Ask the Experts: The rule of law in an African context

By Jenny Murphy, Creative Senior Rule of Law Advisor

Insights from rule of law and governance expert Achieng Akumu

Strengthening the rule of law is a challenge for many African nations grappling with the grave challenges facing their citizens, including mass displacement, food insecurity and conflict.

Leaders on the continent and the international community, however, are making rule of law a priority for the future and a key pillar of continued growth.

In 2013, the African Union adopted its Agenda 2063, a 50-year strategic framework for the socio-economic development of the continent. Its third of seven “aspirations” focuses on good governance, respect for human rights, justice and the rule of law. Among its target benchmarks for 2023: At least 70 percent of people consider the judiciary to be independent and fair, perceive that they have free access to justice and believe that there exists a culture of respect for human rights, the rule of law and due process.

To talk more in-depth about the rule of law in Africa and how it relates to women, I turned to Achieng Akumu, who is the Director of Advocacy Partnerships for Planned Parenthood Global. Akumu oversees a grant from Bloomberg Philanthropies for the advancement of women’s empowerment through health rights in Burkina Faso, Uganda and Senegal.

The following are excerpts of our exchange, which is the third in a series of interviews with fellow rule of law experts and practitioners.

Jenny Murphy: When donors talk about women’s issues, they have traditionally focused on gender-based violence. But that’s only one part of a larger picture. In your work, where else do you see an intersection between rule of law and gender?

Achieng Akumu: In regard to women’s empowerment, I can clearly see the effect of clashing laws and customs across Africa. Constitutions claim to respect women’s rights, but when it comes to actual enforcement, implementation and application, the political will is not there.

It’s about educating the public and getting the laws applied. We have to educate the population so they’re informed about their rights and they’re informed about how to exercise those rights. Whether it’s discriminatory practices based on HIV/AIDS or gender-based violence, where do people seek their recourse? It’s not just about laws on the books and people having access, but also how people seek recourse that is fair and equitable.

That’s what women’s empowerment and the legal reform movement should center on ensuring that once people are educated and these institutions are in place, then access continues and improves over time, reaching all populations, not just some segments.

There is a real opportunity now with the Sustainable Development Goals (SDG), particularly SDG 16: Peace, Justice and Strong Institutions. At the center of the SDG goals, apart from youth, there is a focus on a woman’s right to a good life. A good life for women is basically about being able to make choices.

Murphy: You have worked in Africa for many years, including as a rule of law advisor to USAID. Speaking more broadly, what do you see as the biggest challenges to rule of law in Africa?

Akumu: One of the most unfortunate trends has been conflict and terrorism activity. You don’t have as many conflicts on the continent as in the past, but there are still too many that displace enormous amounts of people. South Sudan, Central African Republic, Nigeria and Somalia display that there is no normalcy in people’s lives. So it’s still about conflict prevention and it’s about security sector reforms. In many countries you have various actors causing chaos and confusion and not allowing nation states to properly develop or people to access and live better lives.

You also have the very serious migration crisis, which is due to a lack of employment opportunities in these countries. And I hate to say it, but corruption is a serious issue as well. The wealth is not being shared or invested in critical sectors where you can have true economic growth and proper development for nation states.

One other piece that’s critical is the heads of state don’t limit themselves to constitutional terms. We’ve seen it in so many countries, such as Rwanda and the Democratic Republic of Congo. The heads of state, despite constitutional provisions, have decided it’s not time for term limits, and that their country requires their leadership and their leadership alone.

Murphy: Can you talk more about the effects of a government that refuses to relinquish power?

Akumu: It is an unfortunate trend that has been adopted and is being practiced in Africa, and it has hindered democracy. And development is limited when everything is focused on trying to overcome those obstacles that hinder growth and don’t allow for democracy to take root. Rule of law development suffers because of the lack of enforcement and the lack of adherence to democratic principles.

I’m excited about what’s going on in Senegal, where they seem to have a progressive president. He’s trying to institutionalize democratic practices like accountability and transparency and really spur economic growth. But this is a continent of 54 countries, and I can only mention a few that seem to be moving in the right direction, such as Senegal, Botswana, Namibia and Ghana – and Ghana is still a question mark.

Murphy: With these complexities and challenges, how does a donor or implementer design programs that can move the rule of law forward?

Akumu: Political will is the currency here. If you don’t have political will, it does not translate across all sectors and rule of law cannot take root. Rule of law not cannot be isolated, compartmentalized or segregated. So design is very difficult, and I think for me, the question has always been about how we create that political will.

We know very well you can’t just work on rule of law or just work on the justice sector. Rule of law is about supporting all governments, all aspects of governments and all the institutions that are supposed to be part of governments. So, the design work has been flawed, whether you’re in Latin America, Africa or Southeast Asia.

What has worked for me is when we linked rule of law to economic growth. Because everyone wants to have a better life. When you have leadership that understands and appreciates that, you can link rule of law to those legal reforms that are needed for key economic activities. That’s where I always went. I always looked at the national economic development plans and tried to see where rule of law could fit in.

Murphy: Why is it so important for the development initiatives to understand and respond to the local context?

Akumu: You have to know the environment you’re working in, and you have to know the people on the ground and the local culture. The Western world has moved away from traditional or customary laws that still exist in Africa and in other parts of the world. On the continent, we have this mix of civil and common law, as well as the customary law, so the program design effort must take all of that into account.

When you’re working with rule of law in Africa, you can’t just think about the courts and the legislature and the executive. When you’re talking about enforcement, adaptation and adherence, there are all kinds of traditions and customs at the local level. Many people don’t relate to the formal laws and feel those are perhaps only for politicians or people who live in cities. So you have parallel systems in place in many countries to this day, in 2018.

It’s been an uphill battle to understand that you cannot just design an initiative and expect it to be in place and solve all the problems of a country in five to 10 years. All we can do is help plant a seed and ensure that the right people are in country, because the implementers should be local, and it should be the people that live this, breathe this.

Murphy: What do you see as the biggest challenges to rule of law development in the next few years?

Akumu: It comes down to proper investments and investing in people improving their lives. Mismanagement of funds, corruption, poor decision-making and lack of education have not allowed for progressive rule of law development to take root. Of the 54 countries on this continent, I can only name about five that have done it right, where people are living good lives, there’s real dialogue, key institutions are involved and all those pillars of democracy come together.

You can find the first two installations of the Ask the Experts Q&A series and more info about Creative’s rule of law work here:

• Q&A with Hamid Khan, Deputy Director of the Rule of Law Collaborative at the University of South Carolina
• Q&A with Don Chisholm, Director of the Justice and Citizen Security Office at the U.S. Agency for International Development in Mexico
• Read more about Creative’s approach to rule of law

Editor’s note: The opinions expressed by the interviewees are theirs and do not necessarily imply endorsement by Creative Associates International.