P 08: Challenging the Rule of Law: The African Laboratory

Challenging the Rule of Law: The African Laboratory

Jonas Bens, Freie Universität Berlin

Leonie Benker, Humboldt-Universität zu Berlin

Short Abstract:

Africa has been the main laboratory for international rule of law interventions. From different disciplinary perspectives papers explore how these interventions have challenged Africa and/or how Africa has challenged the understanding of “the rule of law” more generally.

Long Abstract

Africa has been the main laboratory for international rule of law interventions. From different disciplinary perspectives papers explore how these interventions have challenged Africa and/or how Africa has challenged the understanding of “the rule of law” more generally. Beginning in the second half of the twentieth century, international rule of law interventions in postcolonies have become a central part of an emerging global justice and human rightsregime. The African continent has been the main laboratory in which this instrument has been applied, tested and transformed. Examples are interventions of international criminal justice institutions in Africa, the facilitation of national constitution-making processes, the implementation of security sector reforms, the promotion of various human rights programs and other legalized and legalistic forms of development policies. Many in Africa and beyond view the implementation of international rule of law regimes as an illegitimate and neocolonial North-South intervention and there is a call for “African justice” instead of “Western justice”. Such counter-movements include the African Union’s attempt to create an African criminal court, the rise of alternative (neo-)traditional justice systems, and a growing movement of decolonial approaches to law and statehood in academic discourses. International rule of law interventions have become a major trope in discourses on peace and security as well as wider issues of law, rights, and governance in Africa and beyond.

This panel invites papers investigating the phenomenon of Africa as the laboratory of international rule of law interventions. From different disciplinary perspectives papers should explore how these interventions have challenged Africa and/or how Africa has challenged the understanding of the “rule of law” more generally.

01 Pnina Werbner: African Trade Unionism, ILO Conventions and Social Citizenship: The Case of Botswana

Against a current tide in Africa rejecting international law, in Botswana trade unions have appealed to international labour law in their struggle with their own employer – the government of Botswana. Indeed, historically, as trade unions in colonial Africa increasingly began to mobilise and organise workers, their demands for improved pay and work conditions soon came to be framed in terms of international conventions applicable to workers anywhere. In the period following the Second World War, at a time when British and French colonial powers began to rethink their relationship to their colonies, the International Labour Organisation based in Geneva became a key actor formulating the social rights of workers internationally (Cooper 1996: 216). In their attempt to portray themselves as progressive, British and French colonial powers accepted the new labour discourses outlined by the ILO as being applicable to the colonies, with dissent coming mainly from white settlers in these colonies. Among the range of issues brought to the fore in the ILO recommendations of 1944 were social security, job security, pensions, a minimum standard of living for workers and their dependants, and the ‘stabilisation’ of migrant labour (ibid.: 217-21, 364). Later, these recommendations were converted into a Convention (ibid.: 218-19), and they influenced the inclusion of social rights in the UN 1948 Universal Declaration of Human Rights. The ILO thus became, as Cooper points out, the forum for the formulation of what T.H. Marshall called social citizenship as the right of the ‘universal worker’ (ibid.: 467).

My paper discusses some of the complexities linked to the introduction of ILO conventions into Botswana, but above all it shows how public worker trade unions attempted to hold government to account, invoking these conventions, including periodic forays to Geneva to represent workers’ interest.

Pnina Werbner is Professor Emerita in Social Anthropology at Keele University, UK.

02 Deginet Wotango Doyiso: Language and Legal Transplantation: The Wholesale Implantation of Western Modern Laws in Ethiopia

The political landscape in Ethiopia has been reorganized and reshaped several times over the past 150 years, with major changes in both constitutional and subordinate legislation. Until the 1950s, Ethiopia had few statutes, no court reports, and no legal treatises or authoritative doctrinal works. By far the most important de facto source of rules governing social relations was the customary laws of the various ethnic and religious groupings. But in a way that is partly comparable to the situation in Napoleonic Europe, Emperor Haile Selassie I, with the aim of fulfilling Ethiopia's quest for modernization, bringing legal unification and strengthening the top-down nation-state building process, decided that Ethiopia should introduce uniform modern codes. A Codification Commission was established in 1954, and foreign experts who had very little, if any, knowledge of then-existing Ethiopian law and customs, were recruited to prepare the draft of all the codes. The Commission translated the draft laws from the original French and English into Amharic (the only national language at the time). The national Parliament authenticated only the Amharic version of the codes as the official and authoritative versions, and the other versions remained just drafts. Within a span of ten years, the Ethiopian government produced a comprehensive and sophisticated set of six systematized code books for a modern state that shaped the country's future legal development. With the exception of a few amendments to some codes and the complete revision of the Ethiopian Penal Code in 2004, the transplanted laws have survived regime changes and still serve as the primary source of regulation in their respective areas.

Research on the development of modern Ethiopian laws is still in its beginnings. In the central part of my paper, I analyze the peculiarities of the Ethiopian legal transplantation process against the widely held assumptions in legal transplantation discourse. I base my analysis on recently developed theories, such as Twining's contribution to the theory of legal diffusion (2005: 203-240). While the 1950s are definitively a critical period in Ethiopia's modern legal history, it is equally important to take preceding periods into account to understand the historical context in which the massive codification process was necessitated. I argue that the Ethiopian transplantation process is characterized by the following aspects:(1) no single identifiable exporter, owing to the eclectic approach followed,(2) complex pathways rather than a direct one-way transfer,(3) a voluntary process where parental relationships between the exporters of the law and Ethiopia cannot be established,(4) a process that extends across levels of ordering and is not limited to export-import between countries, and (5) a process in which the intentions of the codifiers, namely the creation of one unified legal source of regulation, has failed and in which a transition to a plurality of sources of normative ordering is taking place. Finally, I discuss the repercussions of the legal transplantation and translation process, which assigned authority exclusively to the Amharic version, on the current interpretation of Ethiopian laws.

Deginet Wotango Doyiso is a doctoral student conducting research on the topic of law and language in Ethiopia at the University of Cologne, Germany.

03 Leonie Benker: Northern Ugandan Perspectives on the International Criminal Court: Pluralizing Local Voices

Over the years after its formal establishment in 2002, the International Criminal Court (ICC) has been the target of much criticism. Numerous scholars, politicians, lawyers and civil-society actors all over the world have questioned the court’s legitimacy, pointed out its institutional and operational shortcomings, and expressed concerns about its dependency on states’ willingness to cooperate and the resulting limited scope of action of the court. Additionally, the fact that an overwhelming majority of the ICC’s cases are situated on the African continent has led many critics to accuse the court of neocolonial tendencies, claiming that its workings are characterized by an “African bias”. Regarding the ICC’s first intervention in Africa, its 2005 decision to indict five leaders of the Northern Ugandan rebel-group Lord’s Resistance Army (LRA), many scholars and other experts have argued that the court’s involvement in the conflict did little to bring peace and/or justice to the region but that it instead exacerbated the situation even further. A regularly stressed argument in discussions about the consequences of the ICC’s intervention in the LRA-conflict is that the conflict-affected populations themselves were opposed to the ICC’s intervention, as they preferred local and informal traditional justice measures to formal criminal justice meted out by criminal courts such as the ICC. Based on three months of fieldwork in Kitgum District in Northern Uganda, this paper takes a closer look at this supposed homogeneous nature of local opinions. Wanting to contribute to a pluralization of local voices, the paper carves out the ambiguities and complexities of local perspectives on the ICC and connects them with the larger question of African agency on the international criminal justice stage.

Leonie Benker is a doctoral student at the Institute of Social and Cultural Anthropology at Freie Universität Berlin, Germany.

04 Katrin Seidel: Constitutional Experiments in Post-Colonial Africa: In Search of ‘Unity in Diversity’?

African constitutions have been heavily influenced by former colonizers and during the Cold War by United States or Soviet Union and, more recently, by the international community and their rule of law requirements. African constitutional tradition is characterized by a colonial path dependency of planting the ‘territorial (modern) nation state’ and its rule-of-law approaches into African soil, co-orchestrated by multiple ‘external’ actors. According to the European nation state model which is based on the assumption of a homogeneous people, African states have adapted constitutional models even though African key feature have been diversity, legal plurality and heterogeneous statehood. Considering the ‘alien origin of African constitutionalism’ (Deng 2008), to balance ‘unity in diversity’ has been one of the major challenges from the very beginning. In search of appropriate context-specific ‘formulas’, constitutions and constitution-making have become an arena of experimentation to promote societal values and a country’s re-building after conflict, but also a significant instrument of power.

As I will sketch out, constitution-making in post-colonial Africa follows historical experimenting trajectories shaped by specific political and constitutional developments in response to adapt to change. This regional perspective allows to reflect on common features, path dependencies throughout history, current challenges and lessons learned to overcome the vicious cycles of exported constitutional models. It will be shown that turning a blind eye to issues of legitimacy and identity as well as suppressing diversity and developing a single national identity along with single culture provoke alienation and resistance. I argue that Africa cannot adopt an undigested liberal democracy model of the state reconstruction. Moreover, international rule-of-law principles cannot be exported to Africa ready-made, but it must be divorced from its colonial origins and uses. Each country must critically reflect on its own constitutional history to overcome constitutional challenges and then rethink many exported models of statehood and rule of law.

Katrin Seidel is a Senior Research Fellow at the Department of Law and Anthropology of the Max Planck Institute for Social Anthropology, Germany.

05 Sigurd D’hondt: Weaving the Threats of International Criminal Justice: The Double Dialogicity of Law and Politics in the ICC al-Mahdi Case*

In this paper, we examine the international criminal trial of Ahmad al-Faqi al-Mahdi, a Malian Islamist who appeared before the International Criminal Court (ICC) in The Hague, charged with the destruction of Islamic shrines during the 2012 jihadist occupation of Timbuktu. Our objective is to analyze the so-called ‘al-Mahdi case’ as a branch of a broader dialogical network (since the destruction of the tombs occurred in the context of an asynchronous, translocal ‘dialogue’ between jihadists and the international community) and as an event that unfolds in a dialogical site (as the jihadist responsible for the destructions was referred to the ICC four years later). We show that these two dialogical orders exist largely independent of each other, but are at crucial points also partly entangled. We conclude by pointing out the relevance of this ‘doubly-dialogical’ approach to the broader field of sociolegal studies of international criminal justice.

*co-authored with Dupret, Baudouin (CNRS/IEP Bordeaux, France) and Bens, Jonas (Freie Universität Berlin, Germany)

Sigurd D'hont is Associate Professor of Applied Linguistics at the Research Collegium for Language in Changing Society of the University of Jyväskylä, Finland.

06 Diana Kisakye: Challenging the Rule of Law in the East African Court of Justice

Even though Africa has proven to be the most fertile ground for testing international legal regimes, scholarly accounts remain pessimistic in assessing these experiments. Drawing on international adjudication theories, scholars paint a gloomy picture of Africa’s Regional Economic Community (REC) courts, dubbing them as having limited or narrow authority (Alter, Helfer and Madsen 2016). By favouring state-driven compliance processes as a measure of performance, these approaches understate the peculiarities in which REC courts operate. Located at the intersection of opposing and fragile national and regional integration politics, the courts rely on key non-state actors to foster judicial empowerment (Gathii 2020). Likewise, courts in hybrid democracies in Africa count on allies to construct judicial autonomy (Trochev and Ellett 2014). Even though recent work on African REC courts posits that international adjudication in Africa is carving out its own path, a systematic analysis of how these courts negotiate judicial politics is still lacking. Through an in-depth study of the East African Court of Justice (EACJ), this paper seeks to examine how Africa’s REC courts construct and exercise their power. It highlights the promising and volatile path that these courts have trodden and seeks to explain their emerging judicial power.

Following Piana (2020), I conceptualise judicial power as a combination of the actors’ agency and the structural conditions conferring authority to the court. Thus, the paper foregrounds judges and their key constituencies as a window into understanding the adjudication processes. Arguing that judges are social and political actors, who operate within existing configurations of power, the paper considers the judges’ diverse relational attributes as central to shaping judicial power. The author draws on expert interviews, court documents and an analysis of judgements to systematically assess the courts’ functioning and interrogate the relevant actors’ intrinsic motivations. Initially, the paper delves into a review of the court’s structural norms (organisational and institutional). Subsequently, it provides insights into the court’s composition and output and ponders what these attributes could reveal about the performance of international courts in Africa. Lastly, it briefly considers international adjudication theories and illustrates that they do not transfer with ease to the EACJ.

This paper finds that the EACJ has gone from having an empty docket to becoming an active court that proactively interprets Treaty provisions to an impressive range of subject matters. Likewise, preliminary findings from interviews highlight the use of the courts as arenas of political mobilisation. However, the opaque procedure for judges’ nomination poses an obstacle to judicial independence and the courts’ legitimacy. In sum, the paper highlights that REC courts in Africa are challenging international adjudication theories by pushing their expectations and breaking new ground. It also expands our understanding of some of the key players in regional politics whilst unravelling intricate details about the rule of law in Africa. Diana Kisakye is a doctoral researcher in political science in the Africa Multiple Cluster of Excellence at the University of Bayreuth, Germany.

Diana Kisakye is a doctoral researcher in political science in the Africa Multiple Cluster of Excellence at the University of Bayreuth, Germany.

07  Konstantinos Magliveras: The Rule of Law in Africa and the Quest for Continental Justice

In any legal system and indeed in the legal system developed by individual international organisations the application of the rule of law is very closely connected to the existence and operation of one or more independent, impartial and effective courts of justice. It is exactly these venerable judicial organs which guarantee that the rule of law is upheld and is not compromised by any stakeholder. Especially in regions like Africa, where the rule of law is often breached and is constantly under threat, the existence of judicial organs at a continental level are not a luxury but a clear necessity and no effort or expense should be spared to ensure their existence.

In that regard, the proposed paper will paint a bleak picture because the current status of continental courts of justice is not conducive to secure the rule of law. In particular, continental justice faces several very important issues and challenges. These include but are not exhausted with the still inoperative Court of Justice of the African Union (AU) and the seemingly abandoned project (unique among intergovernmental organisations) to create a continental court with an expansive criminal jurisdiction, which will surpass the rather limited (objectively speaking) jurisdiction of the International Criminal Court (ICC). While, as will be suggested in the proposed paper, in view of the non-operation of the AU Court of Justice, the African Court on Human and Peoples’ Rights might have to play a far more extensive role, this is not without problems. Indeed, the fact that less than ten Member States have accepted the ability of private parties to lodge complaints before it reduces considerably its appeal. Moreover, it is equally significant to note that the processes towards (eventual) economic integration, which are presently pursued at continental level (principally the Agreement Establishing the African Continental Free Trade Area), do not envisage dispute settlement mechanisms operated by a court of justice but have clearly favoured the system of the World Trade Organisation (WTO). Even though the WTO system has been in practice for several decades now and has resulted in many decisions of note, presently it is rather in a state of flux and, specifically, in the African context it could lead to the fragmentation of the still evasive continental justice. The paper will conclude by offering some comments and pertinent suggestions as to how to improve the present situation and safeguard that the rule of law is placed at the center of the emerging continental legal system.

Konstantinos D. Magliveras is Professor of the Law of International Organizations at the Department of Mediterranean Studies of the University of the Aegean, Greece.

08 Jonas Bens: Africa as a Laboratory of Legalized Modernity

Scholars of colonialism have argued that colonial contexts served as a field of experimentation to try out European modernity: the colonies as “laboratories of modernity” (Rabinow 1989; Stoler 1995; Tilley 2011). This included the implementation of modern forms of bureaucracy and governance regimes through law in colonial Africa (Merry 1991). Although formal colonialism in Africa has ended in the second half of the 20th century, the many international legal interventions, transplantations, and translations in Africa as well as the respective counter-movements discussed in this panel show that the continent remains a testing ground of legalized modernity. In reference to the studies presented in this panel, this paper explores the analytic of the colonial laboratory in order to understand not only how notions of legalized modernity have challenged African modes of governance and justice-making, but how African (post-)colonial contexts have shaped and still shape basic notions of law and modernity.

Jonas Bens is a postdoctoral researcher at the Institute of Social and Cultural Anthropology and the Collaborative Research Centre “Affective Societies” at Freie Universität Berlin, Germany.