What is the enabling environment of law and regulation? Is it a
facilitating environment or a constraint on success? What would help
the community to progress? What are the ways forward so that peace
and prosperity wins over war and mayhem?
Enabling Environment
A lot goes into this
The enabling environment incorporates everything needed to make a
community productive. There are several core elements: (1) those that relate to
governance; (2) those that relate to the physical infrastructure; (3) social services
like health; (4) social services like education; and (5) economic services like
banking and insurance.
Governance
A good enabling environment has been largely absent during the past few
decades.
The enabling environment is usually looked at from a perspective of the “north”
and is usually measured by comparison with the prevailing enabling
environment in the home base country of the “north”.
How does the law and regulatory environment compare with the law
back home. The degree of difference usually determines how the
enabling environment is evaluated.
Subsidy
Subsidy is one way in which an enabling environment can operate to favor one
group at the expense of others. The distortion of markets is catastrophic through
the massive subsidy programs of north countries. This was written in June 2003.
The scandal is that the money required to write off the debts of the whole
of sub-Saharan Africa is, in global terms, barely significant. It has been
costed at little over $6.4bn spread over five years. Compare that with the
$350bn that rich countries use to subsidize their farmers every year.
Julian Filochowski writing in the Independent, June 1, 2003
This is an enormous cost to taxpayers. Subsidy is not usually designed to reduce
prices to the consumers, but to increase the wealth flow to farmers, and often
not the small family farmer but the corporate farmer who oftentimes is paid
NOT to grow a crop to reduce production.
It really is very sad. Money to do good things is never available. But to do not so
good things is easy.
Governance
System and processes
In Iraq, there are administrative systems and processes that are long standing.
Whether or not they are adequate to satisfy all the needs of the government at
the present time needs to assessed. In general it is likely that the systems and
processes are that carry over from the autocratic regime of the past will be
effective, though needing change to reflect new leadership priorities.
While government goals and policies have been changed very substantially, the
systems and processes can be effective without much change. There is a need to
review these systems and processes and revise the way the work is done so that
they are easier to operate and more effective from a financial and administrative
perspective.
Administrative capacity
Administrative capacity in Iraq substantial. Some new administrative offices
have been established and some modest progress made towards building a
framework of good governance. The administrative system to sustain the
initiatives for good governance has to be established, preferably by taking as
much of the present system as the foundation.
Technical planning
The capability of the Iraq administration to do planning is untried. There are
some staff with good knowledge and capability, and there are staff with
substantial knowledge about the region and the technical subject matter. But to
what extent these people are engaged in the present planning process is
unknown, and the extent of cooperation with the international experts and the
local experts is also unknown.
Planning and budgeting
The capability of the Iraqi staff to do financial planning and budgeting is
unknown, but I would expect it to be good. There are many educated Iraqis who
can easily take technical plans and convert them into financial plans and
budgets. It is more likely that the planning constraint is more to do with
language and the international experts than it is to do with Iraqi competence.
Policy framework
The policy framework needs to be strengthened by adding substantial new areas
of policy that have not yet been formalized.
Training staff
The administrative capacity should be strengthened for the long term with a
continuing program of training. Training should be carried out so that all of the
staff have access to training, and are able to learn skills that are of practical use
in their work. The training should be organized expecting that a large number of
staff who benefit from the training will choose to use their new skills in other
organizations. While this does not strengthen the organization, it is of value and
importance to the community at large, and should be part of the national plan
for human resource development.
Upgrading available equipment
Government offices are sometimes short of needed equipment. The staff should
have access to the equipment that they need to do their work. There should also
be a good system for tracking office equipment, furniture, fixtures and fittings.
Governance and administration sector
The essential activities of governance and administration are supportive in
nature, and only result in tangible economic benefit when there are also
productive activities in the economy. Bad governance and administration can be
a huge constraint on success, and improvement or diminution of the bad
activities in governance and administration can be very favorable.
Getting rid of corruption is the obvious big issue, but there are a lot of other
smaller issues that can be addressed. For example, reducing the complexity of
procedures to do routine administrative activities, and shortening the time to do
these things all helps.
The public sector's most important job is governance and administration. It is
important, but it does not in itself create wealth, and is an “overhead” of society
and socio-economic development.
These functions facilitate success in a society, and bad governance and bad
administration can be a huge constraint on the performance of society and the
progress of socio-economic development.
There are a whole host of activities that “government” is expected to provide for
the citizens. In the “south” the government has often found itself in a financial
bind, and the delivery of services is impossible because of the funding
constraints.
A lot of services are best delivered at the local government level rather than by
an organization controlled and funded by a remote central government, such as
local public works such as street repair and waste removal.
Government Accounting
A basic system of governance
Government accounting is one of the most important tools for establishing
strong and fair governance.
Government accounting
In Iraq, it is likely that the government accounting systems are reasonably good,
though obviously done in Arabic. Most international experts do not have much
accounting expertise and even less Arabic expertise ... yet it is important to
know how effective the government accounting systems are for both budgetary
control and for project control.
Planning and budget process
Government accounting is usually part of a planning and budget process ... with
the budget giving the organizations of government the authority to use
government resources.
Budget execution
Sometimes the process of operating the government agencies and organizations
is referred to as budget execution. In essence, though, this is the process of
implementation and the accounting associated with the implementation.
Reporting
In some jurisdictions the government accounts are placed before the legislative
branch of government monthly ... but in too many places the accounts of
government are not reported on in a timely way. Where there is timely
reporting, there are fewer problems.
Audit
In some jurisdictions there is a requirement that there is an audit office in the
government, and that this office carries out both ongoing checks of the financial
transactions and periodic checking of the accounts and the reports. In many
places this is an effective way of validating the accounts of government, but in
some cases the audit is totally ineffective.
Weakness
Most government accounting is done on the cash basis, with little attention paid
to the accrual component of the accounts. Cash basis accounting is a weak
compared to accrual accounting, and it is very much preferable to have accrual
accounting.
Government accounting is also weak as an analytical tool. It serves to control
expenditures relative to a budget authorization, but it does little to measure
performance against an ideal set of standards or some broader benchmarks.
System and process improvement
There is a need to review the government systems and processes and revise the
way the work is done so that they are easier to operate and more effective from
the technical planning, budgeting, financial and administrative perspectives.
Government Revenue and Public Finance
Sources of government revenue
In Iraq a large part of the government revenue is derived from the oil sector.
Government borrowing
The government has borrowed substantially from the international community
in the past and Iraq is going to be expected to make good on these loans even
though most of the benefit accrued to contractors and the ruling elite.
Grant finance
Iraq may be benefiting now from considerable fund flows that are in grant form.
aid, but a large part has been as a result of emergency and humanitarian
Improving government revenue base
The government revenue base is substantial because of oil, but arrangements
need to be made so that this fund flow is sustained after oil is consumed.
Customs, export taxes and port fees
Customs duties, export taxes and port fees are additional sources of public
sector revenue. The basis systems for collection and accounting for these
revenues are sound, but it is likely that there are some losses due to
inappropriate practices by some of the more prominent traders and
businessmen.
Creating a formal public finance capability
It would be appropriate to create a formal public finance borrowing program to
tap the available resources both in the country and in the Diaspora. A system of
short term treasury bills and longer term notes could be implemented.
Establishing a development fund
A development fund could be established for use as a mechanism to loan funds
to communities. The advantage of such a facility is that all transactions would be
in local currency and the impact of exchange rate fluctuations would be
minimized.
Public finance
In Iraq, there should be very little development constraint caused by a public
finance constraint. The essential services of government should be easy to fund,
as well as a lot of development essentials.
The potential economic growth and the general wealth building in the economy
can build a solid tax base to fund government in a sustainable way.
Pay scales in the civil service
The pay scales in the civil service should be sufficient to attract good staff who
are qualified and experienced enough to do the work that they need to do.
Policy Framework
Huge need for critical controls
I used to think that less government was absolutely the best government until I
watched corporate and societal behavior when regulations were removed and
unfettered economic behavior was allowed. This made me change my mind, and
has convinced me that enterprise and opportunity and the behavior of markets
are better drivers of economic progress than anything else ... but that there also
has to be official oversight and regulation so that abusive excesses can be
controlled.
The natural order of things is for excellence to lead to success and for success to
lead to abusive excesses. It is seen in behavior in the multi-billion dollar
corporate world, in politics everywhere, and in petty market traders and
middlemen in remote markets in poor countries.
Natural resource policy framework
The oil resources of Iraq dominate the economy. It is of critical importance for
the future peace and stability of Iraq that there are appropriate agreements
about how this wealth is to be managed, and specifically for whose benefit.
One strategy is to keep information about the oil wealth secret and use the
resources for the benefit of a powerful corporate and private elite, or the wealth
can be managed in the open with the wealth used for the benefit of the country,
and to support the future prosperity of the country.
Corporate wealth policy framework
Merely knowing about the value chain and having the information easily
available will have a substantial impact on corporate behavior. As long as the
corporate world can profit and remain in in the shadows and anonymous, bad
things will happen as long as there is profit in it. But big companies do not like
well informed bad publicity.
Corporate wealth is largely created because a corporation is able to mobilize
financial, material and human resources in ways that are better than the
competition, and give benefit to its customers at a profit. This is a key source of
modern world wealth and explains how and why this segment of the world is
wealthy. To the extent that low costs are achieved by abusive economic
behavior, or high prices are achieved by abusive market control, a corporation
deserves to be held accountable ... but not for being efficient and highly
productive.
Military
National defense and emergency assistance
The main reason for the military is national defense. Few would argue that this
is a legitimate goal of government and reasonable that the military are
maintained for this purpose.
A good army is a national asset ... and can prove to be very valuable in an
emergency. The US Army has been of help from time to time in US natural
disasters ... for example Hurricane Andrew in Florida in the early 1990s. More
recently, the performance of the Indian army in connection with recovery after
the South Asia tsunami disaster of December 2004 was valuable, and the Indian
army has conducted itself well in many other situations of this type. So also, the
performance of the Pakistan army in the aftermath of the earthquake in remote
areas of Pakistan.
National politics
But the army does not always produce good results, as for example when it
becomes the dominant political power and serves to empower strong man
regimes that have little interest in the well being of the people. In many
countries over the past many years the military has also been a player in
national politics, either because of coups and the establishment of military
governments, or because of alliance between the military and the head of
government or head of state.
US military in Iraq
The US military in Iraq is a huge constraint on success. The US military were
very successful in defeating the military forces of Iraq, taking Baghdad and
forcing the end of the Saddam Hussein regime. They are not the organization
that should be tasked with the rebuilding of Iraq or policing the population.
The Iraq military
The Iraq military should be reestablished to have the ability to serve as a
national defense force. There are major borders, and the Iraq military should
have the capacity to defend these borders.
The difference between the military and the police
The big difference between the military and the police is that the military win in
one move ... and the police are required to win using a judicial process that
gives some appropriate protection to the public. The military have no role in
internal governance, except from time to time when there is a state of emergency
and martial law is declared.
Good Reasons for the US Model
There are good reasons for the US constitutional system which
precludes the US national military from carrying out any activity in
any State in the Union without the specific request of the State.
While “security” is a legitimate concern, the military should not be engaged in
protecting privilege or maintaining illegitimate power. The military is often
used to these ends. Building back the power of the military in Iraq is not a good
idea ... rather there should be a broader set of organizations that work together
to achieve security, but would not easily subvert the civilian nature of
government.
Worry About the Power of a Big Army
I was in on an assignment in West Africa when the Falklands war was
in progress. I was surprised that my African colleagues were supportive
of the British response to the Argentinian takeover of the islands ... until
they explained that they were all worried that a “big army” should not
have any right to come into a nearby country and take it over. They
were from a variety of African countries, and big armies were
everywhere.
Making sure that the military use their power in an appropriate way depends
more than anything else of the quality of the leadership and the training of the
soldiers. There is a lot of good military leadership, but it is not universal.
Getting a high professional standard for all soldiers around the world is a
valuable thing to do.
Demobilized soldiers
Some of the demobilized soldiers are still loyal to the regime of Saddam
Hussein. The former combatants are a security threat in part because they had a
strong loyalty to the deposed Saddam Hussein and they had a good training.
These people need to be given the opportunity to participate in the new
economy. They should get training and they should be helped to get
employment and get started on a life that has a future.
Police
Police are NOT soldiers dressed in blue. The work of the police is fundamentally
different and the techniques for success totally dissimilar. The British police
have a good reputation, and it is not by accident that they do their work
unarmed. It is but rarely that police work requires armed confrontation.
The police in Iraq should be recruited and trained and their salaries funded so
that they are able to do the sort of work that a good police force should do. They
should be organized so that they know what is going on in the community ...
this might mean community organization rather than national organization. The
police should also trained so that they understand the issues of their own society
and can work in ways that has respect for the way communities have lived for
hundreds of years.
The New York Experience
Some years ago the New York Police were not highly regarded by the
populace ... but today things are very different. The police force now is
highly trained, and professional, and there is a level of management that
gives the community a lot of confidence in the police.
Behind the scenes there is a lot of hard work and technology deployed so
that criminals are apprehended and the community at large is not
bothered too much by the criminal element.
Is the system perfect? No ... but it is very good, and trying to be better
all the time. 20 years ago, nobody would have thought it possible that NYPD would
be one of the most highly regarded police forces in the world.
Community police
Community police have the advantage that they know the community and some
of the good aspects of community policing can be achieved. But a community
police force also has the potential to be diverted to working for the local elite
rather than the people as a whole.
National police
National police can be better or they can be worse than community police forces.
They can have better resources and be better trained. They can also be subverted
to a national agenda that is not in the best interest of local communities.
Local and national police in combination
Some countries have adopted a combination of police systems, with both
community police forces and national police forces. This results in a balance of
power between community interests and national interests that can serve for the
good of society.
Handling sectarian violence
A police force is not going to be successful merely by force of arms. Force is
likely to add another front to the fighting and add complexity and another level
of violence rather than bringing peace. The police should bring police
knowledge to the community ... and police knowledge should support moves
that result in judicial proceedings against those engaged in unlawful activities.
Gun control
There was a time when the only guns in society were controlled by the army and
the army kept its guns under tight security in an armory. The global world
market in guns is a feature of modern society that is nothing but obscene for a
civil society, and something that makes it very easy for guns to be obtained for
anti-social purposes, and makes it very difficult for police and law enforcement
to be effective without themselves having to resort to lethal arms.
Preventing police abuse
The prevention of police abuse needs to be at the top of the police agenda, as
well as the oversight authorities. If there is no oversight authority or the
oversight is weak or ineffective, it must be expected that there will be police
abuse.
Judicial System
Legal and justice system MUST be functional
A legal and justice system needs to be in place. This can be either a central
system or a local system, but it must have a functioning and have enough people
and money to operate. It does not matter so much whether the system has a
modern or traditional form ... what does matter is that it functions and that there
is a socially acceptable ethical foundation for the society.
There are a lot of pieces in a fully functioning legal and justice system including
(1) police; (2) courts; (3) prisons; (4) lawyers; and (5) legislators. The system is
labor intensive and only works when there is sufficient reach for the criminal
and illegal elements in society to have a reasonable expectation of being caught
and convicted.
The rule of law needs to be fair, and justice needs to be universal. There is a lot
of work that needs to be done so that everyone has some of the benefits of fair
laws and equal justice. There are too many situations where the law serves to
make something unethical, immoral or unjust, legal. This is particularly true in a
lot of areas of commercial law, real property law and intellectual property law.
In the case of Iraq, the whole question of fund flows related to oil has the
potential to escalate into some form of violent power struggle.
Justice at the end of a gun is far too common around the world. Guns are bad
news and guns are not a good part of a system of justice.
The judiciary should be trained and their salaries funded so that they are able to
build an enabling environment for the local communities, for international trade
and investment, and assure security. They need to be trained and the framework
established so that the government judiciary is compatible with traditional local
law and its procedures.
Customary Law
Places where there is social tranquility usually have a system of local, traditional
or customary law that is functioning well. In my experience, even where there is
no visible presence of “modern” law, a society still functions on an ethical basis
that is for all practical purposes universally acceptable.
Iraq seems to be in chaos without very much respect for law ... but at the
personal level and the family there is a lot of respect for law, both secular and
religious. The fact that there are factions with guns and bombs and no respect
for law and civil behavior does not translate into anything like a majority of the
people being in favor of this kind of behavior.
The role of traditional law should be taken into consideration. The role of clan
law needs to be better understood by those seeking to give advice and assistance
in development, economic management and governance. Good governance in
countries with poor economies and weak public finance requires a clever
combination of what is good from traditional law and governance and what is
generally accepted in the modern context.
Costs for a legal and justice system
I have helped prepared government budgets and plans in various parts
of the “south” and have been faced with the need for legal and justice
activities to be paid for through the budget. A modern legal and justice
system along the lines of the systems used in the “north” is beyond the
financial capacity of most “south” governments. When staff are very
lowly paid, or paid late or intermittently, then all sorts of petty
corruption starts, but when there is only a small reasonably paid staff it
only reaches as small part of the population.
Increasingly communities in the “south” have had to address the issue
of a working legal and justice system by reverting to traditional systems
... in many cases with excellent results.
During my work in Somaliland, I was able to learn something of the
traditional system of clan justice, and was impressed with its reach to
every single member of the clan. The fact that all of the society was part
of the same system of traditional law made it more useful than the
modern law, that had little impact on daily life for anyone except a very
few.
In Mozambique, after its long civil war, it was impractical for the
government to go through lengthy modern legal processes for all the
young soldiers who had committed various forms of atrocity in
connection with the war. They did not have the money nor the people to
do it. Instead they reverted to community level traditional systems to
punish and reintegrate everyone into their society. The system made it
possible for the country to become a lot more stable and reintegrated
than would have been possible using a more modern formal “north”
approach.
And of course, the Truth and Reconciliation Commission in South
Africa broke tremendously valuable new ground in bringing together
people who had been sworn enemies and committing atrocities for years
in a reasonable length of time and at a manageable cost.
Prisons
A prison service
A prison service is needed in addition to police and courts. The prison service is
needed so that there can be punishment and people can be incarcerated where
the courts have determined that there is a breach of law and incarceration is
called for.
Handling violent offenders
A prison service is a specialized activity that requires considerable expertise and
it also requires a substantial budget.
Handling petty crime
Petty crime should be taken seriously, but it should not be handled in a way that
encourages petty offenders to move on to more serious crime. Rather, a first
offense should be handled in a way so that a first offense is also a last offense.
Prisons
Prisons need to be improved in terms of their physical facilities and the
recurrent costs associated with their operations. These establishments are not
nice places. Some work on rehabilitating inmates needs to be available as well as
resources for their general operation.
The prisons in Iraq are terrible. Prisons are needed in almost any society, but
they ought to be able to meet certain minimum standards of human dignity.
Neither system at the present time comes up to the minimum standards that one
would hope to see.
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