Monitoring Performance of Legal and Judicial Reform in International Development Assistance
29/07/2010
How can the impact of legal and judicial reforms be monitored? This paper, presented to the International Bar Association, examines the application of performance monitoring in Cambodia and Papua New Guinea. It argues for substantial increases in international investment in performance monitoring and evaluation of legal and judicial reform efforts. This requires a transition from monitoring implementation of reform activities to refocus on developing frameworks that are capable of monitoring the impact of those activities on sector performance.
There have been massive increases in international funding for legal and judicial reforms, based on their foundational importance to governance and development strategies. Such reforms can: consolidate state stability and power by strengthening law and order; strengthen the legal framework and provide a secure investment environment; consolidate judicial independence and the rule of law; and promote human rights and access to justice. However, there is a lack of systematic knowledge about how external aid can be used to promote the rule of law.
A survey of international experience to date reveals three major findings: lack of research-based experience; an imperative to increase monitoring and evaluation of legal and judicial performance and the impact of reforms; and increasing commitment to develop this capacity:
· Orthodox state-centred and top-down legal and judicial reform projects are often flawed due to questionable assumptions, unproven impact and insufficient attention to the needs of the disadvantaged.
· There is an ongoing lack of reliable data, including baseline data. Donors have been unable to provide evidence demonstrating the value of legal and judicial reforms.
· A number of recurrent challenges to reform efforts are identified: lack of counterpart ownership and engagement; donor dependence; over-emphasis on technical outputs; unrealistic timeframes; and elite capture.
· A number of institutions are developing conceptual frameworks of performance indicators to monitor and evaluate reforms. These include the World Bank, the Vera Institute and the American Bar Association.
Monitoring and evaluation is essential to: monitor the performance of the justice sector; monitor the impact of legal and judicial reform to improving performance; provide governments with performance data for decision making; and provide donors with data on the effectiveness of their support:
· A performance monitoring framework (PMF) requires stakeholder consensus on a number of issues: objectives; assessment of information management capacity; performance indicators and baseline measures; measurement methodologies; and capacity-building needs.
· Key performance indicators can be selected to describe outputs (completion of implementation of project activities) and outcomes (impact on sector performance).
· The foundations for reliable systems for monitoring performance in law and justice are being laid in some developing countries, including Papua New Guinea and Cambodia.
· Potentially significant lessons are emerging regarding the need for: a shift in design paradigm; strengthening change management strategies; refocusing on sustainability; and extending timeframes and resources.
· The development of a PMF requires a shift towards sector-based performance monitoring, driven by formalising the relationship between planning and monitoring.
· Establishing a PMF requires sustained commitment. Time is needed to: develop a consensus approach; build foundational capacities in information management; and develop systems and procedures.