Four weeks ago I was in Abu Dhabi, at the annual meeting of the Global Agenda Councils of the World Economic Forum. The Council on Rule of Law, which I chair, issued a report on the fast increase of governance outside purely state structures that is aimed at dealing with complex transnational issues such as human rights, labour standards, the environment, cybercrime, health, and corruption. Situations where the state is not enough. There’s a lot of that kind of governance around when you start looking for it and it will increase. Many examples of transnational, multi-stakeholder governance flounder. Why? At the most basic level: because they are not seen as ‘governance’, but as simply problem solving. Getting it done. However, that’s often not enough because it rarely is one thing that must be done. Take the garment industry, which after a few disasters in Bangladesh clearly needs fixing. That fixing is needed at many levels: producers, consumer, retailers, fashion houses, states, international organisations, and civil society organisations. Many small things that will together result in a garment industry that gives Bangladeshi women safe working places and a reasonable income and that provides our daughters with great clothes. It requires governance. Somehow. Effective governance that leads to more sustainable results has clear rules on transparency, participation and decision-making, and agreement about a way to solve conflicts that can arise. Calling this a form of governance and inserting as much ‘rule of law-ness’ in it is not only good, but also creates more effectiveness and sustainability in respect of the problem you are trying to solve.
I am now in Mali. Internet is sparse and slow. I have not used my smart phone for a week and communicate with a local SIM card I bought in a tiny sidewalk shop the size of a box and shoved into my old Nokia. I ride around in taxis with holes in them that spit out blue smoke. It hurts the eyes to drive around. The sidewalks are packed with busy people selling incredibly ‘small’ stuff like plastic bags with water, a banana, and three cigarettes. This place screams out for governance. The sidewalk people will all be sick later because of what they breathe in. There are many children, clearly not at school. Every now and then you see horribly malformed faces and bodies, just sitting there, hoping for pity. None of the thousands of motorbike riders wears a helmet. I could go on. Mali recently fell apart and a UN peacebuilding mission is being rolled out to glue it back together with a recently elected government. Leaving regional issues aside, most would argue that Mali fell apart because government did not govern – it was too busy being compartmentalized and corrupt. The North was not part of the deal, so it started taking care of itself. There were no rules of the game. Impunity ruled. Rules were not rules. I met with civil society leaders, impressive people concerned about citizens, governing where they can with funding from the international community. Here too, it seems unthinkable that the state will do it all. Mali, it seems, is also a place where governance must develop into a somehow coordinated, multi-stakeholder affair. Governance founded on a few basic rules about transparency, participation, and what to do if conflicts arise. And: rules that are rules.
In my battered and bellowing taxi, on the way back to my hotel after a day with two civil society organisations it dawned on me how much the situation in Mali resembled the complexities of the transnational, multi-stakeholder governance discussed in Abu Dhabi.
“The best place for polycentric conversations”, is how Joel Ngugi, the director the Judicial Training Institute and head of the Judicial Transformation Programme of Kenya summarized what good courts were all about when he spoke at the 6th Innovating Justice Forum, held in The Hague on 10 and 11 December. Courts talk with many at the same time. If they perform well, they manage these conversations fruitfully and organise justice. Courts alone do not bring about peaceful neighbourhoods in a peaceful city, in a peaceful country, where most people have opportunities and can shape the lives they want. It requires a mix of top down directives, and bottom-up self-help, at different levels. I very much like the idea of these conversations. It works as a way to see governance: conversations to reach understandings that solve problems of citizens and their organisations. Conversations must involve all concerned. Conversations do not have to be nice; some things must be said. Conversations must go on. Conversations must remain conversations and not turn into gunfights.
In other words: clear rules on transparency, participation and decision-making, and agreement about a way to solve conflicts that can arise. Whether it is transnational governance, a country like Mali, or a crime-ridden neighbourhood: things break down when conversations break down. Rule of law is one of the best-proven frameworks within which to organize these conversations. As the hotel navette weaves its way through the dark night of Bamako on its way to the airport and as we enter the New Year, I renew my commitment to strengthen this framework. Practically bringing rule-of-law-ness into our whatever we contribute to governance.