By: Francis Ben Kaifala Esq.

The legal and regulatory regime in Sierra Leone mostly sets out prescriptive rules and sometimes sanctions for violations without considering the choice of the people. Omitting the variables connected with a person’s choice in policy making is erroneous given that a person’s actions, whether right or wrong, are mostly triggered by choice.

Our law makers have sometimes been guilty of haphazardly penning down laws that fail to take into consideration how people will likely behave in response to those laws so as to “tailor” future rules. Enough time has not been taken to study what rules should be set to advance specific ends beyond the “copy and paste” rules adopted from our colonial masters or verbatim imports from other countries whose needs and peculiarities may not necessarily match ours.

We are stuck with mostly unreformed, dormant and disused laws, which by not taking into account people’s choices during policy formulation prevent our laws from being effective tools for socio-economic transformation. Laws should take into consideration peoples’ behavioural patterns, drawing attention to their cognitive and motivational problems so as to create a more serene, decent and progressive society.

‘Behavioural change’ in terms of respecting the law or conforming to social norms has not worked because of our in-built biases that often prevent us from making choices that would maximize even our own welfare, let alone that of society as a whole. Sierra Leoneans place more value on what they already have than they would on that same thing if it wasn’t in their possession – even if the latter could prove to be more useful to them. For example, most people prefer to keep their money under their mattresses or stockpile huge sums in the banks rather than take risks to invest them. (“A bird in hand is worth two in the bush”). People assume that others have the same values as them (“we are all mates”) – this is why morality is such a scarce commodity in our land. We succumb to ‘hyperbolic discounting’ whereby we put more value on present pain and pleasure than future ones (“man lives but once”) – this is why most people don’t even have pension or retirement plans. We are excessively optimistic (“things will get better”) – this is why we recycle the same politicians who we know love all else but their own country and therefore have repeatedly failed us. We yield to confirmation bias whereby our preconceptions make us claim evidence in support of things that do not exist (“ghosts”). We convince ourselves that something is unlikely when in fact it is very likely to happen (“Ebola is not my portion”). Such thinking is a factor in our continued battle with Ebola that has lasted over a year. All these facets of the Sierra Leonean psyche lead to impaired judgements that affect behaviour and attitude to the detriment of not only the person making the decision but the society the decision affects.

Cognitive limitations affect us all - judges, legislators, other government actors as well as private individuals. Policy makers get it wrong a lot of times, as rational thinking on their part is often eclipsed by the cognitive biases and limitations listed above. They largely exhibit “overconfidence bias,” most times believing what they know to be always right and that everyone else is wrong. Evidence of this is the President’s interpretation of the Constitution to mean that “Supreme Executive Powers” gives him the right to sack the constitutionally elected Vice President, which has plunged the nation into a prolonged unnecessary constitutional quagmire. Lawmakers also suffer from “confirmation bias” by interpreting evidence in support of preconceptions which may not exist. Since lawmakers are often not under the same pressure to account for their actions as the ordinary man to whom sanctions may be applied, they are able to bluff their way through.

Sierra Leone’s aim at changing people’s behaviours through laws on the one hand and megaphone campaigns, billboards, and various television and radio programmes on the other has not produced the desired results. For several years, these have been ongoing and not much has changed. The more resources that have been committed to these ineffective exercises, the more the public has grown weary of them. It is time for policies that can nudge the people and steer them in welfare efficient directions.

Behavioural and attitudinal change can happen through one of two ways – drastic events (like massive imprisonments and draconian punishments) or a slow process over a very long period of time. Both options are likely impractical in our circumstances as harsh laws will lead to public revolt and prolonged policies will breed discontent. Therefore, policy makers must be willing to ‘nudge’ the choices of their citizens for their own good. (A “nudge” is simply a gentle push in the right direction).

To illustrate this, in order to ensure that people plan for their old age, impose a pension plan on them which they can opt to disregard but at their own peril. If you want people not to throw dirt in the streets you clean the environment and set up functioning public disposal systems. The cleaner the environment around them the more people’s psyche will be reprogrammed against messing up the environment. If you want people to eat healthy food, they should be properly educated on the properties of the foods they eat so they can make informed decisions on a healthier lifestyle.  If you want to minimize road accidents, don’t put up patronizing road signs like ‘please drive safely’ but rather ones that bluntly portray the dangers of over-speeding.

‘Nudging’ happens around us all the time: In the male sections of public lavatories, there is a tendency for users to spill on the floor even if the basin is large enough and well designed to accommodate their pour of urine. To avoid spilling, a savvy utility owner would put a plastic miniature butterfly in the middle of the basin. The purpose of the butterfly is not just decorative. By creating a target for them to hit, the owner is nudging mento keep them from spilling on the floor. It is the same for default settings on mobile phones, laptops and other electronic devices we buy. While we can opt out of those settings if we so desire, it is generally in our interest not to do so.

After 53 years of independence, assuming that peoples’ behaviours will change with our grossly inadequate laws is unrealistic. Our society remains filthy, lawless, and teeters on the brink of failure. “Nudging” through regulatory and non-regulatory interventions could be the answer. We have to move from the laid-back and mostly wasteful ‘behavioural and attitudinal change’ façade and implement policies that can effectively nudge the people towards a more self-sufficient, cleaner and safer environment populated by patriotic and law-abiding citizens. Directing people’s choices towards welfare promoting behaviours without eliminating their freedom of choice is the secret tool that the West has used to progress.

This proposition is likely to bring unease to the conventional wisdom that “the law settles all” and that law is the best way to influence behavioural and attitudinal change. I believe, however, that policies which promote autonomy or welfare (libertarian paternalism) are more likely to succeed in a society that prides itself on freedom than hard law (hard paternalism) would. Therefore, the way legal rules are designed will have a very strong influence on how people think and the choices they make. ‘Nudging’ will not nullify the law, it will fulfil it. It will positively reframe aspects of our existing laws like workers’ welfare, family, crime and future ones like consumer protection and competition laws, which will help make our societies fairer and better.It will help to bring about all-round socioeconomic development which, while achievable, seems to have eluded us even after 54 years of independence!

(c)   Francis Ben Kaifala Esq. is a Senior Partner in the Law Firm Kaifala, Conteh & Co., Top Floor, 81 Pademba Road, Freetown; He holds the joint LLM (Master of Laws) in Law & Economics from the School of Law and the School of Economics and Finance at Queen Mary University of London. Email: fkaifala@yahoo.fr