By Prof Makau Mutua
Its checkered history notwithstanding, the rule of law remains a pillar of good governance. It has evolved over time to contain within it the core values of human rights. Over time, the understanding of the concept – including its normative reach, scope, and content – has become more sophisticated. Soon after Africa’s independence, cadres of Western academics and policy-makers believed that Africa’s new states would be “civilised” by the rule of law.
Western thought viewed pre-colonial Africa as pre-law, and thus argued that emergent states needed formal Western legal regimes to enter modernity. No credit was given to pre-existing African legal systems, which were often referred to as “customary law,” “traditional,” “savage,” or “uncivilised”. Such views were common in the colonial Church which often was practically fused to the colonial state. A pithy example is that of Shropshire, a British missionary in what is present-day Zimbabwe. He wrote of “unlettered Natives” who “were in the technically barbaric and pre-literary stage of cultural and social development.”
European, or white, predestination over black, brown or yellow peoples has a long history. Shropshire’s worldview was part of the fuel for the colonial project. It is a philosophy that grounded the civilising mission, the justification for Empire, and the attendant Christian conquest over “barbaric” peoples. Rudyard Kipling, the English poet, captured it well in the White Man’s Burden:
Take up the White Man’s burden, Send forth the best ye breed
Go bind your sons to exile, to serve your captives’ need;
To wait in heavy harness, On fluttered folk and wild—
Your new-caught, sullen peoples, Half-devil and half-child.
Kipling was not writing about Africa here, but his exhortation of the United States of America to take over and civilise the Filipino natives is a classic. His command to white men to colonise native peoples for their benefit is a duty of the race. It is impossible to understand the colonial project and the movement of modernity absent Kipling’s worldview. Nor is it possible to comprehend the Westernisation of the Global South through the mediums of the modern state with the apparatuses of concepts such as the rule of law and human rights. Much of it was a negation of existing norms – an attack on accumulated wisdom. It was the murder of the spirit of so-called native peoples.
Its centrality in the rethinking and practice of social reconstruction, nation-building, spurring economic development, and good government never went away.
This is the context in which the West viewed the rule of law in Africa during colonial rule and especially in the aftermath of decolonisation. These erroneous notions were partially fueled by another erroneous assumption – that pre-colonial Africa was devoid of law, or that so-called African customary law was a downwind on the African state. The initial law and development movement sought to implant Anglo-Saxon legal norms in emergent states through the establishment of law schools, the training of legal professionals such as judges and lawyers to support a market economy and budding political institutions.
No attempts were made to view law in the wider social context both domestically and internationally. How could law be used to transform deeply embedded social and economic justices? Was there a difference between due process and procedural justice, as opposed to substantive justice? Would law play any role in freeing Africa from an unjust international economic order? Would the rule of law combat illiberalism or bad governance by rulers and elites bent on husbanding their privileges? In a word, how could law be used as a tool for social justice? These questions, which are central to the rule of law, went largely unanswered.
As a result, many of the same academic proponents of the initial rule of law movement for development declared it a failure by the early 1970s. Thereafter, the concept of the rule of law and development endured ridicule. Academics and policymakers realised how complex, and arduous, the process of creating viable and legitimate states would be. The early optimism died. Over time, there was realisation that rule of law understood in a more liberating idiom would play a key role. Thus its centrality in the rethinking and practice of social reconstruction, nation-building, spurring economic development, and good government never went away. The reason is that Africans understand, and do not want to imagine, let alone live in, a society devoid of the rule of law. It is the meaning and practical effect of the rule of law, not its importance or necessity, that remains a terrain of contest. What is clear is that the concept is rapidly evolving and is being re-imagined by thinkers and practitioners. Even so, it still has its ardent critics and fervent defenders.
Reform deep state
The crisis of legitimacy of the rule of law has not dimmed its star. In fact, the current re-imagination of the African state is not possible without the rule of law. Concepts of transparency and accountability – which are central to the rule of law – lie at the centre of efforts by civil society, the political opposition, the press, and the judiciary to penetrate and reform the deep state. The writing, or revision of new constitutions, place at the centre the use of the rule of law to promote equity and protect the citizen and her resources from plunder. It is the norm used to justify why power must be decongested – deconcentrated – from the centre and brought closer to the people.
The emerging clamour for devolution as a legal and constitutional device to address official impunity and create less opacity and accountability in smaller units embeds the rule of law as one of its key weapons. In an era where social media makes each citizen an “eye of the people”, access to timely information and official documents permits the audit of the state by the public. However, such an audit is not possible if government is not open and subject to law.
The ability of marginalised communities to participate in politics and economic development depends on access to information. So is the delivery of services, access to justice, and health care. Individuals and communities are able to mobilise themselves for political action, or planning for development, if they can freely organise. Dialogue with, or protest against, local and central authorities is not possible without the rule of law. (
— This article was first published in the Iternational journal on human rights.