legal services.

BAD CHARACTER

In his comment Mr. Golley stated, "That he could spend so much time writing about what a bad character I am without any substantiation in law and fact, serves to show how unprincipled and biased [Mr. Dermody] is."  Mr. Golley misses the point.  As a former spokesman Mr. Golley should know that character is not something determined in a court of law.  While substantiation in law would be sufficient to establish bad character, it is not necessary to establish bad character.  Without getting into philosophical semantics as to the true nature of character, I would submit that a person's character is established by their actions and how they are perceived in their community.

ACTIONS

For many people, representing the RUF would be enough to establish bad character.  During the Sierra Leone conflict the U.N. Security Council imposed an international travel ban on Mr. Golley and twenty-five other RUF figures for involvement in smuggling "blood diamonds" from Sierra Leone to Liberia.  Mr. Golley denied these allegations, which he said were brought by the British Government.

Mr. Golley asserts that he was only interested in "belling the cat" by acting as a peace facilitator.  Mr. Golley first became involved with the RUF during the 1996 Abidjan peace negotiations after he saw that the RUF "did not have horns and tails but where fighting against corruption and mismanagement."  The Abidjan peace agreement was a failure and fighting continued to rage in Sierra Leone. 

Several analyses of the conflict conclude that the RUF lacked a cohesive political ideology.  It was not until Mr. Golley became involved that a quasi-political agenda was espoused or created.  In a 1999 interview with Voice of America Mr. Golley said it was his job to articulate the RUF's political agenda.  However, he declined to provide details about how an RUF government would address Sierra Leone's political and economic problems.  Mr. Golley described the RUF's political agenda as Marxist, but involving free market economics and free trade.  According to the University of Pennsylvania and Conciliation Resources, Mr. Golley  was a leading figure in the RUF who exerted significant influence.  Mr. Golley was involved in the 1999 Lome peace negotiations, but like previous accords, it failed to end the conflict which continued until 2002.

Mr. Golley challenged me "to prove [that he] was anything but genuinely committed to the peace process in Sierra Leone."  This raises two issues.  First, Mr. Golley was involved with the RUF for over five years during which he participated in two failed peace negotiations.  It is difficult to conclude that Mr. Golley was only interested in taming the RUF when he spent so long with the group espousing their "political agenda" and justifying their actions.  Moreover, it is difficult to understand the political aspects of the attacks that occurred while Mr. Golley was spokesman, even if, as Mr. Golley advocated, you put the amputations, rapes, killing and abductions "in context." Second, whether or not he was committed to the peace process has little to do with the subjective determination of character.  It is possible to acknowledge the important role that figures like Gerry Adams and Ian Paisley played in the Northern Ireland peace process without concluding that they are good dudes.  Similarly, Mr. Golley could have been completely committed to the peace process and still be considered a "bad dude."

REPUTATION

As for Mr. Golley's reputation in the community, he stated that he "[sees] and [hears] the vast majority of Sierra Leoneans to this day thanking [him] for the role that [he] played."  Perhaps the majority that Mr. Golley refers to is the classic silent majority.

While Mr. Golley's release from prison was widely covered in Sierra Leonean media outlets, the articles focused on the failings of the legal system rather than the meritorious character of Mr. Golley.  A number of media outlets decried his release in very strong terms.  The Sierra Leone Herald proclaimed that Golley's release was "subverting the rule of law in Sierra Leone" and that Golley should face the Special Court.  In an earlier article, Abdulai Bayraytay, a former senior official for the Campaign for Good Governance, said that "history will however not forgive the likes of Omrie Golley...who defied all informed reasoning in aiding and abetting the rebels and their junta collaborators in wreaking havoc on innocent and unsuspecting Sierra Leoneans all because they wanted to covet political power at all costs through 'unconstitutional means.'"

I have conducted a number of interviews for my research and had numerous discussions with Sierra Leoneans during which the subject of Mr. Golley came up.  If Mr. Golley was offended by being called a bad dude, then he would have been aghast by the significantly more poignant language the people I interviewed used to describe him.  Several people thought that he should remain in jail and no one had kind things to say about his involvement in the conflict.

Finally, I find it rather curious that the spokesman for one of the most derided and demonized groups of the last decade would consider being labeled a "bad dude" such an egregious insult.  Perhaps I failed to realize the power of my California vernacular.  I guess Mr. Golley's extensive experience as a spokesman has made him more aware of what constitutes character assassination.  With all due respect to Mr. Golley, it would not be unprincipled or biased to conclude from his actions and from his perception in the community that people could consider him a "bad dude." 

Oh and while my research into legal development is funded by the Fulbright grant, I receive no "fat salary" for working for the Special Court.  I work weekends and evenings  to make sure that I meet the responsibilities of both of these full-time positions.

THE BIGGER PICTURE

Mr. Golley's comments implicitly raise a more important and substantive issue.  Conflict resolution necessarily involves bad dues.  Unless a strategy of single-side maximization is adopted, negotiations and other multi-party efforts will involve people whose goals and identities conflict.  As Donna Pankhurst observes, "During conflicts it is common for both, or all, parties to conceive of themselves as fighting for justice."  Being committed to a cause does not necessarily correlate to being committed to conflict resolution processes.   

There is a distinction between conflict management and transitional justice.  Conflict management is much more concerned with a negative peace, i.e. the absence of continued conflict.  In conflict management processes there is a greater need to involve all actors in the conflict, even if those actors are objectionable to the populace or anathema to social healing.  The challenge in conflict management is to have wide enough representation so that agreements (ceasefires, peace accords, etc.) are effective.  These processes necessarily involve parties to the conflict who may be unsavory.

The goals for transitional justice are more forward looking and strive to establish a positive peace.  For situations that have progressed beyond conflict management the goals and priorities for societies are more strictly defined.  It is not enough to secure an absence of conflict, societal norms and positive community associations need to be reestablished.  Actors who played a significant role in conflict management may have not have a similarly prominent role in transitional justice.  Or to put it in different terms, the actors with the most agency in conflict management may become the object of transitional justice in the forms of trials and administrative sanctions.    

Fortunately, Sierra Leone has moved well beyond conflict management.  The challenge facing Sierra Leone is no longer just preventing conflict but creating structures and governance that will provide a beneficial future for the people of Sierra Leone.

Happy New Year everyone.

Affluent White Women are Sex Tourists in Kenya

Reuters has an article about older, white women going to Kenya to sleep with young, black men-- The word "young" here is being used to denote men old enough to legally consent to sexual intercourse-- entitled, Older White Women Join Kenya's Sex Tourists.

The article points out that older, white men come to Kenya to engage in sexual intercourse with girls that are not old enough to legally consent. According to Reuters, "As many as 15,000 girls in four coastal districts -- about a third of all 12-18 year-olds girls there -- are involved in casual sex for cash, a joint study by Kenya's government and U.N. children's charity UNICEF reported late last year...Up to 3,000 more girls and boys are in full-time sex work, it said, some paid for the 'most horrific and abnormal acts.'"

However, the women "sex tourists" are not sleeping with underage boys. The article uses quotes from local hotel owners that call the practice of older, white women sleeping with young African men "unwholesome." I'm not sure if this epithet is supposed to deter women from partaking in the trade, but I think it's rather inappropriate. Are the people at Reuters so wholesome themselves that they can't imagine older women wanting to have consensual sex with younger men?

Then Reuters goes on a tangent about the more affluent white women "preying on poverty" in Kenya. The article has an anonymous quote from a hotel owner saying, "Old white guys have always come for the younger girls and boys, preying on their poverty ... But these old women followed ... they never push the legal age limits, they seem happy just doing what is sneered at in their countries."

Are you kidding me? The older woman is anything but sneered at these days. We call her a cougar! Our entire culture is embracing the idea that older women can and do have major sexual appeal. And preying on poverty? I'm sorry but that's how the world turns. Some people have money and others don't, and when you don't have it, you're willing to provide services to get it. It sounds simplistic but it really is that simple.  Here is my favorite part of the article because it's completely insane:

Experts say some thrive on the social status and financial power that comes from taking much poorer, younger lovers. "This is what is sold to tourists by tourism companies -- a kind of return to a colonial past, where white women are served, serviced, and pampered by black minions," said Nottinghan University's Davidson.

Oh! That must be it! These older, rich white women want slaves! I was way off in thinking that they were looking for some companionship or that they might be lonely, and I really missed the mark when I thought some of these cougars just want some good, hot sex.

Here is the last portion of the article, which sums it up nicely:

Many of the visitors are on the lookout for men like Joseph.

Flashing a dazzling smile and built like an Olympic basketball star, the 22-year-old said he has slept with more than 100 white women, most of them 30 years his senior.

"When I go into the clubs, those are the only women I look for now," he told Reuters. "I get to live like the rich mzungus (white people) who come here from rich countries, staying in the best hotels and just having my fun."

At one club, a group of about 25 dancing men -- most of them Joseph look-alikes -- edge closer and closer to a crowd of more than a dozen white women, all in their autumn years.

"It's not love, obviously. I didn't come here looking for a husband," Bethan said over a pounding beat from the speakers.

"It's a social arrangement. I buy him a nice shirt and we go out for dinner. For as long as he stays with me he doesn't pay for anything, and I get what I want -- a good time. How is that different from a man buying a young girl dinner?"

What kind of job opportunities are in Kenya? I did a Google search and got a listing of various white collar jobs aimed at someone like me with too much education who'd probably be looking for a job on the internet. For some reason I don't believe these white collar jobs are really available to most of the young men in Kenya-- or to anyone anywhere! According to the CIA World Factbook, the major industries in Kenya are small-scale consumer goods (plastic, furniture, batteries, textiles, clothing, soap, cigarettes, flour), agricultural products, horticulture, oil refining; aluminum, steel, lead; cement, commercial ship repair, and-- you guessed it!-- tourism. Of these options, which would you rather do? Make soap in a factory for a couple dollars an hour (if you're lucky) or get wined-and-dined and "preyed" upon by an older white woman? Ummmm, jeez, let me think about it...

The Curious Case of Omrie Golley

Before I get to the main subject of this post I would like to offer an appetizer of sorts. 

Headbutt at the High Court

Recently an incident occurred involving the President of the Sierra Leone Bar Association.  As reported in the Awoko, a local newspaper, SLBA President Crispin Fio Edwards had a disagreement with another lawyer in court.  Rather than sort the matter out privately, the two lawyers decided to fight each other in court.  As the Awoko described it "like boxers in a ring, the lawyers sent jabs and uppercuts which bemused the judge and the court to see these learned men dragging a noble profession into disrepute."  Edwards finished the fight with a headbutt.  Now if only the CA Bar would implement similar penalties for failing to pay dues.  Moving on...

Omrie Golley

Several months ago Omrie Golley was released from Pademba Road prison in Sierra Leone.  Golley had been held without a proper trial for over 22 months after being arrested on charges of 'destabilizing the state,' i.e. plotting to assassinate then President Kabbah.  When the government of Koroma took over, the Attorney General's office issued a nulle prosequi order and released Golley.

Golley is a very controversial figure.  He holds both Sierra Leonean and British citizenship and is a member of the bar in both places.  During the Sierra Leone conflict he came from London to serve as spokesman for the Revolutionary United Front.  An articulate speaker, he conducted interviews on the BBC and worldwide media.  He credits himself with contributing to the reconciliation process after the Lome Peace Accord.  However, whether he is a concerned citizen or a depraved opportunist is an issue of much disagreement.

Irrespective of his character, his detention in Pademba Road was a hallmark of the politically biased and non functional legal system that characterized the Kabbah presidency.  In the 22 months he was in jail, there were few, if any, substantive legal hearings.  Like many other cases, trial sessions were adjourned because the Judge or a lawyer was out of town, or because the police had failed to bring Golley to court.  There is little doubt that Golley was denied basic due process and human rights.

There is also little doubt that Golley was one of the central figures of the conflict.  Many that I have talked to thought that Golley should be on trial either at the Special Court or locally for the crimes that occurred during the conflict.  While people thought he had been mistreated by the legal system, they felt that he was responsible for a number of criminal activities and should stay in jail.  I happened to hear Golley on BBC radio the week that he was released.  I was very impressed with his presentation and could easily imagine him arguing a case in the higher courts of England.  However, the substance of his comments were a bit disturbing.  He suggested that the ideals for which the RUF fought had been achieved and that the current state of affairs was due to the RUF efforts.

The Golley case presents a challenge to transitional justice.  On the one hand, his release signals progression for the legal system.  Any decent legal system recognizes that it is not okay to indefinetly detain political enemies without trial.  On the other hand, Golley is a bad dude.  There is a delicate balance, that is different in each situation, in pursuing transitional justice.  Ideally, Golley would have faced charges before a proper tribunal.  But the price of a reformed and functioning legal system may be correcting past indiscretions, even where those results are less than ideal. 

Tragic State of Affairs

My last post was cautiously optimistic about the current state of the Sierra Leone legal system.  However, that optimism turned to disgust and embarrassment after I had the opportunity to observe a morning session of the juvenile courts in Freetown.

The courthouse in Freetown sits right next to the Cotton Tree, the national symbol of Sierra Leone.  It is an old building that would have great presence if not for its dilapidated state.  I met my guide/interpreter/colleague Mohamed Touray near the main entrance where a number of people were milling about.  Mohamed, who works for an NGO called the Sierra Leone Court Monitoring Program, led me through the barren halls to a small room in the back of the building.  Inside the room there were wooden benches for the public and participants to sit.  On one side of the room the police prosecutors sat at a desk, pouring over the disorganized mounds of handwritten paperwork.  In the front of the room was a sparse bench.  Records are stored in a metal utility locker behind the bench.  Overhead fans made a vain effort to shift the humid air and the noise from the generator outside the window made it difficult to hear what anyone was saying.

Mohamed told me that it is quite common for the children not to appear for their hearing.  This day was no different. Of the 19 names called, only 5 were actually present.  There are a number of reasons for this lack of attendance.  The only juvenile detention facility in Freetown, Reman Home, is in a disastrous state.  Often there is no food or security.  As a result, the children escape quite frequently.  Another reason is that there is no organized transport from any of the detention facilities to the court.  The police prosecutors, though responsible for bringing the juveniles to court, showed little concern that the children under their charge were absent.  Some of the children who were to appear that day were milling about outside the courtroom. The judge had to forcefully remind the police prosecutors that perhaps it would be a good idea to announce the name of the case out in the hallway before declaring that the juvenile was absent.

Also conspicuously absent were any lawyers. Of the 19 cases, only one had a lawyer.  And the lawyer who was there was an embarrassment.  Were he to repeat that performance in the United States I can only hope that he would be disbarred for malpractice.  The lawyer made repeated objections that the police prosecutor was asking leading questions (he wasn't).  While the witness was testifying, the lawyer was talking and telling jokes with the police prosecutors.  Rather than make any substantive objection or argument, the lawyer would focus on superficial concerns like calling the child "the Accused" rather than "boy."  The lawyer then made a bail application saying that Pademba Road prison was not suitable for children (its not).  When the judge asked where he should send the boy, the lawyer sheepishly smiled and shrugged his shoulders.  The lawyer then told the judge that he had someone who would act as surety for the bail, but that person had never agreed to do so.  Unfortunately, my account cannot do justice to the absolute travesty of a lawyer this man was.

The police prosecutors also deserve a great deal of criticism. To become a police prosecutor you have to have a high school education, be part of the police force and go through a year of special training. However, since the police prosecutors get paid more than regular police, the positions are often achieved through nepotism rather than merit.  The utter contempt that the police prosecutors showed toward the judge and the juveniles was disgusting. As one police prosecutor shrugged and made an unconcerned facial expression to the judge while explaining the absence of another child, I was revolted.  So I was beyond anger when one of the police prosecutors began selling watches to her colleagues and people in the gallery while a witness was giving testimony.

Meanwhile, the juvenile cases went on. One case was remanded to the high court. With no counsel present the judge was left to instruct the 14 year old that if he wanted a copy of the evidence against him he would have to submit a written request to the records office down the hall. The child nodded his head in feigned understanding.  The most disturbing case involved a child accused of rape.  Many Sierra Leoneans appear much younger than they are, but this child was no more than 12.  As he stood there in his tattered clothes the mother of the girl that he supposedly raped stood 5 feet from him and gave her account of the story.  When the witness had finished, the judge turned to the child and asked him if he had any questions for the witness.  Unsurprisingly, the child had not prepared a cross examination.

No lawyers, no probation officers. Just children handcuffed to each other in the front of the court room, with their bodies slumped and heads bowed. It was one of the most depressing and disgusting experiences of my life.

To be fair to the judge, he would often try to impose some semblance of order.  He chastised the police prosecutors and was thoroughly unimpressed by the lawyer.  Speaking with other people afterwards, I learned that often the judge does his best to accommodate the children and will hold closed sessions in chambers.  This way he can hear the child and ask questions when the child does not feel the pressure of the court room.  While this would be highly suspect in the United States, it really seems to be the only option for the judge to impart some sort of justice.  For all his criticism, the judge has little power over the police prosecutors.  There is no bailiff and any attempt to hold the police prosecutors in contempt would just make it more difficult for the judge to get anything done.  If he were to chastise the lawyers, then the lawyers would just not show up.  There is no money in juvenile cases.  As for the prisons, the Reman Home has no food or facilities and the only other option is Pademba Road prison which houses adults.  Although the judge seemed to be trying to do the right thing, there was little he could do.   

The Sierra Leone Ministry of Justice is aware of this problem and is designing a three year plan to address legal reform.  I will talk more about this plan later, but for now I can only say that the Sierra Leone legal system, from lawyers to police, is in desperate need of massive reform.

Just What We Need, More Lawyers

Recently the results of the California Bar exam were released and thousands of people nervously waited for the results webpage to load.  Of the 8,151 people who took the July 2007 exam 4,571 passed, including (thankfully) me.   As a result, almost 5,000 new lawyers will be added to the already swollen ranks of lawyers in California.  In contrast, at the recent swearing ceremony for the Sierra Leone Bar Association there were 20 new lawyers. The year before there were only 12.  Is the amount of new lawyers an indication of the health of the legal system?

At first blush, 20 new attorneys seems a ridiculously low number.  However, a number of Sierra Leonean lawyers I talked to did not consider the number to be inordinately low.

There are a number of  reasons why this may be the case.  Sierra Leone, if you hadn't noticed, is much smaller than California and has less formal education per capita.  In Sierra Leone, similar to many former British colonies, lawyers do a general degree in law before going to a specialized barrister school.  Here, the progression is Fourah Bay College and then a year at the Sierra Leone Law School.  The class sizes at the law school are roughly equivalent to the number of people called to the bar, with some not qualifying and one or two going back to the bar in The Gambia or Guinea. 

Another common characteristic is for Sierra Leoneans to train and work abroad where the legal practice is more lucrative.  A number of Sierra Leone lawyers who work at the Special Court have been educated at Canadian and UK law schools.  Because of the large diaspora, it is often quite easy for Fourah Bay graduates to pursue their education and careers abroad.  A number do return to Sierra Leone, but there are significant incentives to stay abroad.  While this may have some brain drain effect, the reality is that there are not enough legal jobs in Sierra Leone to accomodate a significant rise in the number admitted to the local bar. 

The lawyers that I talked to were quick to point out that it is not the number of lawyers that is the problem, but that the administration of justice and institutions were/are riddled with corruption.  With court personnel taking bribes, judges following the direction of politicians and shockingly inadequate legal resources, adding more lawyers is not going to help.

This does offer some insight in how legal development programs should be designed.  Its not the case that the legal education system is so defunct that competent attorneys can't be produced.  As such, less focus should be paid to bolstering the legal education.  This is not to say that there is no room for improvement, but where there are limited resources, more attention should be paid to providing electricity to the courts, proper record keeping and proper training for court administration.

I am very fortunate to work with a number of Sierra Leone lawyers who are quite talented. As a number of them are permanently based in Freetown, there is hope that when the resources of the legal system improve there will be plenty of talented and dedicated local lawyers to restore the Sierra Leone bar to the highly respected position it once occupied in West Africa.

Corruption, Courage and Hope

Although not directly related to my Fulbright research, I want to take some time to share a story about the recent elections in Sierra Leone.

Like many others outside of Sierra Leone, I was interested in the process and outcome of the elections, but could only find limited international coverage.  The sources I relied upon, the BBC and AllAfrica.com, reported that there were the inevitable difficulties, but that overall the elections went smoothly.  But these reports failed to portray the incredible volatility of the elections and the potential catastrophe that was averted through the courageous efforts of a number of Sierra Leoneans.

It was not until I talked to people in Freetown, including the family that I am staying with, that I was able to develop an understanding of the danger and apprehension that enveloped the country before the election.  The manic exuberance of Freetown was replaced with fearful caution, the bars and nightclubs were unusually quiet and many had left the country all together.  There was violence in the provinces and intimidation across Freetown.  The tension had been building for months and was coming to a head as it came time for the run-off election.

The initial elections on August 11th included three presidential candidates.  Solomon Berewa of the ruling Sierra Leone People’s Party (SLPP), Ernest Koroma of the All Peoples Congress (APC) and Francis Margai of the People's Movement for Democractic Change (PMDC).  The PMDC had split from the SLPP and although not considered a major contender for the election, managed to take votes away from the SLPP. For the initial election the lines at the polls went smoothly and the monitors hailed the election as credible.

The National Electoral Commission of Sierra Leone (NEC), headed by Christiana Thorpe, had been preparing for the elections for over two years.  In the beginning, the organization ran smoothly as it designed voter outreach and education programs and developed organizational and monitoring strategies for the elections.  However, as the elections came closer, tensions began to rise.  Although the NEC is supposed to be a non-partisan organization it became increasingly clear that some members of the organization were pushing a partisan agenda.

Christiana Thorpe, and a number of commission members with whom she worked closely, drafted election regulations that they hoped would reduce loopholes and voter fraud.  Strict deadlines for registration, regulated voting procedures and tightened reporting procedures were implemented.  There were some at the NEC who felt that the measures being taken were excessive, and that the safeguards would not be necessary.  Despite criticism, the regulations were adopted.

Tensions within the NEC grew.  Factions made their political affiliations known and suggested strategies that would clearly benefit a particular party.  Work at the NEC became difficult.  Christiana Thorpe and those loyal to her found themselves the targets of accusations and personal character attacks.  Then reports started to come in of massive attempts of bribery.  Representatives in the field offices and low level staff were the first approached.  Thorpe and those loyal to her refused and remained dedicated to their mission.

A month or so before the election an official at the NEC who was loyal to Thorpe received a phone call from a friend of hers working for the police.  The policeman said that he had seen her name on a hit list that was being circulated around the police station.  At the top of the list was Christiana Thorpe.  The official went to Thorpe who brushed off the threats and remained focused on her work.  The work of the NEC continued, but the atmosphere became much more serious.  The message was clear: if you are too good to take bribes, there are other ways to influence you.

While tensions subsided somewhat with the first election, the pressure neared the boiling point during the run-off election.  The rhetoric of the candidates became more aggressive.  There were episodes of violence and arson throughout the country.  People who walked into the offices of political parties saw guns and machetes stacked in the corners of rooms.  Money was flowing to the political parties to buy weapons and there were reports that ex-combatants were being mobilized at camps outside of Freetown.

On election day the enthusiasm that had accompanied the initial election was gone.  International organizations that had taken part in the first election now warned their employees to stay home.  There was a large police and security presence.  However, the voting passed without too many incidents and the process of counting the votes began.

Again, the NEC was in the spotlight.  There was pressure to count votes as quickly as possible, and pressure to count them in a certain way.  As the votes came in, it became apparent that the safeguards which were implemented were bringing to light incidents of voting irregularity.  In parts of the country generally associated with the SLPP more votes had been cast than there had been registered voters.  Another fraud attempt was discovered because a number of SLPP votes had been submitted on counterfeit forms.  This was discovered because the counterfeit forms said "from" instead of "form."

The NEC spent the week counting votes and announcing partial results.  The initial results indicated that the opposition party of Koroma was taking the lead.  At the end of the week, while the NEC was still counting, word spread that the SLPP were going to file an injunction to stop the counting.  By the end of Friday, however, there was no injunction.  Fearing that the injunction would be filed on Monday, the staff of the NEC spent the weekend feverishly counting votes, some spending the night in the office.  The votes were not completely counted by Monday morning, but no injunction came.  The SLPP thought they could wait until Tuesday to file the injunction. But before the papers could be filed, Christiana Thorpe announced that she was ready to proclaim the winner of the election.

Under heavy security, people moved to the assembly room at the British Council in Freetown.  The streets were relatively quiet and badges were required to pass through the security checkpoints.  At the British Council people entering the hall had to go through security.  Just before Thorpe was to come out on stage to announce the results a man was stopped by security at the door.  He had a loaded hand gun concealed under his clothes.  He was arrested and escorted out.

Before Christiana Thorpe approached the microphone to announce the results, electoral commissioners from the regions were the largest amount of fraud had taken place walked out over the decision to invalidate those votes.  Still, Thorpe had a quorum and decided to announce the results.  In her speech she discussed her decision to invalidate the votes:

It is extremely regrettable to have to invalidate even a single polling station, and it is a decision that the NEC did not take lightly.  However, the responsibility for the act of invalidation falls on those who are responsible for the malpractices, it is they who should be held accountable for disenfranchising voters, as there were legitimate votes cast in these polling stations.

There is an important message arising from these elections; there is no longer a place for fraud in the Sierra Leone electoral system.  The people of Sierra Leone deserve to exercise their rights in an atmosphere of freedom, fairness and transparency.  This is what the NEC strived to provide and will continue to strive for in the future - nothing less will be tolerated.  Those who cheated have succeeded in doing a disservice to their respective candidates.  But they did no succeed in tarnishing either the results or the credibility of the process.

Then Thorpe announced that the challenger, Ernest Koroma, had won the election.  To his credit, Vice President Berewa immediately and eloquently acknowledged defeat and refrained from challenging the results.  Koroma was inaugurated shortly after and now faces the daunting challenge of tackling corruption and asserting control over the government.  For her efforts Thorpe has been hailed as a hero and she will no doubt have a significant and positive impact on the future of Sierra Leone. 

Legal Development in Sierra Leone

First, I would like to apologize for my extended absence from Transnational Law Blog.  After graduating in May, I spent a delightful summer studying for the California Bar.  That experience was a piece of cake - a cake made out of glass shards, rotten eggs and fish guts, with just a pinch of self-loathing for the icing.  I spent most of August recovering by drooling on the couch and watching sports, which I highly recommend.  However, my days of flipping between ESPN, the Food Network and Bravo (I wanted Trey to win) are over as I am back in Freetown, Sierra Leone.

For the next 8-10 months I will be conducting rule of law research as a Fulbright Fellow.  My research will be examining the impact of moving the Charles Taylor trial to the Hague upon local legal development in Sierra Leone.  More generally, my research will look at the capacity building efforts of the Special Court in order to assess how war crimes tribunals can be more effective in post-conflict environments. 

I will be using this space to make periodic reports on the research as well as to comment on other Sierra Leonean and international developments.  I am coordinating my research with the American Bar Association's Sierra Leone Task Force and will hopefully be posting reports on their page as well.

I am still at a very early stage in my research; revising my research plan, drafting research materials, making contacts and setting up meetings with local rule of law experts.  For now, I will provide a brief background on the conflict in Sierra Leone and outline the details of my project. 

From the early 1990s to 2002, Sierra Leone was ravaged by a brutal civil war allegedly supported by Liberian President Charles Taylor in which an estimated 50,000 people lost their lives and the society of Sierra Leone was shattered. The conflict was characterized by campaigns of amputation, rape and the widespread use of child soldiers. In an effort to bring stability to West Africa and provide accountability for the atrocities, the United Nations and Sierra Leone established the Special Court for Sierra Leone in 2002. 

The Special Court is a hybrid tribunal comprised of international and domestic personnel and applying both international and domestic law. One of the central reasons for locating the tribunal in Sierra Leone and employing local personnel was to improve the capacity of the domestic legal system. In March 2006, Charles Taylor, the most notable figure in the conflict, was detained by the Special Court for his role in allegedly controlling and supplying munitions to the rebel forces in Sierra Leone. However, due to concerns that forces still loyal to the rebels and Taylor would pose a security threat, the Taylor trial was moved to the Hague.

While the trial will be conducted by Special Court personnel under the authority and law of the Special Court, the removal of the trial and limited involvement of Sierra Leonean personnel may undermine the capacity-building ability of the Special Court. By comparing the strategies and impact of rule of law development programs before and during the Taylor trial it will be possible to assess the development capacity of the hybrid tribunal model. The rule of law programs in Sierra Leone focus upon increasing the awareness, access and respect for law, as well as improving the basic due process standards of the local justice system. If there is a significant decline in development capacity it may indicate the necessity of trying major figures within the country of conflict. 

However, if significant legal development can be achieved in the absence of the Taylor trial, it suggests that an alternative framework for war crimes and genocide tribunals can yield positive results. This information will clarify the function and benefits of hybrid tribunals and whether rule of law development should be directly linked with hybrid tribunals. This research will provide domestic and international policy makers with valuable information for addressing future atrocities.

I intend to conduct the research in two parts. The first element of the research will focus on the rule of law development programs of the Special Court as well as civil society, including the Justice Sector Development Programme and the Lawyers Centre for Legal Assistance.  These programs provide training to legal professionals, research and advocate justice sector reform, campaign for legal awareness and provide legal assistance. The research will examine the relative success of these programs and how they have adjusted their efforts in light of the Taylor trial moving to the Hague. 

The second element of the research will involve surveys and interviews of local prosecutors, judges, legal professionals and law students at Fourah Bay College in order to study how the absence of the Taylor trial is perceived and how it has affected the local legal community. 

The research will provide insight into how the presence of the Special Courthas affected the rules, procedures, and due process standards of the local legal system. This information will be compared with the impressions and opinions of local legal professionals as to impact the Taylor trial will have upon local legal development. 

The International Criminal Court's First Case

The International Criminal Court (ICC) began the first prosecution of its short history yesterday, in the case of a Democratic Republic of the Congo militia leader, Thomas Lubanga.  Lubanga, who once led the powerful and ruthless militia Union Congolese Patriots (UPC) , has been charged with "conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities", essentially turning them into killers in the Congo's eastern Ituri region.  Judges at the ICC are to decide whether Lubanga should stand trial for allegedly recruiting child soldiers. 

Prosecutors said that at the height of the conflict, many of the child soldiers were themselves killed during the fighting.  As many as 30,000 children, both boys and girls, were part of Mr. Lubanga's militia.  The children served as fighters, cooks, carriers and sex slaves, some as young as ten years old.  A estimate of four million people were killed during the four year war in DRC.

Lubanga was transferred to ICC custody on March 17, 2006 by Congolese authorities.  The purpose of the hearing is to determine whether there is enough evidence to establish substantial grounds to believe that Lubanga committed the crimes with which he is charged.  If the judges confirm the charges, the case will proceed to trial - marking the first time an individual is brought before an international court soley on the basis of these crimes.  "The case is a landmark in the fight against impunity for these crimes affecting children in the DRC and worldwide," said Chief Prosecutor Luis Moren-Ocampo, an Argentinian who started his career in international human rights prosecuting top military commanders for mass killings and large-scale human rights abuses in his home country.  Deputy prosecutor Fatou Bensouda of Gambia explained, "regardless of the outcome of the proceedings, this case exposes the destructiveness of forcing children to fight adult wars, a practice that puts their lives at risk and jeaopardizes entire communities."  The hearings are expected to last until the end of the month. 

The ICC was created as a permanent institution to end the need to continuously creat ad hoc war crimes tribunals, like those for the former Yugoslavia and Rwanda, both of which have been prosecuting war crimes, crimes against humanity, and genocide for the past ten years. 

NYT reported, that some question whether the focus on child soliders is the "right" first case for the ICC.  Rights groups, which strongly support the court, have criticized the charges against Lubanga, saying the focus on child soldiers overlooked the many grave crimes of his militia like ethnic massacres, murder, torture, rape and mutilation.  "Recruiting children has been practiced in many places in Africa since the 1960s and many Congolese don't consider this as serious as massacres and other atrocities," said Geraldine Mattioli, a lawyer at Human Rights Watch who followed the Congolese war. 

ICC Prosecutor Speaks

Fresh Air, yesterday, aired an interview with Fatou Bensouda, deputy prosecutor for the International Criminal Court.  The ICC is currently moving forward on its first case, prosecuting the Congolese Thomas Lubanga Dyilo for the war crime of enlisting and conscripting children under the age of 15.  He allegedly utilized them to maintain hostilities in the northeastern Democratice Repulic of Congo.

In the interview, (just under 20 minutes,) Ms. Bensouda discusses the reasons for increasing use of child soldiers, worldwide.  She also explains her route to a career in support of human rights, the role of the ICC, and the subsequent rehabilitation of the children forced to fight and serve soldiers.