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Access to justice in many of the countries in Sub-Saharan Africa is a complex issue. In many parts of Africa, informal justice forums are still key to the judicial system ” and this is something that many westerners criticise ” feeling that those traditional fora are too simplistic, and that they are not up to the task of dealing with complex modern issues of justice. What this ignores is that even traditions were ‘invented’, and this makes them modern in content.
In the 1960s, many sub-Saharan African countries became independent, and this break-off caused a lot of changes in the area. The countries turned back to their traditional, informal forums for justice, but these forums were not intended to last ” the expectation was that as Africa modernised, those old forums would be replaced. Informal, traditional ways of settling criminal and even civil disputes still remained popular even as recently as the late 90s and early 2000s, however.
One of the reasons that judicial reform has been so slow to take place is that so many Africans live in rural villages, where it is not easy to access the formal, official state justice system ” even in areas where there has been extensive judicial reform at the city level, if the awareness is not there in the rural areas, and there is not a vehicle for people to access that justice, the older methods will prevail, even if only informally.
The state justice systems, where they have been invested in, often have limited resources, and wish to focus those resources on serious cases. This means that minor disputes in a village or a settlement will be brushed off or ignored “disincentivising those involved in those disputes from bringing them to the attention of those authorities in the first place.
The European Development Fund has contributed a significant amount of money and also development assistance to sub-Saharan African countries, to support the development of the justice system, but those systems are still in their infancies even now. While on paper there are now procedures, policies and laws in place and there are schemes to support ordinary citizens who need to access the judicial system, putting those systems into practice requires buy-in at every level, and that is something that will take a long time to occur.
There is resistance from older government officials and those who are involved in the more traditional systems ” these people see the new systems as too much red tape, and as too much involvement from ‘big government’ in what should be local matters. There is also too little belief from the citizens themselves, who have been let down in the past, and see “justice” as being perhaps a scary form of degrading or physical punishment, rather than a fair system for all.
That culture is changing ” and increasing representation from women and young people is one thing that is helping to improve the public image of the justice system.
The United Nations has stepped in on several occasions to support judicial reform in Sub-Saharan Africa. There are some concerns about accountability in the region, and the UN has, on several occasions, been implored (but not actually had the power) to investigate allegations of corruption, however the lack of a clear convention has meant that they are not able to intervene or to step forward to address any corruption that exists.
Oona Hathaway published an paper on the theory of international law in 2005, and many of the theories expressed in that publication are things that can be applied to African civil society.
Sub-Saharan Africa is a diverse region and there are numerous countries in the area that have struggled to implement good governance since they became independent. While many are working on their own development policies for both criminal justice and things like IP law, there is not a single consistent framework and this means that the quality and consistency of law and enforcement is variable from country to country. There is a clear concentration of power in some areas because there are not enough checks and balances on the elite. This is something that was highlighted by the Economic Commission for Africa in 2009, which reported on how the concentration of power can sometimes subvert the police, legislature, civil service and judiciary in a way that makes it harder to control corruption and ensure that the law is enforced.
The ruling elites sometimes use their power to influence economic activity and even to influence who is in government positions. The 1990s saw a move towards more democractic processes in Africa, and that has helped a lot ” but there are still some areas where the elite do have a disproportionate amount of control, and that is something that the United Nations could offer guidance on, if the individual countries were open to it.
Some countries, such as Venzuela, have been proactive in seeking assistance with their judicial systems. There is a growing move across Africa to improve their public services, government and legal systems, too ” with 43 African leaders signing the United Nations Convention Against Corruption in just a few years. In addition, the Rome Statute of the International criminal Court was signed and ratified by 30 different African nations between 1998 and 2008, with Burkina Faso, Senegal and Ghana being some of the earliest adopters.
Interestingly enough, it is the autocracies with the weaker rules of law that are more likely to ratify such statute, but ratification has a strong influence on their behaviour” with the least democratic governments, being more likely to terminate violent conflicts, perhaps because of the fear of prosecution.
We are a long way from a world where international trading law is standardized and every country works to protect the interests of global brands, but the situation for citizens is improving a lot and the continuing efforts of African governments should be commended.
Sub-Saharan Africa is not unique in the fact that many countries in the region are ex colonial possessions. In keeping with the history of countries such as South Africa, Botswana, Namibia and Zimbabwe there has been an overt reliance on the structures and norms that were established under colonial rule – at least as far as the judiciary is concerned.
For countries like South Africa for instance the influence of settler countries such as the Dutch and English has resulted in the country relying on a foundation of Roman Dutch law, for other countries in the region the same applies. Countries like Lesotho, Swaziland, Namibia, Botswana and Zimbabwe also base their legal system on the same foundations.
The question must be asked: should Roman Dutch law continue to be the basis of the legal framework given that these countries have experienced independence from colonial powers?
The answer is complex – but at its root must lie the question – does sub-Saharan Africa need, or even want the legal frameworks set in place by colonial powers that have very little knowledge of the current social and political drivers that shape the region?
The answer is both yes and no. Roman Dutch law has proven to be a robust basis for legal action and the protection of human rights.
Would these countries be best served by developing their own legal frameworks? The answer, according to many legal experts is no. The frameworks supplied by colonial powers do contribute significantly to fair and equitable judicial practice.
However – that is not to say that these frameworks should not evolve to suite the unique requirements of sub-Saharan Africa.
The uniquely multicultural nature of the societies in the countries in Sub-Saharan Africa mean that judicial practice must evolve to suit a new environment.
Societies and individuals within these countries have unique requirements – many of them with a foundation in cultural, customary and traditional law.
Several of these countries have taken this into account and included aspects of traditional law into their judicial practice. The power of traditional leaders and religious / cultural beliefs must, of necessity become part of the judicial practice of these countries. Without this approach the judiciary may fall foul of an accusation of ‘elitism’ and at the same time risk alienating many of the citizens it is sworn to protect.
However, at the same time it should be realized that there is a need for balance.
The principles enshrined in Roman Dutch law have stood the test of time. The results of judgments under this framework are accepted in most jurisdictions across the globe.
There is a delicate balancing act that must be performed. On the one hand a judiciary that adheres to proven (accepted) Western ideals of judicial judgement and on the other hand the absolute requirement to align traditional forms of judgement within a uniquely African environment.
The future of the judiciary in sub-Saharan Africa is one which will require careful navigation.
The commercial Law Development Program in the United States has spent a lot of time working with countries in Sub-Saharan Africa to implement judicial reforms. The relationship began in 1999 as a part of the African Trade and Investment Program, which was an initiative managed under the USAID program.
The CLDP has worked with many west-Africa dountries to implement reforms in Alternative Dispute Resolution as well as judicial case management, and has explored issues of ethics, intellectual property rights and investment codes. The long term goal has always been to implement efficient and effective ethical justice systems, with legal and regulatory systems that can benefit everyone, regardless of their income. The CLDP has helped Benin, Cameroon, Congo, Burkina Faso, Cote d’Ivoire, Chad, Equatorial Guinea, Guinea Bissau, Niger, Gabon, Guinea, Nigeria, Mali, Togo and Senegal, and has worked with numerous organisations, including the Organization of the Harmonization of Business Laws in Africa, as well as the African Development Bank.
There have been several programs launched over the last 18 years, with one of the most interesting being the African Growth Opportunity Act, which has helped numerous businesses in the region. The CLDP helped to publicise the act, and also worked with the Southern African Development Community, to develop the infrastructure required for the region to comply with the WTO’s requirements in terms of the Intellectual Property Rights agreement ” in particular the areas of the agreement relating to trade.
They have also worked with countries in the region to improve intellectual property protection in general. Beginning in 2007, the CLDP worked with several individual countries, as well as the SADC, the East African Community and the Economic Community of West African States, to help with IP outreach, legislation, enforcement and administration.
Justice and law enforcement in Africa varies from country to country, and there are reforms taking place in every area ” not just intellectual property law but also criminal justice and civil litigation. Providing justice for all is a complex and expensive undertaking, and over the last 25 years Sub-Saharan African countries have accessed numerous pots of money from banks and private companies as well as from European Development Funds. They have worked with U.S. Federal Court Judges and with prosecutors to improve their own legislation, and spoken to police departments and government departments to learn about performance incentives, legislation and administrative systems that can help to streamline complex areas of law.
There is still a long way to go to improve areas of project finance, government ethics and regulatory systems in many parts of the region, but most governments are committed to a system of reform that will see them up to date and working smoothly. Things like Alternative Dispute Resolution systems take a lot of the burden off traditional court hearings, and offer a simple way of resolving a lot of cases, while keeping everyone on an equal footing and helping to make the law transparent and consistent for everyone.
The European Union has supported Africa via the European Development Funds, in order to help the country to implement a number of judicial reforms. The funding went towards a number of areas of the justice sector, including reforms to strengthen the independence of the justice system and to ensure that it is professionally managed and impartial.
The national frameworks for justice in Africa have been strengthened in order to ensure that people are entitled to a fair trial, and there have been a number of investments towards improving prison management and the conditions that prisoners face, as well as exploring options for alternative sentencing.
The European Union has supported African countries that are willing to work towards the idea of fair justice for all, including those who are the most vulnerable, and has helped to ensure that legal assistance is available for everyone ” and that people are aware of their options. They have also invested in monitoring institutions, and in improving people’s ability to access the justice system when they need it.
Between 2007 and 2013, most of the countries in the sub-saharan regions of Africa received some support from the EU focused on the area of justice, and there is a new programme running now. The current 2014 to 2020 programme focuses on justice, the security sector and the rule of law, and is a key priority area for African support programs.
Prior to the European funding programmes, Sub-Saharan African countries received heavy investment and loans to support judicial reform. For example, in 1992, Venezuela took out a lloan to improve their judicial infrastructure. The Government of Venezuela identified a need for an efficient and fair system to allow people to resolve legal disputes while keeping litigation costs to a minimum and improving the environment in the private sector. The government knew that it would be expensive to provide the resources that the country would need for efficient management, and that it would not be able to do it piecemeal, so they turned to banks with experience in public sector management to help them set up an efficient programme.
An investment of $30 million, as well as support in terms of the implementation of the project beyond the financial, helped to greatly improve Venezuela’s systems and infrastructure.
Such projects are never simple, but one thing that these reforms do benefit from is the history of judicial systems in other countries. Venezuela was able to draw not just on the expertise of the banks, but also look at how justice systems are implemented in the USA, UK and Europe. They can learn from things such as performance measurement and management, incentives for employees, training, and monitoring, so they have been able to go into their reforms with a clear idea of a framework for managing good performance in place. There is still a long road ahead in terms of implementing good justice ” not just in Africa, but even in other parts of the world.