The African post-colonial period marked a new paradigm of triangular discourse amongst law, justice and development in the international playground. The intellectual metamorphoses of this discourse quickly gained momentum in the mid-60s and was patented the “Movement of Law and Development”. Highly alluring to professors and intellectuals from American law schools, this intellectual movement regarded “law” as an instrument to reform the society and ‘lawyers and judges” as social engineers. With this movement, the narrative was that law is central to the development processes. Then in the early 90s, the movement gave birth to the idea of the “Justice System Reform Program”, also referred to as the “Judicial Reform Program”. The emergence of this idea immediately became a serious agenda in the strategic themes of international financial institutions and bilateral states cooperation structures under the wrestling juxtaposition of “rule of law” and “poverty eradication”. The geographical focus of this idea was only limited to the developing nations of Africa, Asia, Eastern Europe and some Latin American countries.
There are two main rationales behind the theoretical innovation of ‘judicial reform’: a well-established and effective justice system is not only robust enough to confront corruption and violation of rights (with the assumption that courts as custodies of human rights), it can also be relied on to protect the property rights of foreign investors (the concept of development has always been viewed as capitals flowing from north to south-until very recently that the newly rising economies of BRICS- an acronym for the multi-dimensional partnership between Brazil, Russia, Indian, China and South Africa- proved otherwise that capital can also flow from south to south). The ambition of reforming judiciaries in developing countries beseeches building the practical meaning of judicial independence and professional competence that can help build an unwavering system of justice delivery. However, this initiative seems to have totally been lost in translation and taken advantage of for political purposes by the Ethiopian government.
For perhaps too long, the conventional wisdom has been that the best can come only from abroad; meaning Europe and America. From the perspective of constitutional law, the South African Constitution did more than just provide a clean break with the past. It provided a modern constitution which successfully borrowed and adapted many of the best principles from some of the major modern European constitutional models to fit with the realities of the country. Whilst not perfect, and there shall never be a perfect constitution, it shows how Africans can creatively find solutions to their problems.But it is perhaps the South African Constitutional Court, through the voluminous amount of jurisprudence that it has produced since 1995,that has attracted the most attention from constitutional experts all over the world and given rise to the feeling that the centre of modern constitutionalism might well be moving to Africa. For a continent that has been obsessed with blindly copying from the former colonial powers, there are many reasons to start looking at itself.Even the 1990s constitutional reforms in other African countries were still influenced by the inherited colonial constitutional models.
Author: Prof Christof Heyns
Professor of Human Rights Law; Co-director, Institute for International and Comparative Law in Africa at the University of Pretoria; United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions
Many lives have recently been lost in Africa, as in other parts of the world, when demonstrations have turned fatally violent. This has been clearly seen inthe countries of the so-called Arab Spring, but numerous Sub-Saharan countries – Nigeria, Ivory Coast, Senegal, Malawi and South Africa come to mind – have also experienced violent and indeed deadly marches.
These demonstrations reveal the need to bring the legal and policy regimes that govern such expressions of popular opinion into line with human rights standards.
AfricLaw, launched in April 2012, is a blog which provides a platform for discussion for those interested in the rule and role of law in Africa. All areas of law applicable to Africa are covered, both international (global and continental) and national. Legal academics and students, researchers, international and national civil servants, legislators and politicians, legal practitioners and judges, as well as those who are not lawyers but have an interest in law are among those who are welcome to participate in the discussions. AfricLaw provides a space for the discussion of issues of substance, forming of opinions and information sharing among people living on the continent, those from Africa who are in the diaspora, and anyone else who is interested in participating. AfricLaw will also serve as a vehicle for comments from Africa on legal developments in the rest of the world.
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