Africa and the Rule of Law

SUR 23, 2016

14 Pages Posted: 8 Jul 2016

Multiple version iconThere are 2 versions of this paper

Date Written: July 7, 2016

Abstract

This paper explores the current problematic rebirth of liberalism in Africa and why the rule of law must be reconsidered to achieve sustainable development. It accepts the common view that no viable society can exist today without a credible, legitimate, and widely accepted legal regime. In other words, both the law and the rule of law are indispensable pivots of any legitimate political society. Systems of arbitrary personal rule, or kleptocracies have no place in the modern world. But this paper argues that such a view is only anti-catastrophic and does not answer the challenges of powerlessness that continue to cause and exacerbate human privation. A system governed by the rule of law is more likely to prevent the collapse of social and political order but it may not address deeply embedded inequities. It may provide procedural justice but deny substantive social justice. Indeed, both liberal and even illiberal regimes are governed by the rule of law. But that is not a bar to oppression, exclusion, and marginalization. This article argues that virtually all African states experience large gaps of legitimacy that the rule of law is unlikely to cure unless deep social transformation is undertaken. The medium of rights is not an adequate tool for human liberation. The piece identifies deficits that the rule of law could address but cautions against the euphoria of solely relying on the law to undo deep societal distortions. Ultimately, the article questions the viability of the liberal project in the construction of a just and humane society. It concludes that market solutions coupled with income inequality and the powerlessness engendered by social alienation, exclusion, and other post-colonial distortions ought to give the global rule of law communities a pause. Thinking anew the place of the rule of law in a resurgent Africa must be done, but the failed models of yore should not be replanted. The rebirth of liberalism in Africa – if that is what Africans want – must be problematized. But that rebirth must deepen democracy to release the human potential of every African.

Keywords: Liberal Project, Rule of Law, Sustainable Development, Devolution, Legitimacy, Impunity, Inequity, Income Inequality, Africa, social Alienation

JEL Classification: K33

Suggested Citation

Mutua, Makau, Africa and the Rule of Law (July 7, 2016). SUR 23, 2016, Available at SSRN: https://ssrn.com/abstract=2805734

Makau Mutua (Contact Author)

SUNY Buffalo Law School ( email )

626 O'Brian Hall
Buffalo, NY 14260-1100
United States
716 645-2311 (Phone)

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