"The rule of law" is a phrase that rolls easily off the tongue. It is invoked in many contexts, often with a casualness that leads easily to our underestimating its importance in defining the relationship of the state and its rulers to the citizenry at large. On this view, it becomes apparent that the rule of law is central to the promotion of human security.
The Oxford Companion to Philosophy offers a brief but useful definition of the rule of law, which it describes as "A system of government behaviour and authority that is constrained by law and the respect for law, in contrast to despotic rule." It goes on to speak of the separation of powers between the executive, the legislature and the judiciary, the entrenchment of civil liberties behind constitutional walls and the transfer of political power through fair elections.
A survey of contemporary Africa would suggest that the rule of law, as described here, is either absent or severely attenuated in many of the continent's states. For all the emphasis on constitutionalism, it seems that this is most often invoked by political elites seeking to entrench, rather than limit, their own powers.
To some extent, Africa's rulers have been abetted by outsiders who use a narrow interpretation of the rule of law to emphasise the maintenance of political order and the protection of foreign assets from expropriation. More broadly, however, serious analysts have concluded that in failed or fragile states, or those emerging from civil conflict, the rule of law is an important condition for economic development, not least by limiting state interventionism and the neo-patrimonial politics of clientelism. Certainly, too, the central elements of the rule of law must be essential to achieving and maintaining the integrity and legitimacy of government in the eyes of the citizen. Instead, today, we see a number of countries in Africa, and elsewhere, where the state and its agents are viewed by the people not as protectors but as predators. The rule of law is essential not only to secure rights to property but rights of personal protection against the exercise of arbitrary power.
Serious research needs to be done on this field in the African context. Many of Africa's states have complex legal codes, but no real rule of law. In such situations elaborate accretion of regulations, may leave a great many issues at the discretion of government functionaries, even at a very junior level. This is often where authoritarianism is felt in the daily lives of people, and where personal favours may be bought and dispensed. The inefficient bureaucratisation of the state, may lead ultimately to paralysis, and a plethora of incoherent or inaccessible laws may result in situations not unlike those of lawlessness.
It is widely assumed that international investors and businesspeople prefer transparent and predictable legal environments in which to operate, but political elites may choose to leave elements of the law deliberately vague, to allow them to promote their individual advantage in circumstances of dispute. Equity and transparency are seldom in the short-term advantage of those with power and wealth. Failing or even collapsed states may offer many profitable opportunities to those ruthless and bold enough to venture into them.
In the long term, however, the rule of law is essential in facilitating or even enabling the growth of national and international economic exchanges beyond the purview of personal or family bonds. Transnational arrangements depend upon the enforceability of contract across state boundaries, without which risk escalates and transaction costs become very expensive indeed. Here, then we see that the rule of law is central to any prospect of the achievement of a mutually beneficial engagement of Africa with the global economy. Otherwise we are left in a situation of continued marginalisation in which resource extraction dominates Africa's trade relations, largely to the benefit of large foreign corporations and their allies within the continent's narrow elite.
This leads us to a related issue, that of public revenues. If Africa's states are weak, then one of the principal reasons is that they are poor, at least in terms of the ability to raise sufficient revenues to sustain responsive and responsible administrative structures. One of the reasons for this poverty is the massive leakage of public funds into private hands, either here or abroad. Another is that the relationship between the rulers and the ruled does everything but create a sense of responsibility among citizens, who often see themselves as unwilling subjects, who will do all they can to avoid contributing to a public purse. Once again, only more serious attention to the rule of law, both at national and international levels offers hopes of remedy.
Obviously, many political elites will offer serious and determined resistance to any talk of accountability and limitations to their existing powers. It would be extremely naïve to imagine that there is going to be an overnight conversion to the benefits of adherence to the rule of law. But a start has to be made with analysing how this might be achieved, and how Africa's states might be rendered more effective in providing for their citizens, and thus more resistant to internal strife.
By: Richard Cornwell, Senior Research Consultant, International Crime in Africa Programme, ISS Tshwane (Pretoria)