How defenseless are the poor in Afghanistan?

Treaties, regional conventions, international law and national law are virtually meaningless in fragile states emerging from conflict because there are no mechanisms or institutions to ensure implementation. Coordinated governance recognizes this. Where, nevertheless, there has been an agreed goal, such as the right to counsel for the poor, local and international actors, private and public, must align their efforts in accordance to fundamental norms – in this case transparency – to reach that goal.

The case of the International Legal Foundation (ILF) offers a good example of how coordinated governance is needed for real results to be achieved in such conditions.

In 2002, the ILF was the only international NGO to offer the Government of Afghanistan expertise and assistance in setting up a public defender system, providing quality criminal defence services for the poor. Because the ILF was receiving funds from private philanthropists and no donor funds were being diverted from the government, the Minister of Justice agreed to its assistance.

During the first three years, the ILF’s lawyers convinced judges in Afghanistan to follow the law as written, not as “practised”. The cost of providing criminal defence services for the poor is a fraction of the cost of building a police force, building prisons, or training judges, and as the importance and quality of the ILF’s work was recognized, bilateral donors started funding it. Soon, new NGOs and INGOs stepped into criminal defence, funded in an ad hoc manner by bilateral donors. The cost was never discussed and coordination was non-existent.

By 2012, the ILF had grown to 70 lawyers, a staff of 200, 14 offices in Afghanistan, and an annual budget of US$ 2 million, and the World Bank started discussing the possibility of funding the ILF’s programme through the Ministry of Justice. Up until this point, no other providers had been interested in working with the Ministry but nor had the amount of funding the ILF had been receiving been discussed.

Things changed when the ILF eventually signed a contract with the Ministry of Justice and the size of the contract was made public. Providers previously uninterested in working with the Ministry began to lobby against the contract. Political pressure on the Ministry sparked corruption rumours and it pulled out of the agreement, the ILF was left without funding, and the poor accused of a crime without representation.

The World Bank and bilateral donors were a key part of governance in this context. Good governance required that its contracting process be transparent. In this case, the lack of transparency undermined the stability and legitimacy of ILF-A as well as the Ministry of Justice and its ability to deliver quality defence services to the poor.

Author: Natalie Rea is the Founder and Executive Director of International Legal Foundation, USA.

Image: A man climbs a hill in Kabul city REUTERS/Mohammad Ismail