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Understanding Departmentalism in Rule of Law Development Assistance
Departmentalism is a significant characteristic of the Westminster-Whitehall heritage in Anglophone Caribbean public administration, which is intertwined with state-centrism. This characteristic shapes how governments in these countries will rely on U.S.-based foreign aid to deal with citizen security challenges. Generally, departmentalism refers to how disparate ministries and departments are institutionally given thematic policymaking responsibilities, unlike in other jurisdictions where larger bodies formulate policies for adoption and implementation. In the Anglophone Caribbean, individual ministries, through their ministers, defensively champion individual policy areas and this has been designed as a measure of success. Non-performing ministers and ministries have to demonstrate good policy results within successive general election cycles. However this institutional characteristic is not a good ingredient for the maintenance of the rule of law, and how these countries may rely on U.S.-based donors for assistance. There is no one ministry or department that can lead rule of law policymaking on its own, owing to the vast policy areas involved and its embodiment of citizen security. Rule of law policymaking embodies different sectors, sub-sectors, entities, policy issues and stakeholders. However departmentalism is likely to result in U.S.-based donors supporting individual ministries rather than the totality of the rule of law when they are relied on for aid. Therefore, there are institutional difficulties involved in how U.S.-based foreign aid may be used to effectively support Caribbean public administration in this context. This is part of the lesson emanating from Jamaica and its implications for how we may understand the nexus between U.S.-based foreign aid and its significance to public administration in Anglophone Caribbean territories. The next sections will narrate the Jamaican experience accordingly.
The Institutional Paradox of Rule of Law Departmentalism
Paradoxically, duplicitous and lopsided departmentalism exists throughout the rule of law structure in Jamaica. Two entities, the Ministry of National Security (MNS) and the Ministry of Justice (MOJ), primarily have rule of Law departmental responsibilities in Jamaica. While these ministries do not have explicitly distinct policymaking roles, there is a culture of prioritizing the former while subordinating the latter, resulting in inherent contradictions. The structure of the rule of law, therefore, reveals the picture of institutional paradox.
Both the MNS and the MOJ share vaguely heterogeneous portfolios arising from a 2001 divestment of the previous Ministry of National Security and Justice (MNSJ). Between 2002 and 2012, both entities experienced ongoing revisions of their vision and mission statements, strategic mandates and objectives. At different times consultants were engaged and attempted to reshape and modernize the two entities independently, with a view to defining their policymaking roles. Although a Court Management Services (CMS) entity – responsible for the administrative management of the courts – has been created from the MOJ since 2011, the policymaking hubs of the ministries share parallel locations and operations. Frequently, there are threats of a re-merger. Therefore if what distinguishes the MOJ and MNS are the subject areas they are responsible for, it is not clear what makes these fall under “justice” and “national security” policy issues, respectively. If the aim was to keep the police separate from the courts, it was not clear why the police could not be considered part of the justice component of rule of law up to 2011, or why the ministries still remain separate given the post-2011 CMS era. Consequently, the opaqueness in portfolio assignment contributes to the duplicity in policymaking operations. Notwithstanding, there is rule of law asymmetry. While the MOJ embodies the core policymaking functions, increasingly more resources are being diverted away from it with more simultaneously being bestowed upon the MNS.
The MOJ operationally houses the critical responsibilities for the Government’s Annual Legislation Programme, as it has operational responsibilities for critical legal departments responsible for supporting and enforcing this program. Analysis of figures from the 2004/2005 to 2012/2013 recurrent estimates of expenditure shows that there may be a culture of underfunding justice throughout all levels. For example, on average, the MOJ’s entire portfolio is expected to operate within 8 percent to 13 percent of the recurrent budget of the MNS for the years given. In terms of core policymaking, in one fiscal year justice policymaking and corporate services allocations were reduced to 7 percent of those of national security. Simultaneously, the MNS is being given more priority. In fiscal year 2003/2004, the amount approved for MNS total operations was 765 percent of that of the MOJ in nominal terms. By the 2009/2010, this amassed to 1236 percent. In terms of core policymaking, the MNS was estimated to require between 857 percent and 1365 percent of the amounts the MOJ requires to fulfill similar responsibilities in the 2012/2013 fiscal year alone. This results in a picture of disproportionate increases to security and not the Jamaican state’s complete rule of law responsibility. Rule of aw at least entails the totality of criminal justice administration, access to justice, child and youth justice, human rights, policing, rehabilitation, alternative disputes resolution and other policy issues. However, there is an institutional paradox in the departmentalism of rule of law in Jamaica, owing to asymmetric policy choices being made. This has implications for how U.S.-based assistance is being applied and managed.
The Departmentalism of U.S.-based Rule of Law Foreign Aid
Although rule of law inherently transcends several sectors and ministries, U.S.-based donors continue to fund ministries while Jamaican practitioners have found ways of ring-fencing this aid departmentally. Previous articles have narrated how the ministries are aid dependent. The largest U.S.-based rule of law foreign aid comes through the U.S. Department of State, the United States Agency for International Development (USAID), the Inter-American Development Bank (IDB) and to some extent the World Bank. It is the MNS which retains direct lead over these assistance programs in Jamaica, thereby, constituting a de facto gatekeeper to the MOJ. This is partly because the MNS is larger and operationally has responsibilities for the police, the army, rehabilitation and border control. However, this ignores other critical components that anchor the rule of law at any point in time. So by continuing to fund the larger ministry that is simultaneously less responsible for rule of law policymaking in Jamaica, U.S.-based foreign aid is perpetuating departmental asymmetries. This has dire consequences for the MOJ. From the 2012/2013 estimates of expenditure, if the MOJ were to use aid to support its legal departments, it would first have to advance 46.6 percent of its total budgets as the required matching funds, before benefitting from these grants. It therefore means that the MOJ, as an aid dependent and critical policymaking entity, finds it financially difficult to advance policymaking even if it makes donor funds available.
Funding the Security and Insecurity of Rule of Law in Jamaica
When channeled through the state-centric asymmetries of a Westminster-Whitehall context, U.S.-based rule of law foreign aid can appear divisive. While it attempts to build local capacity by reposing lead responsibilities in critical ministry portfolios, it is subject to the operational exigencies partiality created by these practitioners. Presently, U.S.-based foreign aid is gaining success in supporting crime fighting, citizen security and border control in Jamaica. However, it still appears far off from being effective across the totality of rule of law in Jamaica. In this way, the security of insecurity may be the end product.
Author: Vaughn Graham is a doctoral candidate in the University of Birmingham, UK. He has also worked with the Jamaican government for more than 10 years in various capacities. He has experience with rule of law policymaking and the implications for various donor funded programs and projects.