Colonial Legacies and the Rule of Law in Africa

Ghana, Kenya, Nigeria, South Africa, and Zimbabwe

Salmon A Shomade

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000521085
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: African Politics
• Index: Politics & International Relations

This book focuses on the continued impact of British colonial legacy on the rule of law in Ghana, Kenya, Nigeria, South Africa, and Zimbabwe.

The legal system is intended to protect regular citizens, but within the majority of Africa the rule of law remains infused with Eurocentric cultural and linguistic tropes, which can leave its supposed beneficiaries feeling alienated from the structures intended to protect them. This book traces the impact, effect, opportunities, and challenges that the colonial legacy poses for the rule of law across Ghana, Kenya, Nigeria, South Africa, and Zimbabwe. The book examines the similarities and differences of the colonial legacy on the current legal landscape of each nation and the intersection with the rule of law.

This important comparative study will be of interest to scholars of Political Science, International Studies, Law, African Politics, and British Colonial History.

1Introduction

DOI: 10.4324/9780429355189-1

Introduction

Whenever the rule of law in Africa is discussed in many Western nations, the focus inevitably turns to perceived or real failure of African leadership, with scant attention paid to those Africans who are supposed to be its beneficiaries. Those supposed beneficiaries, because the “law” is infused with excessive Eurocentric antecedents (culturally and linguistically), are alienated from the law and its effects. Rarely do scholars critically examine the effect of colonial legacy on the current legal landscape of the former colonies and how they impact (or not) the purported beneficiaries of the rule of law. While political leaders, including presidents and legislators, deserve significant blame, there are other driving forces influencing the rule of law in the African context ignored by scholars or that received very minimal attention.

Admittedly, the continued impact or influence of colonialism on former African colonies has been widely dissected and discussed in the literature, but generally that discussion tends to be on a nation-by-nation basis and less about colonial legacy’s influence on each nation’s existing legal landscape. Systematic comparison and contrast of colonial legacy’s impact on the current legal landscape of many African nations have not been widely captured by African scholars. While some Africanists perceive colonialism as mostly an “economic adventure”¹ and others regard it as more than that, there is shared agreement that the European metropoles imposed their own legal structures on the colonies, if for no other reason than to maximally and economically benefit the “mother nations.” These colonial legal structures and related ancillary laws continue to predominate in many African nations, irrespective of the fact that many nations obtained their independence from their colonialists roughly 60 years ago.

While blame can be placed on the global world order, its dynamics, and the influence of these former European metropoles on the persistence of these “foreign” laws, the African governing elites must also share in the blame on why things remain the same. For these elites, and with indirect support from the metropoles in the global economic order, their daily lives and economic status are so intertwined with and dependent on the existing legal landscapes. Thus, the elites see no material benefit in championing changes to these landscapes in a way that minimizes the influence of colonial legacy. In certain respects, it should not be surprising that some of these elites are this way as many of them were educated or professionally trained in the “mother nations” and steeped in the languages and traditions of the metropoles.

Separately, scholars constantly and continuously debate the definition of the rule of law. One common definition deems it as preventing the arbitrary application of power inconsistent with established norms, rules, or laws.² Rule of law is also typically defined as established procedural or legal guarantees available to protect citizens from repressive governmental action.³ With either definition, it is presumed that an authoritative institution in the form of a constituted or recognized (elected or self-imposed) government and its ancillary entities are responsible for the application of power. It is also generally understood that the established norms, rules, or laws might be bottled up and presented as a “constitution,” judicial practice, or a widely accepted mechanism that can easily be accessed for resolving disputes, be they criminal or civil. Current discourse about the rule of law in the African context tends to focus on the misapplication of this constituted power and inevitably blames African leadership for not fostering “acceptable” rule of law in their nations. This dialogue tends to be limited to the second portion of the general definition of the rule of law – the mechanism people turn to when resolving disputes. That mechanism, as you would read in the following pages, was built on and continued to be shaped by colonial legacy. Of course, this is not to excuse the failure of some African leaders to foster globally acceptable rule of law precepts in their nations, but it should not be equally acceptable that scholars have not sufficiently paid attention to the influence of this legacy on the existing legal structures of many African nations. To be clear, this book deliberately focuses more on other factors driving the rule of law and less on the politicians in the presidential mansions or palatial legislative chambers.

The debate about the rule of law in the literature, especially on its applicability in the global sphere, also generally revolves around the binary choice between universalism (that is, and for example, the mechanics of the rule of law should apply equally to Great Britain and Kenya without consideration for the context) and relativism (in this case, the mechanics should accommodate the cultural and social differences between Great Britain and Kenya). That binary choice debate is also held about “Human Rights” (which is intrinsically linked to the rule of law). As one legal scholar, Paul Zeleza, convincingly argues, “the universalist and relativist positions simplify African conceptions and struggles for human rights and the development and possibilities of constructing a global human rights regime”⁴ Zeleza further elaborates:

They [both positions] are both equally guilty of idealism, abstracting human rights from social history, which makes the universalist-relativist discourse part of the ideological armory of Western and African elites-arguments that cannot stand up to closer historical and political scrutiny.⁵

Rather than these binary choices, Zeleza offers a different option, one he dubs “contextualization” and considers a much more “holistic interpretation” of human rights. For Zeleza, contextualization is the notion

that cultural relativism is mutually interactive with universalism in so far as what are called universal principles had their genesis in local situations and traditions, and national insights and experiences will continue to improve and perfect international human rights standards and values.⁶

Similar to Zeleza’s assessment, the debate about the rule of law in the African context cannot be had as a binary choice between universalism and relativism, especially given that formal laws and rules in many African nations were birthed and developed under the influence of colonial legacy. And inasmuch as over the years some nations have incorporated local customs and traditions in the machinations of these laws, the process has been painstakingly slow. So much so that majority of these nations’ existing laws are still relics of those imposed by their metropoles. Notably, while the elites in many African nations have accepted these laws as the governing rules, the larger majorities of their fellow citizens cannot even comprehend or understand these rules. Hence, the large majorities of Africans, especially those living in the rural areas, feel alienated and disconnected from their nations’ formal laws. In fact, because the language of “the law” is written in these nations’ official languages (almost always the metropoles’ language), many Africans who are not fluent in their official language cannot even read the law, let alone comprehend its meaning. With such disconnection, it is not surprising that a despotic African regime who wants to run roughshod over its people about the rule of law’s applicability to any national matter can easily do so without having to worry about being taken to task by the country’s majority.

Furthermore, the conversation about colonial legacy’s confluence and the rule of law must also acknowledge the long periods of military regimes in many African nations, especially in the later decades of the 20th century. During that era, the rule of law was essentially suspended in these nations. Sadly, the global community, which was partly instrumental in fostering these military regimes, or quietly accepting of them, did not seem to mind the rule of law’s erosion in Africa during these times. While at the beginning of the 21st century, many African nations have improved on what are typically considered the basic elements of a nation operating under the rule of law such as working constitutions that protect human rights, independent judiciaries, and comprehensive bill of rights’ protections, there are still areas needing improvement such as functioning formal mechanisms and stronger procedural steps.⁷

However, the rule of law literature in the African context does not adequately evaluate these elements and other less visible driving forces (for example, adequate policing, official courtroom language, or sustainable development) influencing the rule of law in each individual African nation studied. One of this book’s major purposes is that it systematically dissects each of these major driving forces and explains how the driving force is impacted by colonialism or colonial legacy, and then how that particular driving force in turn influences ways the rule of law manifests in the African nation. Unlike the typical “paint a whole brush” approach commonly adopted by scholars when it comes to explaining/dissecting the rule of law in Africa, this book emphasizes understanding these major drivers undergirding the rule of law and how the drivers are shaped by colonialism in each individual nation studied. Of course, because of the discussion surrounding the rule of law as a universal concept, the literature is rather dynamic and quite extensive. In Chapter 2, I elaborate on some of this literature. And later in this opening chapter, I discuss some of the recent scholarship on issues related to the convergence of colonial legacy and the rule of law in the African context. But first in the next section, I present the conceptual framework used to elucidate this book’s thesis.

Framework and foundation

Conceptually, this book’s central premise is built on the bedrock of postcolonial theory. Simply stated, postcolonial theory posits that it is difficult to understand the world we live in without accounting for our connection or relationship to the global history of imperialism and colonial rule.⁸ While there are many definitions of and multiple disagreements over what constitutes the theory, there appears to be acceptance that postcolonial theory is a theoretical approach that broadly and critically examines the interactions and encounters between former European metropoles (especially Britain and France) and their former colonies, and how those encounters shape issues of history, language, culture, law, politics, etc. both in the metropoles and in the former colonies.⁹

Edward Said, public scholar and author of Orientalism, is often credited as the leading proponent of postcolonial theory.¹⁰ In Orientalism, Said noted that Western society’s (especially the two most dominant former colonial powers – the British and the French) pursuit of knowledge about the “Orient” and the Arab world was not motivated by genuine desire for the truth but rather for self-interested purposes of imperialism and dominance. In the influential treatise, Said first explicated the “Orient” as follows:

Unlike the Americans, the French and the British-less so the Germans, Russians, Spanish, Portuguese, Italians, and Swiss-have had a long tradition of what I...