How to promote sustainable development through legal solutions, by N’garnim-Ganga
The 12th edition of the African Economic Conference took place last month in Addis Ababa, Ethiopia with the theme “Governance for Structural Transformation”. Evidence shows that there is an inextricable link between legal solutions to development challenges and sustainable economic growth. African Development Bank (AfDB) recognises law as a key factor in unlocking several development challenges on the continent. In this interview culled from the bank’s website, the General Counsel, HELENE N’GARNIM-GANGA, sheds light on AfDB’s contributions to governance through law.
What is AfDB’s take on law as catalyst to sustainable development?
The African Development Bank has long been aware of the importance of law as a key element for good governance and as a prerequisite for sustainable development. Governance reforms must be placed at the forefront of the development agenda. The definition of good governance varies from country to country, spanning from the absence of fraud and corruption to the quality of the dialogue and interaction with all stakeholders.
Without reference to a universal standard for governance, the notion of what is good is thus defined by the desired outcome, which varies from one situation to another. Nonetheless two board governance issues can be discerned. The first pertaining to institutions of governance, including public administration and public services connected, in particular, with the sound management of resources, delivery of and equitable access to public services responsiveness to the views of citizens and their participation in decisions that concern them. Strategies adopted in response – including better personnel management transparency in public finance, a curb on corruption, citizen participation and enhanced accountability – have since become common currency in public administration dialogues.
The second broad governance issue is concerned with concepts of democracy and the rule of law, including with rights-based claims to equality before her law, judicial independence participation in the conduct of public affairs, electoral integrity, political plurality, freedom of expression and media independence.”
The AfDB is an apolitical institution. Article 38(2) of the Agreement establishing the African Development Bank, provides that: “the Bank, its President, Vice-Presidents, officers and staff shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member concerned. Only economic considerations shall be relevant to their decisions. Such considerations shall be weighed impartially in order to achieve and carry out the functions of the Bank.”
However, typically, general or sector budget support comprises provisions relating to existing and effective legal and/or regulatory frameworks. For instance, the Bank approved a loan to finance a financial reforms and food security support program. The program contemplated among other things, the adoption of a revised customs code, and the adoption of implementing instruments of the West African Economic and Monetary Union (WAEMU) Directives on the public finance management framework and the adoption of a national agricultural policy paper by the governments. Strengthening law in this area has been identified as a key target of the program. Loans were meant to help achieving reform of legal frameworks for better governance. Other examples include cases where financing is approved for investment promotion support programs leading to adoption of public private partnership policies and manuals.
The bank also focuses on non-lending activities by promoting policy dialogue and advisory services as enablers of reforms and tools for sustainable development. For instance, the Bank has engaged governments in dialogue for the broadening of existing tax base.Country Strategy Papers are also an important opportunity to develop advocacy and policy dialogue. In this regard, the Bank engages in dialogue with the country to see how the Bank’s financing could help achieving country priorities, including how legislation can be modified or adopted to ensure a better governance and business environment. By identifying the weaknesses of a legal system, the Bank gives the country an opportunity to tackle them.
What are the links between law and good governance for Africa’s development and your expectations from the meeting?
Key elements of good governance include accountability, transparency, combatting corruption, participatory governance and an enabling legal and judicial framework. Good governance is the assurance of a nation’s sustainable development and inclusion. The bank is dedicated to inclusive development. Youth and gender equality are a big part of inclusion.
A predictable legal environment, with an objective, reliable and independent judicial system is an essential component of good governance. This is because law serves the purpose of organizing institutional and stakeholder behaviour and power (whether economic, political, and social). An efficient judicial system is also essential to develop a vibrant private sector. Experience has proven that even more than an adequate legal framework, the effectiveness of the coercive power of the law to combat certain behaviours like corruption is key.
The role of the AfDB is to “contribute to the sustainable economic development and social progress of its regional members individually and jointly”. The more predictable and independent legal environment and systems are, the better the governance is, and a good governance is not only a prerequisite, but also part and parcel of sound development.
Having said that, the law should be in harmony with the society is aims to serve. A law established in contradiction with the cultural and social environment has little prospect of establishing good governance as such law will not be complied with by the people it seeks to govern. The African Economic Conference enhances the visibility and key importance of good governance and I am looking forward to the outcome of the meeting.
For a conducive economic environment and access to capital markets, there is need to harmonize regulatory framework and for African governments to guarantee better rule enforcement, transparency and absence of corruption. To what extent has the bank partnered with governments and underscored effective application of legislation to RMCs?
I will respond to this question with a viewpoint of regional integration. Regional integration is part of the bank’s DNA. It is also one of the High 5s. It is therefore not a surprise that the Bank has always supported regional initiatives in different sectors of co-operation and development. It does so on the understanding that integration is not restricted to developing infrastructure by building roads or bridges but also encompasses the development of the softer aspect of regional integration, i.e. rules and regulations. It also takes into consideration the fact that environmental hazards do not stop at borders. As such the bank plays a role in mobilizing private sector resources for regional infrastructure. It also supports regional economic integration efforts aimed at creating larger and more attractive markets and supporting intra-African trade. It also supports countries in applying harmonized laws and regulations notably in road sector development and/or procurement. The Bank is also working hand-in-hand with the Regional Economic Communities (RECs) notably through co-financing and technical assistance. Finally, through multilateral projects, the Bank enhances the applicability of regional regulations. Concretely, when the Bank finances a road between two countries, for example, it would dedicates resources to facilitation. It is fighting corruption, addressing social issues and contributing to inclusiveness.
What would you respond to those who hold that African legal experts are not well-trained to boldly provide legal advice to their governments while negotiating contracts? Has the African Development Bank devised any policy proposals to help African legal experts?
Knowledge building is at the core of our mission. The bank’s 10-Year Strategy, which is focused on the achievement of the High 5s, highlights the need to support knowledge-sharing on the continent.Lawyers in developed countries benefit from very well organized and powerful training organizations. The bank is well aware of the need to enhance opportunities on the continent. It is for these reasons that the African Legal Support Facility, which is an institutional creation of the Bank, has since 2010 been instrumental in supporting African governments in the negotiation of complex commercial transactions and in the training of dozens of lawyers on the continent.
I should also disclose that the bank, together with ALSF is designing a legal event which would greatly benefit African legal experts. The lawyers at the Bank have developed an incomparable expertise in legal issues encountered while dealing in Africa. The Bank is keen on sharing this knowledge. This event, which is planned for 2018, will offer an opportunity for regional and non-regional lawyers to share their knowledge.
How would you describe your work at the Bank as the General Counsel? What is the difference between working as a government lawyer or private sector lawyer and your current job at the African Development Bank?
I have been in private practice for a long time prior to joining the development world. Being General Counsel of the African Development Bank is unique as it means working with a greater goal: the development of the African continent. On paper, I provide advice and legal services to the Senior Management of the Bank as well as to the Boards of Governors and Directors. The Legal Department also provides legal advice to the Bank as a whole (be it on corporate, operational, or financial activities). It also handles litigations and ensures that the Bank activities and operations are consistent with the constitutive documents and other legal instruments of the Bank Group; policies, and as appropriate, with the norms and principles of international and commercial law and the best practices of international development banking.
Ultimately, the core of my role is to discharge all the aforementioned obligations in such a way as to contribute to the sustainable economic development and social progress of the Bank’s regional members individually and jointly.
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