Should the private sector help finance legal empowerment?

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(Vivek Maru) #1

Financing for legal empowerment is a wicked challenge.

In a recent survey of the Global Legal Empowerment Network, over 35% of respondents said they’ll need to make cuts to survive in the coming year. Thirty-two percent said they may not be able to operate at all due to lack of funds.

Our community is campaigning together to increase financing from philanthropy, from development agencies, and from our domestic governments.

What about the private sector? Companies create jobs but they also cause some of the injustice that makes legal empowerment necessary. Some agriculture companies grab land from small farmers. Some mines poison people’s land and water.

Should we ask the private sector to help finance legal empowerment? Could we do so without compromising our independence? We’d like to hear from you.

Fisher people from Kutch, India recently tried to sue the World Bank in U.S. court because a massive coal plant financed by the World Bank caused irreparable harm to the fish they catch and the air they breathe.

The World Bank tried to dismiss the case, claiming "absolute legal immunity." In an essay on the Washington Post website this week, I argue that’s a mistake.

Not only should the World Bank subject itself to the rule of law, it should proactively make its investments more accountable.

One way would to do so is to help pay for independent legal support to the people affected by development.

Sierra Leone has a new land policy that calls for exactly that. It asks all investors to pay into a public fund which would then finance legal empowerment for communities whose land is at stake.

Could that work? Should we try to build public policies and a private sector norm along those lines? What are the risks of doing so? Let’s have a conversation.


(Tobias Eigen) #2

(Peter Eigen) #4

Legal empowerment can overcome power asymmetries. Depending on who is causing the injustice you want to correct you should not take funding from your opponent - who may be the private sector, the public sector or even CSOs. But all three Stakeholder groups may also be the victims of abuse and could become your best allies. Transparency International takes, prudently, funding from all three - making sure that independence is not compromised.

The World Bank’s Global Development Report 2017 addresses this very well in its Main Messages:

Ineffective policies can persist, while potentially effective policies are often not adopted. The World Development Report 2017: Governance and the Law explores why some policies fail to achieve desired outcomes and what makes other policies work. The main messages of the WDR 2017 are:

  • Successful reforms are not just about “best practice.” To be effective, policies must guarantee credible commitment, support coordination, and promote cooperation.
  • Power asymmetries can undermine policy effectiveness. The unequal distribution of power in the policy arena can lead to exclusion, capture, and clientelism .
  • Change is possible . Elites, citizens, and international actors can promote change by shifting incentives , reshaping preferences and beliefs , and enhancing the contestability of the decision making process.
  • Three guiding principles for rethinking governance for development are:
    1. Think not only about the form of institutions, but also about their functions .
    2. Think not only about capacity building , but also about power asymmetries .
    3. Think not only about the rule of law , but also about the role of law .

(Vivek Maru) #5

Thanks so much @peigen for these thoughts. I would love to hear more about how TI protects its independence while accepting funds from all three of those sectors.

The proposal I made does imply taking funding “from your opponent”, though I think it’d only work if the funds were administered by a legitimate public body, like a human rights commission or a legal aid board. It’s a bit like taxing tobacco companies to fund preventive public health measures.

The context is that, not only are legal empowerment efforts under-funded, they’re very dependent on foreign aid and foreign charity. Those sources are crucial, but they each have risks.

Legal empowerment groups need to diversify their revenue to be resilient. Could a tax on industries that cause harm be a way to do so? Or is the potential for conflict of interest fatal?

Look forward to continuing the conversation.

-v


(Danny Manyasi) #6

I guess they should! We were also thinking of standing up against World Bank, which we believe is to be a major player in the Urban Renewal Program, here in Nairobi. Amongst the proposed Development Plan is HOUSING. We fear legal-eviction, with no right to return to the new houses. This might be out-right or through new unaffordable rents. So, in a word, ‘Yes!’ private establishments, and the Bretton Wood institution ought to be equally accountable, for they are more or less responsible of the mess we’re into.


(Kevin Nam) #7

as long as it is on a charity basis. i see no problem because when its revolves around quid pro quo it may prove to be a hard task since the rule of law will be entangled in a bargaining shenanigans at the expense of justice


(Danny Manyasi) #8

Yes indeed Mr. Eigen! the ROLE OF LAW!


(Arthur Wood) #9

Four issues here

1 - We need to create legal hybrids that create collaborative frameworks

a - By company structures - See B Corp Movement b - By Partnership frameworks - See L3C

2 - The granular value identified (and ring fenced by legal structures) need to be integrated by technology using blockchain type framing (DLT - not Blockchain too much BS spoken about it) linked to economic value created by Social Entrepreneur and then paid for it

3 - The community needs talso o be hard wired into this economic realtionship through innovative fiancing

4 - The use of Sovereign immunity when UN (as in Haiti cholera epidemic - where first denied and then covered up) or and the case of the World bank noted here - if true or indeed where Whistle blowers have unearthed Pedophilia and been lynched internally is simply unacceptable in moral terms but also in undermining these organsations own credibility as actors - it goes against all concepts of natural justice - in a world where aid is coming under scrutiny they will shoot themselves in the foot


(Gawaya Tegulle) #10

The Washington Post article on World Bank immunity is really powerful and persuasive; very well written.

I think it carries arguments that can be used in many other similar contexts and I have set it aside for further citation.

Many thanks sir.

Tegulle


(Jehovanus Sumaye) #11

I am of the view that, in some countries like Tanzania is better to look Sierra Leone as an example. This is due to the fact that investors are considered to be of more important than indigenous. Also they don’t have a time to provide educations the public on the important of project they want to establish rather the prefer to use force when disputes arises.


(Tobias Eigen) #12

Received by email:

Respected,

The World Bank should first give an example to help fund NGOs. We also agree that companies using the natural resources of a country need to reimburse NGO work as a compensation.

Our organization provides legal assistance to all those who are threatening the environment to companies, but the judiciary is under the control of the ruling government, almost always in their favor, although the law is on our side.

Best regards,

Committee for human rights Leskovac,Serbia


(Violah Ajok) #13

Yes Yes Yes we need to engage the Private Sector to support Legal Empowerment after all they benefit from rule of law programmes. Even Legal aid in the United Kingdom was facing the same cuts till the Parliament stepped in the final hour. Donor priorities seem to have moved on from legal empowerment to so many other things of health etc. In Uganda we facing similar challenges with cuts and some are testing out various innovations .For example the National Social Security Fund (NSSF) the only pension authority(government parastatal)has supported (us) Legal Aid Service Providers Network(LASPNET) to hold legal aid camps.In addition LASPNET has developed a model where the community and business community can contribute to legal aid via mobile online payment system.We are launching it this month and we will report back on progress i due time.In short let us explore so many other options because we cant do raise resources the same way and deliver legal empowerment the same way.


(Okori George Cyrus) #14

Thanks a lot for your contributions, it is really very good. However, its not easy for me implement your option due to mainly legal reasons and capacity gaps. pls help me develop the concept note to a good proposal and help me secure funding for this project.

thank you.


(Moses Phiri) #15

The private sector is an important development sector and needs to be involved cautiously. Now because of business orientation they will always want their way. They need to fund legal empowerment so that the grassroots are empowered to overcome challenges. I think multinationals are better than local private sector who would capitalize on vulnerable small organizations and community members who are not conversant with law


(Peter Eigen) #16

Vivek Maru, you ask how Transparency International (TI) can accept funding from all stakeholders: governments, private sector and Civil Society Organisations, without losing its independence. This is a key question for all CSOs, particularly for advocacy organiations; the answer depends very much on the type of actvity and the mode of operation (confrontational? cooperative? technical?) and the degree of common interest with the potential funder. TI tried from its beginning 25 years ago to find common ground with the major actors of global governance. Corruption is very complex, particularly Grand Corruption in a globalized economy. So we knew, we needed the cooperation even of corrupt governments, companies, CSOs. To find allies in this complex world, we embraced the concept of multi-stakeholder governance, building checks and balances into our own movement and aiming for it in our programs (e.g. in the more than 100 Independent National Chapters).

To protect TI against dependence from particular funders, we applied the following principles and instruments:

  1. Diversification of funding sources
  2. Election of the Board by a membership sensitive to this issue
  3. Vigilance of Finance and Auditing Board Committees
  4. Vigilance of outstanding members of the Advisory Council
  5. Strict Guidelines relating conflicst of interest
  6. Strong ethics code for the TI movement
  7. Regular re-accreditation of all members focussed on Independence
  8. High sensitivity of Leadership to perception of dependence. In spite of this, I came as TI Chair several times under criticism for excepting funding and support from corrupt companies, governments and or foundations; but with a combination of various instruments listed above, I was able to defend the reputation of TI over the years.

Hence my advice to Namati: Yes take funding from the private sector, or other Stakeholders, but put in place explicit safeguards to protect your Independence.


(Chinga Govhati) #19

Yes! It’s still good corporate social responsibility. I remember having a conversation with someone who wanted to do something along the lines of pro deo work with lawyers in private practice which I thought was a great initiative. I will share this article here which was meant to lobby private sector to be socially responsible…they can be legally responsible too!

http://archive.kubatana.net/html/archive/opin/130305cg.asp?sector=LAB&year=2013&range_start=31


(Vivek Trivedi) #20

Received via Twitter from @MegSatt:

Crucial discussion! Yes, the private sector should play a role in paying for #legalempowerment through contributions to independent funding mechanisms. W/o empowerment, #FPIC of affected communities is window dressing & remedies are inaccessible.


(Marlon Manuel) #21

The issue of independence, as pointed out by @vivekmaru and @peigen, is a critical aspect of any private sector financing for legal empowerment. Both the giver (a private corporation, for example) and the recipient (a legal resource NGO, for example) must be insulated from any excessive entanglement with each other. Such entanglement will compromise both the giving (motivations of the giver may be questioned) and the receipt of the funding (credibility of the recipient will be affected).

While some initiatives may be collaborative, where the private sector may be seen as ally rather than opponent, in many cases, legal empowerment groups, especially grassroots justice defenders, are at the frontlines of major conflicts with private corporations. In those cases, where the situation is very adversarial, the flow of funds from the corporations to the defenders who are opposing the corporations will be very controversial, to say the least, and will put to question the integrity of both sides.

One way of addressing this situation is to make the funding available through an institutional channel. It can be through a compulsory mechanism similar to the mine rehabilitation fund that mining companies are required to put up in some countries. It can also be through a voluntary program where a group of corporations set up seed capital that is envisioned to fund legal empowerment initiatives. In both cases, it is imperative that the source of funding, i.e., the corporations, will not be involved in the grant-making and will not be able to influence the process. Otherwise, the credibility of the institutional mechanism will be highly questionable.

What’s in it for corporations? Why would they be compelled to contribute to a fund, either by mandate of a government policy or by voluntary collective commitment? Again, from the mine rehabilitation fund model, the fund is supposed to address future potential injustices, violations of rights, caused by corporate actions. From a more positive perspective, corporations should contribute to the fund not so much to provide remedies for violations but to help ensure corporate accountability and social responsibility. In short, the funding mechanism will not be based on the assumption that injustices will be committed, but on the premise that, for corporate acts to be responsible and to be true to corporations’ avowed policies and missions, there is a need to build an external constituency that necessarily includes the communities that will be affected, in one way or another, by such corporate acts.

In this way, private corporations will help address power assymetries, instead of benefit from such.


(Coco Lammers) #22

Thank you for raising this important question around private sector engagement @vivekmaru and sharing your perspectives on the World Bank. I appreciate all of the important legal empowerment perspectives and local contributions to the discussion.

Currently, the World Bank has its sights set on some global goals, in particular, the overarching ambition of the #sdgs to end poverty. Many private sector actors have followed suit, and are thinking through how best to leverage private sector resources towards sustainable development.

It is clear that funding grassroots approach to legal empowerment is critical towards achieving the SDGs, and, in particular, the ambitions laid out in #SDG16, and is an issue the Justice For All campaign is advocating on. Yet, the financing gap of the SDGs is huge - an estimated $2.5 trillion in fact. To fill this deficit, the public sector cannot do this alone and needs to work together and bring in new actors to scale up funding and ensure effective, accountable, and sustainable implementation.

The #SDGs also made historic commitments to “leave no one behind” and “put the furthest behind first”, critical components to sustainable development which often get lost in implementation. In essence, communities who are most “at-risk” at being left behind by development projects should, in fact, be the first to be considered from project design through to implementation. If they really want to live up to the ambitions set forth by the #sdgs both the private sector and the World Bank should not be an exception to these commitments. If these actors really want to turn these global ambitions into local realities, they should and will put communities first.

The Global Legal Empowerment Network recently launched Justice For All, a global campaign to demand funding and protection for justice defenders, not only for the achievement of the #sdgs but to #TipThe Scales towards #JusticeForAll. Show your support, take action, and sign the petition here.


(Benson Wesamba) #23

On my part, it’s a big YES. The word ‘Corporate responsibility’ cuts across the board and it doesn’t discriminate.



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