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Forms and modes of governance
There have always existed different forms of governance within African societies, even before the advent of the colonial powers. These were African based, and built around the values, traditions and norms of Africans. These forms of governance did not conform to the western notions of constitutionalism, which entailed a unilateral form of governance where the need for a controlled, formal, governmental authority, as seen in western societies, is expressed. Pre-colonial African societies had laws, which while not manifesting as codified or formal laws, were of the nature that they might be heard rather than seen. This oral nature is the primary characteristic of African legal systems. Even in present times, much still depends on the spoken word in the orality-focused context of traditional African societies, where large segments of the population remain illiterate.5
Generally speaking, forms of pre-colonial African governance differed from the western-conceived form of governance because it was pluralistic (and can hence be distinguished from the unilateral governance explained above). This means that it consisted of many smaller and similar-looking forms of governance, principally because the African continent, due to its size, was home to a huge diversity of peoples at varying degrees of political, cultural and economic development. Such heterogeneity manifested itself in differences in the laws and beliefs of the people.6
In other words, there were different laws and modes of behaviour for the different societies.
As has been observed by Woodman and Obilade, the discussion surrounding ‘African law’ should actually be about ‘African laws’, since it is wrong to assume that all African societies have common characteristic features and therefore have one legal system.7 In actual fact, African societies have different legal systems, and thus different laws, the only common characteristic being the oral nature of these laws.8 Thus the term ‘African law’ (despite its common characteristic, for example, being of an oral nature) within the context of this research will refer to this internally plural nature of the laws. In pre-colonial African societies, governance was usually determined by existing systems of succession to power. Societal norms regulated these systems of succession to office and legitimacy was conferred through the respect accorded to these lines of authority. Despite the absence of the formulation of theoretical concepts, it does not mean that inherent values did not exist in the different political systems practised in those societies.9 These values can be likened to governance values that we see in western societies. For example, Elias points out that social contract theories also provide a basis for the indigenous African ideas of government.10 The construction of a pre-colonial African society is not dissimilar to the constructions of Locke, Rousseau and especially in their presuppositions, to that of Grotius.11 These European legal philosophers recognised the fact that sovereignty resided in the generality of the people and thus they could depose of any chosen leader should the circumstances warrant it, and also that the ruler was ultimately bound by natural law to govern justly even in the absence of any specific undertaking on his part to that effect.12 This is the same in African societies, especially pre-colonial Africa, where the leader or chief leads at the pleasure and behest of the people, and where the chief is also bound by tradition and customs and must rule according to the dictates of the tradition of the land. This era of pre-colonial African history will be examined next.
Post-Colonial Era (late 1900’s – 1960’s)
As has been seen from the above, the present day post-colonial African states are direct successors of the European colonies. Their legitimacy and borders were derived from international agreements (not from internal African consent) amongst European states, beginning with the Berlin West Conference of 1884-5.113 Every aspect of the African state was affected. Its government, laws and policies were organised and fashioned after European colonial theory and practise. The interests and values of a European imperial power (strategic military uses, economic advantages, Christianisation) dominated the laws and policies as well. With the advent of independence, there came a new fervour, and a new wave of hope for nationalism swept through the continent. There was the strong hope and desire for independence and nationalism (even though this nationalistic sentiment was based on the nation states as carved out by the colonial powers). This stemmed from the astonishing success of the anti-colonial crusade in India, led by Mahatma Gandi, who became an inspiration for African nationalists.114 As the move and demand for independence grew, the colonial governments were forced to realise that they needed to take measures to relax the rules and to usher in independence. Thus in the African countries that the British ruled over, they started to ease off their control and power, in getting set for the end of colonial rule.
At the time when de-colonisation started, many African colonies did not have the capacity (skills) for the type of government which the colonialists had introduced, and which they called ‘self-government’. The colonial powers had not envisaged a situation where they would have to leave the continent for the next couple of years, as they felt that Africans still lacked, at that time, the capacity to govern themselves. However, by the late 1950s, there was increased moral and political pressure by the international community on the colonial powers to grant independence.115 This led to their hurried withdrawal from the colonies, without any proper preparation of the Africans that they were to hand over the reigns of power to. Traditionally before independence could be granted, it was required that there had to be the capacity to govern (in the western way as we have come to know it),116 however, as a result of the then ongoing international pressure, the United Nations (UN) decided to separate the ‘right to independence’ (self-determination) from the ‘capacity to govern’,117 as the right to independence was rapidly becoming a new doctrine of international legitimacy.118 De-colonisation was removed from the capacity to govern and from the capacity for political development in the plans of the colonial government.119 The resulted in the rapid granting of independence, which began in British West Africa in the 1950s and spread to other parts of the continent, under international pressure.120
Identity politics as a limit to democracy in Africa
The process of attaining democratic rule is competitive. Free and fair elections demands that there be competition between political parties, which unfortunately in Africa, frequently mobilises and politicises regional, ethnic, religious and racial solidarities.223 This intensifies pressures on the fragile African states, as such competition flows along the lines of ethnicity, religion or race. This pattern of ethnic, religious or racial solidarity, though not limited to Africa, is very much pronounced in Africa due to the continent‟s peculiar history.224 The pre-colonial times of wars between different groups and nationalities; the colonial system of administration of „divide and rule‟ (an example of which is what operated in Nigeria and other British colonies); and the post-colonial period in which these differences have manifested and further been capitalised upon, have all contributed in concretising these solidarities on the continent. Therefore in Africa, where ethnic and communal alignments go a long way to impact on the patterns of voting, the goal of having a nationalistic sentiment amongst the people is far from being achieved. This situation has been replicated all over the continent, and in some cases, escalated to levels of violence.225 Instances of these are the 1990 crisis in East Africa,226 the inter-ethnic and inter-regional violence in Uganda and Ethiopia.227
Young asserts that democratisation in Africa is made up of and seen through different special circumstances.228 The 1990s saw the emergence of a different type of regime in Africa. Semi-democracies have emerged in a number of countries, and taken root. This is associated with liberalisation through, inter alia, a press with greater freedom, enhanced respect for human rights, and open contestation, while at the same time pushing forward political rules that make change of government impossible.229 These types of democracies work to the extent of placating the West in its demand for a full democratisation. Africa seems to gradually be on the way to economic and political liberalisation, and though there are many challenges and false starts, it would appear that the continent is making increasing progress in its move towards more democratic forms of governance as opposed to autocratic ones.
Chapter 1: Introduction
1.1 Introduction
1.2 Rule of Law: Meaning and Interpretation
1.3 Rule of Law in Africa
1.4 Purpose of the Research: Problem Statement
1.5 Scope or Context of Research
1.6 Methodology
1.7 Structure and Overview of Research
Chapter 2: History of Governance in Africa
2.1 Introduction
2.2 History of Governance in Africa
2.3 Pre-colonial Era
2.4 Colonialism in Africa
2.5 Post-Colonial Era
2.6 Military Regimes and Dictatorships
2.7 NEPAD and the APRM
2.8 Conclusion
Chapter 3: Theories and Developments guiding Constitutional Democracy
3.1 Introduction
3.2 What is „Democratic Legitimacy‟?
3.3 The Social Contract Theory
3.4 Kelsen‟s Pure Theory of Law and its Implications
3.5 Impact of Globalisation and Democracy on the Rule of Law in Africa
3.6 International law angle in terms of its impact and influence on Africa
3.7 Conclusion
Chapter 4: Regional Case Study: Nigeria
4.1 Introduction
4.2 Historical Background of Nigeria
4.3 Critical Analysis of the 1999 Constitution and preceding constitutions in line with the social contract theory and its requirements
4.4 Mechanism for the rule of law in Nigeria: The Nigerian Legal System
4.5 Impact of Oil and Globalisation on Democracy in Nigeria
4.6 International Law Impact in Nigeria
4.7 Conclusion
Chapter 5: Regional Case Study: South Africa
5.1 Introduction
5.2 History
5.3 Apartheid South Africa
5.4 Post Apartheid South Africa: An analysis of the Constitutions
5.5 Mechanism for the Rule of Law: The South African Legal System
5.6 Impact of the Legal System on the Rule of Law in South Africa
5.7 International law in South Africa and its impact on the Rule of Law
5.8 Conclusion
Chapter 6: Conclusion
6.1 Scope and Purpose
6.2 Overview
6.3 Recommendations
6.4 Concluding Remarks
