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Published online by Cambridge University Press: 05 April 2022
The rule of law embodies two basic metaphors: the tool and the causeway. Under the tool metaphor, the rule of law is applied more as an instrument of power, while in the causeway metaphor, the law emphasizes a form of relationship between state and society where “ground rules” are established, not just for electoral politics but for the daily transactions and commercial necessities of individuals. The choice between these two metaphors has always been crucial for the legal and political development of democratic states. This article argues that in many African states, the rule of law is presently used as a tool, and contends that if this superficial perception is discarded, in favour of concentrating instead on the more expansive causeway metaphor, the continent will stand the chance of building more modern democratic states that can compare favourably with other consolidated democracies across the globe.
BL, LLB (Nigeria), LLM (Wales, UK), PhD (Kent, UK). Senior lecturer and acting head, Department of Commercial and Corporate Law, Faculty of Law, University of Nigeria (Enugu Campus).
LLB, LLM, PhD (Nigeria). Senior lecturer, Department of Commercial and Corporate Law, Faculty of Law, University of Nigeria, Nsukka.
LLB (BL), LLM (Yale), LLM (Dalhousie), PhD (Osgoode). Senior lecturer and head, Department of Property Law, University of Nigeria (Enugu Campus).
LLB (BL), LLM, PhD (Nigeria). Lecturer, Department of Private Law, Faculty of Law, University of Nigeria (Enugu Campus).
1 BZ Tamanaha On the Rule of Law: History, Politics, Theory (2004, Cambridge University Press) at 3.
2 M Mutua “Africa and the rule of law” (2016) 13/23 SUR: International Journal on Human Rights 159 at 160, available at: <https://sur.conectas.org/en/africa-rule-law/> (last accessed 29 July 2021).
3 Other ideals include democracy, human rights, social justice and economic freedom.
4 J Waldron “The rule of law” in EN Zalta (ed) Stanford Encyclopedia of Philosophy (Summer 2020 edition), available at: <https://plato.stanford.edu/entries/rule-of-law/> (last accessed 24 April 2020).
5 Kahn, J “The search for the rule of law in Russia” (2006) 37 Georgetown Journal of International Law 353Google Scholar at 373.
6 Ibid.
7 See for example, Mutua “Africa and the rule of law”, above at note 2 at 160; Bunce, V “Comparative democratization: Big and bounded generalizations” (2000) 33 Comparative Political Studies 703CrossRefGoogle Scholar at 714 (“Without rule of law, democracy cannot be fully realized”); T Carothers “The rule of law revival” (1998) 77 Foreign Affairs 95 at 99 (“In many countries, people still argue over the appropriateness of various models of democracy or capitalism. But hardly anyone these days will admit to being against the idea of law.”).
8 For the purpose of this article, a modern democracy (as opposed to the ancient democracy of the Greek city states, for instance) is taken to mean a state where there is representation; free and fair elections; a multi-party system; separation of power; rule of law; and protection of human rights. In this democratic state, there must be a constitution, equality before the law and respect for individual rights and liberties. The government must be transparent and accountable, and there must be institutions of democracy outside the government, such as a free and independent news media and widespread participation in labour unions. See B Barr “The 5 defining features of a modern democracy” (2020) Dialogue and Discourse, available at <https://medium.com/discourse/the-5-defining-features-of-a-modern-democracy-d7cd1e6a4b72> (last accessed 18 March 2021).
9 J Kahn “The rule-of-law factor” in J Newton and W Tompson (eds) Institutions, Ideas and Leadership in Russian Politics (2010, Palgrave Macmillan) 1 at 161–62.
10 Ibid.
11 JM Maravall and A Przeworski “Introduction” in JM Maravall and A Przeworski (eds) Democracy and the Rule of Law (2003, Cambridge University Press) 1 at 3.
12 HJ Berman Law and Revolution: The Formation of the Western Legal Tradition (1983, Harvard University Press) at 38–39.
13 M McFaul Russia's Unfinished Revolution: Political Change from Gorbachev to Putin (2002, Cornell University Press) at 328.
14 Gel'man, V “Regime transition, uncertainty and prospects for democratisation: The politics of Russia's regions in a comparative perspective” (1999) 51 Europe-Asia Studies 939CrossRefGoogle Scholar at 939; Fish, MS “The travails of liberalism” (1996) 7/2 Journal of Democracy 105CrossRefGoogle Scholar at 113.
15 HLA Hart The Concept of Law (1961, Oxford University Press) at 38; G Marshall “The analysis of British political institutions” in J Hayward, B Barry and A Brown (eds) The British Study of Politics in the Twentieth Century (1999, Oxford University Press) 258 at 276–278.
16 WE Butler “Jus and lex in Russian law: A discussion agenda” in DJ Galligan and M Kurkchiyan (eds) Law and Informal Practices (2003, Oxford University Press) 61 at 63.
17 AV Dicey Introduction to the Study of the Law (8th ed, 1982, Liberty Classics) at 114.
18 The formal principles concern the generality, clarity, publicity, stability and potentiality of the norms that govern a society. The procedural principles concern the processes by which these norms are administered and the institutions – such as courts and an independent judiciary – which their administration requires. According to this principle, the rule of law means the supremacy of law over government, or put differently, government under law; see Dicey Introduction to the Study of the Law, above at note 17 at 187. As Wade and Forsythe opine, the rule of law requires that government should be subject to the law, rather than the law subject to government; W Wade and C Forsythe Administrative Law (7th ed, 1994, Oxford University Press) at 3. This principle requires both citizens and governments to be subject to known and standing laws. The law is binding on the state itself, which remains constrained by it until the law is repealed or changed by some later, properly promulgated law; Berman Law and Revolution, above at note 12 at 9. It also means that there can be no offense – criminal, civil, political or administrative – without law. This concept has an ancient formulation: nullum crimen sine lege, nulla poena sine lege (no crime or punishment without a law).
19 Dicey Introduction, above at note 17 at 189.
20 Dicey Introduction, above at note 17 at 199; see also Thomas, TA “Ubi jus, ibi remedium: The fundamental right to a remedy under due process” (2004) 41 San Diego Law Review 1633Google Scholar at 1636.
21 On a general note, a serious criticism of these principles is that they make no room for the granting of discretionary powers to governments. According to the principles, creating room for arbitrariness may lead to serious threats to individual freedom. As presently constituted, however, governments operating with discretionary powers have become inevitable. Dicey's view in this regard appears to be outdated.
22 L Bhansali “Defining our path to the ‘rule of law’” (2012) Governance and Development, available at: <https://blogs.worldbank.org/governance/defining-our-path-to-the-rule-of-law> (last accessed 28 January 2022).
23 United Nations Development Programme “The rule of law and human rights – fundamentals for the 2030 agenda and sustaining peace” (2018), available at: <https://www.undp.org/content/undp/en/home/news-centre/news/2018/the-rule-of-law-and-human-rights---fundamentals-for-the-2030-age.html> (last accessed 28 January 2022).
24 United Nations “What is the rule of law” (2021), available at: <https://www.un.org/ruleoflaw/what-is-the-rule-of-law/> (last accessed 28 January 2022). Also see Report of the Secretary-General “The rule of law and transitional justice in conflict and post-conflict societies” (2004) para 6, available at: <https://www.un.org/ruleoflaw/blog/document/the-rule-of-law-and-transitional-justice-in-conflict-and-post-conflict-societies-report-of-the-secretary-general/> (last accessed 28 January 2022); see also CM Fombad “Strengthening constitutional order and upholding the rule of law in Central Africa: Reversing the descent towards symbolic constitutionalism” (2014) 14 African Human Rights Law Journal 417.
25 United Nations “What is the rule of law”, above at note 24; Report of the Secretary-General “The rule of law and transitional justice”, above at note 24.
26 E Van Veen “A shotgun marriage: Political contestation and the rule of law in fragile societies” (2017) Clingendael, available at: <https://www.clingendael.org/pub/2017/a_shotgun_marriage/> (last accessed 29 July 2021).
27 Ibid.
28 One problematic issue here is that in the “thin” approach to the rule of law, justice institutions tend to be understood mostly in the formal sense, ie those that are part of the internationally recognized state. This excludes a significant number of institutions relevant to rule-of-law development, such as the hybrid forms of governance that characterize rule in fragile societies and customary institutions, and the even less tangible webs of relationships that connect state, hybrid and customary institutions. It exemplifies how the assumption of the existence of a universal meaning of the “rule of law” is equated with a particular institutional manifestation in the form of the western, Weberian state – which flies in the face of the evidence that governance in fragile societies will, for the foreseeable future, follow more hybrid trajectories, and may well feature a hybrid “end state” as well.
29 D Marshall (ed) The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward (2014, Harvard University Press) at 15.
30 Id at 12.
31 World Bank Governance and the Law (2017, World Bank) at 21.
32 Ibid; see also E Van Veen “Improving security and justice programming in fragile situations: Better political engagement, more change management” (OECD Development Papers No 3, 2016) at 4.
33 The “thick” definition does not sufficiently allow for conceptualization of the rule of law as a gradual and lengthy process of the progressive expansion of rights and entitlements that might start from a decidedly limited, exclusionary and undemocratic basis, as well as featuring significant regression at times. A brief review of recent political-legal history makes it clear that the speed with which rights and entitlements have been encoded internationally has appreciably outpaced domestic processes of political contestation in a number of places, particularly in fragile societies. It is therefore fallacious to expect that the rights and entitlements so enshrined will create de facto, or even de jure, rights within all national legal orders at roughly the same time or that convergence can and should be realized in the near future.
34 T Ginsberg and T Moustafa Rule by Law: The Politics of Courts in Authoritarian Regimes (2008, Cambridge University Press) at 12.
35 Ibid.
36 M Mutua “Africa and the rule of law”, above at note 2 at 166.
37 Ibid.
38 Ibid.
39 Ibid.
40 Ibid.
41 P Shivute “The rule of law in sub-Saharan Africa: An overview” (2017), available at: <https://www.kas.de/c/document_library/get_file?uuid=2528ba94-446b-ce48-a32d-fa34b630faf1&groupId=252038> (last accessed 28 January 2022).
42 Ibid.
43 E Edroma “Introduction” in E Edroma (ed) Rethinking the Role of Law and Justice in Africa's Development (2013, UNDP) xii.
44 This paper is by no means stating that poverty is only an African phenomenon; without doubt, it exists everywhere in the world. The statement here attempts to highlight the fact that many Africans live in poverty.
45 Edroma “Introduction”, above at note 43.
46 Constitutionalism is an important aspect of the rule of law and implies that all actions of a state are derived from the constitution. Any action not authorized by the constitution has no validity. It is a doctrine that governs the legitimacy of government action and suggests something far more important than the idea of legality, which requires official conduct to be in accordance with pre-fixed legal rules. In other words, constitutionalism checks whether the act of a government is legitimate and whether officials conduct their public duties in accordance with laws pre-determined in advance. The latter definition shows that having a constitution alone does not bring about or secure constitutionalism. Except for a few states which have unwritten constitutions, today almost all the nations in the world have constitutions. This does not, however, mean that all these states practise constitutionalism, which is why constitutionalism is far more important than a constitution. On this, see Bazezew, M “Constitutionalism” (2009) 3/2 Mizan Law Review 358Google Scholar at 358.
47 CM Fombad “The context of justice in Africa: Emerging trends and prospects” in E Edroma (ed) Rethinking the Role of Law and Justice in Africa's Development (2013, UNDP) 1 at 3.
48 Ibid.
49 Ibid.
50 For an example of colonial-era practices, see J Conrad Heart of Darkness (1990, Dover).
51 B Ibhawoh Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History (2007, State University of New York Press) at 2–3; for an example of such rule, see F Fanon The Wretched of the Earth (1963, Grove Press).
52 See A Hochschild King Leopold's Ghost: A Story of Greed, Terror and Heroism in Colonial Africa (1998, Houghton Mifflin).
53 For example, the French in their colonies grouped Africans into two categories: those who had been granted the status of citoyen (“citizen”, or assimilated French person) and the rest of the population who were classified as sujet or indigène (“subject” or “native”). The status of an assimilated French person was reserved to a few dozen Africans who had, in the view of the colonizers, evolved from the status of natives by attaining an acceptable level of French civilization and culture; see Fombad “The context of justice”, above at note 47 at 3.
54 In anglophone Africa, the pre-existing traditional or customary law was only allowed provided it was not (in the view of the colonial authorities) repugnant to natural justice, equity and good conscience, nor incompatible either directly or by natural implication with any written law in force at the time. This so-called repugnancy test could be used to invalidate a rule of customary law. More generally, however, administrative officials had the last word on what was customary law during this period; see Fombad “The context of justice”, above at note 47 at 3–4.
55 See A An-Na'im “The legal protection of human rights in Africa: How to do more with less”, in A Sarat and TR Kearns (eds) Human Rights Concepts, Contests and Contingencies (2001, University of Michigan Press) 68.
56 See B Titley Dark Age: The Political Odyssey of Emperor Bokassa (1997, McGill-Queen's University Press).
57 See W Reno “Congo: From state collapse to ‘absolutism’, to state failure” (2006) 27/1 Third World Quarterly 43.
58 See Decker, AC “‘Sometime you may leave your husband in Karuma Falls or in the forest there’: A gendered history of disappearance in Idi Amin's Uganda, 1971–79” (2013) 7/1 Journal of Eastern African Studies 125CrossRefGoogle Scholar.
59 HWO Okoth-Ogendo “Constitutions without constitutionalism” in I Shivji (ed) State and Constitutionalism: An African Debate on Democracy (1991, SAPES Trust) 5 at 87.
60 Fombad “The context of justice”, above at note 47 at 5.
61 It should be noted that these constitutional changes were brought about for different reasons; some countries changed constitutions to enhance checks and balances while others did so to enhance the power of the executive, leading to autocratic governments.
62 This includes Angola in 1991 and 2010, Central African Republic in 1994 and 2004, Guinea in 1990 and 2010, Republic of Congo in 1992 and 2002, DR Congo in 1994 and 2006, Rwanda in 1991 and 2003, and Zambia in 2001 and 2016. See E Goldring and M Wahman “Democracy in reverse: The 2016 general election in Zambia” (2016) 51/3 Africa Spectrum 107 at 111.
63 S Elischer and L Mueller “Briefing: Niger falls back off track” (2018) 118/471 African Affairs 392 at 394.
64 Fombad, CM “Constitution-building in Africa: The never-ending story of the making, unmaking and remaking of constitutions” (2014) 13/4 African and Asian Studies 429CrossRefGoogle Scholar at 436.
65 See C Heyns and W Kaguongo “Constitutional human rights law in Africa” (2006) 22 South African Journal of Human Rights 673.
66 Most of these new constitutions contained elements of the rule of law. In Nigeria, for instance, section 1(1) of the 1999 Constitution (as amended) insists that this “constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”. In South Africa, the 1996 Constitution says as much; its first section declares that among the founding values of the nation are “supremacy of the constitution and the rule of law”. Arguably, only two African countries, Botswana and Mauritius, have had transparent and democratic multi-party systems since independence. Interestingly, these countries have maintained their independence constitutions of 1966 and 1968 respectively, with few significant changes. Again, most countries in northern Africa maintained their pre-1990 constitutions with a small number of significant changes until the events of 2010–11 (the Arab Spring), which saw the removal of various long-serving dictators. As a result, Morocco adopted a new constitution in 2012, and Algeria, Egypt, Libya and Tunisia are in the process of drafting new constitutions. These are more likely to promote constitutionalism than the previous constitutions; see Fombad “The context of justice”, above at note 47 at 2, note 7.
67 Lawyers for Justice in Libya “Enforced disappearances: Combating enforced disappearances in Libya” (2017) LFJL, available at: <https://www.libyanjustice.org/enforced-disappearances> (last accessed 1 May 2020).
68 Ibid.
69 J Howell “Investigating the enforced disappearances of Algeria's ‘dark decade’: Omar D's and Kamel Khélif's commemorative art projects” (2016) 21/2 The Journal of North African Studies 213 at 234.
70 S Ellmann “The struggle for the rule of law in South Africa (Symposium: Twenty years of South African constitutionalism: Constitutional rights, judicial independence and the transition to democracy)” (2015/2016) 60 New York Law School Law Review 57 at 59. While abuse of human rights and disrespect for the rule of law was the case during the apartheid regime, it appears there is an improvement in the respect given to the rule of law by the post-apartheid government in South Africa.
71 L Davidson and R Purohit “The Zimbabwean human rights crisis: A collaborative approach to international advocacy” (2004) 7 Yale Human Rights & Development Law Journal 108 at 109.
72 A Magaisa “Zimbabwe: An opportunity lost” (2019) 30/1 Journal of Democracy 143 at 147.
73 Heyns and Kaguongo “Constitutional human rights law” above at note 65 at 674; CM Fombad “African bill of rights in a comparative perspective” (2011) 17/1 Fundamina 33 at 34.
74 CM Fombad “A preliminary assessment of the prospects for judicial independence in post-1990 African constitutions” (2007) 2 Public Law 233 at 244.
75 The scope for judicial independence in francophone and lusophone countries is diminished by the fact that the constitutional provisions that are supposed to promote such independence are usually formulated in vague terms, leaving too many critical determinants of judicial independence to be governed by ordinary regulations. Perhaps the most serious concern in these countries is the decisive role that the executive plays in appointing, disciplining and promoting judges; for further elucidation on this point, see CM Fombad “Challenges to constitutionalism and constitutional rights in Africa and the enabling role of political parties: Lessons and perspectives from Southern Africa” (2007) 55/1 American Journal of Comparative Law 1 at 15–17.
76 Heyns and Kaguongo “Constitutional human rights law” above at note 65.
77 CM Fombad “The expansion of judicial power in Africa and democratic consolidation: Opportunities, challenges and future prospects” (paper presented at the Institute for African Development Spring Symposium: Elections, Accountability and Democratic Governance in Africa, at the Institute for African Development, Mario Einaudi Center for International Studies, Cornell University, Ithaca, New York, 19–21 April 2012).
78 CM Fombad and E Nwauche “Africa's imperial presidents: Immunity, impunity and accountability” (2012) 5/2 African Journal of Legal Studies 91 at 97.
79 Sec 174(4) of the South African Constitution.
80 See sec 231 to sec 269 of the 1999 Nigerian Constitution (as amended).
81 See the Botswana Constitution (as amended in 2002), secs 96(2) and (3), 100(2).
82 Sec 96(1) and sec 100(1) of the Botswana Constitution (as amended).
83 See sec 61(2), part I, cap IV of the Kenyan Constitution.
84 Fombad and Nwauche “Africa's imperial presidents”, above at note 78 at 93; we suggest that when it comes to the appointment of judges, the executive arm of a government should have no input at all. The judges should be nominated by a national judicial council (created by the Constitution and whose members comprise retired and senior serving justices) and confirmed by the congress.
85 See, for instance, the Cameroon Constitution, art 37(3); the Constitution of Gabon, art 69; the Constitution of Mauritania, art 89(1); and the Constitution of Niger, art 100.
86 Fombad and Nwauche “Africa's imperial presidents”, above at note 78 at 93.
87 GEK Kanga “The political (in) dependence of the judiciary in Cameroon: Fact or fiction?” (2019) 11/1 Africa Review 46 at 62.
88 H Haider “Political economy and governance in the Democratic Republic of Congo (DRC)” (2015) GSDRC Help Desk Research Project, available at: <https://assets.publishing.service.gov.uk/media/57a08966e5274a31e0000070/HDQ1252.pdf> (last accessed 27 April 2020).
89 A Agegnehu and W Dibu “Ethiopian human rights system: An overview” (2015) 9 Journal of Culture, Society and Development 26 at 26.
90 Yagboyaju, DA and Akinola, AO “Nigerian state and the crisis of governance: A critical exposition” (2019) 9/3 Sage Open 1CrossRefGoogle Scholar at 10; Y Baba “Executive dominance and hyper-presidentialism in Nigeria” in C Levan and P Ukata (eds) The Oxford Handbook of Nigerian Politics (2018, Oxford University Press) 13.
91 J Hatchard, M Ndulo and P Slinn Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (2004, Cambridge University Press) at 59.
92 JM Mbaku “Kenyan democracy and the rule of law” (2018) Georgetown Journal of International Affairs, available at: <https://www.georgetownjournalofinternationalaffairs.org/online-edition/2018/3/28/kenyan-democracy-and-the-rule-of-law> (last accessed 28 January 2022).
93 As is the case with South Africa and the African National Congress (ANC); see Ellmann “The struggle”, above at note 70 at 59.
94 R Bolt A Man for All Seasons: A Play in Two Acts (1990, Vintage) at 3.
95 Ibid.
96 Nevertheless, these metaphors, as a matter of course, are not mutually exclusive. In an entrenched, consolidated democracy, it may be desirable to expect the rule of law to function as a causeway in some instances and as a sword or shield (tool) in other circumstances. Our contention is essentially that the constructive ramifications for the rule of law in an emerging democracy are better met by those aspects of the concept captured by the causeway metaphor and are hindered by those aspects captured by instrumentalist metaphors of sword, shield or tool.
97 Kahn “The search”, above at note 5 at 372.
98 Ibid.
99 BR Kleinfeld “Competing definitions of the rule of law: Implications for practitioners” (2005) 55 Carnegie Papers, available at: <https://carnegieendowment.org/files/CP55.Belton.FINAL.pdf> (last accessed 28 January 2022).
100 TRS Allan “The rule of law as the rule of reason: Consent and constitutionalism” (1999) 115 Law Quarterly Review 225 at 238.
101 R Charlow “American constitutional analysis and a substantive understanding of the rule of law” in JR Silkenat, JE Hickey (Jr) and PD Barenboim (eds) The Legal Doctrines of the Rule of Law and the Legal State (2014, Springer) 253 at 254.
102 FA Hayek Law, Legislation and Liberty (vol 1, 1973, University of Chicago Press) at 72.
103 Ibid.
104 J Waldron “Is the rule of law an essentially contested concept (in Florida)?” (2002) 21 Law and Philosophy 137 at 142–43 and 147–48.
105 BA Haruna and AM Yusuf “Conceptual analysis of the rule of law in Nigeria” (2016) 1/1 Bayero Journal of International Law & Jurisprudence 101 at 121.
106 Council of Europe “Corruption undermines human rights and the rule of law” (2021), available at: <https://www.coe.int/en/web/commissioner/-/corruption-undermines-human-rights-and-the-rule-of-law> (last accessed 18 March 2021).
107 Council of Europe Committee on Legal Affairs and Human Rights “Corruption as a threat to the rule of law” (2013), available at http://assembly.coe.int/CommitteeDocs/2013/NYFf%C4%B1nalpressfjdoc1e.pdf (last accessed 3 February 2022).
108 Kahn “The search”, above at note 5 at 374.
109 B Rudden “Civil society and civil law” in G Ginsburgs, DD Barry and WB Simons (eds) The Revival of Private Law in Central and Eastern Europe: Essays in Honor of FJM Feldbrugge (1996, Kluwer Law International) 17 at 21.
110 Kahn “The search”, above at note 5 at 373.
111 Dicey A Theory of Justice, above at note 17 at 203.
112 Kahn “The search”, above at note 5 at 374.
113 J Rawls A Theory of Justice (1999, Belknap Press) at 207.
114 See Bolt A Man for all Seasons above at note 94 at 152–53.
115 Rawls A Theory of Justice, above at note 113 at 210–11.
116 Rudden “Civil society”, above at note 109 at 17, 20–21.
117 Kahn “The search”, above at note 5 at 374.
118 JJ Linz and A Stepan Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (1996, John Hopkins University Press) at 10.
119 K Hendley Trying to Make Law Matter: Legal Reform and Labor Law in the Soviet Union (1996, University of Michigan Press) at 12.
120 Kahn “The search”, above at note 5 at 374.
121 Palombella, G “The rule of law beyond the state: Failures, promises, and theory” (2009) 7/3 International Journal of Constitutional Law 442CrossRefGoogle Scholar at 442.
122 Waldron “The rule of law”, above at note 4.