The Judiciary and Governance in 16 Developing Countries

Working and discussion papers
April 2003
Goran Hyden, Julius Court and Kenneth Mease

Individuals and groups inevitably at times get into conflict and societies require institutions that can resolve disputes. As part of a project to undertake comprehensive governance assessments, we focus here on the nature of the rules (formal and informal) that affect the judicial arena. The legal culture of a society is important for how people perceive not only the judiciary but also the political system at large. The way judicial institutions operate also has an impact on a country's economic and development performance.

This paper presents the findings for the judiciary arena in 16 developing countries. We find that the judicial arena is problematic in virtually all countries included in our survey. Access to justice remains low. Administration of justice is not only slow, but there is often widespread corruption and a lack of accountability. People lack trust in the court system. The problems are particularly pronounced in former communist countries, including China, because of both the pace and extent of economic and political reform. Laws are often outdated and create problems for the transformation of these regimes.

This raises questions about how the international donor community should support the judicial arena. A key finding is that many of these problems are more political than technical in nature. Our survey highlights the extent of political interference, that connections matter and money buys justice. Another key point is that issues of justice have an intrinsic value to people. Thus, it is not enough to look at the legal system merely in instrumental terms, e.g. how it contributes to socio-economic development, but that finding fair ways of administering justice is also an end in itself. A third point is that there is virtue in flexibility and sensitivity to context. Improvement in governance practices is possible not only with the help of a liberal paradigm but also through reforming existing institutions. Informal institutions sometimes are more suitable than formal ones.

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