Does the rule of law pose a threat to Africa?

Does the rule of law pose a threat to Africa?

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By Mutumwa D. Mawere

IS IT not paradoxical that liberal democracy is constantly derided by Africa’s political elites as western and liberal while at the same time the western and liberal notion of the rule of law finds a receptive audience among the continent’s state and non-state actors?

In evaluating whether the rule of law is good for Africa, one needs a working agreement on the definition of the rule of law.

The rule of law is one of the most abused concepts that have occupied the African mind both in the colonial and post-colonial eras.

The noted English jurist A.V. Dicey summarised the rule of law under three heads: (i) Primarily...No man could be punished or lawfully interfered with by the authorities except for breaches of law. In other words, all government actions must be authorised by law. (ii) Secondarily...No man is above the law and everyone, regardless of rank, is subject to the ordinary laws of the land. (iii) Finally...There is no need for a bill of rights because the general principle of the constitution is the result of judicial decisions determining the rights of the private person.

The assumption that legal institutions are part of a wider package of markets is implicit in the relentless advocacy for the rule of law in Africa. The colonial state was informed by a causal connection between markets, liberal politics and the rule of law albeit fashioned along racial lines. The link between capitalism and the rule of law was evident in the colonial state while the connection between the rule of law and state power in a post-colonial state is an area that requires interrogation.

It is important that we attempt to locate the development of institutions, especially legal institutions in colonial and post colonial Africa in the context of state building by exploring the connection between the development of market forces and the emergency of the rule of law.

Do we as Africans have a common set of shared normative understanding of the purpose and function of state power and governance (stateness)? Does a form of managed and negotiated capitalism generically referred to as the developmental state suit the unique challenges of a post-colonial Africa? Is Socialism the most optimum ideology to drive the African agenda? The need to locate the ideological choices that Africa must make in the context of the rule of law doctrine cannot be overstated.

When we talk of rule of law in Africa we tend to describe a key component of the social and political orders generally found in Western liberal societies of our time. In other words, by rule of law we generally mean a western tradition that can be traced back to the Roman republics and characterised by legal domination and constitutionalism. The contestation of power during the colonial and post colonial periods has tended to focus on civil and constitutional issues to the extent that legal scholars and academics have dominated the debate on Africa’s future.

It is critical that we appreciate the liberal understanding of the rule of law. Such an understanding makes the following important assumptions: (i) that society is composed of individuals and voluntary associations; (ii) that the purpose of law is to adjudicate between private conflicts among the members of the society; (iii) that public officials are guided by law not personalism or other extra-legal considerations; and (iv) that the law has legitimacy and is widely understood and obeyed.

At the core of these liberal assumptions is the notion that the development of the rule of law can occur only at the expense of a weakening of governmental or public power.

The concept of the rule of law as framed by liberal societies should at face value be a friendly one for any post colonial state and yet the post colonial experience has demonstrated that the rule of law can serve to entrench and consolidate public or state power.

A critical element of the argument that I seek to advance is that notions of the rule of law need to be understood in the context of notions of political authority and rule embedded in the womb of the state.

In much of Africa, the post colonial state was trapped in the repertoire of political rule established by the undemocratic colonial state. Is it not strange that there are similarities in the use of the law by the colonial and post colonial states? In particular, the ideological notions of security and order are an inheritance of the colonial state and the former victims of colonial tyranny seem to voluntarily adopt the same strategies and tactics used by the colonial state to entrench and consolidate state power.

It might be useful to understand that in both the colonial and post-colonial states, laws are seen in terms of their capacity to produce accurate outcomes that reflect substantial state and not citizen objectives and interests.

Conceptions of stateness in both the colonial and post-colonial period have been conceived in terms of an enterprise association in which the validity of rules springs not from citizens themselves but from ends or purposes of the ruling elites.

The relevance or otherwise of borrowed notions from western liberal societies like the rule of law in informing the choices for Africa can only be determined by the continent’s citizens. There are many of us in Africa who have accepted the notion that the state is a person with super rights.

If any, the post colonial experience has demonstrated that the real danger in Africa lies less in mistaken notions of relentless attacks by neo-liberal and imperialist machinations but in the benign acceptance by citizens that rule by law practised by blacks is more friendly and patriotic.

Mutumwa Mawere's weekly column appears on New Zimbabwe.com every Monday. You can contact him at: mmawere@global.co.za
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