27 Feb Challenges Posed by Good Governance in Africa and the Role Played by International Law in it
[Dr Cristiano d’Orsi is a Lecturer and Senior Research Fellow at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg. He holds a Ph.D. in International Law from the Graduate Institute of International and Development Studies in Geneva. His research interests focus mainly on the development of Public International Law in Africa.]
In its most basic form, international law is recognized as a body of rules and practices that regulates state behaviour in the conduct of international relations. Fundamentally, international law serves the purpose, as a factor in ordering international relations, of managing, by systemic change and adaptation, the conflict generated by power and politics. As a result, Edward Hallett Carr was critical of those who conceived international law as divorced from politics.
In The Ten Years Crisis (1939), he wrote ‘Every system of law presupposes an initial political decision, whether explicit or implied, whether achieved by voting or by bargaining or by force, as to the authority entitled to make and unmake law. Behind all law, there is this necessary political background. The ultimate authority of law derives from politics’.
In this context, colonial rule did not promote the values necessitating good governance in Africa, despite the fact that the main colonial powers in Africa were themselves considered ‘democratic countries’. Against this backdrop, international law is not only about governing things: indeed, governing things will remain a matter of power and policy and utilitarian calculations. It is also – and perhaps above all – about constructing a public space within which groups whose interests are not well represented in governance bodies receive a voice. It enables those groups to articulate their claims, not as claims of special interest, but as the interests of the society.
This said, it is important to investigate the emerging ‘right’ of ‘good governance’ in Africa and the role that international law is playing in it. While a precise definition of ‘good governance’ remains elusive, its essence appears to be modelled almost exclusively on the pillars of western democracies. The legitimacy of governments in Africa is still being assessed by their ability to achieve, at least, minimum standards of governance that exist in western democracies. Western political structures and ideals are being reinforced in Africa as donors condition their development assistance on good governance. As the African states individually and collectively refine these principles of ‘democracy’ and ‘good governance’, international law plays an increasing role in this new African political order. There is an emerging consensus in Africa that people are entitled to good governance, governments must be democratic and not corrupted, and that government leaders should be held accountable for bad governance. In some cases, these notions have been embodied in constitutions. In the 1994 Provisional Constitutional of Malawi, for example, the state was obliged to introduce measures that will guarantee ‘accountability, transparency, personal integrity and financial probity’ of its leaders (article 13(o) Public Trust and Good Governance). The provision that has survived to all the amendments made to the constitution until today has been taken as an example by other African constitutions, as well. For example, article 259(1)(d) (‘Construing the Constitution’) of the 2010 Kenyan Constitution provides: “This Constitution shall be interpreted in a manner that […] (d) contributes to good governance”. Professor Justice Ojwang added that the Kenyan “Constitution is a transformative Charter of Good Governance”.
As international law requires the prosecution of gross abusers of human rights, African states must create institutions that enable themselves to better uncover such abuses, bring the abusers to justice and ensure that there will be no repetition of such abuses in the future. Several states, such as Ethiopia, are also committed to fight impunity at the local level, although they are still at an embryonic stage when it comes to the drafting of corresponding laws. Yet the level of domestic prosecution in Africa is still very low, which was noted by the UN Committee on the Elimination of Discrimination against Women; specifically, concerning the violence against women in South Africa.
As history has taught international human rights concretely, law plays a very limited role in Africa if the African states fail to confront Africa’s past. In 2023, Africa is still struggling to tackle significant plights like child labour. According to the United Nations International Children’s Emergency Fund (UNICEF), in Cameroon, 39% of children aged 5-17 years, are engaged in economic activities and household chores, like in Chad. In Niger, this percentage amounts to 34%, while in Burundi and in Nigeria to 31%. Another example are Female Genital Mutilations (FGM) that, although condemned, (for example, recently by the African Union (AU)), are still spread in at least 30 African countries, according to the World Health Organization. What about the conditions in which LGBTIQ communities are still “surviving” in many African contexts, deprived of many of their rights?
In this framework, the AU and various regional groups in Africa, like the Economic Community of West African Statesm have performed admirably in mediating governance problems in the last decades. However, finding ways to proactively deal with issues brewing on the ground should also be a priority. The enthusiasm and expectations that characterized the launching of the New Partnership for African Development (NEPAD) on 23 October 2001 probably needs to be revived. The AU, through NEPAD, already has in place systems that could be useful if scaled up, like the African Peer Review Mechanism (APRM), designed to be a self-monitoring initiative to promote good governance through objective evaluation by other African nations. Yet, currently, the APRM has done little to provide timely monitoring of the political temperatures of civil society. Adjusting this system going forward could start a regional policy dialogue on issues that African countries would not otherwise pursue themselves.
The AU also needs to be more proactive in dealing with autocratic regimes and leaders in Africa, like in Cameroon and Uganda, where leaders are refusing to retire from office. Imposing term limits and increasing accountability throughout the region will be instrumental in fostering better governance. It is clear that the international community, through all the means provided by international law, must also support a common African voice in condemning repressive regimes and continue to advocate for principles of democracy and human rights as part of their aid strategy. Beyond world, continental and regional accountability, however, African governments must look internally to find governance solutions that work for their people. There are certain African countries where elections are working, but in many others people’s voices are not being heard and there is little being done to change this. The separation of South Sudan from Sudan, while probably not a suggested solution for other nations, illustrates how important having a voice is in a strongly divided nation. In some cases, more decentralized systems of governance may be necessary, but regardless, solutions that are designed around indigenous norms need to be incorporated. Nevertheless, it is true that it is difficult, in several circumstances, to let international law work properly. I am thinking, for example, of the long-lasting situation of the Western Sahara where an agreement based on international law seems still far from being reached.
In this panorama, an important role is played by the African Charter on Democracy Elections and Governance (ACDEG) that was adopted on 30 January 2007 as the African Union’s main normative instrument to set standards for better governance across the continent. It came into force in February 2012 after ratification by 15 states (to date 36 states have ratified the charter). The ACDEG is different from previous instruments as it combines, in a holistic manner, the key elements of democracy, human rights and governance. Its objectives are to increase the quality of elections in Africa, promote human rights, strengthen the rule of law, improve economic, social and political governance, and address the persistent issues relating to unconstitutional changes of government in the continent. The ACDEG has been the impetus for various policy and institutional initiatives at the level of the AU and the Regional Economic Communities (RECs), and has become the ‘standard’ upon which Member States’ democratic governance progress is measured.
In the end, I find that in Africa the effectiveness of international law often depends on an accurate assessment of the power bases and political contexts in which legal standards and obligations must operate. Providing adequate space for political discourse and action is, I believe, key to better governance of the continent in the future. The large number of issues characterizing today’s highly competitive and intensely political environment makes it hard to predict what the next crisis in Africa will be (but, for example, on 30 September 2022 Burkina Faso experienced its second coup in less than a year, the previous one having taken place on 24 January 2022).
As a result, only the availability of a ready and flexible framework with a growing and engaged body politic can provide a mode through which to define and to forge a solution. In Africa, international law has sometimes demonstrated its ability to play its part in fostering this framework. I believe that the acceptance of the important contribution of international law as an operating system is essential towards generating a continuing and expanding consensus in Africa on international norms.