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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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