6. The Rule of Law

“In all that we do, we must remember that what sets America apart is not solely our power—it is the principles upon which our union was founded. We are a nation that brings our enemies to justice while adhering to the rule of law, and respecting the rights of all our citizens.”

—PRESIDENT OBAMA (2011)¹

“We have before us the opportunity to forge for ourselves and for future generations a new world order—a world where the rule of law, not the law of the jungle, governs the conduct of nations.”

—PRESIDENT GEORGE H. W. BUSH,
ANNOUNCING OPERATION DESERT SHIELD (1990)

“What’s the constitution among friends?”²

—SENATOR GEORGE W. PLUNKITT, TAMMANY HALL (1905)

Poor governments govern differently. They do not get their revenue from the same sources, they do not use the same strategies of governance (and in particular do not rely as heavily on the legitimacy that comes from democratic elections and the supply of public goods), and they do not use state-made law as a coordinating mechanism for government and society to the same extent that rich liberal democracies do.

There is always a “gap between law on the books and law in action,” but when governments are poor that gap is especially wide. Enforcing laws costs money that poor governments don’t have. The governance strategy of patronage is incompatible with rule of law, because patronage rests on individual deals, while the rule of law involves transparent rules impersonally applied. The adoption by poor governments of laws from rich liberal democracies also makes rule of law more difficult. They may assume the existence of institutions that poor governments can’t afford. They criminalize the strategies of governance on which poor governments rely, such as repression or patronage, making governments into criminal organizations. There may not be much demand for rule according to state-made law, particularly when it clashes with local norms.

As a consequence, rule of law—by which a government derives its authority from its compliance with the law and governs according to law—is weak, and the law is not a reliable guide to government processes or a predictor of government action. In the same way, legal reform is not a powerful tool for changing either government or social behavior. Interactions with government, even for routine services, must often be individually negotiated according to local norms, which makes government action opaque and less easily predictable.

Weak Rule of Law

Both because they believe in the rule of law as part of the governance ideal and because law occupies a central social role in coordinating behavior, Americans tend to reach for the law and formal institutions when seeking to understand the operations of a foreign government. These instincts serve them poorly when dealing with poor countries. To be sure, no country fulfills the rule of law ideal. As early as 1910, Roscoe Pound remarked on the gap between “law on the books and law in action” in the United States.³ But in poor countries, state-made law is less powerful and plays a less important role; the connection between law and behavior is more tenuous. The day-to-day operation of government may have little to do with the formal laws and policies. The organizational chart of government may have nothing to do with the actual allocation of governmental authority. Laws are selectively or sporadically implemented or enforced, or not at all. Human rights are not effectively guaranteed, and government actors are frequently engaged in illegal behavior.

Assessments of the rule of law in poor countries repeatedly emphasize the powerlessness or irrelevance of laws and the impunity of government actors. In Yemen,

 

On paper, Yemen has an elected parliament and president, a multi-party system, an independent judiciary, and the framework for a democratically elected local government. In reality, however, these institutions do not produce or transfer political power. Instead, power and wealth are produced and transmitted through a highly informal, yet deeply patterned web of tribally- and regionally-based patronage relationships.⁴

 

According to another assessment,

 

Yemen’s political elite views the country’s formal laws as generally quite well developed on paper, but lacking in implementation. In practice, however, ordinary citizens do not feel they have access to justice through the formal state system…. Previous [USAID Democracy and Governance] assessments have noted that the administration of justice in Yemen is among the most underdeveloped in the Arab world.⁵

 

An assessment of the West African country of Benin stated:

 

There was constant reference to the fact that virtually all needed laws exist, and the courts are there to enforce them, thus indicating a perception of relatively few shortcomings in the formal structures of the rule of law. Nonetheless, there were also frequent references to the widely held belief that “impunité totale” marks legal and political life in Benin. The notion of total impunity was articulated equally by outside observers and critics of the government … as well as those who might have interests in being less critical, including representatives of the state, the judicial sector, and numerous donors.⁶

 

In Nepal,

 

Though the courts are functioning and the legal framework seems adequate for a judiciary to function, the ongoing conflict and the current political crisis render the term “rule of law” almost meaningless. The vast majority of citizens do not rely upon the law—and the state’s ability to uphold laws—to secure their rights and ensure their security. Much of this is a direct impact of the conflict: the state is not capable of providing security, or upholding law and order in its conflict-affected areas. At times the state itself is a threat to personal security.⁷

 

The same kinds of observations are made by sectoral specialists, focusing not on countries, but on their areas of expertise. A tax specialist, for example, writes:

 

Although differences between law and practice exist in industrial countries, the set of tax statutes by and large approximates the actual tax system. For many developing countries, however, the gap between tax law and actual taxation is so wide that one bears virtually no resemblance to the other. A reading of statutes relating to personal and company income tax, capital gains, customs duties, and general sales taxes in a given developing country might lead the observer to believe that the country’s legislative tax system was close to European or North American models. The actual workings of the system, however, are determined by administrators who collect a core group of easy-to-administer taxes.⁸

 

A public administration expert writing about Bangladesh concludes:

 

Our focus … has been on formal structure [of the public administration], but gaps between formal structure as reflected in legal instruments and regulations, and “real world” operations of such structures are commonplace in the politics of most nations. In Bangladesh, the gap is especially wide.⁹

 

Weak rule of law is manifested in human rights abuses, corruption, and other forms of government illegality. The legal codes of poor governments guarantee human rights, but poor governments are unable to protect their citizens from abuses; often, they are the abusers, particularly in countries with more authoritarian governments, and in countries in conflict. All poor governments practice torture at least occasionally, and most practice torture frequently.¹⁰ With untrained and unaccountable security forces that lack the basic equipment to carry out their functions, torture can often seem like the most accessible and least expensive investigatory tool. In 2009, the U.S. State Department summarized the state of human rights protections in the Central African Republic, offering a laundry list of human rights violations:

 

Government abuses included security forces continuing to commit extrajudicial executions in the north; torture, beatings, detention, and rape of suspects and prisoners; impunity, particularly among the military; harsh and life-threatening conditions in prisons and detention centers; arbitrary arrest and detention, prolonged pretrial detention, denial of fair trial; official corruption; occasional intimidation and restrictions on the press; and restrictions on freedom of movement and on workers’ rights. Mob violence resulted in deaths and injuries. Societal abuses included female genital mutilation (FGM), discrimination against women and Pygmies; trafficking in persons; forced labor; and child labor, including forced child labor. Freedom of movement remained limited in the north because of actions by security forces, armed bandits, and armed groups. Sporadic fighting between government forces and armed groups continued to internally displace persons and increase the number of refugees.

Armed groups, some of which were unidentified, continued to kill, beat, and rape civilians and loot and burn villages in the north. Armed groups kidnapped, beat, raped, and extorted money from local populations. There were reports of children as young as 12 serving as fighters in armed groups.¹¹

 

While government actors continued to kill suspected bandits, bandits continued to kill citizens, and citizens continued to kill persons suspected of witchcraft, which remains a crime under the penal code.¹² Even government officials are not safe:

 

On February 5, Lieutenant Olivier Koudemon, alias Gbangouma, and two other members of the presidential guard confronted Commissioner of Police Daniel Sama over the commissioner’s right to carry a firearm in Bangui while off duty. An altercation ensued and the commissioner was beaten to death. The permanent military tribunal (PMT) heard the case in April and found sufficient grounds to try the three. At year’s end, Gbangouma and the other two remained free. No additional information was available.¹³

 

Poor governments are frequently involved in criminal behavior. The most visible to the public is corruption. The monetization of government office, discussed in chapter 5, is criminalized in the domestic laws of poor governments. Yet the bribes that citizens must pay to those charged with rendering public services or who are given coercive authority—nurses and doctors, tax collectors, utility providers, police officers, and school teachers—frustrate them daily. In a survey of twelve Sub-Saharan African countries, when asked how many civil servants are involved in “corruption” defined as “bribes, gifts or benefits” (and not including favoritism or nepotism), on average 38 percent of respondents said that “almost all” or “most” civil servants were corrupt; in Zimbabwe, 65 percent gave these answers.¹⁴ The monetization of contracting authority is a violation of law and results in the visible failure of public works and infrastructure projects. Many poor government actors are engaged in other forms of organized crime, including embezzlement, smuggling, banditry and looting, counterfeiting, and human and drug trafficking. In Vietnam, for example, where illegal logging resulted in a loss of a third of its forest cover between 1985 and 2000, the chief perpetrators are reported to be senior members of government, including the military in Vietnam and Cambodia.¹⁵

While the criminal behavior of government actors is exceptional in rich liberal democracies, and the threat of punishment of such behavior is a credible one, in poor countries many if not most government employees are engaged in some form of criminal behavior, and the likelihood of punishment is minimal. Where the criminal activity is organized, government actors who refuse to participate may be punished by being fired, demoted, denounced, imprisoned, or killed, in part because of the potential threat they represent to the system. On the other hand, when government actors enter the system, they can be controlled with threats of selective criminal prosecution.

Why Law Doesn’t Rule

There are several interrelated reasons why rule of law is weak in countries with poor governments. Poor governments have limited resources to implement and enforce laws. Patronage, a frequent governance strategy of poor governments, is in tension with the rule of law. This is especially true because poor governments have laws modeled on those of rich liberal democracies, criminalizing the use of public office for private gain. Finally, there may not be much demand for rule of the existing law, particularly when it is imported.

 

TOO POOR. Some studies have pointed to a strong relationship between weak rule of law and national poverty.¹⁶ Poor countries have poor governments that lack the resources to draft, disseminate, implement, and enforce laws. Most laws are passed without the benefit of any fiscal analysis that would allow the government to determine if it has the resources to enforce the law. There may be no resources to ensure a law’s implementation or to enforce it once enacted. Police, lawyers, prosecutors, clerks, judges, prison officials, and guards are few in relation to the population and poorly trained, equipped, and paid. Police have no functioning radios, no gas for their cars, and no cartridges for their guns. Judges run out of paper with which to write opinions halfway through the year. Prisons do not have food for their prisoners, space to house them, the ability to provide them with medical care, or the ability to prevent prison breaks.

Nor does the government have the capacity to ensure legal consistency and coherence. Poor governments’ legislatures are unable to undertake the work of systematically repealing conflicting legislation. The legal systems of poor countries are a jumble of conflicting and poorly disseminated laws. As a consequence, the laws of poor countries are like rings of a tree; one set of laws may date back to the colonial period; a second set of contradictory laws mark postindependence periods of socialism or military dictatorship; a third set mark subsequent shifts to the market economy and democracy, some passed as specific conditions of the receipt of foreign aid. Some countries have, in addition, multiple legal systems, such as religious or customary legal systems, with customs varying by location or ethnic group. Citizens are unable to learn what the law is, and few can afford to avail themselves of legal counsel.

Determining what the law is and what law applies is a challenge further complicated by the difficulty of obtaining copies of the law, whether in hard copy or electronic form. Lower court judges in particular may not have law books. Different law may be applied in different cities simply because a different subset of law books is available. This is a particular issue in conflict environments, as government archives and libraries do not fare well in war. The result is that it is often not easy to say what law applies or what actions are legal or illegal.

Poverty is one reason why poor governments fail to honor treaties, particularly those that require affirmative government action.¹⁷ One scholar found that more children survive in countries that ratified the Convention of the Rights of the Child, which commits a country to invest in children’s primary health care—except in poor countries.¹⁸ Similarly, a scholar looking at the implementation of environmental treaties in the Pacific Islands points to lack of capacity, information, and funding as chief impediments to implementation.¹⁹

 

PATRONAGE. Just as a patronage strategy of governance undermines the ability of the government to implement policies or deliver public goods and services more generally, it also undermines the ability of the government to deliver rule of law. Patronage is based on personal relationships and individual deals that span government, business, and social arenas. This is the opposite of governance according to a set of impersonal rules impartially and universally applied. If a benefit is provided equally to everyone, then it cannot be used as a patronage good. Moreover, personal exemptions from the law, such as exemptions from customs or taxes or queuing, are one of the cheapest patronage goods that a government can hand out; they cost the government nothing up front. But such exemptions undermine the impartial and universal application of rules.

Justice personnel—prosecutors, judges, clerks, police, and prison staff—are themselves part of the patronage system, monetizing their positions, which undermines the impartiality of justice. In surveys on the perception of corruption, citizens routinely report the police and the judiciary as the most corrupt sectors of government. For example, in Afghanistan one study found that the most common type of bribe paid was for police protection and disposition of a court case.²⁰ In Bangladesh

 

the most startling findings of the baseline survey revealed that about one-half of the complainants (49.5%) made prior arrangement with the police for disposal of their cases; a majority (55%) of the prior arrangements was not to send the disputes to the court, while nearly two-fifths (38%) of the arrangements was to send the complaints to the court for disposal. About 71% of the respondents reported that police deliberately delayed sending the cases to the court.

More than two-thirds (68.1%) of the complainants reported to have payments to the police for filing complaints as First Information Report (FIR). Payment to the police was made directly by the complainants (40%), followed by payments through office employees (34%) and through local dalal (26%). It is, therefore, not surprising that the public opinion of the police is very low. The survey revealed that 96.3% of the total households expressed the view by way of their complete agreement or general agreement with the assertion that it was almost impossible to get help from the police without money or influence….

The other startling piece of information is that the standard of the legal system, particularly the legal profession, has plummeted. More than three-fifths (63%) of the households involved in court cases reported that they had to bribe the court officials. The proportion of rural households paying bribe money to court officials was 63.6% compared to that of 57.1% of urban households. Cash for bribe was paid to the court employees by 73.1 of households, followed by 16.3% of households to opponent’s lawyer. Majority of households (53.3%) made payments for bribe directly, i.e., in person, and 28.1% of households through the lawyers.²¹

 

LEGAL TRANSFERS. Another reason for weak rule of law is the nature of the law itself. Much of the formal legal system of poor countries is imported from, copied from, or heavily influenced by rich liberal democracies. These transfers are often not a good fit for local norms or conditions, with the consequence that people do not know them, do not want them, or cannot comply with them.

 

The transfer of laws from rich liberal democracies to poor countries has proceeded through a number of different channels. The first was the inheritance of the colonial legal and political system by former colonies on independence.²² A second channel is imitation. Elites in poor countries are often educated in rich liberal democracies, and elites from former colonies are likely to have been educated by the former colonizing power. A third mechanism of transfer is global integration and foreign aid. Accession to international organizations such as the World Trade Organization, for example, may require specific legal changes that usually follow the model of rich liberal democracies. Foreign aid donors may condition the receipt of foreign aid on the passage of specific laws; foreign technical assistants hired to help poor countries reform their laws are likely to replicate the legal systems with which they are familiar.

Legal imports may also be incapable of implementation because implementation depends on the existence of other structures or social conditions that are present in rich liberal democracies but are missing in poor countries. For example, some poor governments have enacted laws against outside employment for government employees, imitating richer countries that sought to ensure that government employees are not subject to conflicts of interest. However, in rich countries, government employees receive regular salaries, and in poor countries they may not be paid for months.

Compliance with law is more likely if the law accords with peoples’ sense of morality and obligation.²³ However, where laws conflict with existing norms and existing structures of power, compliance is less likely. An example of this type of failure is the challenge of using law reform to improve the social position of women and children. For example, the Social Institutions and Gender Index attempts to rank countries according to the social institutions that obstruct women’s access to resources, evaluating the family code, civil liberties, physical integrity, preference for sons, and ownership rights.²⁴ In its ranking of 102 non-OECD (Organisation for Economic Co-operation and Development) countries, twelve poor countries are in the bottom twenty. Notably, among the bottom five, four have ratified the Convention on the Elimination of All Forms of Discrimination Against Women: Afghanistan (2003); Sierra Leone (1988); Mali (1985); and Yemen (1984).²⁵ Although the legal campaign against child marriage has been largely successful, the practice continues in secret, particularly where people are poor.²⁶ According to the United Nations in 2005, in Southern Asia, 48 percent of young women are married before they are eighteen; in Africa, 42 percent; in Latin American and the Caribbean, 29 percent.²⁷ In Chad, tradition and the penal code set the minimum age for marriage at thirteen (and even this is not regularly enforced).²⁸ A proposed bill that provided for equality for men and women was blocked on religious objections.

A critical problem for the transfer of laws from rich liberal democracies to poor governments, however, is that these legal codes reflect modern good governance values. Although Western governments relied on patronage and repression to govern when they were poor, as they became richer they relied less on these strategies and more on the provision of public goods and services to citizens. They then criminalized these strategies of governance, on which modern poor governments depend. Western-financed anticorruption campaigns have attempted to criminalize monetization of government positions worldwide. Poor governments are incapable of complying with these legal codes if they are to govern.

By definition, the criminalization of the governance strategies used by poor governments makes them criminal organizations. The blatant contradiction between the legal system and the routine operation of government deprives both of moral authority. As an opposition leader in Cambodia put it, considering the delayed passage of the anticorruption law, “Thieves can’t catch thieves…. They cannot approve the corruption law. They will lose their income and their opportunities.”²⁹ As the Ghanaian rice smuggler explained to his interviewer, “I wish there was a level playing field for all importers, but if I don’t smuggle, somebody else would do it anyway. So tell me: Why should I miss the opportunity to get more money when even state institutions themselves aid us in making these corrupt deals?”³⁰ Or as a taxi driver in Kenya put it: “Who will follow the law if the executive cannot uphold it?”³¹

The tension between laws criminalizing corruption and the operation of patronage politics is illustrated by the difficulty in catching and prosecuting “big fish.” In 2001, while awaiting debt relief estimated at $3 billion, the government of Tanzania purchased a military radar system from BAE, the British arms company, for 28 million pounds. Tanzania has no air force. However, as the Guardian reported, “it was claimed the Commander system, which was portable and festooned with anti-jamming devices, could also be used for civilian air traffic control.”³² The deal was called “corrupt” and “useless” by British secretary of state for international development Clare Short. It was investigated by the United Kingdom Serious Fraud Office, and the results of its investigation were passed to the head of Tanzania’s anticorruption bureau for prosecution. BAE may have paid a commission of 31 percent of the contract value into Swiss bank accounts to secure the contract.³³ But a U.S. diplomatic cable released by WikiLeaks detailed a 2007 meeting between the senior Tanzanian anticorruption official and U.S. diplomats regarding the prospects of prosecution of those implicated in the deal done under the previous administration of President Mkapa. In a cable titled “Big Fish Still Risky Catch in Tanzania,” the U.S. Deputy Chief of Mission reported that the official was receiving threats and feared for his life:

 

He called the deal “dirty” and said it involved officials from the Ministry of Defence and at least one or two senior level military officers…. He noted that President Kikwete does not appear comfortable letting the law handle corruption cases which might implicate top level officials…. President Kikwete is hesitant to pursue cases which may implicate former President Benjamin Mkapa: “Kikwete is soft on Mkapa. He does not want to set a precedent by going after his predecessor.” …

In our January 2007 meeting with [the prosecutor], he said his primary goal as the newly appointed Director General of the Prevention of Corruption Bureau would be to prosecute “big fish.” He told us point blank, however, that cases against the Prime Minister or President were off the table. Now, he has revealed that former President Benjamin Mkapa and certain members of Mkapa’s inner circle may also be untouchable, many of whom have ministerial or sub-ministerial posts in Kikwete’s government. Thus, while President Kikwete’s talk against corruption might be tough, he is clearly treading carefully and the jury remains out on his commitment to tackling high-level corruption.³⁴

 

Widespread government criminal activity transforms the function of legal enforcement. Because so many people are violators, enforcement becomes discretionary and selective, as where anticorruption campaigns are used as a means to attack political opponents. The ability to arrest any government actor on a corruption charge at any moment gives the executive a powerful political tool. Outside observers have been fooled into seeing an exercise of judicial independence in the arrest and trial of members of government who are out of favor, members of a former government by a current government, or members of the opposition, as frequently happens in anticorruption campaigns when the West is clamoring for convictions.

Alternately, the executive can block enforcement of judicial decisions. The judiciary depends on the executive branch for the implementation of its decisions, whether it is the arrest and imprisonment of an individual criminal or an order to cease an illegal executive branch practice. Where the executive branch is not interested in enforcement or implementation, it does not happen. This not only results in a lack of enforcement of judicial decisions, but it also has a chilling effect on judicial decisions themselves. Some savvy judges avoid issuing decisions and orders that will have no practical effect, except to annoy the executive and call attention to the impotence of the judiciary.

 

DEMAND. Finally, it is not clear that there is strong popular demand in poor countries for the rule of law. Most disputes are handled through alternative mechanisms, such as customary or traditional justice systems, which may not have legal status, apply rules of the formal legal system, or be formally recognized in the country’s justice system. The British aid agency estimates that “in many developing countries, traditional or customary legal systems account for 80% of total cases.”³⁵ In Afghanistan,

 

traditional justice mechanisms have the advantage of being familiar to the population and are less costly and more accessible than courts. Decisions made by local shuras and jirgas are generally consensual, and therefore reach a final resolution much faster than state courts. They focus more on making the parties whole through equitable outcomes rather than adversarial courtroom processes that have winners and losers or that punish wrongdoers. Also, traditional justice resolutions are more likely to be enforced than those of state institutions because disregarding decisions of respected local leaders can be disruptive to social harmony.³⁶

 

A number of factors influence how people choose to resolve disputes, including cost, distance, familiarity, time spent, complexity, and the type of dispute.³⁷

There may not be demand for the existing body of state-made law, particularly when the law is an alien import. People may prefer to be governed by rules that coincide with their own sense of justice, administered by institutions that are local and familiar. In some poor countries, to the extent that there is demand for the rule of any one law, it is a demand for shar’ia, Islamic law, not secular state-made law. Yet because the West objects to shar’ia, it sees this demand for the rule of law as retrograde.

There may not even be demand for rule of law in the abstract. Impersonal rules are necessarily imperfect and blunt instruments, which, when applied impartially, work injustices in the individual case, and they often reflect the interests of those in power. As Anatole France said, “The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread.”³⁸ People may prefer less justice and more equity or mercy, fewer rules and more situational justice and personal treatment, especially if the law is not seen as impartial. A story from Niger illustrates that perspective:

 

Two old women in a Nigerien village, Kouli and Kouti, were in charge of selling the water from the foot-operated water pump by the bucket. They were appointed by the committee for the management of the pump. They were both given nicknames. Kouli, who refused any favours and did not allow a woman to take water without paying, was nicknamed “ceferia,” the ungodly one, and Kouti, who was more flexible and accommodating, became known as “alsilaama,” the believer.³⁹

 

In rule-based systems, some people find the very idea of strategic or utilitarian friendships distasteful, and find the effort to win favorable personal treatment to be dishonorable and therefore demeaning. In relations-based systems, the impersonal application of rules can be seen as unfair, as an insult to individuality, and a repudiation of friendship and social obligations. The preference for the former is by no means universal in any country. Families, for example, do not operate through impersonal rules. The shift from a personal system to a rule-based system advantages some and disadvantages others. Not surprisingly, those who are favored by the rules are more interested in the rule of law.

As long as non-state mechanisms are doing a passable job of preserving the peace, and as long as people do not have much interaction with the government, there may not be much demand for the government itself, much less for government-backed rule of law, even though traditional dispute resolution mechanisms can be biased and unfair. Compared to village-level or local-level dispute resolution, the formal court system is very slow, more complex, less transparent, more expensive, and applies rules that are alien or counterintuitive. It also requires trusting the judgment of strangers who may have different values, who do not know any of the persons involved, and who might, in the eyes of the litigants, have limited moral authority because of their gender, age, religion, ethnicity, or clan.

Even where existing means of rule enforcement are feeble, and people suffer from insecurity and conflict, they may not demand the rule of law, a benefit they have never known, but instead may adapt their behavior to reduce their risk. In Madagascar, for example, grain traders slept with their merchandise at night in order to protect it, hired fewer employees than they might like in order to control theft, inspected all merchandise personally, and did not do business on credit.⁴⁰ In choosing people with whom to interact or transact, people may avoid strangers and instead interact and transact with people about whom they have information, with whom they have long-term relationships, or whose behavior is likely to be constrained because of common interests, dependencies, and social circles. They rely on membership in common groups as a vetting process and on such groups to help with dispute resolution should any disputes arise. This is one reason why family and ethnic networks play such an important role in facilitating trade in poor countries.

Less Transparent, Less Predictable

In countries with stronger rule of law, interactions with the government are usually impersonal, and people expect to receive government services as of right. Social connections and even bribes are still sometimes used, but they are used in an effort to get more favorable treatment than the law allows. In countries where the rule of law is weak, whether rich or poor, even routine government services must be individually negotiated with money, favors, and connections. Relationships with those in power become a form of currency, deliberately cultivated. In Laos,

 

two extra-legal factors commonly influence cases of law: conformity with current policy of the Party, often pointed out by Party officials seeking a particular outcome; and attempts by interested parties to bring extra-legal pressures to bear in the form of personal visits, telephone calls and written notes (less often, as these can be incriminating) from politically powerful friends or relatives. As the Lao say, winning a legal case, especially in a civil dispute, depends on who has “the strongest string.”⁴¹

Even those businesses that have cultivated good political contacts have to make regular payments to their protectors, and perhaps also the Party. Political contacts are not to escape payment, but to minimise it and to avoid additional payments demanded by lower level officials or other ministries or Party branches. Additional payments also have to be made for special favours, such as the awarding of a contract.⁴²

 

In Vietnam,

 

It’s about who you know. A business owner’s visit to the tax office will be smoother and faster if it’s accompanied by someone who can guide you to a connection—an official who will “sort things out” for you after receiving an envelope.

Sometimes, an envelope is handed over with a discreet muttering about a “gift” to the children. Other times, prices and “fees” are discussed directly, in the open. No matter what, you can expect to pay lower taxes if you know the right people and offer the right amount.

State utility employees will change your wires or fix your power meter after you make an initial “investment” of about US$60, but your monthly bill will be a third of what it was before.

If you wish to keep your shop open past official business closing hours, or if you want to use the sidewalk to park customers’ scooters, a few envelopes passed into the right hands will do the trick.⁴³

 

In the Democratic Republic of Congo, a journalist reports:

 

Mary-Ann can’t get over it. She paid US$7,500 for customs services at the Ruzizi border station, which separates Bukavu, a city in eastern Democratic Republic of Congo, from the Rwandan city of Kamembe. In return, she received a receipt for only US$1,500 of her payment for the six containers of goods she imported from Dubai. The rest of the money was shared among customs officers—before her own eyes in that very office. “We’re not going to change this country. The example comes from the top,” the customs officers’ boss told her.

But Alphonso (who, like Mary-Ann, declined to use his last name while talking about corruption) never pays to bring his goods into the country, and he is one of the richest businessmen in the east of D.R. Congo.

“Why should I give money earned with difficulty to the government? I have relatives and friends at all levels of the province and the country. I can easily get all the false invoices that I want,” he said. “In addition, I pay customs officers better than the state pays them. Consequently, they turn a blind eye and do not even check my goods.”⁴⁴

 

In Ghana, instead of taxing importers, the customs service is an organized bribe collection agency. One author describes the smuggling of rice into Ghana from neighboring Côte d’Ivoire:

 

Asare had arrived at midnight the night before we spoke with a bus full of smuggled rice. “I came in the company of over 13 smugglers last night from Abidjan through the Anyamaah barrier to our secret routes that lead us to Kofibadukrom. Overall, over 10,000 bags of rice entered into Ghana illegally just last night alone.” This crime, he added, is perpetrated against the state every day.

According to Asare, the first and most crucial step in the smuggling process is paying an agent to introduce the importer to the CEPS [Customs, Excise and Preventive Service] boss. Once the agent clears the way, the two set up an appointment to negotiate the bribe. “Also, before we meet, there’s a good old tradition of giving the CEPS boss one sack of rice to appease him and help soften his negotiating stand.”

Asare himself negotiated with the CEPS boss over the amount of rice they would allow him to bring in and what the price would be. At the conclusion, Asare paid the CEPS boss 50 cedis (US$40). The CEPS accountant collected the money, but did not issue any receipt as is usually done with legitimate imports.

“He just told me to go with my truckload of rice,” Asare said with a broad smile, “No paying of duties, not even Value Added Tax (VAT)! I smiled, thanked him and shook his hand for a job well done. That 50 cedis (US$40) was not even close to the usual price for a bag of rice.”⁴⁵

 

Those doing business in China depend on cultivating guanxi (personal connections or relationships) with government officials.⁴⁶ “If you do not have connections to look after you at different levels of government, they can find excuses to suspend your business,” said one interviewee to Xin and Pearce in their study of guanxi. A story told to them by another interviewee is illustrative and worth repeating in its entirety:

 

My company had bad luck. We were audited for income tax fraud. The Auditing Bureau has Red Eye Disease [jealousy]. Whenever they see a private company making money, they come and find trouble.

The tax auditor just showed up one day and wanted to see company books. There are no standardized rules on how to keep books in China, especially for private companies like ours. If they want to find fault with your income tax, they will always find something wrong. If we had been found guilty of tax fraud, we could have faced thousands of yuan in fines and the possible suspension of our business license. All our hard work would have been gone like the wind. Our accountant was very worried. I called my administrative assistant, X, into my office and told him the situation. He smiled and said, “Give me a 2,500 yuan allowance [equivalent to a middle managers’ six-month salary] and I will take care of everything.” I had no choice. So I said, “I will give you 2,500 yuan, but you will lose your job if you cannot handle this crisis.”

By noon, my phone rang. X asked me to go to lunch with the auditors, at the best restaurant in the city. We hired a Mercedes Benz and went to lunch. The auditors kept saying that they only needed a working lunch. I was worried that X had gone overboard, but X was right. After expensive drinks and Peking duck, the head auditor started to praise our accounting system, saying how good and efficient it looked. This lunch lasted three hours and cost plenty, but it saved my company. After lunch the head auditor left me a notice requesting a 2,500 yuan income tax supplement. The reason he had to force us to pay the supplement was that he had to report to his boss on what he accomplished that day. Later on I found out that X’s father is a good friend of the head auditor.

There are too many threats for small companies like mine. There are no laws to protect you. The only way we can protect ourselves is through personal connections, trust, and being flexible. I hired X, a high school graduate, with his father’s connections in mind. It does not sound right but everyone does it; you have to be open-minded.⁴⁷

 

Xin and Pearce wrote “In China, it is difficult to find executives willing to talk about their guanxi.” Accordingly, to complete their study, they used some guanxi of their own: “To overcome this problem, the first author drew the sample from the business connections of a close relative who is an executive for the state owned insurance company in that city.”⁴⁸

Daniel Smith, an American anthropologist married to a Nigerian woman, described his own attempt to get a vehicle registration and a driver’s license in Nigeria. He did not know anyone in the office personally, and so attempted to establish a personal connection through common ground. The entire episode is so torturous that it can only be summarized here; Smith’s blow-by-blow account runs for several pages. He went armed both with his intent to pay any reasonable “extra fee” and with Frank, a Nigerian friend. After explaining his need to Mr. Okonkwo, the official in charge of the vehicle registration,

 

Mr. Okonkwo’s face grew somber. “Unfortunately,” he continued, “there are no number plates. Imo State plates are finished.” Frank immediately jumped in, knowing from experience that scarcity, whether real or faked, was a typical ploy for a bureaucrat to seek a bigger bribe. “Mr. Dan is our in-law,” Frank announced. “He is just as much Nigerian as you or me. You should treat him as a brother. We need the registration and plates as soon as possible.” With these few words Frank had communicated with Mr. Okonkwo both that I was willing to “put something on top” of the official fees and that he should not try to take undue advantage of my being a foreigner.⁴⁹

 

Smith then reinforced this message by chatting with the office workers in Igbo, the local language, about his wife, her village, and his own familiarity with local foods. They then contracted with Mr. Okonkwo to handle their transaction, which would include paying bribes to the other officials whose cooperation would be needed to obtain all of the official documents. Mr. Okonkwo was able to obtain the license plates, but not the driver’s license.

 

Frank was irate. He suspected that Mr. Okonkwo had simply pocketed the extra money for the urgent processing of the driver’s license rather than settling whoever operated the machine. He demanded that Mr. Okonkwo accompany us to the office where driver’s licenses were issued.

 

There, Smith explained to the woman in charge that he had applied for a driver’s license and that Mr. Okonkwo had promised to bring it. She explained that the office had no electricity to produce driver’s licenses, and no gas for the back-up generator. Frank then asked to meet with the woman alone, where he told the woman that

 

we had already paid enough money on top to get the license urgently, and that it was up to Mr. Okonkwo to settle her and assure that my license was issued immediately. She was apparently irritated with Okonkwo for “eating alone” and promised Frank that the license would be ready the next day. I have no idea how much Mr. Okonkwo had to pay to assuage the licensing officer. ⁵⁰

 

When Smith returned the following day to get his driver’s license and asked for Mr. Okonkwo, he was directed instead to Mr. Okonkwo’s supervisor. “Holding my plastic driver’s license in her hand she asked, ‘So Mr. Smith, you wanted to collect all your papers and your license without ever seeing me?’”⁵¹

 

OPACITY AND PREDICTABILITY. When even routine interaction with government must be individually negotiated, the operation of government becomes opaque. The rule of law ideal assumes that the law is public, accessible, and understandable. In theory, in a government of laws anyone can learn how government power is likely to be wielded by consulting the law. In countries with weak rule of law, where government is based on personal relations, those seeking information must consult government actors personally. This is why when interviewees in Madagascar were asked whom they would consult for advice if they had a case in court, 40 percent said that they would go to the court building and ask for help from court personnel. The interviewees perceived the system to be one governed by people and personalities, rather than by general rules. This answer was given even by those who were the most educated, and even those who anticipated hiring a lawyer.⁵² In Laos, “the workings of the party are opaque to outsiders, based as they are on networks of personal contacts, alliances and deals. Foreign representatives seldom know where to bring pressure to bear—with the exception of the Vietnamese, and they are happy to see the system continue.”⁵³ Where power is decentralized, even government leaders may not know how the government is doing its business.

If criminality or illegality has any consequences, either through occasional enforcement of the law or in the court of public opinion, government actors may hesitate to explain some of the regular practices of government. This is another reason why the operations of governments with weak rule of law are opaque. The small circle of people who actually know how things are running may not want to share that information if it can be used against them. Bureaucrats may be afraid of being sanctioned, prosecuted, or compelled to share with competitors; politicians may hesitate for fear that they will give fuel to their domestic or international enemies; and governments may hesitate because the West (somewhat erratically) prizes rule of law and demands that at least lip service be paid to it.

For example, Liberia’s much-abused Maritime Registry generates millions of dollars of revenue that have previously been embezzled, but this revenue has never been included in the budget or publicly reported.

 

Maritime revenue is not reflected in Liberia’s annual budget as it should be, and all transactions are secret. The [Bureau of Maritime Affairs]’s new chief, Beyan Kesselly, after long ignoring public outcry for accountability and openness in reporting the Registry’s revenue, told the media that releasing financial information was a security threat. Finance Minister Augustine Ngafuan concurred.

Ngafuan has warned national legislators against publicly disclosing the contents of the maritime bureau’s contract and budget. He said in a legislative hearing on the draft budget for fiscal year 2009–10 that doing so would reveal Liberia’s maritime secrets to competitors and hurt the country.

The minister’s warnings came after successful requests to exclude maritime revenues from the fiscal budget. President Sirleaf had promised to instruct BMA officials to release the budget, but that has never happened.

“I want you, all members of the Ways and Means Committee, to get the information and to use it with the care it deserves. Otherwise, we shoot ourselves in the foot,” Ngafuan told legislators.⁵⁴

 

Lastly, where information is scarce, it becomes a valuable commodity, and people do not want to give it away for free. In the rule of law ideal, anyone could find out how a government office operates. Where bureaucracies are opaque, entrepreneurs often spring up to help the bewildered navigate the maze—for a fee. “Fixers” cultivate relationships with the government actors in a particular office, learn how the office operates, and offer their services to the public as go-betweens. The presence of fixers outside a government office or agency is a sure sign of a personal and opaque government system. In Afghanistan,

 

There are people known as “employed on commission” who operate in front of government buildings. They approach us saying that they can solve any kind of issue in a short time and then they quote the price. For example, if you need a passport or driving license or are paying taxes and customs duties, they can give you the final receipt which has been processed through all official channels in a matter of days, a process which takes usually weeks. Then they will take the money and share it with those who are sitting inside offices.⁵⁵

 

LACK OF PREDICTABILITY. The predictability of government action is claimed to be one of the principal benefits of the rule of law. Rule of law allows people to harmonize their behavior more easily and plan their activities based on their expectations of what the government and others will do. Even when the law is not applied or invoked, it can “anchor” private behavior, setting expectations about rights and obligations. In private negotiations, the parties may “bargain in the shadow of law,” having in the back of their minds the result that they would get in the formal legal system if private negotiations fail.⁵⁶ This allows agreements to be reached more easily. It can provide the confidence needed to transact with strangers in the absence of a social guarantee of good behavior, such as a friend-of-a-friend relationship.

Perhaps one of the strongest proponents of predictability as an essential benefit of the rule of law was the free-market economist Friedrich Hayek, who saw this predictability as key to human freedom:

 

The formal rules tell people in advance what action the state will take in certain types of situations, defined in general terms, without reference to time and place or particular people…. The knowledge that in such situations the state will act in a definite way, or require people to behave in a certain manner, is provided as a means for people to use in making their own plans…. If the individuals are to be able to use their knowledge effectively in making plans, they must be able to predict the actions of the state which may affect these plans.⁵⁷

 

The sociologist Max Weber argued that the rise of capitalism in Europe was facilitated by the unique qualities of its legal system, including the application of general, universally applied rules.

 

It curbs the arbitrary action of the ruling groups, and is, partly as a result, highly predictable. Thus, under European law, the rules governing economic life are easily determined; this type of legal order reduces one element of economic uncertainty. This calculability of European law was it major contribution to capitalist economic activity.⁵⁸

 

This historical analysis has been generalized to mean that the predictability provided by the rule of law is necessary for the efficient operation of markets.⁵⁹

Western lawyers visiting poor countries often decry the lack of dissemination of laws and the lack of availability of legal texts. But while lack of dissemination undermines rule of law, it is government compliance with law that makes legal texts valuable and thus more likely to be disseminated. In 1897, Harvard Law professor and eventual Supreme Court Justice Oliver Wendell Holmes argued that the prediction of what judges would do was the reason to study or consult the law.⁶⁰ Where interactions with government are opaque and individually negotiated, government action is less predictable, government promises less credible, and legal texts less valuable because they provide less information about government behavior.

This is not to say that governments with weak rule of law are wholly unpredictable. In Laos, for example, although the government has a long tradition of secrecy, its operations are nonetheless “well understood and manipulated by Thai businessmen, who account for by far the majority of small-scale [foreign direct investment] projects in Laos…. And it is a system increasingly manipulated by expatriate Lao investing in Laos.”⁶¹ People do business and interact with these governments; they predict government behavior and plan strategically; they court those in power and exploit connections; and sometimes they even hire lawyers.

But predictability comes from social norms that are more guidelines than rules. A basic social norm is that of reciprocity—a person who helps you has a claim on you for a reward or for future help. Other norms come from the obligations that are owed to family and to friends or that define the patron/client relationship. Anthropologist Daniel Smith explained:

 

When Nigerians seek a service from their government, they routinely expect that they will have to navigate corruption at all levels of the bureaucracy. Everything from obtaining birth and death certificates, to registering a company, to applying for a passport, to renewing a motor vehicle registration normally requires some sort of payment in addition to the official fee. Generally, the only way around paying extra money for routine government services is if one has a personal connection to someone with influence—a patron who will use their power to push on behalf of their client. But even then a relationship of reciprocity exists; the patron is helping with the implicit expectation that their act contributes to retaining and strengthening the loyalty of their client. Further, although a patron who helps a client navigate the bureaucracy may not expect payment, the client will nonetheless offer a “dash” (gratuity) to say “thank you.”⁶²

 

Writing about Africa, Goren Hyden posited “the economy of affection,” which is summarized as “(a) whom you know is more important than what you know, (b) sharing personal wealth is more rewarding than investing in economic growth, and (c) a helping hand today generates a return tomorrow.”⁶³ A scholar writing about the civil service in Malawi insists that although civil servants juggle several set of rules, of which the formal rules are just one, “nevertheless, there is a set of basic informal rules and codes, which can be found to some extent in all ministries and departments down to the smaller units of police posts, health posts and schools.”⁶⁴ Civil servants discuss these rules as “the rules of the game,” and they include respecting the boss and sharing the wealth with kin, while the boss in turn has the obligation to ensure that subordinates receive their share. Another scholar described the system of patronage in Yemen as “deeply patterned” and attempted to codify the informal rules that governed it: “Patronage is Distributed Broadly,” “Elites Must Accept Inclusion [in the patronage system],” “The Type and Degree of Patronage Distribution Is Not Random,” “In Return for Patronage, Elites Must Provide a Minimal Level of Support for the Authority of the President and the Corrupt Political Economy that Supports his Regime.”⁶⁵

At the national level, government policy actions can be more predictable with a better understanding of government political imperatives and constraints. For example, in countries with ethnic tensions, there may be established norms regarding the sharing of patronage among country regions or ethnic groups. In Nigeria, this is called “zoning”; in Cameroon, “équilibre ethnique” or “ethnic balance.” The multiplication of government positions and its alternative, fast turnover in those positions are both predictable consequences of patronage governance.

 

LAW AS AN INSTRUMENT OF BEHAVIORAL CHANGE. Finally, weak rule of law means that law is a weak instrument for changing public or private behavior. As Professor Antony Allot observed in 1968:

 

The making of laws is one of the governmental functions which is overtly carried out in the capital city. It is within the capital of each state that the legal draftsmen, and those who give them instructions, are clustered; within this limited circle the apparatus of law appears much the same as it did in colonial times, or as it does in the contemporary states of Europe and North America. Outside the capital, the facilities for administration are generally much weaker, however, and there is a natural temptation to bridge the gap left by lack of administrative capacity through the promulgation of still more laws…. A law is enacted, but the regional facilities for its application are as weak as are the administrative cadres generally, and nothing of significance happens. This is what I have termed “phantom legislation,” the passing of laws which do not have, and most probably cannot have the desired effect. The illusion of progress, of doing something, is given, but the reality is far different. Such legislation is an expression, not of power but of the impotence of power…. Many of the laws so hastily passed in tropical Africa over the last decade or so fall into this category.⁶⁶

 

Although some donors are aware of the limitations of state-made law and are working with customary law or supplementing legal reform programs with social action to bring about change, the mistake of thinking that law reform is sufficient to bring behavioral change in poor countries continues to the present day because it is a cultural mistake based on the stronger rule of law of Western governments. One scholar described the Lao response to donor pressure to take action on issues like corruption:

 

A new law is promulgated, new regulations are introduced, a presidential or prime ministerial decree is announced (such as the 1999 Anti-Corruption Decree that “curtails activities that lead to a possible conflict of interests or an abuse of office”). But nobody takes any notice. Implementation is minimal, but the government can point to good intentions. Laos has some excellent environmental protection laws, for example. It is just that they are not enforced.⁶⁷

Conclusion

Poor governments have weak rule of law because they are poor, but poverty means more than a lack of law books, inadequate prison space, or illiterate judges. Poor governments depend more heavily on the distribution of patronage to govern, on individual deals with individual power brokers, and on the strength of personal relationships expressed in business, politics, and social activities. Loyalties are personal. This is the opposite of the rule of law, which imagines a set of abstract rules applied impartially to everyone, that is at the same time the source of the government’s authority, the way in which it exercises authority, and the bounds that limit it. The contradiction is heightened by the importation of law from rich liberal democracies that criminalizes the way the government actually operates.

Strengthening the rule of law would require a change in the underlying dynamic of power such that the population gives its allegiance to a body of rules and the government demonstrates its legitimacy by adhering to those rules. This is not impossible for poor governments, but the laws that they have are neither widely known nor deeply felt. This is perhaps one of the attractions of Islamic law for some countries, with its promise of a common orientation for government and society. And yet the West has been very uncomfortable with this movement toward the rule of law, because of the clash between Islamic law or its interpretations and other Enlightenment values, such as the equality of men and women.

Law that criminalizes one of the government’s principal governance strategies is unlikely to be observed in any systematic way. On the contrary, enacting laws that cannot be implemented, whether because of this contradiction or lack of resources, weakens the rule of law and marginalizes the legal system, making it a less effective reference point for individual action. It widens the discretion of the government, which, because it cannot implement the law impartially, can choose when to apply the law, and for whose benefit. Without a well-functioning legal system, the government is rudderless; all types of criminal behavior can go unpunished. Just as the political map of the world does not reflect political power in poor countries, the legal system does not provide good guidance to the organization or operation of government.

The last several chapters have sketched how and why poor governments not only govern less, but also govern differently than rich liberal democracies. The processes of colonization and decolonization resulted in the international recognition of a number of countries without effective governments and with formal institutions inherited from their much richer colonizers. With fewer resources, poor governments cannot govern according to the governance ideal; cannot provide public goods and services to all their citizens; and cannot implement or enforce their own laws. Some cannot defend their territory from challengers, internal or external. Unable to maintain government through the legitimacy that comes from providing public goods and services to everyone or from the rule of law, they rely on other, older, cheaper strategies, patronage being a common choice. Yet we continue to engage them as if they govern the way we do (or would like to). We continue to engage and manipulate the legal system and formal institutions without understanding how weak they are. We continue to engage poor governments as if public service delivery and the establishment of the rule of law were, or could be, their only priorities.