Peacebuilding and Rule of Law in Africa

Just Peace?

Chandra Lekha Sriram, Olga Martin-Ortega, Johanna Herman

• Publisher: Routledge
• Year: 2010
• Print ISBN: 9781138978072
• eBook ISBN: 9781136948749
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

The promotion of the rule of law has become an increasingly important element of peacekeeping and peacebuilding operations, particularly in Africa, where there have been numerous internal armed conflicts and missions over the last decade.

This book explores the expanding international efforts to promote rule of law in countries emerging from violent conflict. With a focus on Africa, the authors critically examines the impact of these activities in relation to liberal peacebuilding, rule of law institutions, and the range of non-state providers of justice and security. They also assess the virtues and limitations of rule of law reform efforts, and policy alternatives. It brings together expert scholars and practioners from politics, law, anthropology and conflict studies, and features detailed case studies on Rwanda, Liberia, Sierra Leone, Sudan, and the Democratic Republic of Congo.

Making an important contribution to debates about peacebuilding, and assisting specific efforts in reforming the rule of law after conflict, this book will be of interest to students and scholars of international relations, law, African politics, post-conflict reconstruction, peace and conflict studies, as well as practitioners in the UN, development agencies and NGOs.

1
Promoting the rule of law

From liberal to institutional peacebuilding

Chandra Lekha Sriram, Olga Martin-Ortega and Johanna Herman

Introduction

Since the end of the Cold War, numerous internal armed conflicts have been brought to a close, and following most, if not all, of these resolutions, the international community, as well as the affected state and society, have engaged in what is now generally called peacebuilding.¹ Many recent scholars have even begun to identify a liberal peacebuilding consensus, for good and ill, that specifies a key set of activities as central to post-conflict pacification.² These are often heavily contested in methodological terms, but the broad goal of building a liberal state with all of its expected regimes and institutions is not. This is despite the fact that the types of governance which peacebuilding activities construct in post-conflict zones reflect almost exclusively the developed world’s social, political, and economic experiences. In particular, some analysts have singled out the emphasis on the reconstruction of governance, and in particular its creation as liberal democratic governance, as problematic.³ This emphasis, even imposition, of a liberal model on a post-conflict state, it has been argued, is often a poor fit, unwelcome, and may even result in the renewal of conflict. It is argued that the competition inherent in liberalized political and economic structures can deepen existing divisions or even create new ones.

For this reason, some scholars have suggested that a strategy of ‘institutionalization before liberalization’ might be advisable: embedding and reforming structures of law and governance so as to manage the inevitable social conflict that attends liberalization.⁴ However, there remains a danger that such emphasis upon institutionalization entails the same imposition of international preferences that the previous emphasis on liberalization did; furthermore it is likely to favour official structures and elites over civil society. Finally, there appears to be an implicit assumption that institutional reform is in some sense neutral, and thus able to contain political contestation, rather than being a political activity in itself.⁵ Key among the tools of institutional reform has been the use of ‘rule of law’ programming, including reform of laws, constitutions, judiciaries, the use of transitional justice mechanisms, and engagement with the ‘informal’ or ‘traditional’ justice sector. Many of these interventions are undoubtedly positive; however, there is a risk that emphasis upon the rule of law as a tool to manage conflict may simply relocate social conflict to these domains, away from the more explicitly political sector.

Rule of law and peacebuilding in Africa

This volume focuses upon the challenges of programming on the rule of law in African countries emerging from violent conflict, rather than all countries emerging from violent conflict, and this case selection requires justification. It would be a mistake to assert that challenges of rebuilding the rule of law after conflict in Africa are necessarily distinct from or more acute than those in other regions of the world; Africa is a vast continent and any such generalizations are unhelpful. However, because so many nations in Africa are in conflict or are emerging from conflict, the scale of the challenge is simply greater at the time of writing. There are seven United Nations (UN) peacekeeping missions currently operational in Africa compared to a total of ten across the rest of the world.⁶ Further, because many governments in Africa have never been truly democratic, having emerged from colonialism into personalistic or one-party rule, many elements of governance and the rule of law are not being ‘re’-instituted but rather are being instituted for the first time, particularly where the exercise of personalized exchange, clientelism, and corruption is internalized, and have constituted what one scholar termed ‘essential operating codes for politics’.⁷ Indeed, in many polities, post-colonial African leaders have relied on control and patronage through capturing power over the economy, rather than through the state via a functioning administration, including an independent legal apparatus. While of course clientelism and patronage are not unique to Africa, the type of intensive neopatrimonialism, if not ‘pathological patrimonialism’, that we can observe across large swathes of the continent is indeed noteworthy.⁸ Competition over access to justice, disputes over relevant law, and disagreements over relevant legal authority may reinforce existing social divides, but also have historically created a situation where, according to Christopher Clapham, a leading scholar of African politics, bypassing the law is ‘accepted as normal behavior, condemned only in so far as it benefits someone else rather than oneself’.⁹ At the same time, there are many fragile states on the continent which may not fully control all national territories, or be capable of extending the justice sector and relevant institutions across countries. In such countries, people may choose to, or be compelled to, turn to non-state justice providers. These dynamics pose critical challenges to the promotion of rule of law on the continent. That said, much has been done to promote the rule of law since the 1990s, and more can be done to develop more refined mechanisms in this domain to support post-conflict peacebuilding, and research on the impact of rule of law promotion is needed to enable better programming by external actors. It is to this growing body of research to which this volume hopes to contribute.

Key actors: the United Nations system and beyond

Many of the chapters in this volume have a strong emphasis upon United Nations (UN) missions. This is not to suggest that other actors are not significant in the development of the rule of law in post-conflict situations. Bilateral donors, as well as international financial institutions, have a significant role to play. However, because the United Nations is a central actor in many countries in Africa emerging from conflict through its peacekeeping and peacebuilding missions, peacebuilding support offices, funds from the Peacebuilding Commission, and the ongoing development work of the United Nations Development Programme (UNDP) as well as other UN agencies, emphasis on the work of this central player is justified. This is particularly the case with the development of integrated peacekeeping missions and the ever-expanding mandates of peacekeeping missions in promoting the rule of law and human rights. However, throughout this volume the programming of other key actors is discussed in some detail where appropriate.

What is the rule of law?

While there is a long jurisprudential tradition of debate surrounding the concept of and content of the rule of law, it is primarily in the past decade that the rule of law has been included in peacebuilding discourse and scholarship.¹⁰ We offer here, first, a set of formal, state-based definitions of the rule of law, while recognizing, as we discuss below, that in many instances states are not the only providers of services related to adjudication or conflict resolution.

The rule of law refers to the juridical conceptions and mechanisms that preside over the functioning of the state. Most of the definitions of the rule of law at a national level include a cluster of procedural requirements linked to a substantive concept of justice or fairness. The procedural requirements emphasize formal requisites for the creation, application, and enforcement of the law, and the adjudication of the rights and duties created by the law. The substantive requirements are directly related to the concept of justice, often currently understood in terms of respect and protection of fundamental human rights.

Different legal traditions have approached the definition of the rule of law from different perspectives, and it can be claimed that there is not a unique definition of the rule of law.¹¹ As Guillermo O’Donnell has pointed out, the rule of law, estado de derecho, état de droit or Rechtstaat, or equivalents in other languages of countries of civil law jurisdictions, are different terms to refer to fairly similar but not identical concepts.¹² Thus, in common law jurisdictions, the concept of the rule of law is intimately connected with the activity of the courts. A traditional definition of the modern rule of law within the common law jurisdiction is that of Dicey, who placed the emphasis on the supremacy of the law and the hierarchy of the courts.¹³ Unlike estado de derecho and equivalent terms, the rule of law does not refer directly to any other state agencies.¹⁴

The fundamental formal requirements could be identified as: the limitation of the activity of power bodies through law; the guarantee by these bodies of positive public subjective rights; and the jurisdictional control of all the activities of the state.¹⁵ However, the notion of the rule of law would be void of content if only the technical dimension is taken into account – in which any state complies with the rule of law only by functioning through systematic legal rules and through legal channels – and it would amount to the identification of the rule of law with the rule by law. This has occurred in times in which the notion of the rule of law has been ideologically manipulated and used as a legitimating instrument of abuse of power and discrimination of certain groups.¹⁶ The substantive element of the notion of the rule of law works then as a safeguard against such abuse, and is inherent to it. The concept of justice or fairness had traditionally been identified with equality before the law. It is agreed within the literature that the Kantian notion of rule of law links its definition to fundamental rights.¹⁷ It is due to Kelsen that the element of democracy was viewed as central to the concept of the rule of law. The author includes, in the second edition of Reine Rechtslehre, the requirements of the legal order to respond to the demands of democracy and the certainty of the law in order for it to be considered the rule of law.¹⁸ Therefore, according to this definition, a state compliant with the rule of law is one in which the legal order is relatively centralized and, according to such order, jurisdiction and administration are legally regulated, that is, they are determined by general norms which emanate from a parliament elected by the people, whose members of the government are held responsible to the people; whose courts are independent; and where certain liberties are guaranteed to the citizens, in particular those of freedom of religion, thought, and expression.¹⁹

Some modern definitions maintain the emphasis on democracy and/or fundamental rights, or as in the definition of the UN Secretary-General, analysed below, link rule of law to international human rights norms. Others still limit the substantive concept to the more abstract concepts of equality and fairness, for example, O’Donnell offers the following definition: ‘whatever law exists is written down and publicly promulgated by an appropriate authority before the events meant to be regulated by it, and is fairly applied by relevant state institutions’.²⁰ By ‘fairly applied’, the author means the administrative or judicial adjudication of legal rules as ‘consistent across equivalent cases; this is without taking into consideration the class, status, or relative amounts of power held by the parties in such cases’ as well as the application of procedures which are pre-established, knowable, and allow a fair chance for the views and interests at stake in each case to be properly voiced.²¹

For the purposes of this book it is important to focus upon the concepts of the rule of law that are being translated to post-conflict situations. The development of international peacebuilding activities and the placement of the rule of law as a core element of such international cooperation activities necessitate the development of a clearer definition of the rule of law. Thus there have been efforts by the United Nations and others to develop an agreed international definition of national rule of law.²²

Most of the definitions of the rule of law in the context of peacebuilding have become embedded in the establishment of policy priorities and activities in the design of peacebuilding programmes, scholarly analysis and policy recommendations by the cluster of international organizations, development agencies, donors, non-governmental organizations (NGOs) and individuals involved in these processes. This makes it very difficult to identify a common definition of the rule of law that serves as a reference to those working in the field. Even distinguishing the rule of law from other policy priorities and activities in the context of peacebuilding is often quite difficult.²³ In his landmark 2004 report on strengthening the rule of law in transitional societies,²⁴ the UN Secretary-General offered a broad definition, which has now become the main reference point at least in the UN context:

The ‘rule of law’ is a concept at the very heart of the Organization’s mission. It refers to a principle of governance in which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.²⁵

This definition comprises the two main elements of the rule of law: (1) the procedural element, i.e. publicity of law, equal application, and independent adjudication; and (2) the substantive element, which provides content to the formal requirements of international human rights norms and standards of fairness. The abstract concept of justice is therefore identified at the international level with international human rights.²⁶ While the General Assembly has acknowledged since 1993 that the rule of law is an essential factor in the protection of human rights, it has only been more recently included in the work of development agencies and peacebuilding institutions. The adoption of this definition by the Secretary-General strongly reinforces this link.²⁷

Defining the rule of law in terms of widely accepted international human rights standards allows the identification of a core set of values and rules which enjoy general consensus across the international community, and which may help to avoid its immediate identification as a Western concept.²⁸ It is more difficult to reach consensus as to which human rights are included within any definition of the rule of law.²⁹ However, as Sriram has pointed out, the 2004 definition in the UN Secretary-General’s report has a strongly positivist slant.³⁰ It focuses very prominently on the procedural elements of the rule of law. ...

Table of contents

• Security and Governance Series
• Contents
• Contributors
• Acknowledgements
• 1 Promoting the rule of law
• Part I General and cross-cutting issues
• Part II Country experiences
• Notes
• Index