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In Sierra Leone’s rainy season, the Sewa River, feared by many locals for its powerful currents, floods over its banks separating entire villages from basic services. Konta health clinic in Kenema district operates near the shores of the Sewa, and during the six-month rainy season, five of Konta’s 17 dependent villages cannot access the clinic. If women in those villages give birth during the rains, they entrust care to traditional birth attendants; if children fall ill, they turn to traditional medicine, stockpiled drugs, and, often, prayer. As one woman explained during a recent community meeting in Konta, these are the only options, even if the all-too-frequent consequence is death. Hearing her account, it’s difficult not to feel a strong sense of injustice, even in an incredibly resource-constrained country like Sierra Leone. But is there a role for the law in remedying this situation?
The community around Konta has offered one compelling answer. Konta’s residents have enacted a “bylaw” to improve clinic access as part of the government of Sierra Leone’s community compact health intervention, in which community members work with health clinic staff to design and implement their own solutions to health problems. Under the Konta bylaw, all households around the clinic must make a small contribution (either in cash or in labor) to help construct a boat to transport pregnant women and sick patients across the Sewa river.
The Konta bylaw is one of dozens of “quasi-legal” commitments that have emerged quite unexpectedly across the four districts implementing the community compact intervention. While the intervention uses the construct of compacts – or “social contracts” – to stimulate clinic and community action, local level actors have added to this compact process by enacting their own set of rules to guide behavior in ways they deem important. Other communities have proposed regulations on local waste management and crafted punitive measures to obstruct drug peddlers. Such “quasi-law,” or “soft law,” falls short of the dictates of formal law – these laws are not officially enacted, nor are they enforceable in the formal legal system such as through recourse to the courts. Instead, they derive power in some of the other ways in which law has strength – by aligning with widely agreed social norms, enlisting social networks for enforcement, and leveraging the potential shame that would come with non-compliance.
Community members work with health clinic staff to design and implement their own solutions to health problems.
These soft laws provide one response to the collective action and trust problems that others have identified as fundamental
obstacles to development. David Booth from ODI and Duncan Green from Oxfam suggest that exclusive supply- and demand-
side governance endeavors fail because “people aren’t prepared to take risks and bear the costs of working with others, unless
they believe that everyone else will do so too.” If that is the case, then perhaps the local, public process of identifying problems and drafting a set of responsive rules can remedy deficits in trust and facilitate collective action.
The use of law to promote development has a long history, rooted in ideals of protecting individual freedom, enhancing equality, and increasing the ability of citizens to participate in and rationally configure social life. Yet beginning in the 1970s there was a growing disillusionment with the seeming lack of success in using formal law to promote development. In the decades that followed, law and development reemerged in different forms. From the 1990s on, there was an emphasis on top-down systems of constructing courts, training judges, and enacting constitutional reform, with varying success. Legal empowerment efforts have worked to democratize access to justice through use of community paralegals, but these efforts have primarily focused on solutions based in formal law. And other efforts emphasized states’ obligations to fulfill citizens’ human rights, including those to health; but this endeavor too has had challenges, particularly in the world’s poorest countries where states are particularly weak.
Perhaps the local, public process of identifying problems and drafting a set of responsive rules can remedy deficits in trust and facilitate collective action.
The experience in Sierra Leone reveals the potential utility of locally-designed and -responsive law in addressing mainstream development challenges. A formal randomized-controlled trial of the intervention is underway and will measure impacts on utilization and perceptions of health care delivery. Yet the early results show how communities have been using the dominion of law to make society legible, guide collective behavior, build trust, and promote broader social and economic goals. In Konta’s example, law emerges not separate from economic and political solutions to certain types of critical community problems, but rather as an instrument of those solutions. Konta is using this soft law to navigate an expansive river and connect communities to essential services. In the long run, broader structural answers – including those grounded in the formal law – will have to fully bridge that river and provide equitable health care.
Editor’s note: This piece first appeared on the World Bank’s “Let’s Talk Development” Blog and has been cross-posted with permission from the author.
Margaux J. Hall is the 2012-2014 Center for Reproductive Rights- Columbia Law School Fellow. Her work focuses on justice reform and governance, particularly in the delivery of essential services. Margaux has conducted development and governance research in South Africa as a Fulbright Fellow and in East Africa as a Harvard University Frederick Sheldon Fellow. Margaux also worked at a private law firm, where her practice focused on litigation and government and internal investigations. Margaux’s recent publications include Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law, forthcoming in the Yale Journal of International Law, and Answering the Millennium Call for the Right to Maternal Health in the Yale Human Rights & Development Law Journal.
Margaux graduated from Stanford University, with honors and distinction, and Harvard Law School, cum laude.