Legal empowerment of the poor


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Programmes designed to bring about a fair and efficient system of justice in the interest of the people have not fully lived up to expectations. Building a Legal Empowerment Programme will require a mix of features: prioritising the needs and concerns of the disadvantaged; emphasising civil society, including legal services and development NGOs, as well as community-based groups; using whatever forums (often not the courts) the poor can best access in specific situations; encouraging a supportive rather than lead role for lawyers; cooperating with government wherever possible, but pressuring it where necessary; using community organising or group formation; developing paralegal resources; integrating with mainstream socioeconomic development work; and building on community-level operations to enable the poor to inform or influence systemic change in laws, policies, and state institutions ...

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  • In the forestry sector this has too often been reflected in the approach to forest management that excludes local people and the utilization of these for commercial purposes only. This approach has resulted in the undermining of local capacities to manage natural resources sustainably and led to a situation where people are forced to cope as best they can even if this threatens their long-term survival. This has stifled local initiatives, broken down indigenous systems, and created an attitude of resignation among communities, which in turn present a challenge to efforts for revival of local control. Conflict arises because central authority attempts to retain control by imposing official structures and co-opting local leaders. (FTP 1994, 5-6, Costantinos 2000, 7-9) Very often, “people are denied access to or have no knowledge of these statutes until they are legally enforced and take their toll in courts and police actions” (Ethiopian Government, 1975). In addition, statutes provide the ground for officials to take control of people's resources, which very often result in the accumulation of power in the hands of one or few officials who can decide the fate of natural resources and people without due regard to environmental considerations. These local officials are only accountable to higher officials and local people no control over their actions. (FTP 1994, 5-6, Costantinos 2000, 7-9) Enabling laws and policies on paper are not necessarily enforced; either because they are disregarded by officials or because they are unenforceable.
  • These systems have been enriched through evolution over many generations (where they have not disintegrated through marginalization). Individual decisions concerning natural resource management and utilization are based on a "legal" framework that has reference points to the optimal exploitation of these resources, and transgression is punishable by cultural laws and the regulations that legitimize the latter. Individual and collective accountability to communal and intra-inter generational interests are very high. (Costantinos, 1997:b) Communal tenure and management systems are complex and adaptive. The user rights provided by these systems are often strong, and confer a high degree of tenure security to individuals. (FTP 1994, 5-6, Costantinos 2000, 7-9) Endogenous institutions have functioned as reservoirs of traditional knowledge. They have preserved customary rights and responsibilities within societies, enforced them, transmitted them from generation to generation, and (where not entirely marginalised by the modern sector) they have governed the utilisation and conservation of resources. These institutions have been evolving and continue to adapt to changing conditions and develop new mechanisms.
  • Different bio-cultural realities give rise to different resource management systems. Endogenous resource management systems vary according to their specific contexts, defining the specific uses and users of the various resources within the community, functioning as reservoirs of traditional knowledge; preserving customary rights and responsibilities within societies, enforced them, transmitted them from generation to generation, and (where not entirely marginalized by the modern sector) they have governed the utilization and conservation of resources. These institutions have been evolving and continue to adapt to changing conditions and develop new mechanisms. These institutions offer important organizational potential as the formal institutions have come to dominate, marginalize, and even eradicate the endogenous institutions. (FTP 1994, 5-6, Costantinos 2000, 7-9)
  • Legal empowerment of the poor

    1. 1. Legal Empowerment of the poor: Changing the Rules of Engagement BT Costantinos, PhD [email_address] Presentation of Background and Issue Papers Addis Abeba, Nov 30, 2006 <ul><li>Access to Justice </li></ul><ul><li>Labour Rights </li></ul><ul><li>Property Rights </li></ul><ul><li>Entrepreneurship </li></ul>
    2. 2. Part I. Core mission and research enquiry “ the mission is to secure, enforceable rights, within an enabling environment that expands business opportunity, entrepreneurship and access to justice” It is yet a novel attempt at bringing in marked changes in the fulfillment of a set of normative goals and an integrative concept which aims simultaneously to maintain or enhance resource productivity, secure their ownership of and access to assets, resources and income earning activities, and ensure adequate stocks and flows of goods and services.
    3. 3. Research enquiry I <ul><li>Access to Justice and Rule of Law </li></ul><ul><ul><li>What is the main problem(s) in Ethiopia with respect to access to justice: Legal identity? Ignorance of legal rights? Unavailability of legal services? Unjust and unaccountable institutions? </li></ul></ul><ul><ul><li>What is the scope of the problem(s)? </li></ul></ul><ul><ul><li>What are the possible strategies for redressing the problem(s)? </li></ul></ul>
    4. 4. Research enquiry II <ul><li>Labor Rights </li></ul><ul><ul><li>What is the classification of informal sector in Ethiopia (not all informal sector are poor) ? </li></ul></ul><ul><ul><li>What is the practicable strategy to achieve the decent work agenda objectives in the informal sector in Ethiopia? What specific strategies could be envisaged for: direct support to informal sector workers; support to informal sector employers’ and workers’ association? </li></ul></ul><ul><ul><li>What specific barriers are faced by women in the informal sector? What are the special needs of women in the informal sector? </li></ul></ul>
    5. 5. Research enquiry III <ul><li>Property Rights </li></ul><ul><ul><li>What are the challenges in rural area with regard to property rights to the poor? </li></ul></ul><ul><ul><li>What are the challenges in urban area with regard to property rights to the poor? </li></ul></ul><ul><ul><li>How can these challenges be addressed in a prioritized way? </li></ul></ul>
    6. 6. Research enquiry IV <ul><li>Entrepreneurship </li></ul><ul><ul><li>Are there opportunities for establishing businesses and barriers to involvement in the formal economic system? </li></ul></ul><ul><ul><li>legal tools, mechanisms/instruments and institutions are required to empower informal businesses </li></ul></ul><ul><ul><li>complex business regulations or inefficient institutions force the poor to engage in economic activities in the formal sector </li></ul></ul><ul><ul><li>innovative financial instruments are required for informal businesses to access affordable credit/capital and equity </li></ul></ul><ul><ul><li>regulatory frameworks provide the transparency and accountability necessary to provide for public faith in the formal economic system </li></ul></ul><ul><ul><li>benefits are required to attract informal businesses into formal sector? </li></ul></ul><ul><ul><li>specific needs and problems faced by women and indigenous peoples who conduct business in the informal economy and lack access to credit? </li></ul></ul><ul><ul><li>factors and conditions (enabling environment) external to the focus of the Commission’s work might have to be addressed to ensure success? </li></ul></ul>
    7. 7. Part II Macro-policies that inform the legal empowerment of the poor
    8. 8. Constitution of the FDRE- Article 39 Rights of Nations, Nationalities, and Peoples <ul><li>Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession. </li></ul><ul><li>Every Nation, Nationality and People in Ethiopia has the right to speak, to write and to develop its own language; to express, to develop and to promote its culture; and to preserve its history. </li></ul><ul><li>Every Nation, Nationality and People in Ethiopia has the right to a full measure of self-government which includes the right to establish institutions of government in the territory that it inhabits and to equitable representation in state and Federal governments. </li></ul><ul><li>The right to self-determination, including secession, of every Nation, Nationality and People shall come into effect when a demand for secession has been approved by a two-thirds majority of the members of the Legislative Council of the Nation, Nationality or People concerned; when the Federal Government has organized a referendum where the demand for secession is supported by a majority vote in the referendum; when the Federal Government will have transferred its powers to the Council of the Nation, Nationality or People who has voted to secede; and when the division of assets is effected in a manner prescribed by law. </li></ul>
    9. 9. Constitution of Ethiopia – Article 40 -- The Right to Property <ul><li>“ Every Ethiopian citizen has the right to the ownership of private property. Unless prescribed otherwise by law on account of public interest, this right shall include the right to acquire, to use and, in a manner compatible with the rights of other citizens, to dispose of such property by sale or bequest of or to transfer it otherwise. </li></ul><ul><li>&quot;Private property&quot;, for the purpose of this Article, shall mean any tangible or intangible product which has value and is produced by the labor, creativity, enterprise or capital of an individual citizen, associations which enjoy juridical personality under the law, or in appropriate circumstances, by communities specifically empowered by law to own property in common. </li></ul><ul><li>The right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in the peoples of Ethiopia. Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange. </li></ul>
    10. 10. I: Central vs Decentralised Control <ul><li>In the creation of the nation state, independent governments have tended to impose authority on local people. This has resulted in support for the nationalization of natural resources and policies that take little account of local needs and interests. </li></ul><ul><li>The new resource tenure regimes continue to discriminate against customary and traditional resource management cultures however sustainable, favoring instead the modern, formal sector and those having access and connections to the central authorities. </li></ul>
    11. 11. II: Customary vs. Statutory Systems <ul><li>Statutory systems of natural resource ownership and management are based on government decrees and statutes that rarely have reference to people's aspirations, hence their alienation form public interest. </li></ul><ul><li>By comparison, customary systems, rules, and procedures (very often unwritten) often establish accountability and link the rights and responsibilities which govern resource management, thus providing a basis for conflict resolution. </li></ul>
    12. 12. III: Modern vs Local knowledge systems <ul><li>Local people in many communities and coming from different sectors of society understand and relate to resources according to their respective knowledge systems and their management practices reflect these systems. </li></ul><ul><li>While the power of the modern sector stems, in part, from improved communication; it has largely excluded the traditional sector. </li></ul><ul><li>This has been compounded by the difficulty of communication across cultures/knowledge systems, and by ignorance of the very existence of other ways of seeing, understanding, and managing natural resources. </li></ul>
    13. 13. Rules and institutional basis for the legal empowerment of the poor <ul><li>Political Openness : distinctive forms of political thought, discourse and practice, which underlies popularly elected and controlled government. </li></ul><ul><li>Political agency: Participants in and around projects of democratisation generally constitute a network or intersection of institutions and groups which collectively exert far-reaching external influence over political reform in Africa could be included . </li></ul><ul><ul><li>Civil society, media, donors, </li></ul></ul><ul><ul><li>legislature, executive, judiciary, </li></ul></ul><ul><li>Ideology: will commonly be characterized by a number of distinctive and shared elements </li></ul><ul><ul><li>rules of government, national and cultural values, traditions of political discourse and arguments, modes of representation of specific interests and needs and issues. </li></ul></ul>
    14. 14. Synergy in rights of the poor, control and sustainable livelihoods
    15. 15. Findings Assessment of the legal empowerment of the poor
    16. 16. Assessment of the legal and practical dimensions of Legally Empowering the Poor (Global Integrity)
    17. 17. Assessment of the legal and practical dimensions of Legally Empowering the Poor (Global Integrity)
    18. 18. Assessment of the legal and practical dimensions of Legally Empowering the Poor (Global Integrity)
    19. 19. Assessment of the legal and practical dimensions of Legally Empowering the Poor (Global Integrity)
    20. 20. Assessment of the legal and practical dimensions of Legally Empowering the Poor (Global Integrity)
    21. 21. Assessment of the legal and practical dimensions of Legally Empowering the Poor (Global Integrity)
    22. 22. Assessment of the legal and practical dimensions of Legally Empowering the Poor (Global Integrity)
    23. 23. Current Policy Realities and Analytical Limitations in Current Perspectives of Legal Empowerment of the Poor <ul><li>a tendency to narrow the poverty agenda to the terms and categories of immediate, not very well considered, political and social action, a naïve realism, as it were; </li></ul><ul><li>inattention to problems of articulation or production of sustainable livelihoods rather than simply as formal or abstract possibilities; </li></ul><ul><li>ambiguity as to whether civil society is the agent or object of change and the role of the state; </li></ul><ul><li>a nearly exclusive concern in certain institutional perspectives on legal empowerment with generic attributes of political organizations and consequent neglect of analysis in terms of their specific strategies and performances of organizations in processes </li></ul><ul><li>inadequate treatment of the role of international agencies – SAPs, PRSPs… </li></ul>
    24. 24. LEGAL EMPOWERMENT OF THE POOR STAKEHOLDERS TOOLS Government, parastatals, armed forces, political parties Civil societies / NGOs, CSOs Faith Communities Corporate Community Entrepreneurial Sector Legislature National, State and Local Strategic Plans Access to credit and financial services Human Rights Protection and Access to Justice Academia and think thanks Media and public relations/ mobilisation Micro-finance Commercial Banks Development Partners Property rights Labour rights
    25. 25. Mainstreaming operational Plans Sustained Implementation of RBA Activities Managing STRATEGIC INFORMATION AJP local level decentralized management RBA Institutional Arrangements Rights-based enquiry and situation analysis Legal strategic analysis – and strategic plans Rights Strategic Framework Justice, RBA, AIDS, Governance… RBA Evaluation Processes in mainstreaming the rights-based approach and thematic issues on legal empowerment
    26. 26. Thank You BT Costantinos, PhD School of Graduate Studies, Department of Management and Public Policy, College of Management, Information and Economic Sciences, Addis Ababa University [email_address] Presentation Legal Empowerment Of The Poor