Strengthening the rule of law in Africa by 2030

Certain values and characteristics have the power to determine whether a group of people can live together in peace and engage in entrepreneurial activities to create the wealth that they need to confront poverty and significantly improve their living conditions or remain trapped in chaos and extreme poverty. Fidelity to the rule of law is one such value. As stated in my 2020 publication, it is not only “the heart and soul of a democratic society, but without it, members of a society would find it very difficult to live together peacefully” and successfully engage in activities to improve their welfare.¹ Most countries in Africa are characterized by significant levels of ethnolinguistic and religious diversity. In order to successfully manage the conflicting economic interests of these diverse subcultures and foster sustainable human development, all citizens must be subject to the rule of law. Hence, a governing process that is “characterized or undergirded by the rule of law is the key to peaceful coexistence and development in Africa.”² It is on such a governing process that Africans must build and sustain their democratic systems.

What is the rule of law?

Promotion of the rule of law and an independent, robust, and fully functioning judiciary, particularly ones that have the capacity to check on the exercise of government power and promote and protect human rights are major goals of Africa’s Agenda 2030³ and Agenda 2063.⁴

The rule of law is said to embody three important principles: The law is supreme; all citizens are equal before the law; and the rights of individuals, which are established through court decisions, must be accepted and respected.⁵ Hence, where there is fidelity to the rule of law, all individuals within the jurisdiction of a state, regardless of their social, economic, and political positions—whether they are government officials vested with either executive, legislative, or judicial power—“should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”⁶

As Africans look forward to 2030 and beyond, they must understand and appreciate the role played by the rule of law in peaceful coexistence, social and economic mobility, wealth creation, poverty eradication, and human development. The rule of law is not only the cornerstone of any legitimate democratic state, it is also one of the essential characteristics of modern constitutionalism.⁷

Strengthening the rule of law in Africa

As Africans approach 2030, they must be cognizant of the importance of strengthening the rule of law and ensuring that governance is undergirded by fidelity or adherence to the rule of law.

First, Africans must strengthen their judiciary systems and civil societies so that they can guard against government impunity, which creates distrust in the government and undermines the principle that law is superior to all members of society. During the last several years, states like Ghana, Kenya, and South Africa have made significant progress in strengthening judicial independence as evidenced by rulings by domestic courts that have reversed decisions by the executive or legislative branches of government.⁸

Second, Africans should enshrine in their constitutions specific grounds for the removal of a president and how to constitutionally effect such a process. A military coup is an unconstitutional regime change and should be constitutionally prohibited. Popular discontent with a president’s performance should not be grounds for his or her removal by military coup. Courts in several African countries are using their power to interpret the constitution to make clear that in all their actions, the army and all security agencies must be bound by the Bill of Rights, as well as international and regional human rights law.⁹

Third, the constitutional coup, which involves the amending of the constitution to eliminate term limits or age requirements specifically to unconstitutionally extend the incumbent’s mandate should be prohibited. The judiciary must be constitutionally empowered to prevent such political opportunism. Unfortunately, several African countries continue to manipulate their constitutions to allow incumbent presidents to remain in power indefinitely.¹⁰

Fourth, judicial independence must be constitutionally guaranteed in order to minimize political interference with the functioning of the judiciary and the administration of justice. Political interference can undermine the people’s trust in the judiciary and the system of justice. Although many African countries enshrine judicial independence in their constitutions, the reality is that executive interference in the administration of justice remains a major challenge.¹¹

Fifth, each African country should adopt a popular education program that enhances the ability of citizens to understand and appreciate the constitution. The rule of law cannot function effectively if the majority of citizens do not understand and appreciate the constitution’s role in their lives, and most importantly, its ability to regulate socio-political interaction and provide mechanisms for the peaceful resolution of conflicts. Several African countries are actively participating in programs sponsored by the United States Agency for International Development to educate their citizens on the rule of law and a “people-centered justice” approach.¹²

Sixth, African countries should sign, ratify, and domesticate important international and regional human rights instruments. In order to strengthen the rule of law, each African country must mainstream international human rights law into national constitutional law, either by legislation or by amending/repealing domestic laws (e.g., vagrancy laws) where they do not conform to provisions of international human rights instruments. Some African countries have revised their constitutions to make customary international law and provisions of treaties that they have ratified directly justiciable in their domestic courts.¹³

Seventh, African countries should directly address extreme poverty. Individuals and groups that are frustrated at their continued marginalization may resort to violent mobilization to minimize their continued exclusion from political and economic markets. Such violence can lead to pervasive economic and political instability or worse, invite the military to intervene or extremist groups (e.g., Boko Haram, al-Shabaab) to exacerbate the violence. Hence, tackling extreme poverty can significantly strengthen the rule of law. Although several African countries have been quite successful in reducing extreme poverty during the last several decades, others have actually seen increases in their poverty rates.¹⁴

To strengthen the rule of law by 2030, Africans must undertake institutional reforms to establish governing processes that can deepen and institutionalize the rule of law. For example, if the judiciary is fully independent, judges can check on the exercise of government power, minimize impunity, significantly enhance access to justice, and generally improve citizens’ trust in their government.