Managing Digital Records in Africa

Mpho Ngoepe, Mpho Ngoepe

• Editore: Routledge
• Anno: 2022
• ISBN:
  9781000623468
• Edizione: 1
• Argomento: Sprachen & Linguistik
• Categoria: Bibliotheks- & Informationswissenschaft

Managing Digital Records in Africa draws on the research work of the InterPARES Trust (ITrust) project that investigated interrelated archival issues focusing on legal analysis, infrastructure, trust, authentication, and education within the African context.

This research-focused book provides a legal analysis and systematic assessment of how African institutions manage digital records in four countries (i.e., Botswana, Kenya, South Africa, and Zimbabwe). It also examines the extent to which records are managed using Internet-based applications, trust in such records, and digital record authentication to support the auditing process. Finally, it provides a curriculum analysis in digital records at institutions of higher learning in 38 African countries. The book's case studies illustrate the threads of discussion, which span the ITrust domains of legislation, infrastructure, authentication, trust, and education in archives and records management.

The book can be used as a premier reference source by private and public organizations, researchers, educators, archivists, records managers, and postgraduate students to make informed decisions about digital records, records management systems, cloud-based services, authenticating records, and identifying universities on the continent that offer archival programmes. The book may also find expression to practitioners in other fields such as law and auditing.

1Law and recordkeepingA tale of four African countries

Darra Hofman and Shadrack Katuu

DOI: 10.4324/9781003203155-2

Introduction

Archives and records management (ARM) professionals are inescapably entangled with the law. After all, the law may dictate what records must be created, their form, who may access them, their retention, and their eventual disposition. In each archival function, from selection and appraisal to referencing and access, the ARM professional must consider not only archival principles, but also legal requirements, putting an archivist without legal training in the position, for example, of determining what records fall within the scope of an access to information (ATI) request. This challenge is made more complex by the fact that the law rarely contemplates records as records, but rather as documents, information, and evidence. This chapter is based on an examination of major legal and regulatory instruments¹ related to records and archives management in Botswana, Kenya, South Africa, and Zimbabwe, undertaken to provide grounded, evidence-informed guidance for both practitioners and educators tasked with the responsibility of implementing recordkeeping. It should be noted, however, that a complete analysis of all the potential laws and regulations for each country was beyond the scope of this chapter. Furthermore, in those countries with elements of common law (discussed in greater detail infra), which include all of the countries in this study, judicial decisions (“case law”) are of central importance in interpreting and implementing codified law; a full analysis of case law was also beyond the scope of this work. Nonetheless, this study identified major trends at the intersection of law and records, as well as archives, in the countries under study and may serve as a useful point of departure for ARM professionals in those countries and beyond for benchmarking.

Law as a system

“Those who have tried to define law agree only that no definition is fully satisfactory” (Garner, 1995, p. 503). However, a legal system “is a procedure or process for interpreting and enforcing the law” (Cornell Law School, 2020), whatever the law may be. As will be discussed in more detail in “Law, archives, and colonialism,” infra, the legal systems in this study, descended from various legal systems that differ in how they prioritize different sources of law, and in how they interpret and enforce the law. Knowing the system in which one operates, what sources of law it uses, and how it interprets and accords weight to those sources, is critical.

However, while ARM professionals must attend to the law as it is, it must be stated from the outset that the law is deeply problematic. The imposition of foreign legal systems “through colonialism, conquest, and some might add, neo-colonialism … created patterns of power, philosophy, and conduct, whose persistence has been aptly described as the coloniality of power” (Diala and Kangwa, 2019, pp. 190–191). Law’s power is such that “colonial legal transplant in Africa was a comprehensive, self-replicating phenomenon, which was accompanied by radical socioeconomic changes that irrevocably affected the education, philosophy, religion, work, food, and dressing of Africans” (Diala and Kangwa, 2019, p. 190); the impact on recordkeeping is no less.

Legal systems which combine elements from multiple legal systems are referred to as “mixed legal systems,” although there is disagreement among legal scholars as to precisely which systems are mixed. Perhaps unsurprisingly, scholarship on mixed legal systems originally centred on the mixing of European, and specifically English, common law and Roman civil law systems.

Scholars in the “mixed jurisdiction” tradition, who follow the footsteps of early British comparatists … tend to restrict its scope to a single kind of hybrid where the most comparative research has been done – mixtures of common law and civil law. In that perspective the number of mixed systems in the field shrinks to fewer than twenty around the world. However, many scholars under the influence of legal pluralism … use a more expansive, factually oriented definition that enlarges the field and has no obvious limits.

(Palmer, 2012, pp. 368–369)

Even in the narrowest – most Eurocentric – definition, many scholars consider Zimbabwe, South Africa, and Botswana as having mixed legal systems,² as their systems combine English common law and Roman-Dutch civil law. This developed due to the three countries’ shared colonial history. Roman-Dutch law was introduced into the Dutch Cape Colony (which later became the Cape Colony) in 1652; therefore, Roman-Dutch law was received “directly” in South Africa, although English common law was significantly mixed. South Africa’s law – and thus, the mixed system of civil and common law – was indirectly received into Botswana. The High Commissioners that the British had installed over Bechuanaland (now Botswana) and Southern Rhodesia (now Zimbabwe), which were often governed “by extending Proclamations designed for what is now South African to Botswana. The reception of the mixed system came through the High Commissioner’s Proclamation of 10 June 1891,” (Fombad, 2010, p. 6). These histories mean that, although all three countries have “mixed legal systems,” each has developed uniquely.

As Fombad explains

[w]hilst the reception of the common law and the civil law in South Africa can be described as direct it was only indirect in the other countries in the region, namely the former three High Commission Territories of Botswana, Lesotho and Swaziland, as well as Namibia and Zimbabwe … this reception … has influenced and continues to influence the quantum of each element of the mix that was received [and] also affects the way the different legal systems have evolved.

(2010, p. 4)

Scholars estimate that there are fewer than 20 such mixed legal systems in the world (Palmer, 2012). However, as the legal pluralists correctly note, this Eurocentric view falsely posits that the world of laws is a “binary civil law/common law world” (Palmer, 2012, p. 378), when in reality, all legal systems “may be described as diversified blends.” Understanding the elements of the legal system in which they work equips ARM professionals to navigate complex, often contradictory, landscapes of compliance, risk, and values. All four countries studied in this case have at least elements of common law, customary law, and indigenous law. Kenya, which arguably has the most clear-cut legal system of the four nations, nonetheless combines common law, customary and indigenous law, and Islamic law as reflected in Table 1.1.

Table 1.1 Mixed law systems

COUNTRY	MIXED LEGAL SYSTEM
Botswana	Civil law, customary law, and common law
Kenya	Common law, Muslim law, and customary law
South Africa	Civil law, customary law, and common law
Zimbabwe	Civil law, common law, and customary law

Source: (Palmer, 2012, pp. 379–382)

In the case of South Africa and Botswana, the legacy of multiple colonizers is a system that mixes common law, civil law, customary law, and indigenous law. South Africa and Botswana are, from even the most Eurocentric perspective, mixed law countries, because their legal systems inherited elements from both English common law and Roman-Dutch civil law, although, in reality, both countries’ systems include elements of common, civil, customary, and indigenous law. Malila (2010, p. 71) notes that “Botswana, like other post-colonial transitional societies, is still faced with the continuing task of reconciling plural legal systems inherited from the formal colonial power at institutional, process, and value levels.” South Africa has a “mixed legal system of predominantly English commercial and public law and Roman-Dutch private law, pervaded by the constitutional principles of personal freedom and the rule of law” (Van der Merwe, 2012, p. 113). As discussed in greater detail in “Case law,” infra, English common law is a body of judge-made law in which previous cases on an issue are binding on future courts deciding the same issue. It should be noted, however, that common law jurisdictions still employ statutes to regulate their societies. Civil law jurisdictions, on the other hand, place primacy upon codes – the “Roman” in Roman-Dutch refers to the Justinian Code, which forms the basis of European civil law. In civil law systems, case law does not serve as a binding precedent for future cases.

Van der Merwe’s (2012) explanation of South African law also raises the important distinction between public and private law. Public law is that which regulates relationships between individuals and the state, and includes criminal, constitutional, and administrative law. Private law, by contrast, regulates relationships between individuals, and includes contract and tort law. Confusingly, some common law jurisdictions such as the United States and Canada refer to private law as “civil law.” Therefore, in South Africa, commerce and relationships between the individual and the state are primarily controlled and can be changed by judge-made law, while the relationships between private individuals are still primarily controlled by legal codes. Within private law, a further category of personal law exists, which is “the law that governs a given person in family matters” (Garner, 1995, p. 655). As Palmer (2012, p. 377) writes, “Rarely has any people willingly given up its own personal law or voluntarily accepted someone else’s,” and it’s in the area of personal law where “customary law” is most often recognized. Thus, personal law is the legal area in which precolonial culture and practice are most likely to persist, and records related to personal law may provide a more representative picture of a nation and its peoples.

Zimbabwe faces unusual challenges in the regulation of its records management due to its unique colonial history (Ncube, 2016). Like many colonized nations, Zimbabwe has oral indigenous recordkeeping traditions that were at odds with the written traditions of settler recordkeeping and government (Chaterera, 2016). However, Zimbabwe, unlike many other nations, was not a full British colony, but was rather under the rule of the British South Africa Company; its rule by a private company meant that its records throughout the colonial period did not belong to the government (either of Zimbabwe or of the United Kingdom), but to a private company based in London. The governmental – and public records – context and challenges in Zimbabwe have largely been in response to the country’s struggles with the legacies of colonization.

All four of the nations in this study, continue to bear the marks of colonialism in their legal and bureaucratic systems. Thus, while ARM professionals in Botswana, Kenya, South Africa, and Zimbabwe share issues with archivists in Belgium and Canada, such as custody and control over digital, and especially cloud-based records, they also face challenges that are unique to their contexts. Furthermore, solutions developed for Western nations facing novel records-related challenges, such as data-mining – including access to information and data protection laws – may be inadequate or ill-suited for recordkeeping in Africa. For example, with regard to access to information, the dominant scholarly narrative focuses on legislation as the “solution” to the problem of information accessibility and transparency. This narrative paints African countries and recordkeepers as “failed,” without examining the “political, social, administrative, and economic conditions that prevail” (Calland and Diallo, 2013, p. 2) in those countries. Similar...