more invested in new laws.
Establish a coordinating body: A coordinating body, such as a legal reform working group, a division of a line ministry (e.g., a Ministry of Justice drafting division), or a law reform commission, should be established to:
a. lead the implementation of the strategy;
b. work with stakeholders within and outside the justice system;
c. lead public education and consultations; and d. prepare a draft of the law.
Political parties and civil society organizations can play an important role in disseminating information about the role of the coordinating body, providing education about the consultation process and issues, aggregating opinion, and articulating views and recommendations.
A secretariat is vital for the smooth functioning of the coordinating body. The secretariat should provide administrative and logistical support.
The working group model has been used successfully in Haiti. In the early 2000s, the president appointed a special advisor on law reform, who selected a group of lawyers and experts to draft the new laws.
The working group, together with a code reform commission, established by the Ministry of Justice, led much-needed criminal law reform efforts in Haiti.
Source: Hans Joerg Albrecht, Louis Aucoin, and Vivienne O’Connor, “Building the Rule of Law in Haiti:
New Laws for a New Era,” USIP Peace Briefing (USIP, Washington, DC, August 2009).
Haiti
Transparency and participation: A rule of law culture approach requires the building of trust between government officials and institutions and members of society. Trust can be built by ensuring that law reform efforts are carried out in a transparent, clear, and par-ticipatory manner. The public should know who is drafting the laws, what the content of the proposed laws regards, and what formal mechanisms exist for people interested in or affected by a particular law reform proposal to have their opinions heard by the government.
Importantly, government representatives also must respond, and be seen to respond, to the opinions and information they receive, whether they agree with the view or not.
Participation makes the population more invested in new laws, which brings increased acceptability and public legitimacy to those laws.6
Mechanisms for engaging the public could include inviting written submissions via letter or e-mail; holding public consultative meetings; convening national conferences; using local media and social media to raise awareness and invite comments; disseminating public surveys, including an independent analysis of public opinion and recommendations; and involving civil society or other interest groups in the coordinating body itself.
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Drafting: Drafting a new law requires the expertise of legislative drafters (domestic and/
or international) who are familiar with the existing legal framework. Care should be taken to ensure that the law drafted fits the context. Transplanting laws from elsewhere without adapting them to the specific context can result in legislation that is not understood, not supported by government officials or the public, and not responsive to the needs of the society.
International experts can bring a wealth of experience and expertise. It is important to establish a partnership where this expertise is used to support locally led reform efforts, not eclipse them.
In 2009 in Kenya, a committee of experts was appointed to draft a new constitution for the country that would be acceptable to the members of Kenyan society. The committee conducted hearings and public consultations throughout the country. Hearings and meetings were publicized in advance through print, electronic, and community media.
The committee also gathered and compiled public submissions regarding the content of the draft constitution.
Source: Committee of Experts on Constitutional Review, “Final Report of the Committee of Experts on Constitutional Review” (Committee of Experts on Constitutional Review, Nairobi, October 1, 2010), http://mlgi.org.za/resources/local-government-database/by-country/kenya/commission-reports/CoE_final_
report.pdf.
Kenya’s Constitution
In 2001, the Vietnamese government undertook significant commercial law reform that involved the major revision or drafting of over 150 laws. The parliament passed a law specifying the various laws that required public notice and comment on proposed reforms. Technical assistance was provided by an international donor to both the public and the private sector to establish the capacity to engage one another productively on matters of law reform.
Source: DAI, “USAID STAR Project Helped Propel Vietnam into the Global Economy,” Developments Online Newsletter, Summer 2012, http://dai-global-developments.com/articles/usaid-star-project-helped-propel-vietnam-into-the-global-economy/.
Vietnam and Economic Law Reform
During the mid-1990s, the entire Albanian criminal legal code was redrafted by a small number of Albanian lawyers alongside foreigners from Europe and America. The laws, passed in 1995, were heavily based on the Western European model. However, these laws were not applied. Lawyers and judges did not know the new laws, and believed they were European, not Albanian, laws.
Source: Rachel Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform (Washington, DC:
Carnegie Endowment for International Peace, 2012), 84.
Albania
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It may also be necessary and useful to engage a broad range of experts and specialists who may come from other disciplines, such as the social sciences, to contribute to the process of law reform. These experts may provide insight into the possible content of the law and advise on the likely impact of the proposed law.
Guidance can be sought from existing model laws, such as the USIP Model Codes for Post-conflict Criminal Justice (see http://www.usip.org/model-codes-post-conflict-justice-/
publication-the-model-codes/english-version-volume-1); or the UNODC’s model laws and treaties (see http://www.unodc.org/unodc/en/legal-tools/model-treaties-and-laws.html).
Passage into law and implementation: A draft law is submitted to the national legislative body to be passed into law. A draft law that is poorly understood by legislators or does not address issues they feel are of more pressing concern could delay or even block the reform.
It is critical to engage champions of the proposed law within the legislature throughout the drafting process to ensure there are supporters within the legislature to promote the new law.
The new law must be publicized by a competent authority, usually a parliament. The new law must be published and be accessible to the public. It may be necessary to establish a review commission or some other body that is responsible for addressing implementation issues and developing subsidiary policies and legislation in order to fully realize the provisions of the law.
It may be necessary to develop a training or awareness plan for justice actors, such as police, judiciary, or prison officials, on the new law and its impact. The government may engage civil society groups to assist in post-implementation education efforts with communities.
Chapter 4, Part 2, “The Role of the State and Civil Society in Strengthening a Rule of Law Culture”
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