Policing for Democracy or Democratically Responsive Policing? Examining the Limits of Externally Driven Police Reform
Andy Aitchison and Jarrett Blaustein
University of Edinburgh School of Law
ABSTRACT
This paper engages with literatures on democratic policing in established and emerging democracies and argues for disaggregating democratic policing into two more precise terms: policing for democracy and democratically responsive policing. The first term captures the contribution of police to securing and maintaining wider democratic forms of government, while the second draws on political theory to emphasise arrangements for governing police actors based on responsiveness. Applying two distinct terms helps to highlight limitations to external police assistance. The terms are applied in an exploratory case study of fifteen years of police reform in Bosnia and Herzegovina (BiH). The paper highlights early work securing the necessary conditions for political democracy in BiH but argues that subsequent EU-dominated interventions undermine responsiveness. A recent UNDP project suggests that external actors can succeed in supporting democratically responsive policing where they do not have immediate security interests at stake.
KEYWORDS
Policing; democracy; responsiveness; Bosnia and Herzegovina; EU
Introduction
Democratic policing has been defined and redefined by scholars, practitioners and reformers (e.g. Bayley 2006; OSCE 2008; Pino and Wiatrowski 2006). Limited consensus exists on what makes policing ‘democratic’ and how this is best achieved, especially when pursued through externally-driven reform. In translating democracy into prescriptions or evaluative schemes for police services and police governance (e.g. Marenin 1998, Jones et al 1996, Marks 2003), or into lists of values to inform police reform (OHR 2004), the distinction between policing which supports the establishment or maintenance of democracy, and the specific arrangements for democratic governance of police services is overlooked or understated. We elaborate on this distinction, then draw on supporting material from Bosnia and Herzegovina (BiH) to identify international interventions associated with policing for democracy and to highlight structural conditions associated with liberal state-building which obstruct the development of democratically responsive policing. We argue that, while external actors may be well placed to support policing for democracy in divided, post-conflict or post-authoritarian contexts, democratically responsive policing requires greater sensitivity to locally defined needs, and is undermined when external interventions are driven by the needs, priorities and interests of sponsors. Contrasting the interventions on the part of the EU, which has strong security interests in the Western Balkans, with the UN Development Programme, underlines this point.
Our reading of work on policing and democracy in established liberal democracies (e.g. Bradley et al 1986; Jones et al 1996, Loader 2002) suggests that where the democratic nature of the polity is taken for granted, analyses neglect the role of the police in establishing and maintaining a democratic polity in favour of the mechanisms which govern police services1. Work on post-colonial contexts (Bayley 1969, Marenin 1982) and post-authoritarian states in Africa (Marks 2003), Australasia (Goldsmith and Dinnen 2007), Europe (Ryan 2009) and South America (Hinton 2008) cannot take democracy for granted. This produces more even, if not always explicit, attention across policing for democracy and democratic governance of the police. As the rhetoric of democratic policing within established democracies is critiqued (Manning 2010 21-22), a strong body of work associates the ‘export’ of democratic policing with a wider agenda aimed at aligning governing processes, institutions and structures in weak states with the preferences and priorities of strong external actors (Bowling and Sheptycki 2011; Ellison and Pino 2012; Ryan 2011). We seek to salvage something from democratic policing to provide reformers with a framework for police-support in new or emerging democracies.
As an example of a country experiencing intensive and extensive international intervention in police reform, BiH illustrates challenges of, and limits to, externally driven programmes of democratization. As an exploratory case study, BiH is used to illustrate the application of the terms policing for democracy and democratically responsive policing and to assess their value in identifying the limitations of external police assistance. Aitchison spent the summers of 2004 and 2005 in BiH, conducting interviews with participants in, and observers of, criminal justice reform and reconstruction (see Aitchison, 2011, pp. 8-12). In this period the Police Restructuring Commission was established and made its recommendations, and negotiations on restructuring took place between the main political parties under the oversight of Bosnia’s international overseer, the High Representative2. After an initial field visit in 2010, Blaustein spent 3 months of 2011 embedded in the Sarajevo office of a multi-lateral development organisation active in the field of police reform. Documentary output from the main participants in police reform has also been utilised. In what follows, we examine the role of police in establishing and maintaining necessary conditions for democracy. We suggest that supplementing these necessary conditions with a multi-dimensional concept of responsiveness derived from Kuper (2007) underpins police democratisation and sets useful boundaries for external intervention.
Police and Democracy
In examining the relationship between police and democracy, we take Bayley’s definition of police as a starting point encompassing the capacity to use force, a distinction from military armed forces, and a mechanism for social or political delegation of authority to a body of people responsible for the regulation of interpersonal relations (1985: 7). We recognise that this does not cover the whole gamut of actors and actions that constitute the wider sense of policing, but our focus in the first instance rests on public or state-police3 as key to understanding the distinction between policing for democracy and democratically responsive policing.
A minimalist view of democracy stresses procedural dimensions: regular and open selection of leaders; a popular franchise; and appropriate procedural safeguards. These are made meaningful by key freedoms, including freedom of the press, of association and assembly, and of expression (Parrott 1997: 4; see also Collier and Levitsky 1997: 434). These freedoms produce a capacity for public debate. A more expansive definition of democracy, indicative of consolidation, requires political power to change hands peacefully more than once (see Huntington 1991: 266), and in terms of the effective power to govern (Collier and Levitsky 1997: 444) requires major political actors and social groups to accept and utilise representative institutions to pursue political claims (Dawisha 1997: 43).
Andrew Kuper’s work on global democracy develops responsiveness as the fundamental element of democracy, examining the idea across horizontal and vertical dimensions (2007: especially 103-4). While Kuper does not dismiss the value of procedures, he focuses primarily on a conceptual core of responsiveness. Vertical responsiveness expects the ‘reasonable contestations’ of citizens to generate a ‘proper response’ from those in positions of authority. This need not be simple acquiescence to the demands of a majority and responses can vary from explanation through to policy change (Kuper 2007: 104). Horizontal responsiveness describes the checks and balances between political actors and institutions. Kuper seeks to avoid a range of practical obstacles to the realization of democracy as imagined by Habermas and Goodin (Kuper 2007: 61-74). By anticipating structures where interdependent authorities need to respond to one another, building consensus and cooperation (Kuper 2007: 103), he still acknowledges the value of discourse and communication in those original schemes. As no individual actor can claim perfect knowledge, constellations of ‘knowers’ are forced into mutual responsiveness. In our exploration of the conceptualisation of democratic policing, we find that many separately conceived indicators are oriented towards responsiveness.
Policing for democracy
Bayley’s early work on police and political development sets out the case for linking police activity and political regimes. Police are not simply passive agents shaped by their political environment but help shape that environment and the system of government (Bayley 1969: 12-13, 409). Minimum standards of police practice are necessary, if not sufficient, to support political democracy. The police organisations required for these tasks need not be democratically responsive in the sense defined below and we argue that the limited goal of policing for democracy can feasibly be driven by external actors. Policing for democracy is policing which does not damage, but actively supports, the development of the core elements of democracy and democratic consolidation. In terms of practical implications, policing for democracy calls for a combination of restraint and positive obligations rooted in protecting the exercise of political freedoms. Restraint means avoiding actions designed to intimidate people exercising political rights (e.g. political campaigning, attending political meetings, meeting constituents, media reportage). Likewise, it requires that police do not react with oppressive force to non-violent political and community gatherings. While police need not be excluded from party membership, this ought not to influence their professional conduct. As an extension of this, police officers should not support political actors seeking to undermine democratic institutions by criminal or extra-constitutional means.
Positive obligations encompass the protection of electoral processes, securing voters against intimidation and obstruction and protecting ballot boxes and election counts. Following elections, police play a role in ensuring that political representatives are safe to carry out their role. Where there are attempts to subvert normal democratic processes, or there are extra-constitutional or violent attempts to pursue political claims, then policing for democracy requires that these are investigated in cooperation with the appropriate prosecutorial or judicial authorities. More broadly the police are obliged to enact decisions of legitimately constituted judicial and prosecutorial authority, through the execution of arrest warrants and conduct of investigations. Finally, policing for democracy requires the more general maintenance of peace and order which is necessary for free and open political exchange. These restraints and obligations help to ensure that institutions act in their legally constituted manner, that there is a free and open line for communication between citizens and political representatives, and that public space is available for political debate. Elias identifies the economic and social opportunities created by the consolidation of the means of force and subsequent internal pacification (1994: 419-420). The relative pacification of police and their direction towards providing an equitable minimum of security is necessary, if not sufficient, for free political action. This fits with Marenin’s principle of ‘general order’ in his criteria of democratic policing, meeting a ‘minimal expectation of stability, order and routines which allows people to predict what they are able to do’ (1998: 171). We isolate this general order, along with a liberal principle of equal application, from democratic policing in order to define the more specific practice of policing for democracy. The concept of policing for a democracy is about what police do and how they do it, and carries no assumptions about the governing structures which produce this. For example, in a post-conflict environment, where police power and authority are strongly contested by former parties to the conflict, achievement of restraint and fulfilment of obligations identified above may be maximised by strong direction and oversight by external actors. Where this is accompanied by strong investigative powers and levers to ensure that domestic law and regulations are used to respond to abuse of power, space can be created for democratic political forms to develop in the wider polity.
Democratically Responsive Policing
While policing for democracy is a necessary but insufficient platform for a democratic polity, and may be imposed from outside, it falls short of democratically responsive policing. With particular reference to three key texts in the democratic policing canon (Jones et al 1996; Manning 2010; Marenin 1998), we identify two prior qualifications for a democratically responsive police service that focus on equity of policing and the capacity to deliver a minimum level of service and security. The principle of equity and police capacity to provide a certain minimum threshold of security were identified in the discussion of policing for democracy and encompass the values of service delivery, efficiency and effectiveness highlighted by Jones et al (1996: 191) and Marenin (1998: 169). We see the elements of policing for democracy as a necessary prerequisite for democratically responsive policing. Beyond these elements, much of the democratic policing literature points towards the value of responsiveness and we argue that a focus on responsiveness achieves a greater conceptual clarity. We present this schematically in table 1, below, and explain the reasoning and the impact on our understanding of democratically responsive policing in the remainder of the section.
TABLE 1. Democratic policing and responsiveness
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Responsiveness is omnipresent within the literature on democratic policing (e.g. Bayley 2006; Jones et al 1996). Jones et al include it as their third most important criterion, expecting police to be ‘responsive to some expression of the views of the public’ on the principled basis ‘that government should reflect the wishes of the people’ (1996: 191). Following Kuper, responsiveness is not simply acquiescing to a generally expressed will. Rather, ‘responding’ can mean refuting, with reason, public demands. Police and their governors may be called to ‘respond’ to a wide range of individuals, groups and institutions (for a discussion of the role of ‘reasons’, see Loader and Walker 2007: 227 ff.). We subsume a number of other criteria identified by Jones et al, Manning and Marenin as dimensions of a ‘headline’ concept of responsiveness. The distribution of power speaks directly to Kuper’s sense of horizontal responsiveness between a set of actors and institutions, none of whom can claim perfect knowledge. There are various mechanisms to distribute power. Jones et al focus on governing structures (1996: 188). Manning favours competition, and while his point risks getting lost in his ensuing discussion of the blurring of police and military in contemporary wars (2010: 67-68), competition- and market-based policies seek to promote responsiveness to citizens defined as a consumer (Clarke et al 2007).
Jones et al identify three further dimensions that contribute to responsiveness: information, redress and participation. Information underpins other democratic criteria (1996: 192) and promotes responsiveness in two ways: the publication of information is as a stimulus for citizens, groups and institutions to present preferences to police who must then respond; secondly, providing information can be a reasonable response. This may not require a change in policy, but requires police to articulate what they are doing and why. Jones et al have a broad notion of redress, which starts from the democratic right to remove people from public office, but encompasses responding to complaints through appropriate investigation and compensation (1996: 192). Mechanisms for redress allow the public to express their discontent with particular police actions and call upon the police to apologise and commit to behavioural change. Finally participation, the lowest priority in Jones et al’s criteria, is a stimulus demanding a police response.