Miqsia's Erfaringsprojekt

Establishing and Assisting Democratic Institutions

The Case of Albania [Preliminary edition]

By Hans Henrik Brydensholt

Speech on the Conference of Ombudsmen, 1st April 2005

Miqsia er albansk og betyder venskab

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Preliminary. Version 1.0 - 08.05.2005

Hans Gammeltoft-Hansen (the Danish Ombudsman) and H.H. Brydensholt. Photo: BA, 2004

We are here to talk about establishing democratic institutions

My intervention will fall in three parts.

First I will tell a story about the meaning of democracy.

Then I will tell a story about the lack of law and order in Albania 10-12 years ago. And about what you can do in a country where courts and other parts of the legal sector are out of function.

Finally I will explain, why it is a misperception, that the Ombudsman-institution is first and foremost an organ to control the legality of decisions made in the public administration. The institution is first and foremost an organ to ensure that the social contract in our society includes all, also those who else would be left powerless outside.

What is Democracy?

I will allow myself to tell a small story about a conversation I had some years ago in Mozambique with one of the leading persons in Frelimo, who had been in the forefront in the liberation fight and member of the Frelimo government which in 1975 took over from the colonial rulers.

It was a one-party socialist government, and I asked him the unavoidable question about the treatment of dissidents.

He said: We were so convinced that we were right, it was so obvious for us, that we simply couldn't understand that good people could think otherwise. Our three major goals were: to create for a land reform, to educate the entire population - hereby erasing illiteracy - and to give women equal rights. Those goals were for us so obvious right that we couldn't understand or accept that anybody could work against us. He then added: But right or not, the Marxist regime could not survive the breakdown of the Soviet Union in 1989, and the supply of cheap Russian oil. So in came the values of the Western world with the World Bank and its free market economy.

But as the old fighter said: You can only once in your lifetime have such strong believes as we had. You can not just shift your values only because you are taught that individualism and market economy is now in the driving seat. You see the result when values are lost. You see my old friends amassing as much for themselves as they can. Corruption is everywhere.

The lesson I will draw from the story of the old fighter is that unless we can establish a deeper understanding of what democracy means for the relationship between people, there is a serious risk that the transition to democracy in reality will end up in selfishness and corruption.

Democracy was created under the motto: Freedom, equality and brotherhood.

Democracy is not only free election, civil rights for the individual citizens or market economy with protection of the individually owned property.

Democracy is a culture, building on a mutual trust that due considerations will be given to all interests. It is a social contract between all.

That is the challenge.

Dahrendorf on the lack of common values

The German politician and later director of the London School of Economics, Ralf Dahrendorf, has in his book - Law and Order - described the signs of disruption in western societies what he calls anomia - or the lack of common values.

Dahrendorf maintains, that we for the first time in history is in a situation, where a substantial part of the population - the have nots - never will contribute to our economic community, to our national product. Right from the beginning they will be outside the ordinary community, and the sad fact is, that for the majority - those who in our time have been part of those who have - it would in material terms have been better, if the have nots would never have been born.

We have - still in accordance with Ralf Dahrendorf - not created a system, where we in the social contract have been able to handle this conflict. The tendency has been, that those who have has closed the ranks and tried to keep the others on distance.

But there is one way in which the outcast can get attention from the ordinary citizens, that is through criminality. Dahrendorf argues that those who have must include all in the general society in their own interest - not because they else need them, but in order to protect their own lives and values.

There is a need for a new social contract.

The welfare-state looks for the elementary material needs for those, who are not in a position to provide for themselves. This is not the same as to include them in the ranks. This is not brotherhood. We need institutions who can support inclusion instead of separation.

Albania 1994

I will now turn to the situation as I saw it in Albania, when I first arrived in 1994.

The Danish Foreign Ministry asked me to go to Albania to see if a limited amount could meaningfully be used to assist in the strengthening of the Albanian Judiciary.

I went there, and I use to describe the situation in the country by telling of my experience on the very first day of my visit. I had a cup of coffee together with an Albanian liaison, who should assist me. The cafe was located in a place which had in the time of the old regime been the central park but where people then, disregarding all rules, just built as they liked. The weather was splendid, it was just before Easter. I enjoyed to be sitting there in the sun.

However, there was one thing which bothered me: the number of foreign cars. I mentioned to my Albanian liaison that I was surprised to see so many tourists in Albania. What?, he said. There is none. What about all those cars with the national plates from Austria, Italy and Germany?, I said. Oh! Those are not tourists. All the cars are stolen.

As regard to the Judiciary, you should not be many days in the country to discover that the courts had only little to do with justice. In 1991, nearly all judges from the time of the old regime had been replaced by people who had got a six month course in law, who were paid a very small salary, and who were placed in the most lapidary buildings. There, they sat without any equipment, with their overcoats and hats on in cold weather. And those judges should be the ones who should decide among other things on land disputes arising out of the very unclear law on re-privatization of land. The judges were not independent, not professional lawyers, and certainly not in-corrupt.

Under those circumstances, I could not recommend any assistance to the Judiciary. It would in my opinion have to be restructured completely, and I could see no political will for a radical change of the situation.

It was first after the serious civil unrest in 1996-97 and the general election and formation of a new government in 1997 that the ground was prepared for a reform in the legal sector. It was on that time that the work on an Ombudsman-institution, the People's Advocate, was started. Denmark was then asked to support the creation of this new institution.

AFCR - The Albanian Foundation for Mediation and Conflict Resolution and Reconciliation of Disputes

Long before that, the Danish support, which could not be given to the Albanian Judiciary, had on my advice been used to establish AFCR, The Albanian Foundation for Mediation and Conflict Resolution and Reconciliation of Disputes.

It was possible to build such a mediation institution on the base of the old tradition for mediation between clans and family elders kept alive through a traditional law system, the so-called Kanun-law.

In 1995, AFCR started its work on mediation of actual conflicts as well as on training in tolerance and mediation techniques in schools. The institution has spread its activities in many parts of Albania through local centres, mobilizing volunteers in its work.

Not only Denmark supported the work. Among others, the Soros Foundation has been highly supportive not least in the work with schools.

The results have been encouraging. Over 2,500 conflicts are solved every year; many of them serious land conflicts and even blood-feuds are brought to an end. But the institution is financially very weak. Albania is a poor country, and the formal legal system swallows the resources available. Therefore, AFCR is still completely dependable on foreign assistance, and it was such a shame, that the Danish transitional support was brought to a definitive end in 2003.

When the need is biggest, the help is nearest, as we say. Norway has a very strong tradition for mediation in both criminal and civil cases. And the Norwegian Conflict Boards has straight from the beginning been supportive to the Albanian foundation. Therefore, as Denmark pulled out, Norway stepped in, and has taken over in a very professional way.

In the application for financial support for the cooperation with AFCR the Norwegian Conflict Boards said:
To develop and strength the civil society is an important part of establishing democracy, and the mediation model chosen by the institution in Albania is an important contribution in this matter. Recruitment of local lay mediators contributes to a strengthening of an active local community which is able to handle its conflicts in a constructive way.

The way AFCR is organized contributes to establish and strength the relations with various local authorities. This gives increased awareness of on what creates conflicts and what contributes to solve them. Land is a well known area for conflicts in the Albanian society ... Conflicts in families - violence against women and children - are another big social problem. Such conflicts are examples of situations, where several instances need to work together in order to reach trustfully, lasting solutions. ... Through its role as facilitator for solving conflicts, AFCR creates more awareness and consciousness regarding important problems in the Society at large ... AFCR's mediation activity is able to bring the actual parties in a conflict and others with responsibilities in the field closer together, aiming also of finding long-sighted strategies for the solving of general problems for the society.
Albania has since the shift in regime in 1991 been a society with tension between various parts of the population. The attitude has been: either are you with us or you are against us. This attitude is reflected also in the media.

Where the mediation institution - AFRC - can be described as a success in mini-format, the Albanian Ombudsman-institution is in my eyes a mega-success; by far the most successful of the legal institutions supported from Denmark.

A new social contract

In a country as Albania, where division between them and us is such a severe barrier for the development of a working democracy, and where the general trust in public institutions is low, it is so important that an institution like the People's Advocate has been established and has earned the reputation of being for all.

We are used to look upon the Ombudsman-institution as an organ to control the legality of the decisions made in the public administration. We are used to think that such an institution is there to fight corruption and ensure that the administration also in other respects is handling its cases in accordance with the established law.

But if Dahrendorf is right, if we need a new social contract, where the have nots are not only given their rights, but a place, an inclusion, in our ordinary community, we need organs who not only look for legal rights for all, but as well for decent and respectful handling of all.

I am not saying that it is not important that an Ombudsman-institution fights corruption and that the administration is operating in accordance with the established law in the country. Of course not. But if that was the only raison d'etre, the Ombudsman-institution would not be such an important institution in a country like Denmark. We have little corruption and - with few exceptions - a law abiding administration.

When the Ombudsman-institution is of such a paramount importance also in Denmark it is not due to the institutions role as a controller of the administration's adherence to the already established law. But because the institution under the term good administrative practice has developed new norms for decent and respectful handling of all.

And thereby being an advocate for a new social contract, the people's advocate.

May I finish by congratulating the Albanian Ombudsman for his recent re-election with support from all parts of the Albanian society.

It is the best possible sign, that we also in Albania have institutions able to draw support from all sides and thereby assist in the development of working democracy.

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