The International Development Act, 2002: Benign Imperialism or a Missed Opportunity?
| Author | Patrick McAuslan |
| DOI | http://doi.org/10.1111/1468-2230.6604004 |
| Published date | 01 July 2003 |
| Date | 01 July 2003 |
LEGISLATION
The International Development Act, 2002: Benign
Imperialism or a Missed Opportunity?
Patrick McAuslan
n
We have to work within the legal convention that nothing is said in legislation that does not
need to be said.
Baroness Amos, International Development Bill [H.L.] Committee Stage 16 July 2001, col.
1288.
Introduction
The International Development Act, 2002 which provides the legal basis for the
British Government’s aid programme, currently running at d3.6 billion per year
and set to rise to over d4.5 billion, was introduced as a Bill into the House of
Lords shortly after the election of 2001, given its Second Reading there on 2 July,
given a Second Reading in the House of Commons on 7 November, 2001, and
received the royal assent in February 2002. The Bill was the same as the one that
received its Second Reading in the House of Commons on 6 March 2001 but fell
on the dissolution of Parliament in May of that year. This article aims to comment
on the Act from what may be called an informed law and development
perspective: what will this new law contribute both to development in countries at
which it is aimed, namely, developing countries and to accountability within the
UK for the use of the public funds which will be expended on assisting
development? The informed perspective comes from working at the sharp end of
development as a lawyer in one guise or another – law teacher, UN official, legal
consultant, principally on land matters – in over 25 countries spread over four
continents for over 40 years, and as an active participator in debates on law and
development for the same period.
The Act repeals the Overseas Development and Co-operation Act, 1980 and
places development assistance on a new legal basis. This is set out in section 1 as
follows:
(1) The Secretary of State may provide any person or body with development
assistance if he is satisfied that the provision of the assistance is likely to
contribute to a reduction in poverty.
(2) In this Act, ‘‘development assistance’’ means assistance provided for the
purpose of –
(a) furthering sustainable development in one or more countries outside the
United Kingdom, or
(b) improving the welfare of the population of one or more such countries.
n
Professor of Law, School of Law, Birkbeck College.
rThe Modern Law Review Limited 2003 (MLR 66:4, July). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 563
(3) For the purposes of subsection (2)(a) ‘‘sustainable development’’ includes
any development that is, in the opinion of the Secretary of State, prudent
having regard to the likelihood of its generating lasting benefits for the
population of the country or countries in relation to which it is provided.
In the words of the then Secretary of State, Clare Short, introducing the Bill at the
commencement of the Second Reading debate in November 2001:
The purpose of the Bill is legislatively to entrench poverty reduction as the overriding aim of
United Kingdom development assistance and to ensure thatymoney for development
assistance is spent for that reason aloneyUnder existing legislation, the Secretary of State
yhas an undesirable amount of flexibility in using development assistance resources, and a
future Secretary of State could, for instance, reinstate a policy of tying aid, thus distorting its
use and decreasing its efficiency, or use the aid budget to pursue other short-term political or
commercial ends. Clearly any future Government have the right to change policy, but yI
believe that [it] should be required to seek Parliament’s approval for a shift away from
poverty reduction as our central objective.
1
This is a very ambitious aim and raises a host of issues in relation to the new law.
These issues will be addressed by first setting the scene – what is the reality of
development and aid today – and then give the relevant parts of the text of the Act
a close examination in the light of the reality, some general principles governing
the proper use and regulation thereof of Ministerial powers and accountability for
public spending and some specific current problem cases on aid. Africa will be
concentrated on as most of the author’s ‘development’ work over 40 years has
been in that continent and he has lived in four different countries in Africa for a
combined period of 12 years during that period.
2
It must also be said that many of
the countries to which members of both Houses who spoke during debates made
specific reference were countries in Africa. For better or worse, in the mind of the
informed general public, aid and Africa are inseparable.
The reality of aid and development in Africa
Aid
In August, 1998, the author was present at a reception for the Secretary of State
for International Development. He was working in Tanzania for the German aid
agency, GTZ, preparing a new Forestry Act for the Ministry of Tourism and
Natural Resources. Claire Short, the Secretary of State, paid a visit to Tanzania.
The author was invited to the reception given in her honour by the British High
Commissioner. In the usual fashion she was invited to say a few words and the
assembled dignitaries from the political and administrative elites of Tanzania
together with a smattering of diplomatic personages and other aid-related people
steeled themselves for the usual anodyne platitudes. They were in for a shock.
After the conventional opening, the Minister noted that in gatherings like the
present one and in international meetings, big words like ‘poverty alleviation’
‘sustainable development’ were tossed about without people really meaning
1 HC Debs. 7 Nov 2001, col. 274.
2 Nigeria, 1956 – 57; Tanzania 1961 – 66; Kenya 1990 – 93; Uganda, 1999 – 2000. As some official
evidence that the author is assumed to have some expertise on Africa, it might also be mentioned
that he received an MBE for services to African land use and environment in 2001.
The Modern Law Review [Vol. 66
564 rThe Modern Law Review Limited 2003
anything by them or really believing in them. ‘‘Your Government’’ she said to the
startled Tanzanian elite ‘‘is like all the rest of them. Well, I say its time to cut the
bullshit and get down to work.’’
The author agrees. Its time to cut the bullshit about aid, debt, democracy and
development in Africa. A new approach to aid is needed. At the outset it must be
made plain that the author’s approach is diametrically opposed to that espoused
by proponents of debt relief and increased aid, including the British Government.
Whatever its success in bringing about debt relief, it is undeniable that Jubilee
2000, the main proponent of debt relief changed the terms of the debate on debt
relief. It is now distinctly politically incorrect to suggest that African governments
are in any way to blame for the state of affairs which most African countries find
themselves in – marginalised in the global economy, burdened with debt that
cannot be repaid, governments riddled with corruption, people poorer now than
at the end of colonial occupation some 40 years ago. Apparently, its all the fault of
the West; we shouldn’t have lent African governments money; we shouldn’t have
imposed conditions on the loans – like please spend it on what we have given it to
you for and not on personal consumption for the elites – and so we certainly
shouldn’t be asking African governments to repay the loans.
The author on the other hand takes his position from the inspiring address
which ex-President Nelson Mandela gave at the Convocation of the Open
University of Tanzania on 28 September, 2000 when he received an honorary
degree:
The time has come that we call a halt to the seemingly socially approved deification of the
acquisition of material wealth and the abuse of state power to impoverish the people and
deny our continent the possibility to achieve economic development.
Africa cannot renew herself where its upper echelons are a mere parasite on the
rest of society, enjoying a self-endowed mandate to use their political power and define
the use of such power such that its exercise ensures that our continent reproduces itself
as the periphery of the world economy, poor, under-developed and incapable of
development.
The African Renaissance demands that we purge ourselves of the parasites and maintain a
permanent vigilance against the danger of the entrenchment in African society of this
rapacious stratum with its social morality according to which everything in society must be
organised materially to benefit the few.
3
African governments and African elites in other words cannot be absolved from
the blame for the present situation in Africa. What then is the present situation? In
order to address the problems of aid, development and debt we must face the
reality of the present and not the rather jejune imaginings of these matters
presented by the proponents of debt relief. Here is reality.
The Canadian Government, committed to furthering good governance in
Kenya, negotiated with the Kenyan Anti-Corruption Authority to support
their development by the provision of equipment and transport. A programme
was prepared and agreed. The money was handed over to the Authority to
execute the programme. The money was promptly used to buy six Mercedes for
the senior staff of the Authority. End of the support programme. But what
did it matter to the senior staff? They’d got their Mercedes and that’s all that
mattered.
That this is not a one-off incident is exemplified by an exactly equivalent case in
Malawi where Ministers were to be supplied with Mercedes purchased indirectly
3The Guardian, Dar es Salaam, 5 October 2000.
International Development Act, 2002July 2003]
565rThe Modern Law Review Limited 2003
To continue reading
Request your trial