Although donor assistance to promote Rule of Law (ROL) in Africa is a small fraction of that enjoyed by others regions, mainly Eastern Europe , it has witnessed exponential growth over the last fifteen years.[1] Both judicial reforms and democratization have been the most important strands of ROL efforts in Africa ,[2] focused on “increasing effectiveness of institutions, especially their physical infrastructure, supporting legal and judicial training, [and] making legal information accessible…”[3]
In the main, the democratization attempt has registered mixed results. Generally, the democratization movement has been criticized on the basis that “when weak states embrace liberal democracy without the corresponding rule of law culture, the result is the emergence of an illiberal regime”.[4] As the one perceived bedrock to democratization, judicial independence has understandably been held aloft.
It is crucial to emphasize that judicial reforms in Africa , which as we have indicated has formed the largest plank of ROL interventions,[5] have been focused on behavioural rather than structural independence of judiciaries.[6] Transforming judiciaries by addressing their capacity as opposed to structural constraints may be unsustainable. Moreover, the choice of judicial reforms is informed by the mistaken belief that courts are the “essence of rule of law system in the country”.[7] This erroneous identification of the locus of the rule of law renders problematic many initiatives as we demonstrate here. Interestingly, the first conference on judicial reforms in Africa at the turn of independence, which brought together judges as well as lawyers across the continent, emphasized that:
Equal access to law for the rich and poor alike is essential to the maintenance of the rule of law…It is therefore essential to provide adequate legal advise and representation to all those threatened as to their life, liberty, property…who are not able to pay for it.[8]
This understanding does seem to reveal that amongst African jurists of the time, while judicial independence was considered important, there was a general feeling that the law needed to respond more to the needs of the society, hence the emphasis on access to justice. The overall perspective at this inaugural conference was that the law needed to maintain a measure of legitimacy and relevance for it to commend respect not just by judicial officers, but by all.[9]
Access to justice for the poor however never rose to occupy a significant place in the emerging architecture of Technical Corporation in Africa .[10] Instead, we witness a sustained focus on reinforcing judiciaries, which, without a concomitantly supportive constitutional framework and progressive civil society would fall prey to corruption and avarice within a short time.[11] In the ensuing delegitimizing of law, it became easy for political barons to begin to manipulate judicial power, without attracting the reprehension of the people, due to the fact that the law as represented by judicial institutions was deemed exclusivist and non responsive to issues most germane to the peoples’ struggles.
Propping up judiciaries that are generally considered illegitimate is not the most sustainable way of deepening the rule of law. For some reason, this discordance has not been addressed by ROL interveners and remains salient in most of sub-Saharan Africa . Three cases illustrate the impact caused on judiciaries by unresolved political questions in African states.
First, Mugabe’s annexation of land from white farmers in Zimbabwe was largely informed by the fact that while the judiciary was fairly independent, the social fabric in the country was extremely weak and vulnerable so that when the political need arose, it was easier to trump presumed illegitimate property rights in the statute books and brings down the judiciary as well. Berry
The courts [interpreted this] as a battle over ‘the rule of law’, but the crisis quickly expanded to a debate over…the legitimacy of inherited laws and institutions…Zimbabwe activists and intellectuals responded that the distribution of property rights was an artefact of colonial rule.[12]
While abhorring the manipulation of property relations in Zimbabwe
Second, between 1970 and 1985, the nationalization of property in Tanzania
Third, the 1992 Kenya
Overall, the key assumption of most ROL interveners is that because the legal system in Africa “remains captive to the powers that be…”[19] then core effort ought to focus on extricating institutions, especially the judiciary from such overriding control. While such attempts do generate positive results, the incentive to apply the law in favour of those interests remains, specifically, when the law is vague and leaves much discretion in the hands of judicial authorities. Thus, when the law dealing with an issue such as land remains undeveloped, it is likely that judicial decisions will favour mainstream conceptions of property to the detriment of the poor and under-voiced.
While this paper acknowledges that over the past decade, most countries have been engaged – at various levels of detail – in evaluating their land policies and laws, especially regarding the relative status of customary and statutory tenure,[20] few, if any, of these policies have been framed as rule of law interventions. Even where rule of law reform relative to property rights was pursued, it had narrow commercial goals.[21]
As alluded to earlier in this paper, the nature and distribution of property rights in much of Africa ’s post colonial state has been problematic for judicial intervention in two ways. First, much of land in rural Africa is not protected by statutory law but rather by tribal customs. This paper’s concern is that the indeterminacy of property rights in land held through custom allows for the predominance of arbitrariness and abuse of discretion to the detriment of the poor, whom the judiciary is often unable to defend. Second, the most productive rural and urban lands, although protected as freehold or leasehold property are contested since they were imbued with property rights, through colonial annexation of territory prior to the emergence of ‘popular’ rule of law, and are considered illegitimate by the citizens.[22] This form of property attracts judicial intervention, and unfortunately judges, who must look to the letter of the law the foundations of which are faulty, are thus perceived as protectors of unwarranted or unjust wealth
By failing to speak directly to issues of historical wrongs in the context of land reforms in Africa therefore, ROL interveners have missed an opportunity to consolidate rule of law efforts beyond focusing on the judiciary. This may partly be due to the inflexibility of rule of law grant making who set key priorities, as Carothers observes:
Donors sometimes determine rule of law reform priorities. Enormous amounts of aid are granted for the writing or re-writing of laws, especially commercial laws.[23]
With such donor-driven priority setting, it is small wonder that rule of law efforts in Africa have been stymied.
To be fair, the last ten years has also witnessed an emerging shift in rule of law programming, though the sustainability and consistency of it cannot be assessed. For instance, the overall emphasis on human rights as an important constituent of ROL, means that the poor, including those who has historical land claims and those whose land rights are insecure due to being managed under customary tenure, have found a voice.
Donor strategies are also taking on more comprehensive approaches. For instance, multiple donors have assisted countries such as Kenya , Uganda and Malawi
[1] It has been estimated that donor assistance for ROL programming in Africa rose from US $ 17.7 million in 1994 to over $ 110 million. See e.g., Laure Helene Piron, Donor Assistance To Justice Sector Reform In Africa: Living Up To The New Agenda in human rights and justice sector reforms in africa: contemporary issues and responses, 4 (2005, Open Society Institute) available at http://www.soros.org/initiatives/osji/articles_publications/publications/justice_20050207> . In contrast, USAID alone spent $ 202 million in Eastern and Central Europe ’s rule of law programs in 2004. See e.g.,USAID Central and Eastern Europe Regional Data Sheet at http://www.usaid.gov/pubs/cbj2002/ee/cee_reg/180-022.html>.
[2] Laurie Piron, Id at 4. Before the 1990s, Piron notes:
Typical initiatives in Africa included: supporting a new telecommunication law in Ghana,; law revision, updating of case law reports and a review of commercial law reviews in Tanzania as part of a legal management upgrading project,; and seminars on the Treaty to Harmonize Commercial Law in Africa.
See also Rama Mani, Promoting Rule of Law in Post Conflict Societies in Common Security and Civil Society in Africa , 145-162 (Samantha Gibson et al, eds., 1999). The author mentions legal training, redrafting constitutions, passing and enacting legislation, promoting commercial law, funding civic education, rebuilding court houses and promoting human rights as some of the rule of law activities funded by the international community in transitional countries in Africa . One area she views as having been ignored by rule of law interveners for instance is administrative law yet it influences “ many aspects of daily lives of citizens and condition their attitudes to the rule of law. Yet often administrative laws are enacted by decree, rather than by open and public procedures, thus entrusting great power and authority to unelected administrative bureucrats.” Id.
[3] Id at 5.
[4] See e.g Fareed Zakaria, The Future of Freedom: Illiberal Democracies at Home and Abroad (2003). Indeed, the empirical result of the democratic deficit in Africa are quite telling according to Claude Ake:
With a few exceptions, the democratization has been shallow; typically, it takes the form of multiparty elections that are really more of a democratic process than a democratic outcome. Authoritarian state structures remain, accountability to the governed is weak, and the rule of law is sometimes nominal. More often than not, people are voting without choosing.
claude ake, democracy and DEVELOPMENT IN africa , 136 (1996).
[5] gordon barron, the world bank and rule of law reforms, 6 (2005, London School
[6] The distinction between behavioral and structural reform of the judiciary is made by Dam, supra note xxx at 229. Structural reforms implicate the constitutional location of the judiciary, which most rule of law reforms have failed to target. In contrast, behavioral reforms really focus on issues of judicial remuneration and capacity issues e.g. computers, judicial trainings etc. In the case of Kenya
“the Kenyan legal system is replete with legislative enactments whose overall effect is to fetter, clog, dilute, transgress, vitiate and defeat the Fundamental Rights and Freedoms of the individual guaranteed under the Bill of Rights and negative judicial independence.”
See e.g., Pheroze Nowrojee, “Why the constitution needs to be changed” in in search of freedom and prosperity (Kivutha Kibwana et al. Eds.) 386 at p. 389 1996).
[7] Carothers, supra note 18 at 210
[8] Herbert Chitepo, Introductory Report to the Third Committee: The Responsibility of the Judiciary and the Bar for the Protection of the Rights of the Individual in Society, in african conference on the rule of law: report of proceedings, 80 (1961, International Commission of Jurists).
[9] Carothers agrees with this perspective thus:
[S]ome research shows that compliance with law depends most heavily on the perceived fairness and legitimacy of laws, characteristics that are not established primarily by the courts, but by other means, such as the political process.”
Carothers, supra 18, at 209.
[10] The World Bank’s Justice for the Poor (J4P) research program is one of the emerging exceptions. It is “[A] multi-country study that seeks to develop an empirically-based understanding of how the poor or excluded navigate through local justice systems, in order to inform and evaluate innovative efforts at local-level justice reform.” See e.g., Justice for the Poor Kenya Concept Note (June 2007) available online at http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTLAWJUSTICE/EXTJUSFORPOOR/0,,menuPK:3282947~pagePK:149018~piPK:149093~theSitePK:3282787,00.html>.
[11] Judicial corruption in Africa is legend. According to surveys, bribery in Kenya Nairobi
[12] Berry S.., Debating the Land Question in Africa, 44:4 comp. studies in soc’y and hist., 638-668, 651 (2002).
[13] See e.g., Gugulethu Moyo, Corrupt Judges and Land Rights in Zimbabwe
[14] Art. 24 (1) Constitution of United Republic of Tanzania (1984) provides:
Subject to the provisions of the relevant laws of the land, every person is entitled to the right to own property and has the right to the protection of his property held in accordance with law (2) Subject to the provisions of sub-article 1 it shall be unlawful for a person to be deprived of property for the purposes of nationalisation or for any other purposes without the authority of law which makes provisions for fair and adequate compensation.
[15] See generally, Jacqueline Klopp and Prisca Kamungi, Violence and Elections: Will Kenya Collapse? world policy j., 10-18 (2007/2008).
[16] sam moyo, socio-economic dominance of ethnic and racial groups-the african expreience, 22 (2004, UNDP Research Paper).
[17] Kemei and 9 Others v Attorney General and Others High Court of Kenya
If hunting and gathering in a territory were in themselves alone to give automatic legal proprietary rights to the grounds and soils we hunt and gather upon, then those who graze cattle nomadically in migratory shifts everywhere according to climatic changes would have claimed ownership of every inch of every soil on which they have grazed their cattle.
Compare with: Alexkor Ltd v Richtersveld Community, Constitutional Court of South Africa, CCT 19/03, (2003) (where the South African Constitutional Court
[18] Presidential Commissions of Inquiries have been the preferred method, the results of which have been abysmal.
[20] Both Kenya and Tanzania
[21] The central reform has been to privatize common property. Privatization in most of Africa has been criticised as crude asset stripping:
Bullies and plunderers-who could never flourish if the rules of the game were crystal clear and reliably enforced-cannot be expected to promote or enforce a system that will radically devalue the rude skills of acquisition and domination they have perfected in the state of nature.
See e.g., Holmes S., Lineages of the Rule of Law in democracy and the rule of law, 20-21(2003). See also Kofele Kale N., The International Law of Responsibility for Economic Crimes: Holding State Officials Individually Liable for Acts of Fraudulent Enrichment 9 ( Ashgate 2006).
[22] While such lands initially in the hands of white settlers, especially in East Africa , were purchased by governments at independence, ostensibly to be redistributed to the poor, they were immediately converted to personal estates of the emerging African elite. In Kenya
The extended Kenyatta family (1st president) alone owns an estimated 500,000 acres (2,000 sq km). That represents a large chunk of the 28m acres (113,000 sq km) of arable land in Kenya
See also, african peer review mechanism, country review report of the republic of kenya Kenya
[23] Carothers, Supra note 48, at 200.
[24] Malawi’s Safety, Security and Access to Justice Programme is a five year initiative funded by British Government for $ 70 million while Kenya’s and Uganda’s Governance, Justice Law and Order Sector Reforms pulls together well over $ 100 million each from a number of bilateral donors, including USAID. See E.g., Department for International Development, Justice and Poverty Reduction: Safety, Security and Justice for All, (2000, London
[26] Id.
