What’s happening to the Rule of Law?

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2016 is the 25th anniversary of Kenya’s democratic era as it is, more or less, for most of sub-Saharan Africa, an appropriate time for an overview of democratic progress made and not, in each country and the region as a whole. The basic story is that sub-Saharan Africa overall is more democratic in 2016 than it was in 1991 but, as is now widely recognised, that progress has appeared to reach a plateau for most of the continent around 2005.  Since then, progress has even receded in some respects and to differing degrees for some countries of the region.

The question is why the momentum for democratisation stalled.  I have begun to think that inattention and too constricted a view of the rule of law has been a major contributor to this apparent democratisation plateau, not only by policy makers and political leaders but by many of my academic colleagues as well.

This question of what accounts for this trajectory has been greatly complicated by the reality that the trajectories of individual sub-Saharan African countries have varied enormously. For the region as a whole, the biggest democratic surge appears to have occurred during the first half of the 1990s with more gradual progress thereafter until about 2005 when it reached an apparent plateau.  But for Kenya, I think many would agree that passage of the new Constitution in 2010 has been the democratic high point to date, and progress since then has, I’m afraid, added up to a mixed record at best.  At the same time, some countries have made spectacular progress during this era of apparent democratic stagnation, led by Liberia and Sierra Leone, which have climbed into the ranks of at least partially democratic states from their earlier shared abyss of state failure. Mali, of course, plummeted in the opposite direction in 2012 from which it appears to be making a painfully slow recovery.

Democratisation plateau

The variety of country democratisation trajectories is but one of the challenges to discerning the true causes of the current democratisation plateau. Another important one is the evidentiary basis for gauging the nature and extent of democratic progress over the last quarter century. The heart of that problem has centred on the dominance of quantitative estimates for estimating the quality of democracy. The methodologies for these quantitative estimates are known pretty much only to their practitioners. Just how they quantify inescapably qualitative judgments appears to be proprietary for many of these measuring systems.

Mostly because I am a former consultant on its sub-Saharan African estimates, the reliance of Freedom House on experts resident in the individual countries to make assessments on a scale of zero to four on twenty-five criteria seems the most transparent. The Mo Ibrahim Index has made an important contribution to the democracy measurement industry by its inclusion of economic opportunity and human development among its more than one hundred indicators, each scaled 0 to 100, in its estimates of democratic progress.  But its methodology for converting qualitative appraisals into quantitative is not widely known.

Polity IV, now managed by the Center for Systemic Peace, focuses on the extent to which apparently constitutional restraints on executive power are in place along with openness of access to seeking executive office, but the methodology for its estimates for this dimension of democracy, from -10, complete autocracy, to +10, full democracy, is not widely known. Nevertheless, for lack of alternatives, observers of democratic progress continue to rely on the veracity of these numbers fairly uncritically as far as I have been able to discern.

Dispirited attempts

Notwithstanding these and other challenges to reaching valid and reliable measures of progress toward becoming democratic states, my hypothesis is that one fundamental contributor to the current democratisation plateau has been fundamentally insufficient attention to the importance of advancing the rule of law to the sustainability of democracy and, at the same time, a pervasively too constricted a concept of the rule of law’s contribution to democracy.

I suspect that after multiple competitive multi-party elections in many African countries by about 2005, many African presidents discovered that elections did not themselves create much of a barrier to continuing autocratic practices. And that was because efforts to advance the rule of law aspects of democracy by policy makers and academics alike simply did not keep pace with emphasis on the democracy’s signature electoral dimensions.

What do we know about rule of law progress over the last quarter-century in sub-Saharan Africa? Here I go, using the numbers!  The Mo Ibrahim Index measures democratic progress in four main areas. Safety and the rule of law is the only one of the four it finds to have declined slightly (a sub-category on personal safety quite precipitously) since 2001, while it records modest progress on participation and human rights, and on sustainable economic opportunity, and fairly strong progress in human development in education, health and welfare.

The Polity IV index, which appears to centre principally on the presence constitutional and legal provisions for the rule of law, finds that sub-Saharan African countries as a group since have progressed from solid autocracy in 1985, only to an unstable balance of autocracy and democracy it calls “anocracy” in 2014. Freedom House has found that while democracy and liberties have retreated on each of its seven principal measures since 2005, regression has been most pronounced in the rule of law category.  Finally, the World Bank’s measures of democratic governance starkly trace the limited scope of the rule of law in sub-Saharan Africa. While they record modest progress on the rule of law, they show significant worsening of corruption control!

Constitutional culture

What accounts for this evidence of a rule of law deficit, and how does it relate to stalled democratic progress overall. I think the source of the problem is a pervasive tendency to think of the state in Weberian terms only as government’s presumed legitimate monopoly of the means of coercion. So, the emphasis has been on governmental rule of law, i.e., honest security and judicial personnel operating free of political influence.

Clearly that’s essential, but what is also essential is diffusing rule of law thinking throughout society in the form of what John Ferejohn and his colleagues years ago termed a constitutional culture. In a constitutional culture, fundamental rules of behaviour evolve democratically, are upheld impartially, and are a basis for interpersonal trust, tolerance and mutual respect throughout society. A constitutional culture supports and helps ensure governmental respect for the rule of law.

The presence of a viable constitutional culture implies a state based not just on governmental coercion but one equally based on societally shared fundamental rules of the political game.  Civil society as the bridge between citizens and government should supply initiatives for a constitutional culture while also advocating for governmental respect for the rule of law and other democratic practices. Had the rule of law in this broader, less constricted sense been pursued as energetically as the electoral aspects of democracy from the outset, stalled democratisation and democratic retreats might have been avoided and democratisation momentum sustained.

The tasks of instituting a constitutional culture are many, complex and daunting, but the effort might prove worthwhile.

Writer is Professor of Political Science Emeritus and a professorial lecturer for the African Studies Program at Johns Hopkins University School of Advanced International Studies

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