The specter of poverty, and the resultant suffering from want and fear, have been realities for so long that poverty is often deemed to be a natural and inevitable part of the human condition. In earlier times, when the struggle merely to survive was paramount for most people, this conclusion seemed reasonable, perhaps even unavoidable. In our era however, we have every possibility to make economic opportunity broadly available. In the last six decades, more wealth has been created than in all previous history. No longer can it be argued that poverty is natural or inevitable.
Though many have shared in this prosperity, far too many of the world’s people have been left behind, still living in deprivation, taking talent unused to the grave. Sub-Saharan Africa is not on track to achieve any of the Millennium Development Goals (MDG) and extreme poverty persists on every continent. Statistics abound of the number of people that live in extreme income poverty, no matter how hard they work. Lack of income is just one dimension of poverty.
The Commission on Legal Empowerment of the Poor (Commission) argues in its report “” that four billion people around the world are robbed of the chance to better their lives and climb out of poverty, because they are excluded from the rule of law. The Commission states that whether living below or slightly above the poverty line; these men, women and children lack the protections and rights afforded by the law. They may be citizens of the country in which they live, but their resources, modest at best, can neither be properly protected nor leveraged. Thus it is not the absence of assets or lack of work that holds them back, but the fact that the assets and work are insecure, unprotected, and far less productive than they might be.
The Commission adds that there are further vulnerabilities as well, indigenous communities may be deprived of a political voice and their human rights violated. In addition to exclusion based on their poverty and gender, poor women may also be denied the right to inherit property. “In our own era then, vast poverty must be understood as created by society itself” the Commission suggests. It goes on to explain that in too many countries, the laws, institutions, and policies governing economic, social and political affairs deny a large part of society the chance to participate on equal terms. “The rules of the game are unfair. This is not only morally unacceptable; it stunts economic development and can readily undermine stability and security. The outcomes of governance – that is, the cumulative effect of policies and institutions on peoples’ lives – will only change if the processes of governance are fundamentally changed.”
Additionally, the Commission believes that poverty is man made by action and inaction, and a failure of public policies and of markets. It points out that in rich countries people are more likely to enjoy access to justice and other rights – as workers, business people and owners and owners of property. The recent and vast wealth creation rests upon various legal protections, norms and instruments governing such things as business organizations, corporations, tradable assets, labor contracts, workers associations, venture capital, insurance and intellectual property. While the same instruments and protections exist in many developing countries, the overwhelming majority has no way to access them. Notwithstanding this reality, the legal underpinnings of entrepreneurship, employment and market interaction are often taken for granted by traditional approaches to development and standard economic theory. Contracts and property rights are assumed to be in place, and what transpires in the informal economy is scarcely taken into account. In fact, most development initiatives tend to focus on the official economy, the formal legal system and institutions at the national rather than the local level.
However, most poor people do not live under the shelter of the law, but far from the law’s protection and the opportunities it affords. Informal local government norms and institutions govern their lives and livelihoods, and where they are often oppressed by it. Because the poor lack recognized rights, they are vulnerable to abuse by authorities that discriminate, seek bribes, or take the side of powerful interests who may wish to prevent the poor from competing economically or seek to evict them from their land. Such discrimination has massive consequences. The Commission finds that at least four billion people are excluded from the rule of law. “It’s the minority of the world’s people who can take advantage of legal norms and regulations and regulations. The majority of humanity is on the outside looking in, unable to count on the law’s protection and unable to enter national, let alone global markets.”
When the law works for everyone, it defines and enforces the rights and obligations of all. This allows people to interact with one another in an atmosphere that is certain and predictable. “Thus, the rule of law is not a mere adornment to development; it is a vital source of progress. It creates an environment in which the full spectrum of human creativity can flourish and prosperity can be built.” The Commission understands legal empowerment to be a process of systematic change through which the poor and excluded become able to use the law, the legal system, and legal services to protect and advance their rights and interests as citizens and economic actors.
The law is the platform on which rest the vital institutions of society. No modern market economy can function without law, and to be legitimate, power itself must submit to the law. A thriving and inclusive market can provide the fiscal space that allows national governments to better fulfill their own responsibilities. The relationship between society, the state and the market is symbiotic. For example, the market not only reflects basic freedoms such as association and movement, but also generates resources to provide, uphold, and enforce the full array of human rights. It is processes such as these, in which the poor realize their rights and reap the benefits of new opportunities, which enable the fruition of citizenship – in short, legal empowerment.
If law is a barrier to the poor who wish to better their condition, if it is seen as an obstacle to dignity and security, then the idea of law as a legitimate institution will soon be renounced. If the law is accepted and understood as offering protection and equality of opportunity, and ensuring access to fair and neutral process, then the law will be revered as a foundation of justice.
The Commission believes that there are no technical fixes for development. “For States to guarantee their citizens’ right to protection, systems can, and have to be changed, and changed systematically.” Legal empowerment is a central force in such a reform process. It involves States delivering on their duty to respect, protect, and fulfill human rights, and the poor realizing more and more of their rights, and reaping the opportunities that flow from them, through their own efforts as well as through those of their supporters. The elements of legal empowerment are grounded in the spirit and letter of international human rights law, and particularly in Article 1 of the Universal Declaration of Human Rights, which declares “All human beings are born free and equal in dignity and rights.”
The Declaration’s fine words, which were written 60 years ago, according to the Commission, are universally accepted but rarely fulfilled. “If the poor are to be legally empowered, they must have effective, legally protected rights. These include the right to vote, the right to free expression, and the right to due process. It is a central purpose of democratic societies to provide these rights, and an ongoing challenge to consistently do so consequently and equitably. International organizations, both regional and global, can help support the construction of democratic institution through a variety of means.”
Some have cautioned against democratization while the rule of law remains imperfect. The Commission disagrees. Democracy and legal empowerment are kindred spirits, and are better synchronized than sequenced. In the absence of empowerment, societies lose the benefits that come from the free flow of information, open debate and new ideas. The core principle underlying democracy in all its forms, is that legitimate power is derived from the freely expressed will of the people. Strengthening democracy is essential to legal empowerment.
The Commission on Legal Empowerment of the Poor is comprised of 21 Commissioners, including former heads of State and government, cabinet ministers, jurists, economic researchers and other senior policy makers from the North, South, East and West. They hold diverse views regarding the pluses and minuses of globalization but agree on the imperative of finding better ways to fight poverty and exclusion. During the past three years, they have conducted 22 national consultation processes with representatives from local governments, academia, civil society and grassroots movements. The Commission has launched five technical working groups, which submitted specialized reports. The Commissioners draw on their own experience, reviewed relevant literature, talked to people from all walks of life, and debated with national and international policy makers and amongst themselves. They have heard and seen success stories, and they believe there is compelling evidence that when poor people are accorded the protections of the rule of law they can prosper.
Allison S. Ali
Copyright © 2010 • UNPost • All Rights Reserved