Sub Saharan Africa
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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.