Rule Of Law And Governance
LUSAKA, May 12 - The political climate in Africa has changed considerably during the past ten years and there has been a significant degree of movement towards political liberalization throughout the continent. Most countries of Africa now have elected governments and are in the process of political transition which is in varying degrees. A new generation of political leaders is coming to the fore. Zambia, Tanzania and Botswana have 'third generation' presidents whereas Malawi and Mozambique have 'second and third generation' Presidents. This new leadership has replaced the 'big man' autocrats who largely dominated African politics since independence.
However, this is no cause for complacency. As the experience of recent years has shown, the trajectory of political transition will not be uniform and the process itself will not be necessarily smooth. Equally importantly, political transition may not necessarily bring about the birth of functioning democracies or consolidate democratic regimes. In some instances the process of democratization may even be stalled or blocked by those seeking to maintain the status quo. Democratic elections do not create democracy and much needs to be done to develop and strengthen the institutions of state and society which are central to the process of democratization.
Many African countries began their post colonial existence with inherited liberal democratic systems in place. They had constitutions which provided for the separation of powers, independent Parliamentary bodies, judiciaries and civil services and a degree of political openness, including recognition of political parties and other forms of political representation. However, within a relatively short space of time, most were transformed into one party states, either through deliberate political action or by default. In some cases, single-party structures were established after military coups ousted civilian governments, while in others, the single-party monopolistic system was enshrined in re-written constitutions by civilian governments.
The widespread adoption of the party state almost throughout the African continent, though varying in degree, was perhaps the single most important reason for the erosion of constitutionally protected rights and the retreat from governance based on the rule of law witnessed by many African Countries from independence to the late 1980s and early 1990s.
The ideological basis for the African single-party state was a combination of the colonialist precedent, Marxist, social democratic idealism and African traditions of consensus politics. Colonial rule had demonstrated the 'efficiency' of centralized undemocratic government. Marxism as an ideology was in ascendance throughout the African continent and the developing world at the time that most African countries gained independence, and were promoting the idea of a vanguard party which would lead the masses to economic and social development.
The African tradition of consensus politics, provided a cultural framework for those leaders of the anti-colonialist struggle who were so inclined to argue that multi-party political systems were both 'unAfrican' and unnecessary at a time when all Africans shared the same goals of self-governance and development. It was not unusual to hear proponents of single-party structures that they were necessary to promote national unity, while in some instances the former colonial powers actively supported one leader in order to perpetuate their own influence. The military governments which took over in some countries justified their existence on the grounds of 'defending the nation against corrupt civilian politicians'.
In most instances, over time, the state and the ruling party became indistinguishable and membership of the single-party was a requirement for political and social advancement. To ensure conformity - or at the very least to combat overt resistance - to the prevailing ideology, community and civil society organizations were co-opted by the party, the activities of religious groups were curtailed, the media was taken over by the state, and other political groupings were either banned or totally suppressed. Traditions of legal challenges to un-constitutional actions by the state did not exist in most Countries given their colonial past. Once the single-party became all encompassing, as it did in many countries - including Zambia- the means to mount those challenges were effectively curtailed. In some cases, the apparatus of control became more repressive, and for the most part those outside of the state-party hierarchy found themselves increasingly excluded from power and influence. Politics of exclusion become the order of the day.
Eventually, in almost all countries which adopted single-party politics, both the legislature and the judiciary lost their independence and either became adjuncts to the state and the ruling party, or were denied the human, financial and technical resources to function effectively. In military regimes, they often found themselves overruled and disregarded. In many instances, constitutions were ignored, especially if their provisions had never been translated into law and in others they were re-written to explicitly limit the independence of the judiciary and the legislature and to concentrate power in the executive.
African governments as a matter of principle, should ensure that rule of law predominates. Democratic governments which, behave in an unlawful manner run the risk of being voted out of office, while autocratic regimes tend to enter into an ever increasing spiral of repression in order to stay in power. The legacy of such brutal regimes is often a popular disregard for the rule of law, and a lack of trust in political and legal processes. History has also shown that countries which, come out of violent conflicts, often face the same problems.
Most constitutions of African countries embody the rights and freedoms defined in international charters such as the Universal Declaration of Human Rights. There are also some constitutional provisions which cover participation in the process of governance through elections based on universal adult suffrage.
However, if constitutions are to be effective, they need to be relevant to the demands and needs of the people. If they do not, then they enter the realm of irrelevance.
The mere existence of constitutions however comprehensive will do little to create a stable environment for democracy, unless people know and understand their provisions. Other constitutional provisions guaranteeing freedom of speech, assembly and association, free but responsible press, equality of all citizens before the law, equality of women and minorities are a basic requirement of a democratic society.
Experience in both old and emerging democracies has shown that constitutions which are developed through a process of people participation enjoy greater ownership, in that the process of negotiation and consultation serves to build both public confidence and support for the provisions contained in the constitution the people have contributed in formulating. There is a Constitution Review Commission in place at present - which has been received with mixed reactions by our citizens - which is attempting to 'review' our constitution as a way of involving people in the process of Constitution making. The sticking point appears to be the mode of adoption of the Constitution with some of our citizens preferring a Constituent Assembly, which is currently not provided for under the Inquiries Act or the Constitution, while others prefer the status quo, that is by parliament as provided for in the Constitution of Zambia, which has not yet been amended.
The basic concept underlying the rule of law is that the rights and responsibilities of persons should be subject to a set of generally accepted and enforceable rules and not to the arbitrary actions, or use of force of those in power. In many democratic societies, the rule of law comprises two components. The first is inherent in the term itself - law and law alone must be the yardstick for determining the rights and responsibilities of persons and judging their conduct according to such rights and responsibilities. The second is that the laws and the legal system which enforces them must be just. The concept of a 'just' law is embedded in the idea of constitutional democracy and is embodied in all of the international conventions concerning human rights. Thus, cruel and inhumane punishment is not normally accepted as just, even though it may be consistent with the prevailing laws of a given society.
The rule of law requires a just legal system which must have certain basic attributes. A basic attribute of a just legal system is that it must ensure the personal safety of members of society, and thus penalize acts of aggression, and provide for effective sanctions against the aggressor.
Although applying for the most part to individuals, this attribute also covers acts of aggression committed by the state against its citizens. Those universal human rights which can be classified as the ́freedom from' freedom from arbitrary arrest, detention, torture, and cruel and inhuman punishment fall under this attribute.
Another basic attribute of a just legal system is that it declares unwarranted aggression and trespass against personal property to be unlawful. The right to own property and the legal protection of such property is attenuated with respect to nationalisation or expropriation of property, both of which have occurred in many African countries. It is understood that where there is evidence of ill-gotten property, there should be powers of remedy vested in the judiciary process. With regard to its own functioning, a just legal system requires that individuals be subjected to as few constraints as possible, and that the province of the law should not extend beyond that which is absolutely essential for the maintenance of public security, the protection of individuals, and the guarantee of basic human rights. It also requires that there should be provision for judicial discretion and laws must be made in such a way that this discretion is not taken away from the courts.
Although the constitutions adopted by most countries are comprehensive and in line with internationally accepted norms, the problem is to ensure that the provisions of these constitutions, and the rights enshrined in them, are upheld by the rule of law. In many African countries, the legal system itself will require strengthening and the following are among the problems which will have to be addressed:
- The Independence of the Judiciary;
- The Legal training and Skills Development;
- The Court System;
- Revision of Legislation;
Establishment of Watchdog Bodies;
- Information and Legal Access;
- Constitutional and Legal Issues;
- Land Rights and Land Tenure;
- Property Rights;
- Maintenance of Civil Security;
- Corruption and Political Parties and Campaign Finance.
This list is by no means exhaustive, but it is sufficiently indicative of some of the challenges which we as Africans must address as we enter the 21st Century and as we match valiantly towards the global village.
As African countries develop more open, participatory political systems, there is need for both effective formal rules and behavioural change. Africa's recent past has shown that one without the other is insufficient to ensure good governance. Formal rules can give the outward appearance of democracy while undemocratic behaviour continues.
Conversely, behavioural change which is not accompanied by changes in formal rules can be short-lived and - as experience has shown - freedoms can easily be reversed and repression reintroduced.
There is no guarantee that the current process of democratization in Africa will continue or be sustained. Democracy must be seen to be delivering results to ordinary people, otherwise they will reject it as unsuitable.
The democratic process is still fragile and some of the key players and stakeholders are still confused about their respective roles.
The learning process is taking a lot longer and there are far too many reluctant democrats who have had to be dragged screaming and kicking into the 21st Century. But continued strengthening of the rule of law will help to institutionalize it. Rule of law provides formal rules by which societies can be governed and also induces democratic behaviour by providing redress and sanction in cases of abuse.
In short, by providing for the promotion and protection of human rights, governance by the will of the people, and countervailing forces to balance the power of the executive, rule of law lays the cornerstones of democracy.
Foreigners who do not always have Africa's best interest at heart can 'help' the on- going process of democratization, the rest is up to the people of Africa themselves. After all, it is our continent it is our future.
By Vernon Mwaanga
The Post / allAfrica Global Media
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