Why is Justice Still Elusive for the Majority of Africans?

19th August 2009 By: ISS, Institute for Security Studies

Key issues that are clear from the review of crime and criminal justice systems conducted by the Africa Human Security Initiative (AHSI) network revealed that African governments' priorities regarding securing the lives of their citizens need readjustment.

First of all, crime victimization surveys conducted in three west African countries that are all at very different phases of the democratic transition - Sierra Leone, Benin and Mali - revealed that what the ordinary citizens consider to be debilitating crimes are those that are largely central to their livelihoods. For instance, the act of constantly guarding livestock deters one from reaching his/her maximum development potential yet the focus on fighting crime tends to be concentrated on the urban citizens whose behaviour determines foreign direct investment and tourist inflows.

The same logic used in economic growth appears to appeal to the security architects; that security will trickle down to the poor and to the periphery. Is it a wonder then that justice has remained elusive for the majority of Africans - rural and urban alike? Even though there are variations that exist amongst African nations because of their different backgrounds in terms of cultural values and political ideas, we still find more convergence in terms of justice delivery deficiencies.

How then do we assess the efficacy of Africa's criminal justice systems? We can fragment this into manageable proportions and look at the forward and backward linkages in the criminal justice process such as policing, prosecution, the judiciary, prison service, customary justice and juvenile justice. But these components share the same institutional weaknesses: poor funding, inaccessible data, and inadequate remuneration for staff, poor training, poor infrastructure, and human rights abuses. It is difficult to gauge the quality of justice that the citizens experience in such circumstances.

All African countries are battling with high and increasing crime but hard data is unfortunately not released to the public in most of the countries. Corruption, pervasive in and outside government, in the electoral process and public service delivery, is the one crime every official talks about. Anti-corruption and oversight institutions like the Anti-Corruption Commission, Parliament, the Auditor-General and the Ombudsman are under-resourced and under-skilled and therefore proved ineffective in combating the national scourge. Equally problematic are criminal activities relating to drug and human trafficking, money laundering, illegal migration but, like other crimes, there is inadequate data on the scale of the problems. Authorities also have inadequate capacities to deal with these pressing problems.

Part of the problem is that there is no diligence in compiling crime statistics. And with the usual cultural interpretations of what constitutes a crime, it is frightening to think of what those with criminal tendencies get away with. There is no justification for crime figures being a state secret. The system and the public can only fight what they know.

AHSI's findings concur with few other researchers who have observed that most of Africa's citizens rely on and opt for customary justice for a number of reasons. The most disturbing being the prohibitive costs of the modern formal justice system, which is absent in any case in most of the areas. As has been touted by other scholars, criminal justice agencies are organized sequentially - "output" from one agency is "input" to the next - and this alone is a major deterrent to citizens whose daily life consists of grinding poverty and counting bus-fare for the duration of the month. ‘

Processing security and justice' is just not an option. The input/output connections are just too costly and often fraught with mystery and mistrust such that it is easier to opt for the familiar and quick customary system. It is against this background that we can read the governments' response as indifference to the cohabitation of common and customary law across all African countries. This perpetuates the niggling absurdity whereby the constitutionally recognised legal system is known and accessed by the few while the majority mostly rural people know, understand and access customary law.

The criminalisation of political behaviour is also another category of crime that is fluidly defined and heavily punished in all unconstitutional ways possible on the continent. African citizens and the courts lack a clear understanding of the so called ‘seditious' criminal laws' requirements and prohibitions as these are not usually explicitly stated. Worst of all, the statutes do not always entail some verifiable standards of guilt.

Substantive criminal laws define crimes and may establish punishments and 'criminal procedure' describes the process through which the criminal laws are enforced. Unfortunately, the procedures through which many African governments enforce substantive laws are too often fraught with irregularities infused with innuendo and vilification. This blurring makes it easier to frame any emerging power centre and dialogue as a threat to national security hence all legal procedures need not apply in the prescribed manner.

Africa's criminal justice systems will remain chronically weak if the customary and formal justice systems are not harmonized in a way that complies with modern constitutions, international standards and protocols that are designed to uphold the rule of law and safeguard human rights. Resolving this legal trifurcation is not an insurmountable challenge and delayed reforms will continue to compromise justice delivery severely.

Written by: Dr Annie Barbara Chikwanha, Senior Research Fellow, African Human Security Initiative, ISS Addis Ababa