THE SUSTAINABLE DEVELOPMENT GOALS, THE RULE OF LAW…

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THE SUSTAINABLE DEVELOPMENT GOALS, THE RULE OF LAW AND ACCESS TO JUSTICE: THE IMPERATIVE FOR LAWYERS

Introduction

In September 2015, the world met and agreed on a set of goals that world leaders considered the pillars of development. These goals, dubbed the sustainable Development Goals (SDGs), are a set of goals, which achievement is globally agreed, will result in development, measured broadly by social progress, economic growth and environmental protection.[1] The goals were adopted by the United Nations in September 2015 and are targeted to be achieved by 2030.[2] Modelled after the Millennium Development Goals (MDGs), the SDGs are a reworking of some of the MDGs[3] with fresh targets and the addition of fresh goals. The SDGs in summary are : ending poverty, achieving food security, ensuring health, quality education and gender equality, water availability, clean energy, economic growth, good jobs, industrialisation, innovation and infrastructure, inequality reduction, sustainable habitats, responsible consumption, combating climate change, protecting ecosystems and biodiversity, peaceful and inclusive societies, access to justice, accountable institutions and sustainability through partnership.[4]Expanding on the 2000 MDGs,  the SDGs are a broader, more inclusive agenda for social, economic and environmental development.

SDG 16 and Its Implications

The United Nations Sustainable Development Goal 16 on peace, access to justice and strong institutions reads, ‘Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’[5]. Its inclusion, couching and the targets recognised under are acknowledgments by the highest policy makers at the international level that ‘without justice, there can be no peace’[6]and there can be no development where either of them is absent, that peace and justice are mutually enforcing in a virtuous circle, and violence and injustice mutually dependent and enforcing in a vicious circle.

The SDG Goal 16 targets of inclusiveness, access to justice and accountability, administrative transparency strong national and international institutions are tacit acknowledgement of the fact that development is not possible, much less sustainable, in the absence of them. This is a lesson learned from the less than optimal performance of nations and other stakeholders in the attempts at reaching the MDGs partly, and in a large part, because justice was not recognised as an important component of societal development; it was not accorded  ’goal’ status to be actively pursued, like say education, or poverty eradication. Not that all these were less important, but there is now an increasing awareness at the international scene that access to justice and any of the other goals are mutually enforcing vehicles for the delivery of sustainable development. The Rule of law was the missing item in MDGs and perhaps, a significant reason why its achievement was below average in the places where adherence to the rule of law is low[7]

Goal 16 has the following targets among others:

  • Promotion of the rule of law at the national and international levels and equal access to justice for all;
  • significant reduction of illicit financial and arms flows, strengthening the recovery and return of stolen assets and combating all forms of organized crime;
  • Substantial reduction of corruption and bribery in all their forms;
  • Development of effective, accountable and transparent institutions at all levels;
  • responsive, inclusive, participatory and representative decision-making at all levels;
  • Broadening and strengthening the participation of developing countries in the institutions of global governance;
  • Ensuring public access to information and protection fundamental freedoms, in accordance with national legislation and international agreements;
  • Strengthening relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime; and
  • making and enforcing non-discriminatory laws and policies for sustainable development.[8]

 

The Justice Sector as a Crucial Component of Achieving the Sustainable Development Goals

The targets for Goal 16 so cut across all other goals that it was difficult placing them. Delegates at the Open Working Group for the SDGs were often divided as to where to include the Goal’s targets.[9]

The indispensability of justice to peace and development is very aptly captured by the report of the UN Commission on Legal Empowerment for the poor[10] where it states that ‘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’.[11]

 

Two of the items on the facts and figures list for SDG 16 derive particular relevance from the justice sector.

Facts and figures for Goal 16 indicate that ‘[a]mong the institutions most affected by corruption are the judiciary and police’[12]

The general temptation is to deny this allegation and assert that we are not corrupt. However, the way we feel is not evidence enough to dispel a presumption raised in favour of research results from a body like the United Nations, and so we will accept this to be true and work with it. This is particularly sad because these are the very main organs of the justice system. The police aspect of this figure although important, is outside the scope of this work, so we will just recommend that in our dealings with comrade soldiers in the war against injustice, we should make them aware of and  awake to their duty in that regard. A corrupt judiciary will just not do. The last hope of any man at all corrupt is the embodiment of hopelessness; so as we strive for development, let us remember and remind that our duty transcends fine worded arguments, goes beyond getting judgment or whatever legal advantage we can wrest for our client; our duty reaches to the enthronement of that ideal called justice, that fulcrum upon which society rests, that guarantee of peace, that precursor and sustainer of development

Goal 16 facts and figures also conclude that ‘[t]he rule of law and development have a significant interrelation and are mutually reinforcing, making it [the rule of law]  essential for sustainable development at the national and international level’.[13]

The Lawyer, the Rule of Law and Goal 16

Rule of law, according to the oft quoted Dicey, can mean:

  • that the coercive power of the state is not used arbitrarily
  • equality before the law in the sense of everyone being subject to the ordinary law of the realm as determined by the ordinary courts; and/or
  • that rights are not the consequences of constitutional statements but of judicial determination by the ordinary courts[14]

The rule of law is the function of a transparent legal system, comprised essentially of:

  • a clear set of laws freely and easily accessible to all;
  • strong enforcement structures; and
  • an independent judiciary and legal profession to protect citizens against arbitrary use of power by the state and other institutions[15]

This research will devote some attention to the rule of law, for no lawyer ever graduated from the law school that did not understand his role in promoting the rule of law and access to justice.[16]

The rule of law in the context of supremacy of the laws and the equality of their applications to all is something we all understand, albeit sometime more in theory than in practice. The rule of law presupposes the existence of laws, their firmness, justness and certainty. The social contract to which we have entered provides that we surrender some of our liberties to a ‘government’ which will in turn be governed by our dictates. The lawyer’s role then as a contract interpretation specialist, is to explain the clauses of this contract to the parties thereof. The citizens and the government must each understand that their activities in relation to each other and to the system that supports them are the subject of a contract, the terms of which must be adhered to. In his dealings, he must seek to uphold the law even when it seems as though lawlessness is the new law.

 

The targets of Goal 16 and the targets of other goals reveal that the lawyer has an unspeakably significant role to play in this new agenda. The goals and targets are ambitious but they reveal the work that must be done if any progress is to be made and more than ever, we see how dependent on each other we are and just how dependent on the law and its institutions the society is. In the words of the prosecutor at the Nuremberg trial, the lawyer, ‘more than any other person knows just how much more than a courtroom a courtroom is. It is a process, a spirit’.[17]

The whole machinery of society is run and operated by laws; today’s world reveals the truth of Roscoe Pound and the sociologist school of thought more profoundly. The lawyer is a social engineer and the law is a tool for social construction.[18] Every now and again, we see how the disintegration of a society is made possible or that much easier only after there has been a disintegration of the law and justice mechanisms. At the Nuremberg trials, the prosecutor found the lawyers who had either acquiesced or aided in the subversion of justice even more guilty than the men who ran the concentration camps, for, according to him, they ought to have known better. From time, society has always held the lawyer to a higher code than his fellows. This is largely because  a higher responsibility rests on us and when all else fails, if the justice machinery can be kept running, then the society no matter by how much it has gone off course, can find  a way back, with the whole justice system as a compass.[19] On the contrary,  no matter what else seems to be working in a society, if the legal and judicial foundations are shaky, if the law fails, then it is only a matter of time. The house of cards will come crumbling, for any society any system established on less sure foundations than a functional legal system is like a house built upon the sand. At the first onslaught of the elements, no matter how beautiful, it comes crashing.

Now more than ever, it behoves on the lawyer to ensure that the justice machinery works, because history will judge him more harshly than the doctor, or engineer, of his age.

If the lawyer fails, then the impunity which his failure engenders might as well be the precursor for a Hitler who says ‘who, after all speaks today of the annihilation of the Armenians?’[20] in response to fears raised by his lieutenants that the dastardly acts he was proposing would attract widespread condemnation. Such is the power of the lawyer’s complicity or passivity.

On the promotion of  the Rule of Law at the national and international levels and equal access to justice for all, the lawyer already knows intrinsically that he has a duty to promote rule of law in whatever spheres he finds himself. The SDG 16 reveals perhaps more imperative to that rule. The lawyer promotes the rule of law by seeking the triumph of the law, even over his clients and his matters. Let justice be done, for there is nothing more the guarantee that the heavens will not fall than that justice is done.

Faced with looming global recession, increasing tendency to arbitrariness by even democratic institutions, fiscal constraints that threaten to overshadow the concerted efforts to secure justice and fair trials and the triumph of justice, lawyers must nevertheless remain committed to the task and maintain high standards in the discharge of their duties.[21]

 

SDG 16 and Other Goals

Most indicators for the SDGs are complementary and must be paired with other outcomes, and a significant number of those outcomes can only be realised when goal 16 is met.[22] Strong institutions for delivering social and economic services, peace security and safety, citizen voice and democratic governance, accountability, education, poverty reduction, women inclusion, environmental action, are only possible within a healthy and thriving legal environment.

‘The rule of law[ is ]an integral part of sustainable development underpinning social and economic progress and environmental protection with strong institutions and good governance, form legal frameworks and empowerment of the people, equal opportunity and equitable access to basic services, due process, and fair outcomes for all’.[23]

The relationship of the rule of law to the economy, social life and democratic government is captured succinctly by Gordon when he says that ‘broader notions of the rule of law [contemplate] an extensive array of state functions to supply goods, such as healthcare and education, to constitute the conditions facilitating commerce…’[24]; and by Marcelo Bombau, the Chair of the section of International Law of the American Bar association when he says that ‘without the correct implementation of the SDGs through the Rule of Law, there is little hope that these goals can be achieved’.[25]

For the economic agenda, strong legal frameworks ‘provide clarity predictability and certainty in commercial transactions and discourage predatory and corrupt behaviours’.[26] Strong institutions addressing commercial and other disputes provide for increased investor confidence and wider social cohesion; legal empowerment efforts such as access to markets and financial resources help ensure broader participation and give the poor a chance at the economic activities. All of these, coupled with secure property rights, access to information, and transparency, will promote a broader and more sustainable economic development. Laws also regulate the space within which economic actors operate and prescribe basic minimums whether it be for indigenous participation in the economic process[27] or for the reward structure for services offered[28]

For the social agenda, strong legal frameworks promote social progress and cohesion. Transparent and participatory dispute resolution mechanisms facilitated by the rule of law, enable individuals and groups to claim their rights and equal opportunity to education, healthcare[29]. Giving things like education, healthcare, basic amenities and other social goods and services priority in law and policy bring the goals that much closer to realisation[30]

Strong laws and strong institutions to enforce them give the citizen not only deterrent from aberrant, violent behaviour, they also provide means to address issues that would lead to conflict and prevent their rising. Moreover, they provide an avenue for citizens’ concerns to be addressed and grievances to be redressed before they escalate into violence.[31]Citizens have a way of venting frustrations, which if suppressed, causes the society to implode. A world Bank report cites corruption, injustice and inequality as the leading drivers of violent conflict and crime and violence were consistently cited as the main hindrance to productivity and growth.[32]

For the environment, the rule of law will enhance efforts aligned with international best practices to tackle problems like climate change, carbon issues and biodiversity depletion.[33] The rule of law also provides a voice for the poor, marginalised and vulnerable communities to speak up and demand redress when the environment around them is being degraded.[34]

Strong legal frameworks safeguard the environment, ensure access to information and participation  in policy and decision making by those directly affected and enhances capacity of institutions to fairly adjudicate environmental matters[35]

Nigeria and the SDGs

Within the Nigerian constitutional structure, we can approach development and its components as a definitive fundamental right[36], justiciable under Article 22 of the African Charter.[37]

Realising food security with a shifting focus from protection (helping vulnerable communities in crises)to production (building resilience) is a function of not just the need for development but a right to development.[38] And beyond domestication, specific actions should be encouraged and supported on the various international instruments to which we are party on the various aspects of development.[39]

The work to be done in Nigeria is peculiar because statistics show that Nigeria ranks 136 out of 176 countries with a 26% score on the 2015 corruption index;[40] and ranks 96 with a 0.41 score on the rule of law index.[41]The administration of criminal justice act was enacted in 2016. Its litmus test is its ability to help in achieving SDG 16[42]

Beyond this, SDG 16 offers opportunity to government to advance support for civil and criminal legal aid, deepen and broaden research on access to justice and support and expand legislation that increase access to justice-[43] a general reform to the justice architecture.

On equal access to justice, beyond advocating a lowering of court charges, access, for a citizen, includes awareness by him that there are laws and institutions to which he may apply for redress; the workings of the machinery such that they are not too difficult for him to operate in the matters where he can work the legal machinery for himself. In this context, the recent reforms to the Corporate Affairs Commission filings and processes appear to be more obstructive than helpful to the economic development goals. Same applies to the court processes.[44]

The Lawyer’s Obligation

It is universally recognised that the rule of law, of which independent judiciary and legal profession are part is essential for engendering and sustaining development especially in the context of the specified SDGs. Lawyers test and challenge positions and in so doing engender development of the law and give jurisprudential directions to institutions and governments.

Beyond representation of clients at court, there are many ways that lawyers can and should engage existing institutions:

He must seek ways to deploy his skills and expertise to advocate for the rule of law, and development; the NBA and other representative associations of lawyers should seek ways to be better coordinated to give stronger, louder voice to lawyers; lawyers can and must counteract negative impressions held by non-lawyers of the law, the judicial process and the whole justice mechanism

Generally, strong laws and strong legal institutions guarantee access to all of the goods and services that are represented by the goals. And in the absence of a strong legal system, all of the policy statements and well intentioned actions by stakeholders may not amount to much, and by 2030, we just may have a new set of goals to aspire to while admitting that the SDGs were largely unmet.

So as lawyers, we must find ways to translate social capital to legal capital by leveraging on our opportunities to make, espouse and influence laws and support institutions dedicated to the rule of law and equal and equitable access, not only to justice but also to other services and goods that are the hallmarks of the SDGs.

The lawyer must actively seek dialogue with government and relevant stakeholders on the need to take developmental issues seriously and tailor policies and strategies for development along the lines drawn by the SDGs. The lawyers are in a better position, both as key players and as a body to encourage government to do this; efforts must be intensified at disseminating information countering negative perceptions and encouraging work in this regard, and the lawyers must forge new consensus on how to advance the SDGs for ‘a profession is more than a group of lawyers acting properly in accordance with high standards. It is a collective effort, properly harnessed to serve a greater purpose.’[45]

We must use the legal profession as a leading edge of political reform, and seek through the powers that we have, collectively and individually, to achieve the goal 16, its targets and through them, the other SDGs

Lawyers must build advocacy networks to champion the values and policies that will support the rule of law, especially in the context of achieving the SDGs. Our work can help accelerate progress by breaking down barriers and working across sectors and regions and tribes

We must track progress and make institutions and governments accountable for actions taken in this regard, encourage and support programs that help achieve the goals. Action on achieving independent, fair and efficient justice systems must be tracked and institutions and governments made accountable in this regard.[46]

The lawyer must create awareness on the international documents to which we are committed as a nation.[47]We must actualise the provisions of UN Convention Against Corruption, Conventions Against Organised Crimes and Terrorism.

Concluding Thoughts

Measurable indicators for the SDG 16 will include Contract rights and enforcement, judicial independence, individual and civil liberties, conformity with international norms, benchmarks and best practices, user experience and citizen perception.[48]These call for cross-sectorial, international and intra-national cooperation.

The law and development are inextricably linked, particularly around the economy, health, political and social life, the environment and peace processes. We must speak up and demand accountability, take advantage of the rights that the laws and legal institutions offer.

[1]www.undp.org/content/undp/en/home/sdgoverview/post-2015-development-agenda. Accessed  April 26, 2016. In this work, except otherwise indicated, all websites were last accessed on April 26, 2016.

 

[2]Transforming our World: The 2030 Agenda for  Sustainable Development,  Resolution A/Res/70/1. Resolution adopted by the general Assembly on 25 September, 2015 available at .

[3] The MDGs were adopted in 2000 and consisted of 8 goals which were then thought to be the fulcrum around which development would revolve.

[4] www.un.org/sutainabledevelopment.

[5]Sustainable Development Goals: 17 Goals to Transform Our World available at un.org

[6] Martin Luther King, Jr.

[7] UNDP Issue Brief- Rule of Law and the post-2015 development Agenda,  available at worldwewant2030.org

[8] Supra, note 4

[9]Summary of the Thirteenth Session of the UN General Assembly Open Working Group on Sustainable Development Goals,  14-19 July 2014.

[10] .

[11]Legal Empowerment for the Poor and Eradication of Poverty,  Report of Secretary General to the United Nations, July 2009, 2008. Available at www.un.org/esa/socdev/documents/reports/Legal%20empowerment%20of%20the%20poor.pdf.

 

[12] www.un.org/sutainabledevelopment./peace-justice

[13] Ibid

[14] A.V, Dicey,  Introduction to the Study of the Law of the Constitution10th ed. 1959, pp 188-196

[15] Monageng, Sanji. Lawyers: Guardians of the Rule of Law, speech by First Vice President of the International Criminal Court at the International Bar Association, International criminal Court Programme held at the World Forum Centre, The Hague, Netherlands on 20th November, 2012.

[16] International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors, Practitioners Guide No. 1, International Commission of Jurists, Geneva, Switzerland, 2007.

[17]Richard Widmark as colonel Tad Lawson in the award winning movie, Judgment at Nuremberg.

[18] Mcmanaman, Linus J. Social Engineering: the Legal Philosophy of Roscoe Pound in St Johns Law Review, Vol 33, issue 1, 1958

[19] The United Nations Basic Principles on the Role of Lawyers

[20]Statements on Record Relating to the Armenian Genocide. Available at Armenian-genocide.org.

[21]Lawyers: Guardians of the Rule of Law, speech by Jusice Sanji Monageng, First Vice President of the International Criminal Court at the International Bar Association, International Criminal Court Programme held at the World Forum Centre, The Hague, Netherlands on 20th November, 2012.

 

[22]Schumann, Jana Expert Meeting on Measuring Goal 16 Targets on Peace, Inclusion and Freedoms UNDP, 28-29 January, 2016, Oslo, Norway

[23]Khan, Irene and Arenas, Judit Embeding the Rule of Law in the Post-2015 Development Agenda: The Only Way to Ensure Lasting Progress in International Law News, Winter 2015, Vol. 44, no. 1, a Publication of the Section of International Law of the American Bar Association.

[24]Gordon, Robert , The Role of Lawyers in Producing the Rule of Law: Some Critical Reflections2nd annual Cegla Lecture on Legal Theory Delivered at the Tel Aviv University Faculty of Law on April 23, 2009.

[25]The Global Imperative: A Global Mindset, Chairs Column in International Law News, Winter 2015, Vol. 44, no. 1, a Publication of the Section of International Law of the American Bar association.

[26]Supra, note 23.

[27]For instance,  in the Local Content Act

[28]For Instance,  the Minimum Wage Act, and the various consolidated salary structures for different categories of public sector employees

[29] Only consider how lawyers are helping advocate for such rights as the right of education, healthy environment etc which has perhaps provided impetus for more concerted government and institutional action in this regards. Examples such as The Child Rights Act and corresponding laws in the states; the Universal Basic Education (UBE) Act; The Gender Equality Bill (albeit unsuccessful, this raises awareness and increases consciousness); Schemes like the National health Insurance Scheme (NHIS) and its empowering Act are all ways that the law and legal mechanisms address the issues of development and sustainability.

[30]UBE Act, NHIS Act,

[31]The  Constitutional Right to Fair Hearing as guaranteed under Section 36 of the Constitution, High Court Laws, Laws Establishing Various Specialised Courts, Arbitration Act and other legislation regulating various aspects of dispute resolution all combine to make this possible.

[32]The World Bank Annual report, 2011 available at

[33]NESREA Act, other legislation on environment, and the domestication of various international conventions on the environment are testaments to the law’s significance in this regard.

[34]The NDDC Act; Gbemre V Shell(2005) AHRLR 151.Ebeku, Kaniye. Constitutional Right to a Healthy Environment and Human Rights Approaches to Environmental Protection in Nigeria: Gbemre v Shell Revisited. Review of European Community And International Environmental Law, Vol. 16, No. 3, Pp. 312-320

[35] Rule of Law and Development: Integrating the Rule of Law in the Post-2015 Development Framework, UNDP Issue Brief of January, 2013 available at www.undp.org.

[36] United Nations Declaration on the Right to Development UNGA Res 41/128.

[37]The African Charter on Human and People’s Right, 1981

[38]Achieving a Transformative Post 2015 Development Agenda: the Contribution of the Rule of Law to Equity and Sustainability, Conference Report  of a Conference Organised by the Italian Ministry of Foreign Affairs, in the context of Italy’s Presidency of the Council of the European Union, in Collaboration with the International Development Law Organisation, July 21, 2014, Rome, Italy. Available at www.idlo.int

[39] These would include Convention on Biological Diversity, Convention on the Rights of the Child, International Covenant on Civil and Political Rights and other political and economic conventions, United Nations Convention against Corruption, International Covenant on Economic, Social and Cultural Rights, The Rio and Stockholm Declarations, The Geneva conventions, The African charters, Kyoto Protocol and  Montreal Convention

[40]Corruption Perceptions Index 2015. Transparency International. Available at www.transparency.org/cpi2015.

[41]Rule of Law Index 2015 by World Justice Project available at http://worldjusticeproject.org/sites/default/files/roli_2015_0.pdf

[42] Shittu, Jubril. Towards Achieving Sustainable Development for All: Prioritising Targets for Implementation: Which Way Forward for Nigeria?, Centre for Public Policy Alternatives.

[43]Kaufman, Rauf.  Implication of the Post-2015 Sustainable Development Goals for Access to Justice in the United States, Fact Sheet Produced on July 28, 2015 for the National Centre for Access to Justice, Colombia Law School.

[44]To bring a process to court, have it accessed, take it back to the bank for payment, then bring it back for filing  The least that policy makers can do here is establish banking points at the establishments where clients can make payments if they lack faith in their agents to properly account for all monies received.

[45]Heinrich, Ron. The Least Dangerous Profession? Lawyers and the Rule of Law in the Commonwealth Today being text of speech at the Thirteenth Commonwealth Law Conference, held at Melbourne, Australia, April 17, 2003available at lawcouncil.acn.au.

[46] In this regard, the Extractive Industries Transparency Initiative  and the Nigeria Extractive Industries Transparency Initiative’s Programs and actions must be lauded.

[47] Universal Declaration of Human Rights, 1948; International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights 1966;  the Conventions on Elimination of Discrimination, Convention on the Rights of the Child and others.

[48]Berg, Louis-Alexandre and Desai, Deval. Background Paper: Overview of the Rule of Law and Sustainable Development for the Global Dialogue on Rule of Law and the post-2015 Development Agenda. Available at

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