Download the file - United Nations Rule of Law

ights. Other benefits would include a potentiallylarger market, or at least easier access to largermarkets. Although business persons in the informaleconomy routinely trade across borders, inAfrica, only the people in the formal market areable to import or export through major ports or anyother major transit areas, given the presence ofcustoms and other border officials. A benefit of beingin the formal market, therefore, is the potentialto grow a larger business and to get out of poverty.As discussed in the next section, this costbenefitanalysis highlights the areas wherethe law can make the transition from the informalto the formal economies easier. The role for thelaw, then, is to reduce the costs and enhance thebenefits of entering the formal economy. Becausethe process may be long, and because theexistence of the informal economy is an adaptiveresponse rather than moral failure, the law shouldnot seek to force the poor out of the informaleconomy by increasing costs or reducing benefits.The point is to empower the poor to leave theinformal economy and to provide incentives forthem to choose to do so.Rights-based Legal EmpowermentMost people enter the informal economy not bychoice but out of a need to survive. The decentwork deficits are most pronounced in the informaleconomy, where the majority of informal businesseshave little or no social protection andreceive little or no social security. Poor respectfor, or lack of freedom of association, make it difficultfor workers and employers to organise in theinformal economy. 66In 2001, an ILO Conference concluded thatinformality is principally a governance issue and itencouraged employers’ and workers’ organisationsto extend their representation throughout the informaleconomy. The growth of the informal economycan often be traced to inappropriate, ineffective,misguided or badly implemented macroeconomicand social policies, often developed withouttripartite consultations among workers, employersand governments. Workers’ representatives on thecommittee forcefully stressed that informality isnot a solution to unemployment and the resultingreport called on governments to provide conducivemacroeconomic, social, legal and political frameworksfor the large-scale creation of sustainable,decent jobs and business opportunities.However a fundamental concern in the recognitionof rights is the need for individual legalidentity, as expressed by M. Woolcock: 67To the extent there is now a broad scholarly andpolicy consensus on the importance of propertyrights for development — i.e., for encouraginginvestment by the poor (and others) insmall business ventures; or, concomitantly, arecognition that endemic corruption, costlybureaucratic delays and weak contract enforcementall undermine capacities and incentives tomake such investments — it is also importantto appreciate that responding effectively tothese concerns is not simply (or only) a matterof encouraging policymakers to ‘grant’ propertyrights, ‘stamp out corruption’ or make relevantline ministries ‘more efficient.’ In the mostelementary sense, property rights must be givento actual people, who themselves — in order toadvance and defend their personal status andidentity. A crucial prerequisite, then, to enhancingthe quality of property rights is ensuring thatresidents/citizens have recognised documents(such as birth, death, marriage and divorcecertificates) verifying such basic information astheir name, age, sex and marital status.To balance between rights and market-basedapproaches, emphasis should be laid on programmesproviding increased wages, governmentassistance, education, land reform, labour monitoring,and access to credit, which are good starts229