Thursday, September 18, 2014
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Africa’s Search for Law

LONDON – My career as a businessman in Africa has turned me into an activist for better, cleaner government and for the rule of law. But promoting good governance is not just a matter of encouraging good leadership at the top (although I believe that definitely helps); it also requires all of us to be able to fulfill our responsibilities as citizens, and realize our rights.

In several African countries, there are impressive legal instruments in terms of independent court systems; but the challenge consists in impartial implementation. Democratic accountability requires that citizens can use the law, as well as be subject to it. For example, these countries have laws that prohibit seizures of land without due process and compensation for the owner; that bar public servants from accepting bribes; and that require government funds to be spent on the public good, not for private gain.

In the countries that currently do well on the Ibrahim Index of African Governance – Botswana, Ghana, South Africa, and others – citizens can use the law to protect themselves and their property from illicit encroachment, and to resolve their disputes in an impartial setting. For those at the bottom – Somalia, the Democratic Republic of Congo, and the Central African Republic – the rule of law is a fiction that must be made real.

This work is already being carried out in places: in Sierra Leone, a country recovering from a brutal civil war, community-based paralegals are helping villagers to settle disputes peacefully; in Malawi, they are helping to reduce unnecessary imprisonment. In Mozambique, local legal experts have helped villagers draw up proper titles to their communal lands, helping to secure their economic future. In Kenya, community groups have used freedom-of-information laws to ensure that money earmarked for local school construction is properly disbursed.

This is the rule of law in action at the local level, and it is building, often from scratch, a culture in which disputes are settled peacefully and benefits distributed transparently. The alternative – recourse to violence in the face of unequal access to resources – has led to a cycle of political instability in many countries, with the consequent lack of economic development that has come to characterize much of Africa’s recent history.

As the debate on the post-2015 Sustainable Development Goals unfolds at the United Nations this year, it is my fervent hope that African governments will endorse the inclusion within these goals of measurable targets for access to justice. To be sure, the dominant themes that are emerging in the UN discussions – jobs, economic growth, infrastructure development, and poverty reduction – are all still desperately needed across the continent. But the rule of law is a fundamental principle that does more than promote economic growth, and it would be a serious mistake not to include it in the SDG agenda.

Indeed, acknowledging that all must be equal in the eyes and practice of the law is a prerequisite for strengthening the social contract between the state and its citizens. Without greater fidelity to the rule of law, too many African citizens will continue to see their futures blighted and their countries’ resources wasted.

If we are to build grassroots respect for the institutions and processes that constitute democracy, the state must treat its citizens as real citizens, rather than as subjects. We cannot expect loyalty to an unjust regime. The state and its elites must be subject, in theory and in practice, to the same laws that its poorest citizens are.

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  1. CommentedMr Econotarian

    Great article!

    One way to help achieve the rule of law is to have fewer ones. While protection of private property and enforcement of contracts is a great idea, it is unclear to me that Africa benefits from the huge amount of labor regulations and business permits. It simply pushes people into less productive informal work. It is easier to hire and fire someone in the US than Kenya. That is crazy. It only lines the pockets of corrupt officials with bribes while starving countries of growth.

  2. Portrait of Michael Heller

    CommentedMichael Heller

    I've been studying this problem for 30 years and conclude that both the bottom-up (grassroots) and conventional top-down (United Nations, aid donors, exhortations to governments to 'be good') don't work or take too long to deliver lasting results. Articles like yours can certainly help by providing ideological impetus, the transfer of ideas to people, if it is somehow widely read in the continent, and if the proposed sequence is the correct one. But, quite honestly, the quickest most direct route is to implement the World Bank's 'Doing Business' recommendations, open up to private foreign direct investment, invest in infrastructure to incentivise and make foreign investment viable, focus on the legal reform to ensure formal-legal equality of opportunity in market enterprise (e.g. make sure contracts are competitive and transparent), and perhaps campaign internationally for the kinds of external monitoring and sanctioning of government corruption that Paul Collier (if I understand him properly) has advocated in the past. It boils down to this sequence: markets first, law second, or ideally in combination. That is historically the route to prosperity. Good ideas always help as long as the ideas pressure the policy chiefs to stick to the priorities relating to law *for* open markets first and foremost. Citizens will be carried along in the surging miracle that follows. The power to withdraw investments and cut through clientelist networks by severing domestic channels of corruption if impartiality is not enforced in economic regulation exerts the strongest pressure for impartial political administration. Competitive market interests historically are the drivers of impartial rule of law. Eventually everyone is included in the resulting growth and diversification. Paradoxically grassroots democracy, which sounds lovely, brings in donations, wins votes, but does not change anything, serves elite interests by perpetuating the status quo. You should urge Africa to use the ‘Doing Business’ manual to break the status quo. You say that the experience of being a ‘businessman’ motivates your campaign for law, yet words like ‘market’, ‘invest’, ‘compete’, or ‘business’ don’t appear in this article.

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