DEVELOPMENT AND COOPERATION D+C

ENTWICKLUNG UND ZUSAMMENARBEIT E+Z

International Journal

ISSN 2366-7257 D +C MONTHLY E-PAPER January 2019

GENDER RELATIONS ILO PUBLIC TRANSPORT Why HIV/AIDS is Reform proposals for What difference spreading in Kenyan staying relevant after the metro will make fishing communities the first 100 years in Nagpur, India

Rule of law Title: Kenyan Supreme Court judges. Photo: Sayyid Abdul Azim/picture-alliance/AP Photo D+C January 2019 In German in E+Z Entwicklung und Zusammenarbeit. Both language versions FOCUS at www.DandC.eu Rule of law Monitor Long road to independence Distorted media coverage | Environmental worldview needed | Nowadays: Kenya’s law courts face huge challenges. They Slavery in Mauritania | Imprint 4 must clear a massive backlog of cases and end corruption. At the same time, political interfer- ence and budget cuts are serious issues, writes Alphonce Shiundu of Africa Check, a media Debate agency. PAGE 20 Comments on climate summit in Katowice, biodiversity summit in Sharm el-Sheikh and struggle of independent media in the Philippines 9 Serious challenges Recurring problems in Tanzania include bad gov- Tribune ernance, rule bending and corruption. Journalist Lawrence Kilimwiko reports that making people BRENDA MBAJA LUBANG’A aware of their rights helps to improve matters. In Why some market women must trade sex for fish in Kenya 12 Burundi, the prisons are overcrowded. Occasional presidential pardons are no solution, argues radio RAYMOND SANER journalist Mireille Kanyange. PAGES 23, 25 The relevance of the ILO in the past, present and future 14

SABINE BALK Secure ownership In Nagpur, a new metro is being built with German support 17 Liberia’s new Land Rights Act explicitly protects the customary land rights of rural communities. It will help to stabilise peace, report Sahr Nouwah Focus: Rule of law of Welthungerhilfe and Roselyn Korleh of the Rights and Rice Foundation. Christiane Rudolph ALPHONCE SHIUNDU of the development finance institution DEG elab- Kenya’s judiciary is fighting for independence and constitutional principles 20 orates that, since all private businesses appreciate secure ownership, the rule of law is a component LAWRENCE KILIMWIKO of a good investment climate. PAGES 27, 30 To challenge corrupt officials, Tanzania’s people must know their rights 23

MIREILLE KANYANGE Limited reach Burundi’s prisons are overcrowded 25 The International Criminal Court (ICC) ensures that perpetrators of atrocious crimes can be held SAHR NOUWAH AND ROSELYN KORLEH accountable even if they are not put on trial in New legislation protects traditional land ownership in Liberia 27 their home countries. For people to come to terms with trauma, more needs to happen, says Kai CHRISTIANE RUDOLPH Ambos, a German law professor. PAGE 32 Investors appreciate legal certainty 30 Political career INTERVIEW WITH KAI AMBOS Sérgio Moro, a Brazilian judge is joining the cabi- Why the International Criminal Court’s valuable work cannot be enough 32 net of Jair Bolsonaro, a right-wing populist. Carlos Albuquerque of Deutsche Welle assesses the CARLOS ALBUQUERQUE impact of this decision. PAGE 34 Brazilian worries concerning a judge’s political influence 34

MAHWISH GUL A minority’s human rights Pakistan acknowledges civil rights of transgender people 36 In March 2018, Pakistan’s legislators passed a new law to protect transgender people. It is a step MAHWISH GUL towards ending marginalisation, writes Mahwish Relevant reading: World Bank on how to bring about good governance 38 Gul of Ruhr University Bochum. PAGE 36

D+C e-Paper January 2019 OUR VIEW Involve the people Debate(SW-Thema)

World Bank thinking is becoming more sophisticated and nuanced over the years. In 1997, its World Development Report deviated from the previous mar- ket orthodoxy, emphasising that development and economic growth depend- ed on appropriate action by state agencies. It argued that the institutional set- up was dysfunctional in many developing countries, so bad governance was blocking progress. It demanded “good governance” instead. Twenty years later, the World Bank published another World Develop- ment Report with a focus on related matters. In 2017, the guiding question was no longer what role the state should play, but how to bring about the institu- tions and the legislation that would deliver the desired results. The point was that people’s acceptance is essential. What citizens think matters. The historical background, of course, is that developing countries typi- cally kept the laws and agencies that they inherited from the colonial powers when they became independent. New constitutions spelled out vast aspira- tions, but the institutional set-up was not designed to make them come true. Independent-minded journalists It remained authoritarian and unresponsive. In many countries, authoritarian The freedom of expression is under threat in the Philippines, but brave journalists are fighting back. rule took hold. During the cold war, the World Bank and other internation- Emmalyn Liwag Kotte, a freelance author, al financial institutions promoted market orthodoxy and largely neglected assesses the situation. PAGE 11 domestic politics. In the 1990s, it became undeniable that state dysfunction and corruption were problems, so the World Bank spelled out the good gov- ernance paradigm in 1997. Donor governments soon accepted these insights. Unfortunately, it can- Tribune not be taken for granted that governments will assume national policy own- ership in a responsible manner. Some cling to power in order to exploit the people. How to bring about good governance is an important question, and by tackling it, the World Bank proved that it is a learning organisation. Yes, there are gaps between its theorising and its tangible policies, but that does not mean that the theorising is worthless. The truth is that big bureaucracies only change slowly. In a similar sense, it does not make constitutions meaningless that grassroots reality tends to differ from their principles. Without aspirations, day-to-day practice will not improve, but only deteriorate. The wider the gaps are, however, the less fit-for-purpose a state’s institutional set-up is. Good legislation reflects people’s views and helps them to cope with daily life. On that basis, institutions – including an impartial judiciary – can effectively ensure peace and political stability. As the World Bank pointed out in 2017, the acceptance and legitimacy of governance depend on what the people concerned think is right. Notions of fairness and appropriateness are shaped by many things, including traditions, international norms, education, public discourse and citizens’ experience or involvement in public affairs. If, Keeping the ILO relevant by contrast, legislation is barely implementable or if enforcement requires The International Labour Organization must rise to new challenges if it is to stay relevant. Its tripar- excessive force, policymakers should figure out what is going wrong (see our tite setting, which involves governments, private focus section on drugs policy, for example, in D+C/E+Z e-Paper 2018/12). sector businesses and trade unions, was useful in It is most promising that, in many developing countries, people are in- the past, but is no longer adequate for tackling deed becoming more involved in public affairs. On the other hand, it is bewil- important issues of social justice, argues dering to watch US President Donald Trump belittling and disparaging the ju- Raymond Saner, a Geneva-based scholar. PAGE 14 diciary. It is far more encouraging so see Kenya’s Supreme Court judges doing their best to rein in the administration of President Uhuru Kenyatta. Elevated trains You’ll find all contributions A new metro is being built in Nagpur, India. Local of our focus section plus HANS DEMBOWSKI authorities expect the light rail system to contrib- related ones on is editor in chief of D+C Development ute to decongesting road traffic as well as improv- our website – they’ll be and Cooperation / E+Z Entwicklung und ing air quality. Sabine Balk of D+C/E+Z was compiled in next month’s Zusammenarbeit. invited by KfW development bank to visit otos: Aaron Favila/picture-alliance/AP Photo; Saner Aaron Favila/picture-alliance/AP otos:

briefing section. [email protected] Ph construction sites. PAGE 17

D+C e-Paper January 2019 MONITOR: CONFERENCES AND STUDIES

JOURNALISM tank based in Colombo, reports that media concentration has become an issue in Sri Lanka. The state and three private-sector Why some reporting is skewed businesses are the four main players. The owners of the media holdings all lean to- wards specific political parties, and that has had a bearing on the recent political “Media capture” means that formally inde- that ensure that news media are “objective” upheaval. “It is not just the state media that pendent news organisations become subor- in the sense of indicating precise facts, re- is the problem, but also the independent dinate to vested interests. In practical terms, vealing their sources and conveying differ- privately-owned media with their political the result is often similar to direct govern- ent parties’ diverging interpretations of un- affiliations,” she told a conference on media ment control of the media. While reporting disputable facts. capture in Berlin in late November. It was may seem to be free and independent, it is Indeed, the opinion pieces in tradi- hosted by the Friedrich Ebert Foundation, actually skewed and biased. tional western newspapers help to give read- which is close to Germany’s Social Demo-

By Mahwish Gul

According to Anya Schiffrin, a media pro- fessor at Columbia University in New York, there are five methods of media capture: ●● Government or other vested interests may give a whole range of favours to media companies that are friendly and supportive of their narrative. ●● They may influence media through advertising. ●● They can restrict access to informa- tion to those who do not support them. ●● Media may also be captured cognitive- ly, if they subscribe to a specific narrative on any particular issue and reject any views that do not fit in. ●● Lastly, the age-old method of bribery is also used to influence and manipulate media workers. Once a media house is “captured”, it is prone to covering up crime and corruption, promoting and protecting allies. Ultimately, it becomes a mouthpiece for propaganda. As Journalists attending a press conference in Nairobi in 2010. Schiffrin points out, governments and other powerful forces can try to punish opposing media groups. Leaders with authoritarian ers an idea of that papers’ orientation, on the crats, the international NGO Reporters leanings are known to use taxation, criminal basis of which it is easier to assess whether it without Borders and MiCT (Media in Co- investigations, parliamentary inquiries and is covering opposing views with reasonable operation and Transition), a German non- defamation laws to intimidate journalists fairness. The general public, nonetheless, profit organisation. and restrict unwelcome coverage. Schiffrin needs a broad diversity of media organisa- speaks of “soft censorship”. A recent exam- tions, since competition forces journalists to INTERNET CHALLENGES ple of an authoritarian leader trying to si- do solid work. lence a critical media outlet is the way the In the past, broadcast media were In the past three decades, the internet has administration of President Rodrigo Duterte mostly owned by the state, while newspa- been changing the media landscape fast of the Philippines is hounding the website pers belonged to private-sector companies. all over the world. It has given rise to new Rappler (see Emmalyn Liwag Kotte on p. 11 This division of labour ensured diversity. It websites and blogs, for citizens to express in this issue). has been eroded to a large extent, however, their views independently. This trend has Media scholars know, of course, that as private TV and radio stations have be- been further reinforced by the emergence no media organisation can be entirely in- come ever more popular. of social media. At the same time, advertis- dependent of its sources of funding. Profes- Deepanjalie Abeywardana, who ing, which used to fund established media

sional conventions have evolved, however, works for Verité Research, a private think operations, has shifted online. This develop- Ph oto: dem

D+C e-Paper January 2019 4 MONITOR: CONFERENCES AND STUDIES

ment has undermined traditional business tagram and others are increasingly replac- growing clout of private philanthropists in models in many countries. ing traditional media as people’s primary international affairs is not uncontroversial, There are now many new avenues to sources of information. They are particu- and some observers find it irritating (see uncover scandals, advance alternative in- larly prone to spreading disinformation, Barbara Unmüssig in the focus section of terpretations of events and challenge domi- however, since there is no editorial con- D+C/E+Z e-Paper 2017/12). nant narratives. At the same time, fewer trol. In lack of resources, Okyeo adds, me- people are being paid well for doing full- Neudert warns that it can be difficult dia organisations are increasingly turning to time journalistic work, so mere rumours and to tell objective news form manipulated donor institutions for their training needs. disinformation spread fast. The established content on social media. Media literacy, One implication is that their coverage tends news media have been trying to adapt to which is about understanding how media to reflect those institutions’ ideas. the internet, but so far, publishers struggle items are produced and distributed, is es- In many countries, financially vulner- to generate the revenues they need for full- sential, she says, for people to not only con- able media outlets are increasingly relin- fledged professional reporting. sume items, but to evaluate their substance quishing control to private investors and Reporters without Borders and others (also see contributions by Julia Odoj and their interests. Close ties to political parties warn that media capture is becoming ever Benjamin Gaul in the focus section of D+C/ are common too. Fewer quality media in more likely in this scenario. Vested interests E+Z e-Paper 2018/05). She advises profes- public debate, however, means that fewer are adapting their manipulative methods to sional media operations, moreover, to focus well-researched and documented contri- new technological trends. To some extent, on investigative and specialised reporting in butions are made in fight for what Antonio ruling factions are falling back to control- order to build a reputation for objective and Gramsci called “hegemony”. The Italian ling social media through state-sanctioned independent journalism. communist developed the philosophical regulations and by ways of coercion. How- Globally, traditional media is in de- concept of civil society and pointed out that ever, they also take innovative approaches. cline. Eroding advertising revenues have hegemony results from public debate at Often, “trolls” are paid to spread fake news, made media companies ever more depend- many levels – from the household to work rumours and outright fear via online media ent on a decreasing number of advertisers places, educational institutions and ulti- (see Arfa Khanum Sherwani in the focus and other sponsors. mately legislatures. Media input obviously section of D+C/E+Z e-Paper 2018/05). Verah Okyeo, who works for Kenya’s matters in this context. Lisa-Marie Neudert from the Oxford Daily Nation newspaper, is aware of such Internet Institute emphasises the need to matters. She appreciates that the Bill and LINK pay attention to “social media” capture, Melinda Gates Foundation is funding the Conference website: which she considers a rising threat. Online science desk she works for, but admits that https://fome.info/events/symposium-2018/ platforms such as Facebook, Twitter, Ins- this has an impact on the desk’s work. The documentation

recent years. Its “Freedom of interest. Media capture is not Limited freedom of expression the Press” report of 2017 talks of restricted to poorer econo- “unprecedented threats to jour- mies or transitioning democ- nalists and media outlets”. racies. In European countries Media censorship today has and economic transformations Media capture is a worri- like Hungary or Italy, there are become, in many ways, more […] have placed new strains on some trend, and it takes many only few media outlets that still pervasive and sinister, accord- media freedom.” On media in- forms (see main story). It does criticise the respective govern- ing to international observers. dependence the report writes of not only have impacts on the ments in a coherent and sys- While coercive practices to in- increased pressure from politi- media sector, but on democra- tematic way. Moreover, social timidate and silence media are cal powers and regulatory au- cy and societies’ development media is being used to spread also on the rise. The murder of thorities as well as constraints as a whole. In many conflict- disinformation – for example Jamal Khashoggi in Istanbul posed because of financial prone countries, media is also before elections. (mg) was merely the most prominent dependency. There is a sub- divided between main rival po- case in 2018. stantial rise in violence against litical factions. In these coun- LINKS UNESCO has recorded journalists, including kidnap- tries, it is political parties that UNESCO: at least 80 murders of journal- ping, enforced disappearance, try to influence public opinion https://en.unesco.org/unesco- ists in 2017 and 79 until mid- arbitrary detention and torture. in their favour by supporting, condemns-killing-of-journalists October 2018. The agency’s The analysis of Freedom owning or running media. https://en.unesco.org/world- 2017/2018 report “World Trends House, a non-governmental One aspect is the great media-trends-2017 in Freedom of Expression and agency based in Washington, power of private-sector pub- Freedom House: Media Development” adds that is similar. It argues that media lishers who tend to favour https://freedomhouse.org/report-

“rapid political, technological freedom has been declining in business interests over labour types/freedom-press Ph oto: xxx

D+C e-Paper January 2019 5 MONITOR: CONFERENCES AND STUDIES

Germany continues to extract climate-destroying brown coal at mines like this in Garzweiler, North Rhine-Westphalia.

SUSTAINABILITY statement does not apply to everyone, it is certainly true of the share of humanity that has exploited our earth to its limits. Do the right thing So-called modern people who live in urban environments marked by technology see themselves as separate from nature. Bio- diversity, for instance, is perceived as some- Hans-Rudolf Zulliger, a Swiss physicist, it may seem esoteric to think of water, soil thing “out there”, but not right where we entrepreneur and researcher, has made sus- or rocks as being alive. But doing so makes live. It is generally considered to be some- tainability the focus of all his activities. His sense, if one adopts a holistic perspective, thing good, but not understood to be a pre- book “Gaias Vermächtnis. Plädoyer für eine recognising that everything is connected condition for our (continued) existence. integrale Weltsicht” (“Gaia’s legacy. A plea for to everything else. Water and soil nourish Zulliger shows that such every-day an integral worldview”) elaborates that the plants and animals, and even rocks serve thinking is wrong. He refers to the latest world must be understood as a living organ- as habitats and supply essential minerals. research that proves that species’ diversity ism of which each individual part – including Earth, therefore, is a living system, and hu- is essential for the stability of ecosystems. humanity – depends on the survival of the man beings are a part of it. Biodiversity is not a luxury, but a necessity. whole. This perspective is ancient wisdom “As species become extinct as a result of that can be found in many religions and global warming, for instance, the ecosystem By Katja Dombrowski worldviews. The title of Zulliger’s book re- will lose the ability to regenerate itself and fers to Gaia, the earth goddess of ancient therefore also its ability to sustain life,” the If people saw the earth as a living thing, Greece. This maternal deity was believed author emphasises. they would not cause so much damage. That to nurture all forms of life. Unfortunately, Maintaining the earth system is called is what Zulliger believes. He wants others the author laments, we have been ignoring sustainability nowadays. The term originat- oto: Röder/picture-alliance/Westend61

to see matters this way too. At first glance, this kind of wisdom for centuries. While this ed in forestry. The principle is to only cut as Ph

D+C e-Paper January 2019 6 MONITOR: CONFERENCES AND STUDIES

much timber as can grow back. Over time, Buddhism similarly exhorts its followers to use has kept increasing. “Worldwide there a three-dimensional understanding of eco- live mindfully and cause as little harm as has never been as much innovation as to- logical, social and economic sustainability possible. By contrast, no major religion pro- day, and still our carbon footprint is growing became commonplace. According to Zul- motes destruction, exploitation and waste. faster than the world population,” the au- liger, environmental sustainability depends If the notion of sustainability is as ob- thor bemoans. Indeed, global carbon emis- on the following principles: vious as the book claims, why do so few peo- sions hit a record high in 2017. ●● The life-giving ecosystem should not ple live according to it? Zulliger’s answer is: According to Zulliger, the prime ob- be destroyed. “Many of us assume that our actions cannot stacle to rapid change is the “obstinacy of ●● There is no such thing as waste be- have negative consequences or we simply evolution”. There is no lack of knowledge, cause everything ends up somewhere. All disregard the potential risks.” According to and a great deal can be done. But people’s cycles of matter must be closed. In other Zulliger, the path to sustainability ultimate- worldviews must change too, and that will words, it must be possible to recycle any ly requires “broad knowledge, attentiveness take much more time. Unfortunately, time material used in a product or a production and the willingness to do the right thing”. is running out, as climate scientists and process. If we cannot assess the risks associ- Changing one’s own lifestyle and con- other researchers have emphatically dem- ated with a certain action, we should not act sumption habits is not popular – especially onstrated. Zulliger offers no solution to this at all (precautionary principle). not, if it is associated with renouncing things dilemma. He does point out, however, that In many parts of the world, the notion and accepting limitations. Many people ex- people can still “turn the ship around” in of sustainability is unknown. Some people pect policy measures, market dynamics and time to ensure the survival of the earth and associate it with utopian claims or unpleas- technical innovations to rise to global chal- our species. As the author summarises, “We antly austere lifestyles. In fact, the concept lenges such as climate change. While Zul- are the problem, but also the solution”. is neither new, nor does it have negative liger thinks that a global carbon tax would connotations. Zulliger presents the example make sense, he points out that there is a lack BOOK of the Benedictine monks of Einsiedeln Ab- of political will. And the author doubts that Zulliger, H.-R., 2018: Gaias Vermächtnis. bey in Switzerland, who for over 1000 years better, cleaner or more efficient technolo- Plädoyer für eine integrale Weltsicht (“Gaia’s have been living according to the princi- gies can make current consumerist lifestyles legacy. A plea for an integral worldview”). ples of moderation and long-term viability. sustainable. In spite of such efforts, resource Rüffer & rub, Zürich. (Only in German.)

X + Please visit our www.dandc.eu website www.DandC.eu

D+C e-Paper January 2019 7 NOWADAYS D+C correspondents write about daily life in developing countries

for the gap between these figures is that Deeply rooted “there are no statistics on Haratines and IMPRINT Afro-Mauritanians.” That is the expla- D+C DEVELOPMENT AND COOPERATION slavery nation offered by Philip Alston, the UN Vol. 46, 2019 Special Rapporteur on extreme poverty D+C is the identical twin of the German edition E+Z Internet: www.DandC.eu and human rights. Enslaved people often D 12 107 ISSN 0721-2178 Slavery is no longer legally allowed any- belong to these two ethnic groups. They D+C Development and Cooperation is funded by Germany´s Federal where in the world. Nonetheless, human constitute approximately two thirds of Ministry for Economic Cooperation and Development and commis- trafficking remains a hugely profitable all Mauritanians and are excluded from sioned by ENGAGEMENT GLOBAL. D+C does not serve as a governmental mouthpiece. Our mission is to provide a credible forum criminal business, estimated to generate economic and social life in many ways. of debate, involving governments, civil society, the private sector and revenues of $ 150 billion a year. Mauritania Abou is a freed slave. He is only academia at an international level. D+C is the identical twin of E+Z Entwicklung und Zusammenarbeit, the German edition. is one of the countries where slaves are sold. called by this name. “I just can’t put into The UN defines modern-day slavery words the whole suffering I went through ENGAGEMENT GLOBAL gGmbH as the “recruitment, transportation, in a decade,” he recounts. He fled the Service für Entwicklungsinitiativen Tulpenfeld 7 transfer, harbouring or receipt of persons house of his owner in April 2018. D-53113 Bonn by improper means for forced labour or Mauritanian authorities flatly deny Phone: +49 (0) 2 28 2 07 17-0 Fax: +49 (0) 2 28 2 07 17-150 sexual exploitation”. There are various the existence of slavery. There has been www.engagement-global.de forms of slavery: domestic servitude, more repression against anti-slavery ADVISORY BOARD: abuse in prostitution, forced or bonded activists and journalists than the perpe- Thomas Loster, Prof. Dr. Katharina Michaelowa, labour, child labour and forced marriage. trators of slavery practices themselves. Prof. Dr. Dirk Messner, Petra Pinzler, Hugh Williamson

The 2016 Global Slavery Index re- “Human-rights defenders and anti- PUBLISHER: vealed that 46 million people were living slavery activists were intimidated, FAZIT Communication GmbH Executive directors: Peter Hintereder and Hannes Ludwig as slaves. According to the civil-society attacked and prosecuted for their peace- organisation “Free the Slaves”, 70 % of ful activities,” states Amnesty Interna- ADDRESS OF THE PUBLISHER AND EDITORIAL OFFICE: Frankenallee 71–81, D-60327 Frankfurt am Main, Germany the world’s slaves are trapped in forced tional’s report for 2017/2018. labour and 30 % in forced prostitution. In March 2018, French-Moroccan This is also the legally relevant address of all indicated as responsible or entitled to represent them in this imprint. Mauritania was the last state in photojournalist Seif Kousmate, who the world to officially abolish slavery in was conducting research on slavery, EDITORIAL TEAM: Dr. Hans Dembowski (chief), Sabine Balk, Katja Dombrowski, 1981. But despite legal provisions, it is was detained and expelled. In May 2017, Sheila Mysorekar, Eva-Maria Verfürth, Dagmar Wolf (assistant) still prevalent in the country, according the authorities expelled Marie Foray, Phone: +49 (0) 69 75 01-43 66 Fax: +49 (0) 69 75 01-48 55 to “SOS Esclaves”, a local civil-society a human-rights lawyer working with the [email protected] organisation. Slavery has existed in Mau- local NGO “Initiative pour la Résurgence Art direction: Sebastian Schöpsdau ritania for many centuries and has deep du Mouvement Abolitionniste”. Layout: Jan Walter Hofmann Translators: Malcom Bell, Claire Davis roots in social traditions. Mauritania is set to face strong According to the Global Slavery actions from the international commu- Disclaimer according to § 5,2 Hessian Law on the Freedom and Rights of the Press: The shareholders of the company are Index, one percent of Mauritania’s popu- nity. According to the US trade repre- Frankfurter Allgemeine Zeitung GmbH (40 %) and lation is enslaved. The absolute number sentative’s office, the United States will Frankfurter Societät GmbH (60 %). is above 41,000. Activists who campaign end the country’s trade benefits under ADVERTISING AND SUBSCRIPTION SERVICE: for the rights of the persons concerned, the African Growth and Opportunity Act FAZIT Communication GmbH c/o InTime Media Services GmbH however, estimate that up to 20 % of the in early 2019. PO Box 1363 population are held as slaves. The reason D-82034 Deisenhofen, Germany Phone: +49 (0) 89 8 58 53-8 32 LINKS Fax: +49 (0) 89 8 58 53-6 28 32 Free the Slaves: [email protected]

https://www.freetheslaves.net/ PRINTING: Initiative pour la Résurgence du Mouvement Westdeutsche Verlags- und Druckerei GmbH Kurhessenstraße 46 Abolitionniste: D-64546 Mörfelden-Walldorf, Germany http://www.iramauritanie.org/ Opinions expressed by authors indicated in bylines do not necessarily SOS Esclaves: reflect the views of ENGAGEMENT GLOBAL, the publisher or the MAURITANIA https://www.facebook.com/SOS-Esclaves- editor and his team. Provided that they indicate the original source, third parties have the permission to republish in complete or abridged 179463132122473/?nr Nouakchott versions the manuscripts published by D+C Development and Cooperaton and E+Z Entwicklung und Zusammenarbeit. However, those who do so are requested to send the editorial office two hard IBRAHIM ORÈD’OLA copies and/or the links to the respective webpages. This general FALOLA permission does not apply to illustrations, maps and other items with explicitly and separately marked copyright disclaimers. is a journalist from Lomé,

Togo. He currently lives in PRICES (INCL. MAILING CHARGES): Nouakchott, Mauritania. single issue: € 2.20 annual subscription, Germany: € 14.00 [email protected] annual subscription, world: € 18.00

D+C e-Paper January 2019 8 DEBATE: OPINIONS

CLIMATE countries. Moreover, countries that do not play by the rules are set to lose the right to participate in international carbon trading. Higher ambitions are essential Carbon trading allows countries to com- pensate shortcomings at home with climate investments in other countries. New and stricter trading rules are to be adopted at the The international community has adopted A collectively accepted set of science- next climate conference in Chile next year. rules for the implementation of the Paris based rules can be helpful. At the climate The issue remained unresolved in Katowice Agreement on Climate Change. Therefore, summit, almost 200 countries agreed on because of a dispute with Brazil. the 24th UN climate conference is considered a joint framework for implementing the A solid foundation, however, does not a success. It took place in Katowice, Poland, Paris Agreement, fending off obstructive ac- automatically lead to appropriate action. in early December. But rules alone do not tion by the USA, Saudi Arabia and Russia, There has been sufficient time for change. lead to success, so all nation states must for instance. The international community Nonetheless, global carbon emissions are now raise their climate ambitions – and act has thus reaffirmed the Paris Agreement. once again at a record level this year – 21 accordingly. The multilateral guidelines will facilitate years after the adoption of the Kyoto proto- the comparison of individual countries’ col and three years after the Paris summit. By Katja Dombrowski contributions to climate protection, and Even if all nation states obey the new rules,

Human beings react instinctively to imme- diate threats. With a certain level of adrena- lin in their bloodstream, they will jump even if it hurts. To address long-term risks, by contrast, the mind is needed. It will weigh diverging interests, and is likely to expect external solutions. Nobody seeks pain vol- untarily. Climate change is a long-term trend. The earth has been getting warmer since in- dustrialisation set in 200 years ago. In many parts of the world, climate change has been obvious for a long time, and it can no longer be denied anymore in advanced nations either: California and Australia are hit by ever more severe wildfires, Germany expe- rienced drought this year and parts of Italy were flooded. But the big bang that would trigger radical change has not occurred yet. Irre- versible tipping points include the melting of the polar ice caps, the thawing of per- mafrost soils or the breakdown of the gulf stream. They will not materialise quickly, but they are in sight, implying existential Demanding system change to stop global warming: rally at the UN climate conference in risks. Katowice. Once a tipping point is reached, adap- tation is impossible. Prevention is therefore necessary. Change is urgent in sectors such compulsory reports on climate financing climate change will continue. Nations must as energy, construction, housing and trans- will boost compliance. raise their ambitions fast – and act accord- port as well as in agriculture and forestry. To A foundation for action has thus been ingly. That is what really matters. preserve the planet for future generations, laid, and the chances that countries will live the world economy must be transformed, up to their Paris commitments have grown. and that would make sense in business Even the US delegation did not torpedoe the KATJA DOMBROWSKI terms too. But too many of the world’s lead- result, but kept the door open for an even- is a member of the editorial ers have other priorities and are biased to- tual return to the Paris Agreement. The new team of D+C/E+Z. wards powerful interest groups who want to rule book still doesn’t include sanctions, but euz.editor@fazit- oto: Marques/picture-alliance/ZUMA Press

keep benefiting from fossil fuels. “naming and shaming” will put pressure on communication.de Ph

D+C e-Paper January 2019 9 DEBATE: OPINIONS

BIODIVERSITY the sustainable production of food and con- sumer goods, the fight against the illegal wildlife trade and raising awareness for the North-south conflict lingers on values of nature across all countries. The list indicates great aspirations, which are in- deed necessary to stop the downward spiral of biodiversity erosion. As the international The results of the 14th conference of parties One target was to have 17 % of earth’s NGO World Wide Fund For Nature (WWF) (COP) to the UN Convention on Biological surface to be declared protected areas by showed in its Living Planet Report 2018, ver- Diversity (CBD) were mixed. Tensions 2020. That target will probably be met as tebrate populations around the world have between the global north and the global 15 % was demarcated accordingly in 2018. declined by about 60 % since 1970. south make it difficult to adopt a joint strat- However, there are gaps in sustainable man- On the other hand, old conflicts flared egy for the time after 2020. agement and long-term funding. Too many up again in Sharm El-Sheikh. Biodiversity- areas are thus only protected on paper. On rich countries want their genetical resourc- By Günter Mitlacher the upside, protection areas of which local es to be protected from high-tech biopiracy. and indigenous communities are in charge By contrast, industrialised countries want The international community holds con- have expanded. to ensure that big agriculture and pharma ferences every two years to discuss how to Another target was to phase out all multinationals have free access to the ge- achieve the goals of the CBD. The goals in- subsidies with harmful impacts, especially netic resources of marine and terrestrial clude to: in agriculture. Due to strong resistance, that life. Developing countries want the use of ●● protect biodiversity all over the world, will certainly not happen by 2020. genetic resources to be regulated, and they ●● make sustainable use of forests, seas In Egypt, ministers of the environ- demand a share of any profits. Because of and other ecosystems and ment agreed on mainstreaming biodiversity this dispute, the COP in 2010 came close ●● adopt rules for exploiting genetic re- issues in essential business sectors such as to failure. That risk may arise again in two sources, for example in the production of power generation and mining, infrastruc- years, when China will host the next COP in pharmaceuticals or cosmetics. ture, manufacturing and the processing of Beijing. In the Japanese prefecture of Aichi in goods. Progress will now depend on whether All CBD members have emphatically 2010, the 196 member countries of the CBD the ministers will manage to convince their stated that they want the conference in Bei- agreed 20 tangible biodiversity targets. They cabinet colleagues who have jurisdiction jing to trigger the kind of momentum that committed to achieving them by 2020. The over these matters. the climate summit unleashed in Paris in targets included establishing additional 2015. However, the north-south conflict lin- protection areas, both at sea and on land, as ROADMAP gers on. China will need a smart negotiating well as action against biopiracy. Biopiracy strategy to overcome serious obstacles. Po- has occurred over centuries as genetic re- An important success in Sharm El-Sheikh litical will is required, mere lip service is not sources from developing countries were ex- was the agreement to draft a joint strategy enough. ploited without compensation. for the years 2021 to 2030. The roadmap for To tackle the global crisis of biodiver- This year’s COP took place in Sharm adopting this new global framework fore- sity erosion, the world’s top leaders must get el-Sheikh, Egypt, in late November. It took sees that relevant issues will be discussed in involved. Therefore, the WWF is demanding stock of the progress made up to 2018. Un- seven rounds of negotiations. Among other that the UN General Assembly in September fortunately, not enough was achieved in re- things, they will focus on forest protection, 2020 must include a biodiversity summit gard to urgent issues. marine conservation areas, standards for with all the heads of state and government. We must put an end to the downward spiral of biodiversity. Biodiversity is globally in danger: LINK diver near the Island WWF, 2018: Living Planet Report Mindoro, Philippines. https://www.wwf.de/fileadmin/living-planet- report/2018/WWF_Living_Planet_Report_ Englische_Version.pdf

GÜNTER MITLACHER works for the World Wide Fund For Nature (WWF) Germany and is in charge of international biodiversity matters.

[email protected] Ph oto: SeaTops/Lineair

D+C e-Paper January 2019 10 DEBATE: OPINIONS

MEDIA are supposed to do — questioning official acts and claims, especially on issues of hu- man rights and corruption”. Brave professionals When Reporters without Borders awarded her its Press Freedom Prize for In- dependence in London in November 2018, Varona pointed out that, since the restora- As press freedom is under attack in the Rappler is actually not the only me- tion of “a fragile, perpetually threatened de- Philippines, international civil-society organi- dia company to have issued PDRs to foreign mocracy” in 1986, 185 journalists were killed sations appreciate the work done by inde- investors, but it is the only one that had its – 12 of them in the first two years of Duterte’s pendent-minded journalists. registration revoked. A shutdown was only rule. The international non-governmental averted by a court order. The judges de- organisation praised her “extensive report- By Emmalyn Liwag Kotte manded that the SEC reinvestigate the mat- ing on sensitive issues” and her role in the ter. Filipino equivalent of the #MeToo cam- The news website Rappler (www.rappler. Rappler’s lawyer, Francis Lim, insists paign, which is fighting misogyny. com) has become one of the Philippines’ that Rappler is 100 % Filipino-owned. He Also in November, Maria Ressa re- “most popular and effective investigative also points out that there was no tax evasion ceived the Committee to Protect Journal- journalism outlets, providing critical cover- since the company is not a securities trad- ists’ Gwen Ifill Press Freedom Award. At the age of the administration of President Rod- er. Ressa states that she has done nothing awarding ceremony in New York, Sheila Co- rigo Duterte”, according to the International wrong: “Because I’m a journalist, I’m now ronel, who teaches journalism at Columbia Press Institute (IPI). The IPI is a global net- labelled a criminal and can go to prison for University, reminded the audience of Du- work of media professionals committed to 10 years.” terte calling journalists “bullshit”, “garbage” independent journalism. This year, it gave Many people saw the licence revoca- and “sons of bitches”. The professor accused its Free Media Pioneer award to Rappler, tion as the government’s attempt to silence the president of “weaponising the internet – praising its “innovative approach to journal- a highly effective critic. Observers pointed unleashing fake news and troll armies” (also ism” as well as its “determination to hold out that leaders with authoritarian tenden- see Alan C. Robles in the focus section of authorities accountable despite aggressive cies have used similar means to discredit D+C/E+Z e-Paper 2018/05). Coronel lauded attacks on its operations”. and thwart independent news outlets in Rappler’s courage to reveal such malprac- Indeed, Rappler has become a tar- other countries, including Turkey, Russia, tice and expose police impunity in the war get. In response to its diligent coverage of India or Hungary, for example. on drugs: “They told the truth – and so made human-rights violations in Duterte’s so- International appeals to the Duterte enemies.” called “war on drugs” (see my contribution administration to change its stance, how- in the focus section of D+C/E+Z e-Paper ever, have so far fallen on deaf ears. Ma Sal- EMMALYN LIWAG KOTTE 2018/12), the president and his supporters vacion “Inday” Espina-Varona, a journalist, is a freelance journalist who have been attacking the news website – reports that colleagues “face death threats, lives in Germany. and not only rhetorically. In early Decem- vilification campaigns and revocation of ac- ber, Maria Ressa, Rappler’s top editor and cess to coverage, for doing what journalists [email protected] chief executive, voluntarily surrendered to the local court that issued a warrant for her arrest. She had to post bail for her tempo- rary release. Earlier, Duterte had banned her and one of her reporters from covering events at the presidential palace Malacañang. He called Rappler a “fake news outlet” and declared that it is illegally owned by Americans. The Philippine Securities and Exchange Commission (SEC) revoked Rap- pler’s licence to operate for allegedly vio- lating the rule that media entities must be 100 % Filippino-owned. Moreover, the Phil- ippines’ Department of Justice indicted Rappler Holdings Corporation for alleged tax evasion. Allegedly, taxes had not been paid for the issuance of bond-like financial instruments called Philippine Depositary oto: Aaron Favila/picture-alliance/AP Photo; Screenshot: http://time.com/5475492/maria-ressa-rappler-person-of-the-year-2018/ oto: Aaron Favila/picture-alliance/AP

Receipts (PDR) in 2015. Maria Ressa showing papers after being released – and as Time magazine’s “Person of the Year”. Ph

D+C e-Paper January 2019 11 TRIBUNE: IN-DEPTH ANALYSIS

KENYA Sex for fish

To make a living, many female fish traders around Lake Victoria region in Kenya trade sex for the right to purchase fishermen’s catch. This practice has contributed to high HIV infections, largely affecting women. Even with efforts put in place by the government and other stakeholders to curb the HIV infec- tions around the region, the problem has remained of concern. This leaves one to wonder, why is the HIV infection rate still dis- proportionately high in the region despite the various prevention, treatment and care inter- ventions?

By Brenda Mbaja Lubang’a

On a late Friday evening in October 2017, I finally arrived in Mbita, one of the many fishing beaches on the shores of Lake Vic- toria. This will be my home for the next few weeks and I am looking forward to enjoy- ing the delicious highly praised Tilapia and Omena (a type of sardine). Even though the area is not fully electrified, I noticed that on the far horizon there were many little lights and I wondered what city that was! My host informed me that actually that was no city, that was the mighty Lake Victoria and the lights were solar lamps that fisher- men use. Omena, the major catch in this region, is fished at night with the aid of solar lamps. Fishing is done with wooden boats and fish- ing nets that resemble mosquito nets. One fishing boat is manned by at least four mus- cular men who are employed by the boat owner. The fishermen spend most of their nights on the lake and they mostly sleep during the day. My host informed me with hard winds blowing, pulling fishing nets re- quires considerable physical strength, and only strong men can do the work. Early Saturday morning, my host and I headed straight to the nearby fishing beach. Tired fishermen were pulling ashore the catch of the day. Some boats were half full and some full to the brim. Women were eagerly waiting to buy their share of fish for the day. Like in many other fishing com- oto: picture alliance/Gioia Forster/dpa

munities, the division of labour in Mbita is Buckets filled with Omena fish in Sindo, Kenya. Ph

D+C e-Paper January 2019 12 TRIBUNE: IN-DEPTH ANALYSIS

traditionally defined and observed; the men While walking around Mbita one can- some mentioned that having a Jaboya was fish and the women dry the fish and sell not miss to notice the many posters and like having a boyfriend or a husband. Some- them at the local markets. Some sell them to billboards with information aiming to raise times, fishermen would live with the wom- middle men who collect and transport the awareness of HIV and AIDS. There are also an for a few weeks and she would cook and Omena in large quantities to major markets several tents in strategic places and at the wash for him. In such relationships, those as far away as Mombasa. As on many other beaches where people can be tested for free involved did not see reasons to use condoms inland fishing beaches, the fishermen sell and sent to a health facility for treatment. or even test for HIV. less fish than the female fish traders want HIV awareness raising is also done through Sex for fish has been identified as one to buy. door to door campaigns, roadshows and on of the leading causes of the high HIV inci- At the beach, I met Akinyi (not her local radio programmes. Condoms are pro- dence among the fishing communities on actual name). She is 26 years old and has vided free of charge and placed in condom Lake Victoria. According to the Kenya HIV three children. After the death of her hus- dispensers at the fishing beaches. How­ County Profiles published by the National band, she left her husband’s home in the ever, many women said that they do not AIDS Control Council in 2016, HIV preva- inland area and moved to Mbita because use them. For example, even though Akinyi lence rates were highest in the counties she did not want to be “inherited” by her was aware of the condom dispensers, she there. For example, in Homa Bay county brother-in-law. Wife inheritance is a custom has never picked a condom from them. She (which includes Mbita) the HIV prevalence of the Luo, who are the major tribe living on does not want to risk being seen collecting rate was 26 %, almost four times the national the Kenyan shores of Lake Victoria. Even condoms. She fears people will look down average of 5.9 %. The situation is similar in though the custom is slowly fading away, on her, considering her immoral. other in-land fishing communities of some there are some families that still uphold it. sub-Saharan African countries. In spite of Akinyi is not familiar with the term DRUNK FISHERMEN many HIV prevention and treatment initia- “sex for fish”, but she says that everyone tives, studies have identified concentrated knows the local term “Jaboya”. In the Luo Women also mentioned that it is very com- epidemics among fishing communities in language, Jaboya refers to a floater attached mon for fishermen to consume a lot of alco- Uganda, Tanzania and Malawi. to a fishing net that helps the fishing net hol and it is extremely difficult to negotiate To achieve the Agenda 2030 goal on stay afloat even when loaded with fish. Fish- condom use with a drunk fisherman. Many ending the AIDS epidemic, every country ermen who help female traders secure the studies on sexual behaviours have linked should work on reducing the HIV preva- catch are also called Jaboya because they alcohol consumption to risky sexual behav- lence among its key populations and also are like a floater, they help the women se- iour. Akinyi said that, on several occasions, offer care and treatment. There is need to cure access to fish. Akinyi says that due to she had to forgo the use of a condom because develop and scale up innovative and target- the tough competition to secure access to her Jaboya threatened not to sell the fish to oriented prevention, treatment and care ser- the limited catch, a Jaboya is like a bridge her if she insisted on using condoms. For vices. In particular, the interventions need between her and the merchandise. She a long time, she was very scared of getting to respond to the needs of the local commu- says it is a common practice in Mbita even tested for HIV, but during of one of the door nities. For example, women in Mbita men- though people do not openly talk about it. to door HIV testing campaigns, she decided tioned that sometimes there was “moon- In exchange for sex, female traders are given to get tested. She tested positive for HIV and light HIV testing”. People could get tested at priority to buy Omena, and a woman with- since then she has been enrolled in HIV care night and without having to worry about be- out a Jaboya will have to wait and hope for and treatment. However, in the past four ing spotted by friends and family. However, the surplus in order to get some fish. months, while looking for fish, she has been such initiatives are not carried out regularly. When asked if she has a Jaboya, Akinyi moving between five fishing beaches. The Also, for a highly migratory community like shyly nods. After relocating to Mbita, selling frequent movement interferes with her ap- the fishing communities, it is important to Omena was the only hope to earn a living in pointments at the health facility. She some- offer mobile health services so as to bring order to support herself and her three chil- times misses appointments and fails to go to services closer to those in need. Scaling up dren. In the beginning she refused to join refill her medications. of such interventions would go a long way in the Jaboya system, but after many days of Akinyi’s story is similar to those the fight against HIV and AIDS. disappointment and going home without shared by many other female fish traders any catch, she changed her mind. Stiff com- that I met. Even though most of them are petition for the limited fish left her with no aware of the availability of HIV prevention, BRENDA MBAJA LUBANG’A other choice. Like many other female fish treatment and care and understand the ben- is a graduate from Ruhr traders, Akinyi opted for a sexual relation- efits, they did not make full use of them. University Bochum, Germany, ship with a fisherman due to poverty and Moreover, many of the women who had where she earned a masters desperation. She mentioned that she has a Jaboya did not feel at high risk of contract- degree in development multiple Jaboyas in different fishing beach- ing HIV. They did not consider themselves management. Her masters’ programme is es. During my stay, I spoke with some of Ak- as being involved in a form of prostitution or affiliated to AGEP, the German Association of inyi’s friends and other female fish trades, transactional sex as they would commonly Post-Graduate Programmes with Special who narrated similar experiences with Ja- be labelled. Most of the women had long- Relevance to Developing Countries. boya. term relationships with the fishermen and [email protected]

D+C e-Paper January 2019 13 TRIBUNE: IN-DEPTH ANALYSIS

Recently restored wall painting in the WTO headquarters in Geneva. The building originally belonged to the ILO.

GLOBAL GOVERNANCE and Social Democrats were keen on estab- lishing an international trade union. By contrast, Samuel Gompers con- Labour is not a commodity vinced US President Woodrow Wilson that an international agency was needed to tack- le social problems in ways that were con- sistent with market economies. A former The International Labour Organization (ILO) For tangible political reasons, social member of the British parliament, Gompers was created in 1919 at the end of World War justice was the dominant topic in 1919. Eu- had moved to the USA and become the first I. Its establishment was part of the Treaty of rope was facing revolutionary unrest. The leader of the American Federation of La- Versailles. The initial ILO statutes pointed out war had caused horrific destruction and suf- bour (AFL). His views were resolutely anti- that lasting peace depends on social justice. fering. After four years of bloodshed, work- communist and anti-socialist, so he did not To stay relevant, the ILO must now rise to ers unions went on strike. Compounding the want to leave labour issues to leftists. huge challenges and contribute to solve the problems, however, they were split between socio-economic problems humanity is facing those who had joined their respective coun- TRIPARTITE APPROACH today. try’s war ambitions and those who had op- posed the war. Indeed, the ILO always rejected socialist By Raymond Saner In late 1918, revolutionary uprisings ideas of nationalising industry. From the toppled the emperors of Germany and Aus- start, its approach was tripartite, involving In the first four months of 1919, a commis- tria. In Russia, the Bolsheviks had ended the governments, labour unions and employers sion representing nine countries drafted czar’s rule one year earlier. Industry leaders associations. The idea was that social justice a constitution for the new agency. Having wanted the upheavals to end. In their eyes, it would result from the cooperation of these lost the war, Germany and Austria were not made sense to improve working conditions three parties, which make up the member- involved. The text subsequently became by taking steps towards more social justice. ship of the ILO. Part XIII of the peace treaty signed in Ver- Indeed, there were even proposals to call the They debate issues and then propose sailles. The first annual conference of the new institution the International Organisa- solutions which can either be achieved newly created ILO was held in Washing- tion for Social Justice. through new legislation (concerning gov- ton in October 1919. Since 1920, it has been There were competing ideas on what ernmental health insurances, for example)

based in Geneva. an international body should do. Socialists or by the collective bargaining of labour Ph oto: Saner

D+C e-Paper January 2019 14 TRIBUNE: IN-DEPTH ANALYSIS

unions and industry associations (concern- the success of market-orthodox ideology, ards. The approach’s limits are becoming ing things like wages or the duration of vaca- globalisation and – more recently – right- ever more evident, however. tions). In the early 20th century, the tripartite wing populism. Part of the problem is that it is ill- setting was innovative. It fast proved useful In the advanced economies, the dis- equipped to deal with informal employ- to involve all relevant parties in the social- tinction between employment and self-em- ment, which is not registered by govern- justice debate. ployment have been blurring, and in recent ment agencies, not provided by regular Of course, the ILO had to face many years, digitalisation became an important companies and hardly represented by trade political challenges. For example, free-trade driver of this trend. Platform economies, unions. Moreover, experience shows that unions clashed with those from totalitarian part-time jobs, flexibilisation, renewed pau- the tripartite setting has increasingly be- regimes, including the Stalinist Soviet Un- perisation and de-industrialisation mean come skewed to the benefit of employers. ion, Fascist Italy and from 1933 on Nazi Ger- that masses of people in rich nations no The most important reasons are that: many. After World War II, tensions between longer enjoy the kind of social protection ●● governments are keen on low labour east and west marked the cold war era. The that was taken for granted a generation ago. costs in order to keep economies competi- tripartite approach actually delivered good A new understanding of social justice and tive and attract foreign investors, results in western Europe and North Ameri- labour relations is needed. In developing ●● labour legislation thus makes it hard ca. In the cold war era, workers tended to be countries and emerging markets, moreover, for trade unions to organise and go on strike, more prosperous in western than in eastern informal employment means that masses of and Europe. people have no social safety nets apart from ●● social protection is often considered As overthrowing capitalism was not the support their families and communities a reward for successful development rather on its agenda, the ILO was an ally of the west grant them. than an important foundation of develop- in the ideological battles of the cold war. The The World Bank has discussed these ment (see Markus Loewe in focus section of top leaders of the ILO were former govern- issues in its most recent World Develop- D+C/E+Z e-Paper 2018/11). ment officers or policymakers from western ment Report, and one of its proposals is that, Indeed, some even think that some countries. That only changed when Guy in the future, state agencies should provide core labour standards have become issues Ryder was elected director general of the universal social protection regardless of of controversy. Employer associations in- ILO in 2012. He is a trade-union leader and a person’s employment status (see Hans creasingly oppose workers’ right to go on had served as the general secretary of the Dembowski in focus section of D+C/E+Z strike, for example. Employers’ representa- International Confederation of Free Trade e-Paper 2018/11). Obviously, the ILO must tives, moreover, are becoming ever more Unions. rise to these challenges too. unwilling to discuss matters like the living Today, the ILO has 187 member states. The missing partners on the GB (Gov- wage even though the concept itself was Its most important achievements are the ernance Board) are the cooperatives and civ- mentioned in some of the earliest ILO docu- core labour standards which are spelled out il society. In many countries, cooperatives ments. in several international conventions. The generate between seven to 14 % of GDP, have As the ILO gets ready to celebrate its standards include: impressively high levels of employment and 100 year anniversary, it makes sense to re- ●● freedom of association and the right to contribute to social inclusion and social co- consider why it was established in the first collective wage bargaining, hesion. The ILO is the only international or- place. Social justice is indeed the founda- ●● the elimination of forced and compul- ganisation which has a unit that is devoted tion of peace. The ILO vision was depicted sory labour, to cooperatives, but the cooperatives are not in paintings and frescos in its original build- ●● the effective abolition of child labour, included in the GB as equal partners togeth- ing, which today serves as headquarters for ●● the elimination of discrimination in er with governments, employers’ associa- the World Trade Organization (WTO). The respect to employment and occupation and tions and labour unions. old images have recently been restored. ●● internationally recognised labour Huge challenges thus lie ahead for the Their style and subjects reflect the early rights, including the right to a living wage, ILO. To remain relevant, the ILO needs to 20th century, showing workers and farmers a regular working week of not more than 48 rethink and redefine its structure, mission living decent lives. And the inscription on hours, no forced overtime, safe and healthy and advocacy role. The reform agenda must the large monument in front of the building workplaces as well as a recognised employ- have several items that regard the organisa- states that labour “is not a commodity” (Le ment relationship with social protection. tion’s governance, membership and means travail “n’est pas une merchandise”). For practical purposes, however, the of rule enforcement (see box next page). standards remain aspirational in many RAYMOND SANER countries. Important powers such as the LIMITS OF TRIPARTITE ACTION is the director of the Centre USA, China and India have not ratified all for Socio-Eco-Nomic of them. Moreover, various countries do The most important question is probably Development (CSEND) in not comply with obligations they signed whether the tripartite setting is still ad- Geneva. He also teaches up to. Internationally, moreover, labour equate. It was an important innovation ini- international relations at the Sciences Po unions have been losing influence for tially. It proved a useful setting not only for University in Paris as well as the University of decades, and social-protection policies discussing issues of labour rights and social Basle. have been weakened. The reasons include justice, but also for negotiating legal stand- www.csend.org

D+C e-Paper January 2019 15 TRIBUNE: IN-DEPTH ANALYSIS

such debates are important, changing international envi- A reform agenda for the ILO and they would benefit from ronment. broad-based participation. Co- So far, the implemen- operatives and NGOs should be tation of the ILO core labour The ILO membership is com- hesion. Cooperatives differ fun- involved. standards remains inconsistent posed of governments, employ- damentally from other private- In any case, the ILO must around the world. Some mem- ers’ associations and trade un- sector enterprises, and they become more democratic. Its ber countries have not ratified ions. This tripartite setting was are not part of the public sec- Governing Body is composed all relevant conventions, and useful in the past (see main es- tor. Involving them in the ILO of 56 permanent members (28 many do not fulfil duties they say), but it does not represent the would make this organisation governments, 14 employers’ have signed up to. world of work adequately today. more comprehensive and help associations and 14 trade un- Member states must re- Typically, the informal to counter-balance the employ- ions) plus 66 non-permanent port regularly to the ILO on sector dominates the econo- ers’ dominant power. members (28 governments, their rule compliance. A Com- mies of low-income countries. mittee of Experts (CoE) reviews Even in India, a giant among those reports and compiles emerging markets, the infor- a black list of the 30 worst of- mal sector accounts for about fenders. Apart from such nam- 90 % of employment. Trade un- ing and shaming, however, the ions, however, normally only ILO has no means for enforcing represent workers in formal its rules. There is no judicial employment. Compounding process that might result in the problems, such employ- sanctioning offending coun- ment is often closely linked to tries. The WTO does not even public enterprises and govern- facilitate public debate on mental organisations in devel- member countries’ track record oping countries. as the UN Human Rights Coun- So far, the ILO is thus in- cil does. More media outreach capable of dealing with labour in these matters might make issues in low-income countries a difference too. appropriately. That will not The ILO certainly needs change unless the informal an effective complaint mecha- sector is properly taken into ac- nism, moreover. People whose count. It would therefore make rights have been infringed sense to include non-govern- upon should be able to make mental organisations (NGOs) in appeals. The ILO’s Multina- ILO meetings and proceedings. tional Enterprise (MNE) Decla- Many NGOs are dealing with ration is a starting point. It was social-justice issues, and they adopted in 1977 and is currently are independent from govern- Labour monument in Geneva. being revised. It is basically ments. Given that their role in a summary of the ILO rules plus achieving the UN Sustainable recommendations on applying Development Goals is gener- Tripartism was a major 19 employers and 19 work- them to major enterprises. Peo- ally appreciated, NGOs should social invention when the ILO ers). One problem is that the ple who suffer rule violations, also be made constituents of was created. However, if one human-rights track record of however, cannot turn directly the ILO. of the three parties refuses to ten of the permanent member to the ILO, but must revert For similar reasons, co- engage in discussions on spe- governments are unconvinc- to a tripartite “national focal operatives should become in- cific issues, no discussion takes ing. Moreover, there is a lack of point”. This body will hear the volved as well. In many coun- place. This was apparent over transparency concerning how case, decide on the case’s merit tries, cooperatives generate the last two years with employ- delegates who represent either and subsequently submit the seven to 14 % of gross domestic ers’ representatives blocking employers or workers are cho- case for ILO review. However, product. Owned by their staff, debate on important matters, sen. A more democratic and employers’ associations are they do not only contribute to including the living wage. As more representative govern- constituents of the national fo- employment, but also promote digitalisation and globalisation ance system would help the ILO cal points, and they can block

social inclusion and social co- are changing labour relations, face the challenges of a rapidly proceedings and veto. (rs) Ph oto: Saner

D+C e-Paper January 2019 16 TRIBUNE: IN-DEPTH ANALYSIS

Maha Metro is particularly proud of the 4.5-kilometre-long double-decker section of the track that allows the metro to run above the street.

MOBILITY ment of Maharashtra. Ramnath Subrama- niam is the Maha Metro manager in charge of planning. He spent one day taking visi- A contribution to sustainable tors from Germany on a tour of construction sights. The visitors were KfW employees and journalists, who were invited by the bank. transport Subramaniam proudly told them: “The work is on schedule, there are hardly any delays, and we will certainly finish on time.” The Nagpur Metro should start operating in In the Indian metropolis of Nagpur, a new work is going on at the construction sites 2020. metro line is being built with support from every day around the clock. The new light- The city authorities hope that the new the KfW Development Bank. The project is rail system will rest on meter-thick concrete means of public transport will bring a num- intended to make public transport more sus- pillars, atop of which, eight metres up, the ber of advantages. Until now, Nagpur does tainable. Sabine Balk of D+C/E+Z has new track can already be seen. A 4.5-kilome- not have any public transport to speak of. vi­sited construction sites and went for a test tre-long double-decker flyover in the heart of There are a few municipal buses, but they drive along a completed portion of the track. the city is particularly impressive: the street make up less than ten per cent of local traf- runs along the ground level, and the metro fic. The buses are poorly maintained, unreli- By Sabine Balk will be on the second and third level. able and shabby. “Who would want to ride The Maharashtra Metro Rail Corpora- in a bus like that if you can take a brand-new The elevated trains will plough through the tion (Maha Metro for short) is developing, metro instead?”, Subramaniam asked. centre of the city of 2.4 million – a medium- building and operating the enormous infra- Most people ride mopeds into the sized metropolis by Indian standards. Over structure project. It is an Indian public sec- city, and a smaller number drive cars. Pri- 70 % of the 42-kilometre-long track has al- tor company which is jointly owned by the vate minibuses, taxis and rickshaws (both

ready been built. The management says that national government and the state govern- of the cycle and the motorised varieties) Ph oto: sb

D+C e-Paper January 2019 17 TRIBUNE: IN-DEPTH ANALYSIS

are available too, but they offer rather poor the managing director of Maha Metro. Ac- tions for every one that has been cut down. services. Individual passenger transport cording to him, fewer than 100 people had So far, 5,000 new trees have been planted. makes up over 70 % of traffic. The manage- to be relocated, and they were generously In the eyes of KfW, this comprehensive ment of Maha Metro hopes the new railway compensated. “It was primarily shop own- approach to sustainability is convincing. It will improve matters. As in many cities in ers who were affected, but some of them will is supporting the metro project with a loan India, traffic jams, poor air quality and noise be able to continue to operate their busi- worth half a billion euros. That is the larg- are part of everyday hassle on the streets of nesses at the new stations”, he said. est single loan the bank has ever granted. Nagpur. Maha Metro plans to run awareness- France’s Agence Française de Développe- Nagpur’s stated goal is to provide cli- raising campaigns in order to win people ment (AFD) has provided a further € 130 mate-friendly mobility and to shift personal over. The company expects to have 380,000 million, and the rest of the costs are being transport towards public transport. The passengers per day by 2021, one year after shared equally by India’s central govern- core of the new transportation plan is the the project’s planned implementation. It ment and the government of Maharashtra. metro, which is being built along two corri- should have over half a million by 2041. By The total cost of the project will amount to dors (north-south and east-west). There will shifting traffic from the streets to the tracks, about € 1.2 billion. While visiting the site, be a total of 40 stations and two depots to Nagpur expects to reduce carbon emissions Joachim Nagel, a KfW board member, ex- maintain the trains. by an annual 67,000 tonnes. Air quality pressed his satisfaction: “The project is very In order to encourage widespread use should improve thanks to the reduction of well managed and is proceeding according of the metro, people must get to the stations particulate matter and nitrogen oxide emis- to plan.” easily. The planners are aware of the mat- sions. The project should create around He and the rest of the German delega- ter, Subramaniam says. The stations will 1,700 directly-related jobs. According to tion happily boarded a brand-new, Chinese- be surrounded by infrastructure for non- Subramaniam, moreover, about 10,000 built metro car for a test drive and learned motorised transport, like pedestrian and workers are currently busy on the construc- about the technology along the way. The bike paths or bike sharing. Park & Ride spots tion sites. cars are still sparklingly clean, and the air for mopeds will also be built. Moreover, In order to make the project even more conditioning lowers the temperature of the electric buses will provide feeder services. sustainable, Maha Metro is implementing hot Indian air to around 20 degrees. But despite all this careful planning, the other goals as well, the executive director Maha Metro manager knows how difficult affirms: the stations are being designed and SABINE BALK it is to get people to change their habits: “It built to be energy efficient, and a big part of is a member of D+C/E+Z’s will take some effort to convince people to the electricity used by the metro will come editorial team and visited the switch to the metro.” from solar panels. All wastewater will be re- new metro in Nagpur by The affected residents did not strongly cycled, rainwater will be collected and used, invitation of KfW. oppose the construction, says Brijesh Dixit, and a new tree will be planted at other loca- [email protected]

The new metro cars were built in China and feature Maharashtra’s national animal. Ph oto: sb

D+C e-Paper January 2019 18 Court building in Lahore, Pakistan.

Rule of law

Good laws serve the purpose of resolv- depends on the public perceiving them ing conflicts peacefully and according to be independent and committed to the to norms that are generally accepted rule of law rather than special interests. in society. The rule of law thus not only depends on enforcement, but also on This focus section directly legislation reflecting people’s sense of relates to the UN’s 16th Sustain­ justice and fairness. Popular participa- able Development Goal (SDG): tion in public affairs matters, and the Peace, justice and strong institutions. legitimacy of state institutions hinges on The topic also has a bearing on the people’s acceptance. Judges’ authority entire SDG agenda. oto: Robert Harding Productions/picture-alliance Ph RULE OF LAW

David Maraga, Kenya’s chief justice, with his deputy Philomena Mbete Mwilu in November 2017.

Both were obviously responses to the Su- preme Court’s election nullification. Long road to independence ●● The Kenyan government has cut its ties to the International Law Development Organization (IDLO), an inter-governmen- tal body that supports judicial reform pro- Kenya’s law courts face huge challenges. ence. The reform process has gone on slowly cesses. IDLO had funded the bulk of Kenyan They are expected to hear cases and clear but decisively for several years. It is radical capacity building in this field, including the a massive backlog. Moreover, they are sup- and costs a lot of money. Last year, however, training of judges, magistrates and judicial posed to end corruption and impunity. To rise it was hit by a political whirlwind. The rea- officers. to the challenges, the judiciary must expand son was that the Supreme Court annulled ●● The government, supported by legisla- its own infrastructure and build professional a presidential election (see box next page). tors, denied the judiciary more than half of capacities. At the same time, political inter- The decision was politically controversial, the budget it had requested. ference and budget cuts are serious issues. of course, and sparked angry responses. On IDLO is a non-partisan organisation. The most important thing, however, is prob- the other hand, many Kenyans appreciated It was launched by 34 governments of coun- ably that the judges’ integrity itself must that the judges were serious about enforcing tries as different as China, Italy and Senegal. never be in doubt. constitutional standards. It is affiliated to the UN and gets funding Today, the reform caravan is trudging from various parties, including the EU or By Alphonce Shiundu on in what remains an uphill struggle. Two the Bill and Melinda Gates Foundation. Its key events have slowed it down somewhat. mission is to promote the rule of law. None- In 2010, Kenya adopted a new constitution. theless, politicians and bloggers close to the The background was gruesome post-elec- government accused IDLO of meddling in tion violence in 2007/08, when members of Kenya’s judiciary after the election annul- different ethnic groups had turned on one ment. IDLO got abrupt shutdown orders. another. The new constitution was designed Judges were threatened and slandered in to reconcile a deeply divided nation. One of national newspapers. Judicial officers were KENYA the instruments for doing so is a strong and publicly defamed. independent judiciary. Nairobi As for the budget, the judiciary re- Since colonial times, Kenya’s law quested 31 billion Kenyan shillings (the courts had previously mostly toed the gov- equivalent of $ 310 million) for the current ernment’s line. The new constitution has financial year. The treasury only allotted it changed expectations, and efforts have since 17.3 billion shillings, and the National As- oto: Wasike/picture-alliance/AA

been made to ensure the courts’ independ- sembly reduced that sum to a mere 14.5 bil- Ph

D+C e-Paper January 2019 20 RULE OF LAW

lion shillings – not quite half of the judici- budget, which was soon approved by the of Kenyatta’s presidency as well as the oppo- ary’s requirement. National Assembly. This raised the alloca- sition’s complicity in keeping him in office. David Maraga, Kenya’s chief justice, tion to the judiciary by 1.5 billion shillings, On the upside, Maraga has reassured was not prepared to accept the cuts. “The which brought the total allocation to 16 bil- the country that the constitution is de- Judiciary exists not for its own sake, but to lion shillings, which is just over half of the signed to cope with tensions between dif- serve the common person by ensuring the budgetary requirement and insufficient to ferent branches of government and that efficient administration of justice and fa- cover the need. he is determined to fight for the judiciary’s cilitating smooth commercial interactions It is no secret that Chief Justice independence. The judge’s authority has between business entities,” he said in July Maraga’s relations with the administration benefited considerably from the apprecia- 2018, shortly after the budget was approved. of President Uhuru Kenyatta remain tense. tion that the Supreme Court’s election deci- He even spoke of “budgetary strangulation” As the incumbent, the head of state was con- sion got in other African countries as well as and warned that the courts were about to firmed in the second election held last year, at the global level. become unable to do their work. His appeal but he ran unopposed since the opposition There actually has been considerable to the public’s common sense compelled boycotted the polls. In political terms, many progress in recent years. The judicial infra- the treasury to draw up a supplementary questions thus remain about the legitimacy structure has improved slowly, but steadily.

It changed the electoral law, 98 % of the votes. Turnout, Election drama deleting and watering down however, dropped from 79 % in clauses that had led to the elec- August to a mere 38 % in Octo- tion annulment. Legal disputes ber. In 25 constituencies, which In a historic decision, Kenya’s At first, Kenyatta said erupted immediately. On 24 are opposition strongholds, no Supreme Court annulled presi- that he accepted the decision, October, activists appealed to vote was cast. dential elections last year. That though he did not agree with the Supreme Court, asking it Protests erupted, but the was unprecedented in Africa. it. In campaign mode, he later to decide whether the election security forces managed to sup- However, the opposition then turned against the judges, call- could take place as planned on press them, while the Kenyatta boycotted the rerun elections. ing them “crooks” and prom- 26 October at all. The govern- government agitated against Most observers con- ising to “fix” something he ment then declared 25 Octo- the opposition and harassed sidered Kenya’s presidential considered “broken” in the ju- ber to be a public holiday, but some of its leaders and finan- elections in August 2017 fair. diciary. The fight for a fair and Chief Justice David Maraga ciers. Some were charged with Uhuru Kenyatta was officially transparent election system announced the Supreme Court treason. One lawyer, who has reported to have won 54 % of was evidently not over. would sit nonetheless. the dual citizenship of Canada the votes. In view of opposi- The opposition raised That evening, the car of and Kenya, was arrested and tion grumbling, however, he a set of demands it wanted the Philomena Mbete Mwilu, the forced to leave the country af- suggested that Raila Odinga, electoral commission to ful- deputy chief justice, was shot ter he had dared to swear in the main opposition candidate, fil, including the dismissal of at. The driver was injured; she Odinga as the “people’s presi- go to court. Odinga kept stat- some officials and measures to remained physically unharmed dent” during a protest rally in ing that this was not an option, enhance transparency. It spoke herself. However, she did not January. though international observers of an “irreducible minimum”, show up in court the next day. Things have since and church leaders urged him and threatened to stay away Another judge was abroad for calmed down, especially af- to either concede or turn to the from the rerun election, which medical treatment, and yet an- ter Kenyatta and Odinga held judges. was scheduled for 26 October. other one missed an airplane to a surprise meeting in March Shortly before the final The electoral commission half- Nairobi. Two other judges did 2018. They shook hands and deadline, Odinga and his law- heartedly accepted some of the not appear, but did not offer declared a ceasefire. Doubts yers indeed appealed to the Su- proposals, but made it clear excuses. Apart from Maraga, linger on about the legitimacy preme Court, arguing they had that it considered the election’s only one other Supreme Court of Kenyatta’s presidency, but sufficient evidence of malprac- credibility a matter of percep- justice was present. According it has not been questioned in tice. The case was accepted, the tions, rather than substance. to its quorum, the Supreme court. The judges have, how- Supreme Court heard both sides The government, in turn, in- Court needs a minimum of ever, reversed most of the elec- and finally decided in favour of sisted that there was no time for five judges to take decisions. tion law amendments which the opposition. Due to many major reforms. Its strategy was The meeting had to be aborted, the parliament passed shortly “illegalities and irregularities”, to press ahead with the elec- and the elections took place as before the rerun election. The it declared the election null and tions fast. scheduled. fight for a fair and transpar- void and ordered a fresh one to The president’s party has Odinga boycotted the ent election system is still not be held within 60 days. a majority in the parliament. event, so Kenyatta now won over. (as)

D+C e-Paper January 2019 21 RULE OF LAW

There are now more courts with more offic- society and the citizens themselves are im- be clean. It does not help that Philomena ers and better equipment. Codes of practice portant partners in such efforts. Moreover, Mbete Mwilu, the deputy chief justice, were published. The legislature has been re- the top judge has warned that the constitu- is accused of graft and must stand trial. viewing Kenyan laws to ensure they comply tion would be “hollow” without respect for Noordin Hajj, the director of public pros- with the new constitution and judges have human rights, including socio-economic ecutions (DPP), brought criminal charges been subjecting these laws to strict consti- rights. against her. Mwilu insists that she is in- tutional tests. The growing clout of inde- Paul Kihara, Kenya’s attorney general, nocent and the alleged corrupt transac- pendent courts, moreover, helped to attract basically endorses this vision. “The judiciary tions were merely commercial and above- international investors who appreciate pre- must be given constitutional and operation- board. dictable rule of law. al independence,” he has said. “The decision This case is a nightmare for the Judi- Long before the election annulment, of the court must be respected by all, no cial Service Commission, which has over- the judiciary had begun to assert its rele­ matter how powerful or influential they may sight over the courts. To many people, the vance. In dozens of cases, judges nulli- be.” The attorney general emphasised that top prosecutor’s action reeks of vendetta fied laws which the executive branch had judges and magistrates “must be let to make after the election annulment. Moreover, his rammed through the legislative branch. The decisions on the basis of law and law alone.” initial plan looked ridiculous: he wanted courts thus prevented draconian amend- Recent experience, however, shows low-ranking magistrates to try the deputy ments which threatened citizens’ liberty that politicians are often vindictive. There chief justice. In the end, Chief Justice Mara- and privacy under the pretext of ensuring can be no doubt, moreover, that the judici- ga decided that a special five-judge bench security and fighting terrorism. The courts also protected media freedom and the inde- pendence of the auditor general. The pub- lic generally appreciated these many small steps, which added up to a powerful trend in defence of constitutional principles.

THE ROAD AHEAD

There certainly is a need for the judiciary to do much more however. The big question is how to deal with corruption and impunity. These twin vices are prone to cause danger- ous apathy among citizens. Even President Kenyatta has said that he wants the courts to fix the situation. Chief Justice Maraga is aware of the challenge. The judiciary has set up a spe- cial division for corruption cases. In August 2018, the top judge told members of the country’s Law Society: “We either say no to impunity and prosper or keep quiet and per- Kenyans are fed up with corruption. ish.” It is clear that the courts will have to work diligently and pass judgments based ary is fighting deep-seated systemic issues would do the job. The proceedings are odd, on solid evidence. In September 2018, the and that it made itself new enemies by an- nonetheless, because the judges concerned new Criminal Procedure Benchbook was nulling the election. On top of all this, the must decide the case of a judge who is for- launched. It is a jurisprudential manual backlog of cases is a serious problem. At the mally their superior. for implementing the young constitution. last count, at least 110,000 cases had been Kenya’s people are paying close atten- Maraga considers it yet another step to- pending for more than five years. It was tion to how the judiciary handles the trial wards a “purposive, robust, indigenous hoped that the number would be reduced to of one of its own leaders. They want to see and patriotic jurisprudence that reflects zero by the end of 2018, but the budget cuts fairness, fidelity to the law and – ultimately the values, principles and aspirations of all made that improbable. Currently, the ex- – justice. Kenyans”. pansion of infrastructure – establishing new Maraga knows that leaders must be law courts all over the country and improv- ALPHONCE SHIUNDU held accountable, and he has appealed to ing the information technology networks – is a journalist, editor and all Kenyans to contribute. He made a pitch slowly hobbles on amid financing gaps. fact-checker in Nairobi. for eternal vigilance against corruption and The greatest challenge, however, may oto: Curtis/picture-alliance/AP

impunity, declaring that the media, civil be that the judiciary itself must be seen to https://twitter.com/Shiundu Ph

D+C e-Paper January 2019 22 RULE OF LAW

Civic competence contains

TANZANIA corruption Dodoma

Municipal authorities are the tier of govern- rol children in school. On the other hand, ment that is closest to the citizens. However, they pay bribes to get promoted or to be service delivery at the local level is problem- transferred to a more comfortable place. atic in Tanzania, due to the behaviour of Corruption not only thwarts good govern- many officials. Recurring problems are bad ance, it also poses a threat to peace, natio­ governance, rule bending and corruption. nal cohesion, equal opportunities and even to have involved civil servants, and “73 cases security. Tanzania’s Prevention and Com- involved local-government staff”. By Lawrence Kilimwiko bating of Corruption Act defines corruption President John Magufuli has launched as “abuse of power for private gain”. It can a campaign against grand corruption. A spe- Corruption is part of everyday life for Tan- be classified as grand or petty, depending cial court has been established to handle the zanians. Local government staff take bribes on the amounts of money lost and the sec- matter, corrupt officials have been fired and for various services, including the issuing of tor where it occurs. the president is working to instil a general licenses, awarding tenders to private compa- Grand corruption affects government sense of discipline in the public service. nies or allocating market stalls. In the health procurement, privatisation processes, elec- sector, staff sell medicines stolen from gov- tion finance, taxation and customs clear- CORRUPTION IN RURAL MUNICIPALITIES ernment hospitals or expired drugs. More­ ance. By contrast, petty corruption flourish- over, patients must pay bribes in order to get es in all lower ranks of society. In the annual Rural communities suffer most from cor- medicines and see doctors. reports of Tanzania’s Prevention and Com- ruption. Owing to poor education and long- Court clerks demand bribes to get bating of Corruption Bureau (PCCB), which time marginalisation, many rural people cases started or to slow them down. Mag- was established by the parliament, local are accustomed to unfair treatment by lo- istrates take bribes and then give soft sen- authorities always top the list of corrupt cal public officials. Out of fear, they remain tences, reduce penalties, withdraw charges public institutions. Sosthenes Kibwego, who loyal and submissive to those in authority. or release arrested persons on bail. In the heads the PCCB Regional Bureau in Dodo- The only way they know how to get things education sector, teachers take bribes for ma, reports that in his region, in the second done is through bribery. Petty corruption is letting students pass exams and even to en- half of 2017, 149 corruption cases were found part of everyday life.

Villagers in a group discussion organised by the “United for Our Rights” project in Kalole, Tanzania. oto: Maria Kayombo Ph oto: Maria Kayombo

D+C e-Paper January 2019 23 RULE OF LAW

Fears are growing that the anti-cor- Maria Kayombo points out that the project cently, Kalole villagers were not even aware ruption efforts will end when the president aims to “empower villagers in the localities that, according to Tanzania’s health policy, steps down. International organisations are to better understand their rights and how to dispensaries must display all necessary in- supporting anti-corruption projects, for in- address corruption and governance issues.” formation concerning available medicines stance, the Konrad Adenauer Stiftung (KAS) This project is geared to strengthen on their notice boards. That made corrup- – a German foundation with close ties to the civil-society organisations including com- tion easy: uninformed patients were forced ruling Christian Democrats. munity radios. According to Kayombo, radi- to pay, even for drugs which were supposed The European Union and the KAS Tan- os can “facilitate dialogue between commu- to be given for free. zania office are implementing a project worth nities and local authorities in order to lessen Thanks to the project, the citizens are 2.5 billion Tanzanian shilling (the equivalent corruption in their localities.” Community getting to know more about their rights. of € 950,000) to empower grassroots struc- radio allows local people not only to learn Ramadhani Ngakonda, Kalole’s village tures for fighting local corruption. The pro- about current affairs and to share informa- chairman, says that “village meetings are ject is named “United for Our Rights”. tion, but also to raise their voice. The aim is geared to generate a healthy dialogue” on Partner in this effort are two Tanza­ to empower citizens so that they can drive matters pertaining to all forms of corrup- nian non-governmental organisations, social change. tion, transparency, accountability and the Civic Education Teachers Association service delivery. Shaibu Lipwata is one of (CETA) and Actions for Democracy and Lo- VILLAGERS’ RIGHTS Kalole’s village leaders who have attended cal Governance (ADLG). The project is being trainings on good governance. He describes carried out in seven regions of Tanzania with Kalole in Kisarawe, a backward district out- corruption as a “disease” hindering develop- a combined population of 11 million, which side Dar es Salaam, is one of the villages ment: “We have to voice our demands for ac- is about 25 % of Tanzania’s population. where this project is being implemented. countability and transparency.” By supporting the local communities, At a public meeting there, inhabitants com- “we can achieve our goals of more account- plained about “lack of transparency in the LAWRENCE KILIMWIKO ability, more transparency and less corrup- management of local affairs and public ser- is a journalist, author and communication tion”, says Daniel El-Noshokaty, the KAS vice providers.” As an example, they pointed consultant. He lives in Dar es Salaam, Tanzania. country resident director. Project manager to their village pharma dispensary. Until re- [email protected]

Follow us on Twitter! X + To stay in touch with what is happening on our website, follow us on twitter. www.twitter.com/forumdc

D+C e-Paper January 2019 24 RULE OF LAW

Prisoners released in January 2018.

much longer than the 14-day time limit es- Overpopulated prisons tablished by Burundian law. Overcrowding is the biggest problem for Burundi’s prisons and their inmates, but it is not the only one. The buildings are very old, and their design makes it difficult to Burundi’s prisons are hopelessly over- At the end of November 2018, there were separate different groups of detainees from crowded. Even a presidential pardon for officially 10,987 persons detained in Bu- one another. Moreover, the prisons’ budget 2,000 detainees has done nothing to solve rundi’s prisons, which are only designed to is too small to ensure that all prisoners get the long-term problem. The country needs to hold 4,195. The country has 11 prisons and decent food, clothing, hygiene and medical ensure that the legal time limit on remand in two institutions for young offenders. Eight care. For these factors, prison conditions are custody is observed. It must also develop of Burundi’s 18 provinces have no prison at dire. They are compounded by a shortage of alternatives to custodial sentences and make all; the others’ correction facilities are burst- prison staff and the lack of any system that the prevention of crime a priority. ing at the seams. More than half of the in- might prepare inmates for life after prison. mates are on remand awaiting trial. Many Nazim Yadat, a coordinator with the oto: Renovat Ndabashinze/picture-alliance/AA

By Mireille Kanyange of them have been detained on remand for International Committee of the Red Cross Ph

D+C e-Paper January 2019 25 RULE OF LAW

(ICRC), points out that many detainees re- oners suffering from advanced incurable ill- ceive no legal assistance. He believes that ness and all detainees over 60 or under 18. remand in custody is being abused, with Exceptions were made in the case of prison- many accused persons staying imprisoned ers sentenced for crimes against humanity, without trial for long periods. He sees a need war crimes or rape. In the latest and largest for penal alternatives to prison sentencing round of pardons, in 2018, more than 2,000 BURUNDI and says that more must be done to help in- detainees were released. mates not to commit further crimes after be- Bujumbura But according to Félix Niragira, the ing released. The overcrowding is due partly chairman of the Senate Justice Commis- to the high reoffending rate. sion, such steps have done little to ease the pressure on Burundi’s prisons. Commission NUMBERS ARE GROWING members visited ten of the correctional fa- cilities, he says, and found them accommo- According to the local human-rights group dating 8,583 prisoners although they were APRODH, which has been working from designed to hold only 3,800. That was after exile since 2015, the number of people de- Justice Minister Aimée Laurentine the presidential pardons were carried out. tained in Burundi’s prisons has risen sharp- Kanyana has spoken of “irregularities” to Most national constitutions give the ly. In 2017, for instance, the population of the explain the failure or slowness to carry out president the right to pardon convicted country’s largest detention centre, Mpimba court orders. To avoid such irregularities in criminals. Legal scholars point out, how- Central Prison in the capital Bujumbura, the future, she said, her ministry was consid- ever, that such provisions are meant to help grew from 3,141 to 3,670. At the Ngozi Men’s ering computerised links between the courts to resolve rare individual cases with serious Detention Centre, the inmate number rose and the prisons. “When a judgement is de- political, cultural or other implications. The from 1,113 to 1,576, and at Gitega from 850 to livered, the prison governors will see it on general idea is not to allow the head of state 1,137. their computer,” she explained. That would to impose arbitrary rule by overriding judge- Apart from the large number of pris- solve the problem of delays in compliance. ments or circumventing court trials. oners on remand, inmates who should In April 2015, the political opposition Indeed, APRODH, the human-rights actually have been released are contribut- and civil-society organisations launched group, argues that presidential pardons ing to prison overcrowding. Fabien Ban- protests against President Pierre Nkurun- alone are not the solution to Burundi’s pris- ciryanino, a member of parliament without ziza running for a third term. There were on crisis. More needs to happen. The trials party affiliation, has submitted a list of 120 large rallies throughout the country, and the for those remanded in custody must accel- prisoners who fall into this category. security services arrested protestors includ- erate, more defendants should be released Burundi’s Vice-President Gaston Sindimwo ing members of the MSD opposition party. on bail, and any accused who is acquitted conceded that such cases exist during a Masses of people, including MSD leader must be released immediately. Nelson Mandela memorial in Mpimba in Alexis Sinduhije, fled abroad. Presidential pardoning is only helpful July. The justice ministry denies it, how- After months of unrest, Nkurunziza to some extent, says Gervais Hajayandi, the ever – although Adolphe Havyarimana, its was confirmed in office in highly controver- director of the National Prison Authority. spokesman, promised that a commission of sial elections (see Marc Niyonkuru in the Inmate numbers are already rising again. inquiry would be set up to investigate the debate section of D+C/E+Z e-Paper 2016/10). Since the pardons went through, Hajayandi matter. Some of the persons who were arrested have reports, more than a thousand repeat of- Examples of persons who are ille- since been released, but not all. The oppo- fenders have been registered. After inten- gally detained include nine members of sition in exile, CNARED (Coalition National sive deliberation, he says the Authority has Amizero y’Abarundi, the largest opposition pour le Rétablissement de l’Accord d’Arusha decided to limit prison intakes. alliance, in Bubanza Province in the west of et la Restauration d’un Etat de Droit), and Jean-Marie Nshimirimana of Nta- the country. They are charged with posing opposition groups within the country refer bariza, a civil-society group that works to a threat to domestic security. On 10 October, to the detainees as political prisoners. Of- protect the rights of prisoners and their a court ordered their provisional release. ficially, however, ethnic, political and re- families, states categorically: “Freedom is But the order was not carried out. Instead, ligious affiliation are not supposed to play the rule, remand in custody the exception.” in early November, the accused were trans- any role in sentencing. Particularly in view of the poor conditions ferred to Bujumbura’s Mpimba Central Pris- that detainees have had to endure in Bu- on. In response to the opposition activists’ PREGNANT WOMEN, THE SICK AND THE rundi’s prisons, he says, this principle must illegal detention, Agathon Rwasa, the lead- ELDERLY RELEASED be applied and the trial process accelerated. er of Amizero y’ Abarundi and first deputy speaker of the National Assembly, pointed President Nkurunziza regularly makes use MIREILLE KANYANGE out that court rulings must be obeyed. “A of his constitutional right to pardon prison- is a journalist and reporter for prison governor does not have any right to ers. In 2010, for instance, he set more than Radio Isanganiro in Burundi. appraise a decision or add further consid- 1,300 inmates free. In 2012 he pardoned all erations.” pregnant women and nursing mothers, pris- [email protected]

D+C e-Paper January 2019 26 RULE OF LAW

Liberia’s rural women are now entitled to land ownership.

●● Community members are considered A historic first to be private owners of their customary lands. ●● Oral testimony establishes customary ownership, so paperwork or a formal title are not necessary. Liberia’s new Land Rights Act explicitly pro- the result of a long legislative process. The ●● Women, youth and members of mi- tects customary land ownership. This reform major challenge was to take into account the norities have equal ownership claims to should help to stabilise peace and can prove views of Liberia’s grassroots communities, their ancestral lands and equal rights to use to be a game changer. Civil-society organisa- who have historically been excluded from and manage community land. tions have played an essential role in drafting policymaking. Civil-society organisations ●● Communities can decide themselves, the new law. gave them a voice. how their customary land is governed. They For the first time in history, the custom- have to establish land governance bodies By Sahr Nouwah and Roselyn Korleh ary rights of Liberia’s village communities which must decide by consensus and have are protected by formal legislation. Among appropriate representation of men, women After it was passed by the country’s Sen- other things, the law’s provisions state: and youth. ate and House of Representatives, Liberia’s ●● Communities define who they are ●● Outsiders cannot interfere with cus- President George Weah signed the Land themselves, though they must not exclude tomary lands unless they have the local com- oto: Ron Giling/Lineair

Rights Act into law in September 2018. It is residents or discriminate against them. munity’s free, prior and informed consent. Ph

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●● Community members may continue cording to the traditional rules of various ades, Liberia thus had a system of multiple to use land designated as “protected areas” tribes. There were thus two kinds of land rules which were defined by formal law and for their livelihoods. rights: customary land rights and formally various tribal customs. The law is designed to resolve prob- acknowledged land rights. It was a recipe for permanent tensions lems that have caused conflict and strife Rural communities used land for and repeated conflicts. Poor rural people in the past. In 1847, Liberia became an inde- farming and raising livestock, and they could not rely on state agencies’ protection pendent state. It was not a colony, but in im- also hunted wildlife and gathered other re- of their rights. Mining and logging indus- portant ways its social reality reflected impe- sources in the forests. They managed dis- tries often displaced villagers. While large rialist power structures. putes among themselves according to their plantations were protected by formal law, Liberia was founded and run by traditional rules. If, however, their interests smallholder farmers owned their land only freed slaves from the USA. They and clashed with those of members of the coun- according to customary law. their offspring dominated politics. They try’s dominant social strata, they lacked Violence escalated brutally in Libe- relied on formal law, which state agencies deeds and other documents to prove their ria’s civil war from 1989 to 2003. Thanks to would enforce throughout the country. By land ownership. The urban-based elite gen- the Comprehensive Peace Agreement that contrast, the rural people mostly lived ac- erally prevailed in disputes. For many dec- was signed in Accra in 2003 and the deploy-

Promoting local ownership LIBERIA

Monrovia Welthungerhilfe, the Bonn- complexity, Welthunger­hilfe’s based non-governmental or­ “Land for Life” programme, gani­sation, considers Liberia’s which is supported by Ger- new Land Rights Act to be one many’s Federal Ministry for of the most progressive of its Economic Cooperation and kind in Africa. It sets an exam- Development (BMZ), promotes had a strong impact on the re- in inclusive and consultative ple in terms of national self-de- multi-stakeholder partnerships cently passed land legislation. processes tend to be sustain- termination. As it was drafted for land governance. The idea The national campaign able and have the potential to with broad-based involvement is to involve government agen- was supported by interna- be transformative. From this of the public, it reflects both cies, civil-society organisa- tional partners, including the perspective, the new Land the country’s traditions and its tions, private-sector businesses International Land Coalition, Rights Act seems very promis- current needs. Both aspects are and scholars in dialogue in Oxfam, Welthungerhilfe and ing because it resulted from most relevant in a society trau- order to open up spaces for others. It was a good exam- broad-based popular participa- matised by violent conflict. joint learning and new ideas. ple of how timely and flex- tion. Moreover, there is a very Land grabbing is a seri- The “Land for Life” approach ible international support can active civil society whose ac- ous problem in many develop- is innovative in the sense of strengthen the voice of nation- tivists will continue to engage ing countries. People are driven not working towards a prede- al actors and provide funding with all stakeholder to ensure away from their homes and de- termined result. Instead, it is for them to use creatively. Of its implementation. With BMZ prived of their livelihoods. The geared to enabling stakehold- course, such campaign must funding, the Land for Life underlying reason is that gov- ers to develop long-term solu- always be led by civil-society programme supports simi- ernments aim to “fast-track” tions of their own, based on organisations of the country lar initiatives in Sierra Leone, agricultural development, pro- a shared assessment of chal- concerned. Burkina Faso and Ethiopia. moting land-related private lenges and opportunities. Ac- The new law was only investments and neglecting knowledging existing power passed in September 2018, so customary rights. As a result imbalances, Welthungerhilfe in its impacts remain to be seen. CONSTANZE of such misguided policymak- particular supports local com- International experience shows VON OPPELN ing, displaced people may even munities and their representa- that good laws are not always is programme require humanitarian assis- tives to raise their voices and enforced well. First lessons manager for the tance. claim their rights. from the “Land for Life” pro- “Land for Life” Land grabbing occurs in Many Liberian civil-soci- gramme indicate that it takes programme at Welthungerhilfe’s complex settings, marked by ety organisations have joined a lot of time to involve many head office in Bonn. many actors with di­verging in- forces in the Civil Society Work- stakeholders and build trust. constanze.vonoppeln@

terests. Taking account of such ing Group on Land Rights, which However, solutions reached welthungerhilfe.de Ph oto: xxx

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ment of the UNMIL peacekeeping mission, ous criticism of the modified draft law that evicted by force. Given that the communities elections could be held in 2005. Ellen John- was passed by the lower legislative chamber concerned had often lived on the land for son Sirleaf became the president. The peace in August 2017. Important points included: decades, E. Musu Coldman of the National agreement acknowledged that unresolved ●● Women’s land rights were not recog- Concil of Chiefs and Elders insists that they land inequities had been a driver of civil nised at all. should have been consulted at the very least. strife. ●● Too much customary land was con- In 2017, Liberia held the most recent As Stanley Toe, the current executive sidered to be public land, which the govern- elections. For the first time in more than director of the Liberia Land Authority, re- ment would be entitled to make use of in 70 years, power was peacefully transferred calls, the new head of state wanted to tackle spite of villagers’ livelihoods depending on from one elected government to the next. the matter. She understood that it had the it. Many legislators lost their seats in parlia- potential for tumbling the country back into ●● No provisions were made to ensure ment to competitors. When the country’s war unless it was resolved. Accordingly, the that communities were guaranteed free, new president George Weah referred to the parliament established the Land Commis- prior and informed consent in regard to any “fundamental issue of land” in his inaugural sion in 2009. It included representatives of concessions or investments made on their speech, he opened the window for continu- civil-society organisations. Over the years, customary land. ing the struggle for meaningful land legisla- their contributions to the debate proved tion, and the issue was taken up by newly very important, argues Toe. REACHING OUT TO STAKEHOLDERS constituted committees. The Commission had the task to This summer, the debate of more than draft a policy on land ownership. Its work The civil-society organisations did not only a decade finally resulted in the new Land in­cluded nationwide stakeholder consul- lobby legislators and took part in meetings Rights Act. Civil-society organisations par- tations, extensive collection of data and convened by the authorities. They reached ticularly appreciate its clauses concerning evidence as well as legal reviews. In March out to all relevant stakeholder groups, and – customary land. 2013, the government adopted the commis- most important – to the rural public, engag- The reform is an important step sion’s policy proposal. ing people at the grassroots in the debate. towards securing their welfare. According According to this new approach, there According to Alphonso B. Henries to Senator George Tengbeh, who represents are now four categories of land ownership: of the Liberia Land Reform Movement, it Lofa County and was one of the legislators ●● public land, which is owned, but cur- proved useful that civil-society organisa- who promoted the new bill, the law reduces rently not used by the government, tions were active at this level. They were in the scope for conflict. To ensure that the in- ●● government land, which is used by touch with rural communities and aware novative legislation is equitably enforced, state agencies (for office buildings and other of their needs. Moreover, they were able to however, more work needs to be done. Teng- purposes), mobilise people. Henries reports that the beh says, that people must now be made ●● customary land, on which the liveli- activists’ stance was diplomatic rather than aware of its provisions. hoods of most rural communities depend, confrontational, as civil-society organisa- The senator expects civil-society organ- and tions were striving to build bridges. isations to support such efforts, and they cer- ●● private land, which is owned by a pri- Rural outreach mattered very much tainly will do so. Unless people understand vate person. because one of the big challenges in regard their rights, they will not be able to defend The policy was widely appreciated, to protecting customary rights was that them. but it soon became evident that a law was these rights differ from region to region and needed to ensure consistent land govern- from tribe to tribe. Moreover, the traditional SAHR NOUWAH ance as well as legal certainty for every rules were mostly not documented in writ- works for Welthungerhilfe in category of land ownership. The legisla- ing, since they had been passed down orally Liberia. He heads the land tion process began, but soon ran into trou- from generation to generation. It further rights programme, working in ble. As Frances Greaves, the founder of the complicated the situation that many com- close collaboration with non-governmental organisation Voice of munities had been displaced by war. Civil- Liberian civil-society organisations. Funding for the Voiceless, reports, legislators kept wa- society activism empowered rural people, this work is provided by Germany’s Federal tering down important rights. Civil-society many of whom are still illiterate, to spell out Ministry for Economic Cooperation and organisations were disappointed because their demands. Development (BMZ) and the European powerful government officials and vested At the same time, there was an obvi- Commission. interests were doing their best to once again ous need for action. The reason was that the [email protected] marginalise rural communities. The debate government wanted to speed up economic dragged on over the years. growth. It sold land and granted mining as ROSELYN KORLEH In response to the obstruction, the well as logging concessions to investors, works for the Rights and Rice Rights and Rice Foundation and the Sus- including foreign businesses. As in earlier Foundation, and is tainable Development Institute convened times, the rights of the rural poor were not co-convenor of the Civil other non-governmental organisations to respected. One consequence was defor- Society Working Group on form the Civil Society Working Group on estation (see Silas Kpanan’Ayoung Siakor in Land Rights. Land Rights. Together, they spelled out seri- D+C/E+Z 2013/10, p. 366). Many people were [email protected]

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to invest. On the other hand, their business Facilitating investments model may rely on being protected from foreign competition, in which case they may charge higher prices and have less rea- son to worry that competent staff might be poached by other companies that offer bet- For poverty to be reduced, the private sector The more trust the legal environment ter pay. must flourish and generate employment. The inspires, the more probable it becomes that It is well known, moreover, that com- rule of law matters very much in this context. promising investment ideas lead to tangible panies tend to rely on contacts and state action. The rule of law makes it easier to as- patronage in countries where the rule of law By Christiane Rudolph sess – and manage – risks. All private sector is weak. In extreme cases, such sce­narios companies, whether foreign or domestic, result in individual companies enjoying A good investment climate means that pri- appreciate legal certainty. However, foreign monopolies in specific sectors. While those vate-sector companies, ranging from small- investors will always ponder whether they companies may obviously thrive, the im- scale enterprises to multinational corpora- will be treated fairly. pacts on the labour force and consumers are tions, have incentives to invest. The term Foreign direct investments drive na- harmful. investment climate refers to the entire po- tional economic development. They lead to The overall legal environment mat- litical, legal, economic and institutional en- additional employment and often increase ters, and business-specific rules – includ- vironment that has a bearing on enterprises’ opportunities and risks. Investors must as- sess these matters diligently, and incalcu­ lable risks are likely to scare them off. The protection of ownership rights is crucial. Land ownership, for example, must be clear and safe. Contract enforcement is important, and low levels of corruption and crime are appreciated. Investors also want to be sure that competitors do not gain ad- vantages due to personal contacts of mon- etary favours. When a business partner does not fulfil contract obligations, moreover, they need the courts to enforce that con- tract. Accordingly, national laws have a bearing on investment decisions, but law enforcement matters just as much. How- ever, the quality of both legislation and the court system diverge considerably from country to country. The interaction of the judicial, legislative and administrative branches of government is a complex affair. Generally speaking, there are always gaps between black letter law and everyday life. In the eyes of investors, non-transparent, A worker in a cracker factory owned by Beloxxi, a Nigerian family business of which DEG has overly complex or ambiguous legislation become a shareholder. means greater risks. In private contracts, partners can agree which country’s law will apply. They the supply of goods on consumer markets, ing those on competition – are particularly are not forced to simply rely on the law of expanding people’s choices. In developing relevant. The interaction of all branches of the location where an investment takes countries, moreover, foreign investors are government should be geared to ruling out place. German courts may thus get juris- prone to introducing advanced technology, unfair competition or unfairly restricting diction over investments in Africa. If an so staff gets an opportunity to acquire ad- competition. Investors pay close attention investor has the impression that local laws ditional skills. In the long run, tax revenues to governance in these matters. and local law-enforcement do not add up to are likely to increase. It is generally accepted that the qual- legal certainty, he or she may still agree to If, by contrast, governance does not ity of institutions has a positive impact both investing if another country’s courts get the inspire trust, investments become less like- on income levels and on income distribu- oto: DEG/Thorsten Thor

say should disputes arise. ly. Domestic companies too are less likely tion. It is no coincidence, that the rule of law Ph

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Rule of law and prosperity every company without being influenced by corruption. During the Hamburg Summit in 2017, the G20 adopted the “Compact with Africa”. This initiative was proposed by Germany, and it is geared to improving the investment climate at nation-state levels with an eye to facilitating business activity. For obvious reasons, national governments are responsi- ble for creating and enforcing an appropriate legal framework. Donor governments, how- ever, are prepared to give advice and support. The reason is that, in the long run, enhanced

Real GNP per head (logarithm) legal certainty will lead to more invest- ments, more jobs and sustainable growth.

CHRISTIANE RUDOLPH heads DEG’s Corporate Index for rule of law Strategy and Development- Sources: World Bank, WDI, DEG Policy Department. DEG – Deutsche Investitions- und Entwicklungsgesellschaft is the subsidiary of is correlated with a nation’s prosperity (see and impartial judiciary must be fully opera- KfW Banking Group promoting private-sector graph above). Economic research has shown tional. At the same time, every state agency investments in developing countries and that the inclination to invest increases as should ensure equal opportunities. They all emerging markets.

legal certainty improves. An independent must respect the rights of every citizen and https://www.deginvest.de Chart: DEG

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D+C e-Paper January 2019 31 RULE OF LAW

It seems rather unsatisfying when someone Limited reach like Jean-Pierre Bemba, who was convicted for war crimes in the Central African Repub- lic after a long trial, is later acquitted by the Appeals Chamber. When things like this happen, the victims Since 2002, the International Criminal Court Yes, the ICC is doing reasonably well given and their relatives are obviously disap- (ICC), which is based in The Hague, has the difficult circumstances, but the expecta- pointed, but that does not mean that this ensured that perpetrators of atrocious tions tend to be too high. The ICC considers particular acquittal was wrong. The Bemba crimes can be held accountable if they are individual cases and must find out whether decision was very close (three to two) and not put on trial in their home countries. Ear- a suspected person can indeed be proven to mostly based on procedural technicali- lier, international tribunals served a similar be responsible for an atrocious crime. The ties. Ultimately, the Appeals Chamber in- function, for instance regarding Rwanda or cases take a long time because the investi- sisted on more convincing evidence for the the former Yugoslavia. For a nation to come gations take place in very difficult settings crimes allegedly committed by the subor- to terms with civil war or despotic rule, how- and the corroboration of evidence is a com- dinates. One can certainly debate whether ever, more needs to happen, as Kai Ambos, plex challenge. The criminal responsibility the Chamber asked too much, but the basis a law professor from Göttingen University, of the person concerned must be proven. It of any such debate is what is in the official argues. is important to involve victims in proceed- Court records. It is impossible to assess that ings, and their personal satisfaction certain- from outside. Even specialised lawyers can- Kai Ambos interviewed by Hans Dembowski ly matters, but the focus is on the accused not do so unless they attended each and eve- person’s possible individual responsibility ry hearing. In a criminal case, the judgment Cases before the ICC often drag on for and guilt. An acquittal neither denies that results from what the judges learned from a long time and then end with acquittals. there was a crime nor that victims have suf- the evidence presented in front of them in Civil-society organisations and the media fered. It only means that the judges are not an oral and adversarial fashion. People who express criticism of the court. Is it fulfilling convinced beyond a reasonable doubt of the have not followed that lack fundamental its mission? accused’s individual responsibility. information and thus are not really quali- oto: Daniel Garzon Herazo/picture-alliance/NurPhoto

Colombia’s holistic approach to building peace is setting examples: commemorating killed and missing people in Bogotá in October 2018. Ph

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fied to comment. Sometimes, journalists Zschäpe and the other accused were guilty the Nuremberg Academy is quite successful observe a case from beginning to the end, or not. Such a narrow focus cannot really in promoting international justice and the and their impressions and insights can in- satisfy all possible needs of victims. Zschäpe underlying principles, but it was only estab- deed be relevant. Without such an intimate was found guilty, but for a society to come to lished in 2014. The problem with national knowledge, however, it is extremely diffi- terms with brutal violence, more is needed courts, on the other hand, is that they are cult to decide whether a man like Bemba, than criminal prosecutions. This is why the not entirely independent and may become as a military commander, could and should approach that Colombia is taking to build- toys for powerful political interests to play have intervened in a specific situation to ing peace after decades of civil war can serve with. In any case, it makes very good sense prevent certain crimes. Unfortunately, civil- as a model. It includes a criminal justice that nation states bear the main responsibil- society activists and the media tend to sim- component, the Special Jurisdiction for ity for criminal justice and the ICC only has plify things excessively and to demonise the Peace, that can sentence perpetrators up to jurisdiction if they are either unable or un- accused. 20 years. But the Colombian transitional jus- willing to investigate and prosecute. tice system has several further components, But the ICC is supposed to prevent impunity especially a truth commission that is deal- How do you assess the criticism expressed after the atrocities, and acquittals don’t do ing with the historical narrative, developing by African leaders who say that the ICC that. a shared understanding of recent history. On is only serving imperialist interests and is Not all cases end with an acquittal. Thom- top of that, the system has coherent national biased against Africa? as Lubanga and Germain Katanga were mechanisms for compensating victims and If leaders like the late Muammar al-Gaddafi, sentenced for crimes they committed dur- even a special unit for disappeared persons. Sudan’s President Omar al-Bashir or Kenya’s ing the civil war in the Democratic Repub- This is a holistic approach, with the various President Uhuru Kenyatta say these things, lic of the Congo. In legal terms, it would be components reinforcing one another. they are obviously not being objective and totally unacceptable to convict an accused overstating matters. They are involved per- person so that someone is punished. The Iván Duque, Colombia’s new president, has sonally. People like them deny facts and job of the ICC is not different from that of declared himself an opponent of the peace invent alternative ones. They won’t even any other criminal court. It must decide agreement. Has the peace process been take into account that many ICC staff mem- whether the specific accused is guilty or institutionalised in a way that is strong bers are from sub-Saharan Africa, including not. It must do so in a fair trial, relying enough to last? top officials like the Chief Prosecutor Fatou on means that conform with the rule of Well, President Duque has actually made Bensouda (Gambia), the Court’s President law. It thus reduces, but of course cannot a commitment to the peace agreement and Chile Eboe-Osuji (Nigeria) and his deputy eliminate, the previously almost unlim- the said transitional justice system in prin- Joyce Aluoch (Kenya). It is not hard to see ited impunity of despotic leaders and mi- ciple. He wants to make some changes, but what is driving the African politicians con- litia commanders. The ICC is merely one he does not have the legislative majorities cerned: they fear the court, so they discredit component of an international system of to pass radical reforms or even abolish the it. Their criticism does not really merit seri- criminal justice, and the main caseload system. ous debate, but it does unfortunately have rests with the domestic courts where the an impact on some people and in some crimes were committed. We shouldn’t for- You just emphasised the national character countries. For this reason, it is good that the get, moreover, that the reach and impact of Colombia’s system for transitional justice. ICC has responded, not least by starting to of criminal law is limited when it comes to Do international courts have the same cred- take a closer look at other world regions. In societies coming to terms with atrocities. ibility as national ones? this context, the investigations of crimes in It must be complemented by other mecha- The acceptance of international tribunals Georgia deserve to be mentioned, as well as nisms, such as truth and reconciliation and courts is indeed a serious issue. Out- preliminary examinations concerning Iraq/ commissions for example. reach programmes are designed to reduce UK, Colombia, Palestine/Gaza, Ukraine and the distance from the places where crimes Venezuela. In the recent criminal trial of the neo-Nazi are committed, but that is only possible to NSU terrorists in Germany, many issues a limited extent. That was true of the Inter- were not resolved either. Relevant questions national Criminal Tribunal for the former KAI AMBOS included whether the police had failed and Yugoslavia, which the UN set up in the early is a professor of criminal law, what role the Verfassungsschutz, Germany’s 1990s and which is currently wrapping up procedure, international secret service, played. Its agents had obvi- its work. There was a tendency of Croatians criminal law and comparative ously been in touch with terrorists in several resenting judgments against Croatian war law at Göttingen University, instances, but they hardly submitted any criminals, whereas Serbs resented judg- a judge of the Hague-based Kosovo Specialist useful evidence. Victims’ lawyers spoke of ments against Serbs. Because of such ethnic Chambers and an amicus curiae of Colombia’s “institutionalised” racism and “state failure”. sentiments, national or regional tribunals Special Jurisdiction for Peace. He is also the Yes, and these are all relevant issues, but are often more convincing. Just consider director of CEDPAL, a Göttingen-based they go beyond the limited tasks and func- that the Nuremberg trials of Nazi criminals research facility for criminal law and justice in tions of criminal justice. Munich’s Higher did not find much acceptance in Germany Latin America. Regional Court had to decide whether Beate shortly after the Second World War. Today, [email protected]

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From judge to minister: Sérgio Moro.

not been honourable and impartial. Serving Controversial appointment as a judge in Curitiba, he repeatedly stated that he had no intention of going into poli- tics. Now he is joining a new government after having jailed its most influential oppo- nent. That decision casts doubt on the legiti- Brazilian President Jair Bolsonaro’s decision terly disproportionate given that other Bra- macy of the Operation Car Wash (Lava Jato), to appoint Sérgio Moro, a federal judge, as zilian politicians, who have committed far the large-scale anti-corruption investiga- justice minister is highly controversial. Critics more serious offences, have not been indict- tion that, apart from Lula’s arrest, has had warn that the justice system is being politi- ed and so far escaped even the merest stain many legal implications. cised. After all, it was Moro who ensured that on their careers. One of the responsibilities of the Na- Bolsonaro’s strongest political rival, Lula da Although all the polls showed him to tional Council of Justice (CNJ) is to ensure Silva, the former president, was not allowed be the strongest candidate, Lula was banned the independence of the justice system. to run in the election once more. from running in the presidential elections It also conducts disciplinary proceedings in October 2018 because he was in prison. against members of the judiciary. In early By Carlos Albuquerque Moro’s ruling thus helped Bolsonaro to win November, it asked Moro to explain his al- – at least indirectly. In the eyes of the people leged party-political activities while still In early April, Moro’s investigations resulted who blame Lula’s Workers’ Party for all the serving as a judge. He denied any wrongdo- in the arrest of former president Luiz Inácio country’s ills since protests erupted in 2013, ing and any connection between his minis- Lula da Silva. Charged with failing to declare Moro became a kind of superhero, symbolis- terial appointment and Lula’s prosecution. ownership of an apartment, the elder states- ing the fight against corruption. Moro claimed it had “surprised” him man was sentenced by the Curitiba judge to Indeed, the conduct of “Superminis- that he was invited to become justice min- 12 years in prison for passive corruption and ter” Moro has so far been full of contradic- ister. Today, however, it is known that Moro oto: picture-alliance/ZUMA Press

money laundering. His treatment seems ut- tions. Some of his actions as a judge have was contacted by Paulo Guedes, the incom- Ph

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caused. He gave assurances that the breach Folha de São Paulo quotes one district court BRAZIL of confidentiality about wiretapping had judge as likening his possible promotion to not been driven by any desire to generate “appointing a soldier from the ranks to com- Brasília “party-political polemic or conflict”. mand generals”. During a conference at Harvard Uni- It is also possible, however, that the versity in 2017, Moro described election former federal judge has other ambitions. slush funds as fraud and “a crime against Despite denying any such intention, he may democracy”. However, Onyx Lorenzoni, be considering to run for president in 2022 the new president’s chief of staff, has ad- in the hope of becoming Bolsonaro’s succes- mitted the use of slush money for cam- sor. He says he sees his present role in the paign purposes. Initial investigations have administration as a technical rather than been launched against him. Asked how he political appointment. But given his history, ing finance minister, during Bolsonaro’s could join an administration tainted this the more liberal sections of the population election campaign. way, Moro replied: “He has admitted it and no longer trust him. apologised”. In Lorenzoni’s case, the judge Security experts say that the team LINGERING SUSPICIONS evidently felt that an apology sufficed for an Moro has put together, is experienced in acquittal from a criminal charge. fighting corruption and organised crime, The suspicions that Moro may be guilty of To push through his right-wing agen- but has little expertise in other important political interference is fuelled by other da, Bolsonaro will have to forge majorities areas such as combatting robbery and mur- facts too. During the Lava Jato investiga- in Brazil’s fragmented congress. He will der. Moro can no longer pin the blame on tion, he revealed that former president Lula also need the support of the Supreme Fed- the Workers’ Party; his own actions are the da Silva’s phone calls had been intercepted, eral Court. It is quite possible that he will ones that will now be judged. including one with Dilma Rousseff, his suc- appoint Moro to the highest judicial level cessor as head of state. The fact that Lula’s in 2020 or 2021. That is when two top-tier CARLOS ALBUQUERQUE phone was tapped was not entirely surpris- justices are due to retire. Asked about this works for the Brazilian ing, but the timing of the revelations was prospect, Moro spoke of “a future possibil- programme of Deutsche significant. They came shortly before Lula ity”. Experts believe Moro’s immediate ap- Welle in Bonn. This was going to become a minister in Rousseff’s pointment as a Supreme Federal Court jus- contribution was finalised in cabinet. Moro’s intervention prevented that. tice would cause disquiet in Brasília. So far, mid-December, before Bolsonaro took office Moro later apologised to the Supreme he was a lower-level judge and has not han- on 1 January 2019. Federal Court for the “controversy” thus dled any appellate cases. The newspaper [email protected]

Supporter of “Superminister” Sérgio Moro. oto: picture-alliance/AP Photo oto: picture-alliance/AP Ph

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Recognising a minority’s human rights PAKISTAN Islamabad

In March 2018, Pakistan’s transgender peo- a poor and marginalised community, barely ple had an unlikely revolution when legisla- surviving on the fringes of the society. tors passed a new law to protect them. It is There are no reliable official statis- a step towards ending marginalisation and tics concerning the number of transgender lence, abuse, rape and exploitation. Abuse deprivation. persons in Pakistan. According to the 2017 by the police is common too. After decades census, there are 10,000, but civil-society of neglect and persecution, the Transgender By Mahwish Gul groups estimate that there are up to 500,000. Persons (Protection of Rights) Act now of- Census data all over the world tend to be un- fers new hope to this long-oppressed com- The Transgender Persons (Protection of reliable in regard to marginalised communi- munity, but it has not yet brought an end Rights) Act 2018 not only ensures the right ties. For similar reasons, it is impossible to to structural and systemic discrimination. to be recognised as per his or her perceived tell what average incomes Hijras typically Authorities must now implement the legal gender identity. It also spells out their fun- have or what their purchasing power is. It is principles. damental rights, including to inheritance, obvious, however, that they are mostly con- education, employment, vote, holding of demned to multi-dimensional poverty. JUDICIAL DECISIONS public office, health, assembly, access to Pakistan’s Hijras live in isolation, public spaces and property for example. The confined within their own, scattered com- These principles are not totally new, how- law thus confirms that transgender persons munities and shunned from ordinary civic ever. The judiciary first pronounced the ink- enjoy all the rights that the nation’s consti- and social life. They are disowned by their lings ten years ago. The Supreme Court of tution grants its citizens. families, in most instances soon after their Pakistan has ruled in favour of transgender The law accords transgender persons birth, and can only find refuge among their persons several times. In an attempt to pro- the right to express their gender according kind. With no hope of a meaningful life, they tect the rights of this community, a lawyer to their “innermost and individual sense of survive by begging, show dancing and pros- had filed a constitutional petition in early self”, whether that corresponds to the sex titution. 2009. Soon after, the Court ruled that the they were assigned at birth or not. It thus Mocked and ridiculed their entire government had to register Hijras with an guarantees them the right to be officially lives, they face consistent harassment, vio- aim to full social inclusion. registered according to the identity they chose. That includes all purposes, including identification card, driving licenses, pass- ports, educational certificates and domi- ciles. Moreover, they can change existing registrations. According to the law, the person’s sense of identity is what matters, not the genitals or other physical characteristics. The law defines a transgender person as “any person whose gender identity and or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth.” The reform is a huge step for Paki- stan, a predominantly Muslim country with rather conservative ideas of gender roles. To what extent it will contribute to improving the fate of transgender people in practice, however, remains to be seen. Traditionally, the Hijras – a South Asian term for transves- oto: PPI/picture-alliance/ZUMA Press

tites, transgender people and eunuchs – are Hijras rallying for their rights in Peshawar in 2018. Ph

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In 2012, the Supreme Court allowed ●● In August, the first transgender citi- Supreme Court will soon hire transgender the transgender community the right to zen was able to open a bank account, and staff. Observers consider this an important be registered to vote and identify them- another one launched her own fashion precedent. The grassroots reality for many selves as a third sex. In 2013, the Court brand. transgender people remains tough, none- ruled that the transgender must be treated There are many similar stories. They theless. Transgender persons continue to be as equal citizens of Pakistan, enjoying the show that at least some members of the chastised and harassed, ridiculed and stig- same constitutional rights. Among other transgender community are benefiting from matised and deprived from their most ba- rulings, the Supreme Court conferred the a changing culture, though their experience sic right of survival and life of dignity. Only rights to transgender persons of inherit- may not be representative of all transgender time will show what difference the new law ance, identity, employment and protec- people in Pakistan. can make. tion from harassment by law enforcement Discrimination has not stopped, authorities. however. In September, for example, four In the Transgender Persons (Protec- men killed a transgender person who re- MAHWISH GUL tion of Rights) Act, legislators have acknowl- sisted a sexual assault. The culprits put is from Islamabad and edged these principles. The new law has their victim on fire, and she died after suf- studies development triggered a series of “firsts” for transgender fering 80 percent burn injuries. Three days management at Ruhr persons in Pakistan: later, an official of Pakistan’s Law and Jus- University Bochum and the ●● In March, a 21-year-old journalist be- tice Commission was asked to report to the University of Western Cape in Cape Town. Her came the country’s first transgender news Supreme Court. He said that, since 2015, at masters programme belongs to AGEP, the anchor. least 500 transgender persons have been German Association of Post-Graduate ●● In April, the first school for transgen- killed. Programmes pertaining to international der community was launched offering voca- In the same hearing, Mian Saqib development. tion skills training. Nisar, the chief justice, announced that the [email protected]

Hijras as a visible socio-cultur- History of a marginalised al category and gender iden- tity. While they did not suc- ­community ceed in doing so, many faith leaders adopted the colonial power’s understanding. Today, In contemporary South Asia, eunuchs. There was a blanket conservative Mullahs oppose transgender people – com- suspicion of kidnapping, cas- reforms that safeguard Hijra monly called “Hijras” – suffer tration and sodomy. rights. This is one reason, why discrimination and exclusion. Under the CTC, wearing the colonial legacy is only end- Things were not always like female clothing was a punish- ing very slowly. this. able offence for men. Accord- It took Pakistan’s Su- In the Mughal era, ing to this law, “any eunuch preme Court until 2009 to for- eunuchs or Khawaja Sira, as they [...] who appears, dressed or mally appreciate the civil rights were called, were the most trust- ornamented like a woman, in of Hijras, and it took almost an- ed royal servants. They wielded a public street or place, or in other decade for legislators to enormous power, respect and any other place, with the inten- Marvia Malik, Pakistan’s first pass a protective law (see main some managed to amass large tion of being seen from a public transgender TV anchor, story). It is interesting to note amount of wealth. They were street or place, or who dances addressing a press conference. that a similar pattern is evident usually appointed as custodians or plays music, or takes part in in India. The Supreme Court of of harem and some rose to the any public exhibition” could India ruled that homosexual ranks of army generals, royal be sentenced to up to two years source of income and any kind acts among consenting adults teachers and court advisors. of imprisonment plus a fine. of rights. It pushed them fur- are a matter of privacy and not With the decline of the Moreover, the CTC criminal- ther into poverty and social ex- illegal. Hindu-fundamentalists Mughal Empire and the advent ised “all persons of the male sex clusion. According to English did not appreciate that judg- of British rule, their influence who admit themselves or on understanding, there were only ment. Their faith has histori- waned. In 1871, the colonial medical inspection clearly ap- two sexes. Homosexuals were cally been much more liberal power introduced the Criminal pear to be impotent”. criminalised too. than contemporary fanatics Tribes Act (CTC). It required Colonial law deprived Historians report that admit – as is true of Islam too. oto: Rana Sajid Hussain/picture-alliance/Pacific Press Agency

registration and control of eunuchs of their primary the British wanted to erase the (mg) Ph

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Rural women in Senegal: the World Bank wants them to have a voice in policymaking.

process through which state and non-state Good enough governance actors interact to design and implement policies. They all act within a given set of formal and informal rules that shape power – but are also shaped by power. To gear governance towards develop- The rule of law is not simply about enforcing Amartya Sen, the Nobel laureate. The report ment, the WDR makes a passionate case legislation. Legitimacy and acceptance then goes on to state the objectives of devel- against the “best practice” approach, argu- depend on people’s broad-based involve- opment as minimising the threat of violence ing that “best fit” is more important. Adopt- ment in public affairs. The World Bank (security), promoting prosperity (growth) ing an implementable second-best policy is assessed related matters in its World Devel- and ensuring that the prosperity is shared preferable to a seemingly perfect, but un- opment Report (WDR) in 2017. (equity). Moreover, sustainability for future implementable one. The WDR argues that generations must be ensured. three principles should guide attempts to By Mahwish Gul The WDR points out that policies that improve governance: should lead to positive development are ●● distinguishing the forms of institu- The topic of this WDR is governance and the often either not adopted at all or poorly im- tions from their functions, rule of law. It wants governance to be geared plemented, and may even end up backfiring ●● building capacities in ways that re- to development, which it does not define over time. Its guiding question is why this duce power asymmetries, and in economic terms but as “the removal of is so – and points out that this is an issue of ●● focusing not only on the rule of law, oto: Lissac/Godong/Lineair

various types of unfreedoms”, referring to governance, which the WDR defines as the but just as much on the role of law. Ph

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For two decades, the World Bank has more are faulty, the result is policy failure. growth, but that stance has become unten- been calling for “good governance”. This was According to the WDR, it is essential to iden- able. The WDR 2017 shows that politics mat- basically a “best practice” approach. Critics tify the functional problem in such cases. ter because politics shape policies. It is most pointed out, however that the list of norma- On that basis, the authors recommend, poli- welcome, moreover, that the World Bank is tive requirements was long and apparently cymakers can find solutions. To better gear now looking for “best fit” instead of promot- unrealistic. Instead, the World Bank is now governance to development, they can take ing “best practice” with the implication of focusing on “good enough” governance. several approaches: one size fitting all. The WDR thus shows that The first principle means that results matter ●● the policy arena can be made more the bank appreciates the ownership of the more than the perfect institutional design. “contestable” by involving additional inter- developing countries rather than proposing It is noteworthy that the World Bank est groups in decision making, technocratic blue prints. considers power asymmetries in the context ●● parties can be given incentives to co- of capacity building. In the past, it promoted operate, and LINGERING AMBIGUITY technocratic solutions that were seemingly ●● actors can appeal to people’s prefer- beyond politics and supposedly transcend- ences and beliefs. Nonetheless, a sense of ambiguity persists. ed power relations. By contrast, the WDR The WDR wants systems of govern- On the one hand, the WDR points out that now admits that policies may be ineffective ance to become more contestable in the the quality of governance and the rule of simply because groups with enough bar- sense of all people concerned and affected law depend on people’s acceptance, but on gaining power oppose them. They may even becoming involved in the policy process. the other hand, it wants international part- fail when such groups merely lack incen- In any given country, power is typically ners to have a bearing on making the policy tives to cooperate. The second principle thus distributed according to some kind of elite arena more “contestable”. The irony of the is about these issues being considered when bargain that safeguards the status quo. Citi- matter is that while human rights were con- investments in capacity building are made. zen engagement can challenge and change ceived as universal principles, they cannot The third principle is to focus on the that constellation. International interven- be taken for granted everywhere. role of law, which is to settle conflicts peace- tions can help to make that happen. Donor Rural communities who live accord- fully in accordance with norms that society agencies, in other words, do not have an ing to tradition in developing countries, generally appreciates. Such norms develop unpolitical role. They should design inter- for example, mostly do not have notions of historically, with legitimacy depending ventions in ways that lead to development men and women having equal rights. The on people’s acceptance and their sense of results. World Bank wants these communities to be justice. The rule of law thus results from Governance for development ulti- heard. At the same time, it wants the women a home-grown process of contestation that mately depends on all parties being em- to have equal rights and be heard. Indeed, shapes societies. Such processes can take powered to express their interests and exert both the community’s empowerment and a very long time, according to the WDR. influence. The more interest groups are in- women’s empowerment are ultimately volved, the better policies will reflect their rooted in western ideas of human rights. THE THREE “COS” needs, and, as a result, cooperation will Strengthening one, however, may not lead become more likely. Incentives can help to to the strengthening of the other. As stated above, governance for develop- commit actors to policy compromises and Either way, the WDR suggests ways to ment means that policymaking reduces facilitate effective implementation. Finally, enforce ideas of human rights in countries “unfreedoms”. According to the WDR, com- participants’ preferences and beliefs matter that it concedes may not be ready for them. mitment, coordination and cooperation are in terms of shaping decisions. If the rule of law results from long periods essential prerequisites of effective policy- On this basis, reforms can be agreed of inner-society contestation, we cannot as- making. Apart from government institu- and implemented. They can concern spe- sume that any multilateral organisation’s tions, a wide range of interest groups have cific laws, programmes or organisations. ideas on these matters seem valid to all peo- roles to play in governance. For example, They can also lead to adopting entirely new ple in all countries. Ultimately, the World various non-governmental organisations, rules. Not only the drafting of laws benefits Bank thus still claims to express a universal including business associations or faith- from broad-based participation, policy im- truth. based institutions, have a bearing on gov- plementation and the management of state The WDR 2017 is a culmination of the ernance. agencies improve too. last two decades of the bank’s steady at- The success of development policies As policy processes are complex and tempt to reposition itself and its policies as depends on three “cos”: involve many parties, prudent policymakers pro-poor, inclusive and participatory. The ●● Commitment can ensure that policies must anticipate opposition. They must also report consists of a rich synthesis and illus- are consistent and continuous over time. assess reforms’ unintended consequences. trated analysis to make the case for ‘good ●● Coordination implies that diverse be- The important thing is to achieve consensus fit’ approaches to development. It has po- liefs and preferences are aligned. or compromise concerning policy goals and tentially far reaching implications for not ●● Cooperation means that compliance is then find ways to make those goals come only how the bank operates, but for other voluntary and no freeriding occurs. true. international development agencies as well. In real life, none of the three can be Historically, the World Bank basi- To what extent that happens remains to be taken for granted however, and if one or cally equated development with economic seen.

D+C e-Paper January 2019 39 Biodiversity is globally in danger: diver near the island Mindoro, Philippines. Page 10 Ph oto: SeaTops/Lineair

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