Sunday morning 3:30 a.m. and my head finally hits a cushion. I have just done an Amsterdam – Istanbul – Sana’a in 11 hours. By Tuesday evening I have been totally submerged in Yemen, even though I do not speak Arabic. To compensate, I have become very sensitive to all other forms of communication: the voice of my interpreting colleague, the pronunciation of the few that speak English, and the sounds and body movements of those I communicate to.
The Minister of Justice, traditionally dressed, welcoming me in the name of Allah the Merciful, together with his ministry colleague, the President of the High Judicial Council. There are plans afoot to separate the two; judges must be independent, also at the highest level, says the international community. The ministry must be reformed, so it can make and direct strategy.
The High Judicial Academy whose dean was chief public prosecutor but was asked to step down by then president Saleh after he had said that those in the security forces who had ordered the shooting of protesters in 2010 should be prosecuted. This is where the professional foundations for the judges of a peaceful and prosperous Yemen are to be laid.
The National Election Commission that needs to register 10 million voters, set up a reliable electronic voting system, organize a referendum on the new constitution that is now being cobbled together, organize parliamentary elections and, if the new constitution so provides, do the election of a president. And all that in about a year, in a country where many power struggles are still dealt with the Kalashnikov way.
The Police Academy, closed off because of a strike: young police cadets ‘democratically’ demand the resignation of its dean because a cohort of new comers – admitted corruptly – failed the exams. This is where the trusted policemen of the future must come from.
Fascinating conversations. There is too much ad hoc. No coordination. I am a young judge, never listened to. Informal justice and politics so often intervenes. Laws and judgement are not enforced properly. We have no management information. And the classic: we need more resources. Voices of people who have often been disappointed, bringing a degree of cautiousness with it.
Where do you start when you want to build a justice system in a place like Yemen? In the villages? With better laws? Elections? Training judges? Top down? Bottom-up? And when is the job done? What can outsiders usefully do? Where do you begin if you want the justice institutions and cultures to change into Danish ones?
My own anecdotal evidence has taught me that a lot of law is culture, changing culture hurts, outsiders are generally not very useful, nothing is linear, all is needed at once, and grand designs don’t work. I do a thought experiment in the plane back home. I am quietly living in my country, Holland, with all its good things – safety and a fair degree of prosperity – and bad things – lots of bureaucracy, permits and rules for almost everything, and authorities everywhere. I have learned to give that all a place and to navigate it to organise my life. Then, one day, in comes the international community. It tells me this is no good and must change: the Dutch system must be ‘informalised’. Prosperity and human dignity can only come to with a lot less rules and a lot more reliance on ‘wisdom’ and ‘common sense’. Research supports this, they say, and they also have an international convention on informalisation to back it up. A massive effort is launched. There is a donor coordination conference. A Big Plan. Experts from other countries fly in. Some of my countrymen see great opportunities and become ‘change agents’. They rise. Others fall. There is much confusion as ‘the way things were’ is demolished without anything clear replacing it except a new law and a new institution here and there. Very few of the experts that are supposed to coach us speak Dutch. We laugh about how little these informationlisation experts know about our informal rules. And they mostly focus on courts.
I need not take this further, except fast forward eight years and 50 billion euros; the Dutch Donor Conference of 2021: “Those damn Dutch keep sticking to their rules; they like ‘em so much. Can’t they see what’s good for them? Most courts have formalized the informal rules we made and the ministries of finance and social affairs are obstructing everything. It’s a bit disappointing what our money has brought. We should pull out. If they don’t want prosperity, that’s their problem!”
Matt Andrews (Harvard’s Kennedy School of Government) just wrote a very good book that sets out how difficult institutional change in development is. He backs up my anecdotes and childish thought experiments with more solid evidence. Some of his main conclusions: there is little value in grand designs, we must work more iteratively, learning as you go, connect to concrete problems and users, involve many people, and there is only so much outsiders can do. The good news: he also shows that when you do these things, deep change can happen. Much of what Andrews concludes about institutional change is confirmed in what almost 100 justice innovators and many rule of law leaders told us over the past years, as we were working to understand innovating justice (distilled, also, in a book). We must change the way we work on change. This is true for both Yemen and The Netherlands. Effective change capacity is needed to avoid that justice systems become stuck because they can’t cope with demands.