Maren de Klerk
THE RULE OF LAW IN SUB SAHARAN AFRICA – A WESTERN FALLACY?
After much of Africa became independent from colonial rule, the political parties that came into power in the newly independent states were previously branded as terrorists organisations by their erstwhile colonial masters.
The rule of law, which is a Western concept, has been accepted by most democratic countries, is an
integral part of ensuring that countries are governed well, and also ensures that the citizens of that
country trusts that the justice system works effectively.
After a wave of institutional and democratic reform in various African states particularly in the 1990’s, the rule of law seemingly enjoyed a revival in Africa, backed up by the ratification of International and regional treaties imposing the obligation upon these states to uphold the rule of law. The global recognition of the rule of law as an important principle of modern constitutional governance is underscored by its explicit recognition in the constitutions of at least 23 African countries.
Sadly from the turn of the century, this commitment to the rule of law has progressively weakened.
Some academic writers even argue that there is grave uncertainty as to whether the post 1990
constitutions of certain African states can avoid a resurgence of authoritarianism.
Makua Mututa argues that no African country has truly thrown off the shackles of colonial rule and
emerged truly as just a nation state, because the western concept of the rule of law cannot simply be
transplanted to Africa.
Many African countries are in political turmoil or heading in that direction such as the Congo and
South Sudan. Many academics argue that the lack of the proper impositions and maintaining the rule of law is at the heart of the crisis, which inevitably leads to political instability, economic decline, poverty, unemployment and endemic corruption.
Research by the World Justice Project, particularly in the last decade, has shown an alarming trend . In 2012/2013 their report assessed 18 African countries and Botswana, Ghana and South Africa were listed as the top performing African countries. In 2016, 21 African states were assessed out of 102 globally but South Africa dropped 7 positions; Ghana dropped 10 positions, Botswana dropped 14 positions.
Further research by the Freedom House Freedom in the World indicated that for the period 1991 to
2000 showed for e.g. that Cameroon was ‘not free’; Namibia only partly ‘free’ and Mauritius ‘free’.
The same institutions 2017 report showed that 2017 marked the 11th consecutive year in which global declines in political and civil rights outnumbered improvements, the most dramatic of which occurred in Africa.
The Fragile States Index is a report by the United States Fund for Peace and the magazine Foreign
Policy. The project is premised on the belief that it is critically important that the international community understand and closely monitor the conditions that contribute to fragility – and be prepared to take the necessary actions to deal with the underlying issues or otherwise mitigate the negative effects.
An analysis of the Fragile States Index for the period 2007- 2016 shows that , for the most, 114 African countries featured amongst the 20 most vulnerable states in the world. Overall, the Fragile States Index shows that failing or critically weak states are concentrated in Sub Sharan Africa.
Disconcertingly, the Ibrahim index have also shown that almost two thirds of Africans lives in states where safety, the rule of law and freedom of expression has deteriorated over the last decade.
The above surveys draws a clear conclusion that the rule of law is deteriorating fast in Africa. The conclusion does however warrant further qualification:
Some of the surveys have been criticized for their perceived bias towards the West;
The impact of subjective contextual factors in assessing the different indicators is an important factor that could impact the results.
Corruption is also another important factor, for e.g. Jacob Zuma, the previous President of South Africa argued that the National Prosecuting Authority was justified in abandoning more than 750 charges of corruption and racketeering against him because corruption is only a crime in ‘the Western Paradigm’.
Therefore the degree of adherence to and compliance with the rule of law in the various countries is
oftentimes affected by the local context. However, it still does not explain significant differences in the level of respect for the rule of law.
Respect for and the world accepted view of the rule of law entails compliance with international standards of rule of law as laid down in International as well as regional instruments.
Although all African countries have in one way or another entrenched various components of the rule of law in their constitutions, the trend in the last two decades have shown that constitutional entrenchment on its own will not suffice.
In fact one could even argue that at least 20 of 45 African States are unable to provide even the barest minimum standards of the rule of law for their citizens.
It is significant that all of the studies show that even countries such as Mauritius, Namibia, South Africa, Botswana, Senegal and Ghana have been declining in the basic standards of the rule of law.
It can be argued that in the countries where the rule of law has been protracted and persistent, the problem is of such a profound nature that it goes right to the heart of the political and constitutional
system in place. On the other hand, it can also be argued that the problem is as a result of the abuse of power or the careless use of law that is ( hopefully ) temporary in nature, such as in Namibia or South Africa.
Unfortunately an overview of the trend in the last three decades in 54 countries, using several indicators and diverse sources of data, shows a steady and disturbing decline in the adherence in the
rule of law. This decline is now evident also in countries which have previously been known for their
good rule of law and governance records such as Botswana , Namibia, Ghana and South Africa.
An analysis of the performance of African countries suggest that there are not enough tools available at national and regional levels to deal with the rule of law crisis. How else can it be explained that, despite of considerable efforts over the last few decades to ensure alternation of power and the adoption of the African Democracy Charter, more than 30% of the continents leaders have been on power for more than 10 years , and in many of these countries their presidents operate more or less outside national law and constitutions? Indeed, democracy and elections have been used notably in the past two decades to distort and undermine the rule of law.
This undermining of the rule of law in South Africa has been corroborated given by the evidence of the South African Public Protector before the South African parliament on 16 March 2023, wherein she testified about various donations received from Gavin Watson ( from BOSASSA fame), Donald
Stavros etc., and that various accounts were used to finance the 2017 election campaign of Ramaphosa, such as The Ria Tenda Trust, the EFG ( which refers to the firm Edelstein, Farber and
Grobler), as well as an account under the name of Linked Environmental Services. The Public Protector further testified that various prominent businessmen were involved and that she feared that her life was in danger.
In Namibia a similar event has taken place when President Geingob utilised funds donated to the state owned fishing company Fishcor, who sold fishing quotas to an Icelandic firm Samherji, in order to fund his election campaign in 2017. This eventually become part of the Fishrot scandal although and apart from the donated funds, the election campaign had nothing to do with Fishrot.
Although there are several more examples such as Zimbabwe, it is evident that the tendency to disregard the rule of law by sub Saharan countries is ever increasing. In South Africa, Zimbabwe, Botswana and Namibia, it is clear that the ruling parties are quick to utilize the Prosecuting authorities to persecute its opponents under the guise of lawful prosecution whilst the criminal justice system in both countries dismally fails ordinary citizens. This aspect is not clearly grasped by Western powers as they tend to believe that because of the separation of powers that exists in most African countries, that the rule of law is upheld. What they fail to realise is that in most Sub Saharan African countries, the ruling Presidents, many of which are in power for extended terms, are the one appointing judges; and they do so by making sure that judges that are perceived to be loyal are appointed. In that way , the ruling party, especially in most sub Saharan Africa where the ruling parties have ruled for decades, ensure that the Judiciary is ‘captured’.
In South Africa and Namibia, things have deteriorated to such an extent that it can be argued that it is a mafia state where the rule of law is not being upheld. Wikipedia describes a mafia state as a state system where the government is tied with organized crime to a degree where government officials, the police, and/or military become part of the criminal enterprize.
Babita Deokoran was murdered for exposing massive corruption in the Gauteng Health Department. Andre de Ruyter survived a poisoning attempt whilst the Deputy President of South Africa was deeply involved in the Eskom corruption, and in Namibia Marén de Klerk was labelled a fugitive and persecuted for being a whistleblower in the presidential election campaign.
Sadly, the rule of law in Sub Saharan countries remains an ever increasing elusive ideal, which looks good on paper but where there is no political will to adhere thereto.