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Strengthening
African Democracy - The Rule of Law and Institution Building
Mark
S Ellis, Executive Director, International Bar Association, London
November 23, 2004
This paper was
presented at the InterAction - Strengthening African Democracy
Conference, which was hosted by the British Council in Abuja,
Nigeria, between 22 and 25 November, 2004
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Introduction
– Defining the Rule of Law
There
is no single template for what defines the concept of the ‘rule
of law’. Everyone seems to have a different interpretation of what
the term means. For me, I turn to Africa and to a courageous attorney
and friend, Sternford Moyo, the Past President of the Law Society
of Zimbabwe. He speaks eloquently on the meaning of the rule of
law:
‘The
Rule of Law is the antithesis of the existence of wide, arbitrary
and discretionary powers in the hands of the executive or the
legislature. The Rule of Law is a celebration of individual rights
and liberties and all the values of a constitutional democracy
characterised by the absence of unregulated executive or legislative
power. It is a celebration of the concept of separation of powers
and the checks and balances which form part of that concept. In
a society in which rule of law is observed, through the mechanism
of judicial review, executive decisions and legislative enactments
which are outside the framework of the law are declared invalid
thereby compelling both the executive and the legislature to submit
to enjoyment, by the individual, of all rights and liberties guaranteed
by the constitution.’
Under this definition
it is fair to say that many countries, including those in Africa,
are still struggling to incorporate the rule of law within their
own systems.
This is not
to suggest that there is no understanding of the rule of law concept
within the African perspective; that would be an absurd statement.
As UN Secretary-General Kofí Annan has stated,
‘Africans
have much to learn from their own traditions, and something to
teach others, about the true meaning and spirit of democracy.’
He added, ‘We need to understand that there is much more to democracy
than simply holding elections and deciding fairly which candidate,
or which party, has majority support.’
The question
today is whether Africa has reached a critical turning point where
the rule of law is the foundation for democratic improvement,
human rights and sustainable development. This is the key question
because the rule of law is a prerequisite for the security, stability
and development of Africa.
I recognise
that there is a sensitivity in various regions around the world,
including Africa, that transplanting Western institutional models
may be problematic.
However, the
motives of some of those who advocate ‘African solutions to African
problems’ may be suspect. Many egregious violations of the
rule of law in Zimbabwe, for instance, have been justified on the
grounds that this is a variant of democracy best suited to peculiar
‘African’ or ‘postcolonial’ circumstances and yet it is increasingly
evident that these justifications have little to do with ‘African
concepts of governance’ and more with consolidation of political
power through the elimination of all political opposition.
Zimbabwe reminds
us that we should be cautious of attempts to distinguish African
rule of law norms from those of the rest of the world.
It presents a challenge to us all to speak out whenever
governments systematically undermine democratic institutions, hiding
behind the argument that there are peculiar local circumstances
that justify deviance. This is because a breakdown on the rule of
law, if unchecked, seriously threatens the regional
institutions and international institutions which are
essential to securing human rights for all throughout the world.
Thus, whether
the rule of law is, in fact, at the foundation for African development
depends on understanding several key features of African governance
and law (both past and present); it also requires an understanding
and commitment to the rule of law.
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