Band 11, Heft 2 - Special Issue (2018): Law and Development in Africa, Guest Editors: Ada Ordor and Faizel Ismail

This piece provides an insight into various contributions made by participants at the Law and Development Conference 2017. Participants converged in Cape Town, South Africa in September 2017 from institutions in different parts of Africa, as well as from other continents to deliberate on the theme of law and development from African perspectives. Over six panels of presentations, contributors wove a collective tapestry of reflections, critiques, debates and ideas showing the intersectionality of different fields of law in constructing, shaping and re-defining multiple development pathways for various constituencies. These discourses present a matrix of needful conditions, content and uses of law for its optimal application to development processes in and for the continent of Africa.

After more than five decades of the establishment of the Organization of African Unity (OAU) now the African Union (AU), Africa remains at a cross road in her struggle to grapple with the daunting challenges of achieving its core objectives of promoting sustainable development (SD) and economic integration, despite various earlier development initiatives and treaties in that regard. In analyzing the problem, this paper adopts the concept of law as instrument of social change and argues that at the heart of Africa’s missed development opportunities in the past lies the fundamental problem of democratic governance deficit. Indeed, weak governance and its associated political instability, insecurity and lack of peace hinder development and socio-cultural harmony. The paper further argues that there is an ineluctable linkage between democratic governance and sustainability of development and therefore presents the adoption of democratic governance method as the only sustainable way of successfully addressing Africa’s development challenges. In the final analysis, the paper concludes that the achievement SD and integration of the African continent within the framework of agenda 2063 must be predicated on the prioritization and promotion of democratic governance as its necessary adjunct.

Agenda 2030 for Sustainable Development has brought the rule of law to the forefront in the quest for sustainable development, with emphasis on Africa and the rest of the developing world. To ensure that law contributes to sustainable development, it is critical to address the mismanagement of legal pluralism in Commonwealth member countries in Africa, demonstrated by the conflict of legal systems and the stagnant evolution of institutions of governance in the aftermath of independence after colonial rule, and the current neoliberal economics-oriented/institutional approach based on the Washington Consensus. The current approaches to rule of law reform and development have resulted in the status quo in Africa, where the role of law and legal systems for sustainable development is not explicitly evident. The law is not applied consciously for development and the role of legal practitioners in development is undermined. An understanding of the impact of colonialism and post-colonial legal systems and the impact of the Washington Consensus; the influence of intergovernmental organizations and international non-governmental actors in providing rule of law reform assistance; and the methodology through which the technical assistance for law and development has been implemented to date is critical to developing new methods/approaches to the rule of law and development.

This article develops a model for explaining private sector response to law reforms in developing countries. The dependent variable in this model is the demand for law – the extent to which business owners and firm managers engage the formal legal system and attempt to mobilize the law to their advantage when making market decisions. Demand for law is a crucial micro-connection in the causal chain linking law and law reform to market expansion and economic development. The theoretical framework developed here focuses on the interplay between informal and formal social institutions in influencing market decisions made by private sector actors. The article tests hypotheses generated by this framework by analyzing survey data collected from business firms in Dar es Salaam, Tanzania. The results support the hypothesis that demand for law is shaped by informal market institutions, particularly the informal business networks developed and maintained by firms. The analysis further suggests that these “demand-side” variables matter more than “supply-side” variables identified in the social science literature. These findings have important implications for law reform initiatives in developing countries and suggest avenues for further social science research on the relationship between law and economic development.

The Organisation for Harmonisation of Business Law in Africa (OHADA) was established in October 1993 with the ambitious aim of inciting economic development in its Member States. Through the adoption of Uniform Commercial Laws, the organisation is expected to create an enabling environment for business development, thereby providing for a path to economic growth and subsequent development. In light of this professed aim, both the transnational methodological approach and comparative law theories are used in this paper to critically analyse the various processes conducted under the OHADA banner and to engage in discussions on the highly debated role of law as a vehicle for development in sub-Saharan Africa. This exercise, which proves crucial in order to trace its origin within the global governance and law and development theories, allows us to present OHADA as a transnational legal system, while also highlighting both its strengths and limitations.

Public procurement refers to the acquisition of goods and services by government in order to facilitate the efficient operationalisation of the state machinery. Public procurement however extends beyond transactions to acquire commodities to “the relationship between the state and its suppliers, and between the state and the commodity transaction”. Global political hierarchies, with affluent democracies at the apex, play a dominant role in how states like Lesotho, with little political agency internationally buy and sell commodities and what terms and conditions attach to such transactions. This paper argues that the architecture of public procurement policy in Africa generally and Lesotho specifically is anchored in neoliberalism which emerged as the dominant economic theory globally after the end of World War II. Corruption which is critical in public procurement because of the huge quantities of commodities often being transacted and the volume of money involved in the procurement process. This creates substantial opportunities for public officials with the propensity to be corrupt because of the high profitability attached to these large procurements. According to the director of the Directorate on Corruption and Economic Offences (DCEO), public procurement in Lesotho is the most vulnerable area to corruption and public procurement cases form 99% of corruption cases handled by the DCEO in 2016. The paper argues that he most combative and dictatorial mechanism of the neoliberal approach to anti-corruption and public procurement policies in Lesotho is the lack of consideration for local contexts, particularly when such policies are adopted litereratim. The slow erosion of corruption, particularly in public procurement in Lesotho is testimony to the futility of neoliberal policies in the country. Officials often adopt neoliberal policies disingenuously and masquerade them as actual reform. Alternatively, policies are adopted to comply with foreign aid requisites or to guarantee Lesotho’s place in global trade. At close inspection, the public procurement legal regime reveals weaknesses which are antithetical to the enthusiastic anti-corruption narratives that the Lesotho government performs to appease donors. Political agents in Lesotho often condemn corruption and reiterate a commitment to corruption-free procurement processes, however, overt corruption that permeates all sectors in the country contradicts this narrative. This paper provides an appraisal of the Public Procurement Regulations of Lesotho as anchored in the neoliberal approach. It argues that the socio-political nuances in Lesotho are in fundamental conflict with the neoliberal theory, making legal enforcement of the regulations extremely difficult.

South Korea has achieved unprecedented economic and social development in history. This country, which had been among the poorest in the world until the early 1960s, became one of the world’s leading economies by the mid-1990s as demonstrated by high per-capita income and world-class industries. In the early 1960s, Korea had much of the characteristics shared by many developing countries today, such as prevalent poverty, low economic productivity, low levels of technology and entrepreneurship in society, insufficient capital, poor endowment of natural resources, over-population in a relatively small territory, and internal political instability and external threats to its security. Korea has successfully overcome these obstacles and achieved economic development within a single generation. Korea’s success in economic development was also accompanied by the advancement of the rule of law and elective democracy by the 1990s. What are the causes of this unprecedented success? This article, applying a recently developed theory of law and development, explores the legal and institutional dimensions of Korea’s development and draws lessons from its successful development.

This paper examines whether the current South African legal framework and subsequent policies post-1994 encourage and have emphatically fostered industrialisation in South Africa primarily and Southern Africa more generally. The primary contention of this paper is that the South African State, unlike fellow Southern African States, has a long history with industrialisation and should have laid the foundations for Southern Africa’s large scale industrialisation trajectory. However, the post-1994 government vision for South Africa has never had a Law and Development philosophy that prioritises and fosters industrialisation. Industrial Promotion in Africa, is understood as being concerned with drafting, strategically implementing and investing in industrially minded action plans. Through the prism of Local Economic Development policy and legislation in the Sedibeng region, this paper contends that industrialisation is still a farfetched endeavour despite industrially minded policies like the New Growth Path and the Industrial Policy Action Plans in South Africa. Moreover, South Africa’s industrialisation agenda is compromised by the Law and Development philosophy of the African National Congress led government. At the core of this philosophy is an overestimation of social justice activity like Human Rights promotion at the expense of Asian Developmental States’ non-human rights approach to economic development activity, like industrialisation in rural and township regions of South Africa.

This article seeks to put the law–finance–growth nexus into the context of Africa. As of 2017, the African Securities Exchanges Association has 27 securities exchanges as full members. The Johannesburg Stock Exchange is the most developed of all, especially with respect to its market capitalization. Its socio-legal proximity with the English system may provide a good explanation to its phenomenal growth relative to the rest in the region. However, such a socio-legal proximity is indeed shared by a number of other former British colonies such as Nigeria and Zimbabwe. Law alone may not account for the rise of the Johannesburg Stock Exchange. Furthermore, this article seeks to argue whether there is a genuine need for the African countries to have a stock market, which requires highly evolved legal, market and governmental institutions and norms that often do not pre-exist in these countries. On the one hand, the article will look at Africa in general. On the other hand, it will put certain discussions into the context of selected African countries.

Most Sub-Saharan African countries have adopted policies to attract foreign direct investment (FDI) and policies to stimulate the growth of small and medium enterprises (SMEs). While a significant body of literature exists analyzing how these objectives can be mutually reinforcing, the negative interplay between these policies remains relatively unexplored. This paper examines whether, and in what circumstances, investment incentives could undermine SME competitiveness and, conversely, whether policies aiming to promote SMEs through encouraging FDI-SME linkages could impede FDI. This paper demonstrates that, absent a comprehensive approach to policy making, tensions invariably arise between investment incentives and SME promotion policies.

This paper seeks to provide a more nuanced view of the creative industry that goes beyond assertions of its contribution to economic growth, which, it is then further argued, requires stringent copyright protection to ensure development. It argues that a critical first step is to optimize an existing copyright framework by addressing its inherent entrepreneurial challenges to better enable authors to garner economic returns. These challenges are identified before the paper delineates the creative industries in South Africa and related policies. It then turns to the ongoing copyright policy formulation process before setting out current and proposed copyright legislative provisions. The paper contends that essential aspects regarding both the creative and commercial aspects must be tackled first. At the creative stage, authors’ inability to use a large range of source works because of the fear of copyright infringement claims can be addressed by elaborating exceptions and limitations. On the commercial front, entrepreneurial capacity building for authors and curbing unfair author, publisher and intermediary contracts is vital. The use of statutory devices such as the reversionary interest, to recover lost or diminished opportunities to obtain direct financial gain from copyright work, could also be considered. Enhancing the viability of collecting societies and ensuring that royalties are paid to authors would also be a critical intervention.

The advent of the digital milieu and the explosion of the internet has made access, use, modification or duplication of original work easy. Physical reproductions have been replaced by digital reproduction, which has become much easier as well as cost-effective. The increased use of digital technology and online activities pose a serious threat to the cardinal objective of copyright protection. To counter these threats, measures have been developed technologically to make digital works difficult to copy, distribute and access without the necessary permission. These measures are covered under the heading of Digital Rights Management (DRM). Traditional copyright laws did not contemplate these threats and does not make provision to tackle them. Several countries have amended their copyright laws to address the threats posed by digital advancement. In this context, Nigeria has a draft (amendment) bill, 2015, which is before its national assembly. This paper calls for the swift passage of the bill to enable Nigeria to effectively provide for a legal framework to counter the threats posed by these digital advancements.

There is no point in making comprehensive provisions for the protection of various intellectual property rights without also providing a corresponding comprehensive system for enforcing the same when the rights are or about to be infringed. Therefore, an accessible, sufficient and adequate system/procedure is paramount in any worthwhile intellectual property system. Right holders must be granted means to enforce their rights just as is obtainable in other forms of tangible and intangible properties. To this end, all intellectual property systems need an effective judicial system that is empowered to deal with both civil wrongs and criminal offences while being presided over by adequate number of judges with the requisite experience in intellectual property law. This paper therefore examines: the raison-d’être for protecting intellectual property rights; the various enforcement mechanisms via the courts; sanctions and remedies for infringement of intellectual property rights amongst other incidental matters. The paper concludes with a call for the review of the sanctions for infringing intellectual property rights.

In strong definitions, sustainable development has been argued to imply the prevalence of the environmental dimension over the economic one. The prioritization of the environmental (planet) and (arguably also the) social (people) pillar over the economic (profit) one may require a rather radical departure from assumptions of economic growth, including zero-growth or even de-growth, as argued in post-growth or ecological economics. This article asks the “what if” question. What if unorthodox, ecological economics got it right that post-growth or growth agnosticism is the new economic norm? What are the implications for human rights law and for the field of human rights and development? How could poverty alleviation look like in a growth agnostic scenario? The objective of this article is to draw out in an exploratory way some of the implications of strong definitions of sustainable development for human rights law and its relevance for development. At first, this intellectual exercise may look irrelevant or even cynical in the context of Africa, where more than 40% of the population, more than 300 million people, live in poverty. However, I see two major reasons for also debating in an African context the implications of growth agnosticism for human rights law. First, economic growth does not necessarily lead to economic development, let alone human development, and has typically come at a huge environmental cost. Alternative approaches that focus more directly on human well-being and ecological sustainability may help avoid a simple mimicking of the historical development of the global North. Second, ecological economics shifts the attention from growth to redistribution. The latter is a key challenge within Africa and within African countries, as well as from a global perspective. I examine how to factor in the consequences of post-growth or doughnut economics in the conceptual analysis of socio-economic human rights, and in the role of human rights law in development (cooperation), globally and nationally. In particular, I will try and set a research agenda on two issues that require further examination: the redefinition of obligations of international assistance and cooperation in human rights law and the reconceptualization of equality towards redistributive equality in human rights-based development cooperation interventions.

This article proposes a novel form of foreign aid—macro aid. Under macro aid, developing countries that are aid recipients would be self-organized into groups and held collectively responsible for stolen or negligently wasted grants. If such abuse occurs, all developing countries in the group would no longer be eligible for any additional aid from the same funding source. Such shared responsibility would build powerfully constructive pressure among developing countries to not abuse aid. Moreover, the public nature of the program would enhance transparency, strengthen expectations, motivate citizens to demand that all group countries live up to the international attention, and shine a spotlight on aid agencies to prevent them from continuing to tolerate systemic corruption. Macro aid programs could also be set up within developing countries at the regional or local governmental level. Further, developing countries could voluntarily decide to establish macro aid groups to signal to domestic and foreign investors their resolve to reform. If such a high level of accountability is expected from the poor who are enrolled in microcredit programs that require group repayment, it is reasonable that the same level of responsibility and oversight should also be applied to groups of elite politicians in developing countries.

The paper discusses the role of law in ensuring that the agricultural productivity of small-scale women farmers in Nigeria is not encumbered by cultural practices and absence of extant laws and policies. Employing the feminist theory, it examines the existence and enforcement of equality rights for women to access productive assets including land, credit and agricultural extension services. It explores the specific challenges women encounter from perspectives other than limited access, including gender-based violence and gender-specific roles. The aim of the paper is to challenge some ubiquitous sociocultural practices that hinder the active participation and contribution of small-scale women farmers in agriculture and food security in Nigeria. It suggests how laws and policies can help increase this productivity. It concludes with recommendations on adequate legal frameworks, policy awareness, a commitment to promote women’s rights, as well as increased public investment in rural infrastructure to promote production of adequate, affordable and safe food in an environmentally and socially sustainable manner.

Development programs in many African countries include the reallocation of land and the nationalization of mineral resources for the benefit of less privileged communities in those countries. Implementing these programs is, however, quite complicated. This paper pays special attention to the confiscation of the land of white farmers in Zimbabwe as part of a development program, and the rapid decline of the economy of that country in consequence of this program. It serves as a reminder that depriving landowners of their property rights is counterproductive and is therefore not a feasible development strategy. As far as the right to explore natural resources is concerned, the paper highlights the repeated resolutions of the United Nations proclaiming the “inalienable right of all states freely to dispose of their natural resources in accordance with their national interests” as an inherent aspect of sovereignty [e.g. G.A. Res. 626, 7 U.N. GAOR, Supp. (No. 20), at 18, U.N. Doc. A/2361 (1952).], with occasional reminders that developing countries were in need of encouragement “in the proper use and exploitation of their natural wealth and resources” [e.g. E.S.C. Res. 1737, 54 U.N. ESCOR, Supp., No. 1 (1973).]. These resolutions were adopted in the context of the decolonization policy of the United Nations and were mainly aimed at denouncing the exploitation of the mineral resources of African countries by colonial powers [G.A. Res. 2288, 22 U.N. GAOR, Supp. (No. 16), at 48, U.N. Doc. A/6716 (1967)., para 3]. The emphasis of international law relating to the natural resources over time also emphasized the right to self-determination of peoples. As early as 1958, the General Assembly, in a resolution through which the Commission on Permanent Sovereignty over Natural Resources was established, stated that the “permanent sovereignty over natural wealth and resources” of states is “a basic constituent of the right to self-determination” [G.A. Res. 1314, 13 U.N. GAOR, Supp. (No. 18), at 27, U.N. Doc. A/4090 (1958).]. The African Charter on Human and People’s Rights similarly provides “All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it” [Art 21(1)]. This provision featured prominently in several judgments of courts of law, such as the one of the South African Constitutional Court in the case of Bengwenyama Minerals ( Pty ) Ltd & Others v Gemorah Resources ( Pty ) Ltd & Others [2011] (3) BCLR 229 (CC) (3) BCLR 229 (CC) and of the African Court of Human and People’s Rights in the case of Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001), Communication 155/96, 15th Annual Report. AHRLR 60 ( Social and Economic Rights Action Centre (SERAC) v Nigeria (2001) AHRLR 60 (ACHPR 2001), Communication 155/96, 15th Annual Report.) Communication 155/96. In view of these directives of international law, the paper will critically analyze the South African Mineral and Petroleum Resources Development Act 28 of 2002, which deprived landowners of the ownership of unexplored minerals and petroleum products and proclaimed mineral and petroleum resources to be “the common heritage of all the people of South Africa” with the state as the custodian thereof.

Nigeria, like other countries in the world, competes for available water resources due to the increasing demands for the resource as a result of agricultural and other industrial activities. Nigeria’s current National Water Policy 2017 is vague regarding the enforcement of the right to water, with an absence of institutions to actualise same. The provisions under chapter II of the Constitution of the Federal Republic of Nigeria 1999 does not provide a justiciable cushion for the actualisation of this right. This paper examines the reality of the right to water in Nigeria, using South African policy as a model. It interrogates the feasibility of existing policy on water in Nigeria against the backdrop of the South African right to water, which is justiciable and hailed as one of the most proactive in water legislation around the world. The paper concludes with recommendations on the justifications for the right to water in Nigeria, advocating systematic engagements with government and community stakeholders as a key driver towards achieving sustainability and entrenchment of the right to water in Nigeria.

In the postapartheid South African economic landscape, the idea of “empowerment” has been given special meaning in the concept “black economic empowerment,” or BEE. BEE serves as a vehicle for the transformation of the South African economy in general by promoting, amongst other things, increased black ownership and management of businesses, skills development and rural community development. These empowerment aspirations are also pursued in the mining industry in terms of the Mining Charter. The development of mining communities is one of the main features of empowerment in the mining industry. An analysis of the various versions of the Mining Charter shows a certain progression in the approach to the empowerment and development of rural mining communities: There is an increased emphasis on the poverty still faced by these communities, years after the introduction of the first Mining Charter. The question is whether the increased emphasis will mean much for mining communities. This article argues that the empowerment of mining communities in terms of the Mining Charter can be situated in the development paradigm and is subjected to the politics of development. For the purposes of this article, the politics of development refer to the underlying political and ideological assumptions of the idea of development, which have consequences for how a development problem is framed and the development beneficiary is represented. Inevitably, the problem faced by development beneficiaries is reduced to mere poverty, showing how the politics of development will affect how development solutions are constructed. Regarding the Mining Charter specifically, the politics of development causes uncertainty as to who may benefit from community development initiatives. The inability to identify or demarcate the mining community accurately means that the drafters of the Mining Charter can only employ poverty alleviation rhetoric. The rhetoric creates expectations with mining communities that mining companies cannot meet, placing significant pressure on the already volatile relationship between mining companies and mining communities.

In June 2014, the African Union, Heads of States and Government adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (known in short as the Malabo Protocol). If ratified, the Protocol would expand the jurisdiction of the proposed African Court of Justice and Human Rights to adjudicate matters of corporate criminal liability in Africa. This paper analyses the prospects of advancing corporate respect for human rights and access to judicial remedies by victims of corporate human rights abuse through the lens of Article 46 (C) of the Malabo Protocol. The departure point is that the adoption and ratification of the Protocol would be an important step in preventing or stopping human rights violations by corporate actors in Africa’s extractive resource industry. This position is predicated on the inference that the expanded jurisdiction provided by the Malabo Protocol is consistent with the commitment of African countries to implement Pillar II of the United Nations Guiding Principles on Business and Human Rights (Guiding Principles) on respect for human rights by corporate entities. In addition, the Malabo Protocol’s proposal to adjudicate corporate criminal liability is consistent with Pillar III of the Guiding Principles on the provision of remedies for human rights violations. Creating a regional approach to address corporate criminality is an important African solution to a pressing African problem.

A look into the relationship between general rule of law development, from a distinctly Christian analytical perspective, and wildlife (namely elephant) poaching in Kenya. How can the concrete establishment of a solid legal foundation and rule of law help combat widespread elephant poaching in Kenya and the surrounding regions? How can rule of law development help to create a “Kenyan-specific” solution to this issue?

Unlike many of its African neighbours, Botswana achieved levels of socio-economic development in spite of its abundant mineral wealth. Botswana’s effective management of its mineral resources also aided in its avoidance of the resource curse and corresponding weak institutions. The contribution of Botswana’s mineral wealth to its development best characterizes the country as a “resource-rich developmental state.” However, the correlation between democratic principles and institutions to Botswana’s developmental success was unclear. This paper examines the connection between democracy and development in Botswana by relying on the “thin” versus “thick” spectrum of democratic institutions expounded by Mariana Prado, Mario Schapiro, and Diogo Coutinho. The paper argues that Botswana’s institutions are not democratically “thick”; therefore, democracy and “good” governance, as its conceived neoliberally, do not explain Botswana’s development outcomes. Instead, this paper contends that David Trubek, Diogo Coutinho, and Mario Schapiro’s “legal functionalities” framework, which credits the success of development policies to four roles the legal system could play: (i) safeguarding flexibility, (ii) stimulating orchestration, (iii) framing synergy, and (iv) ensuring legitimacy, is better suited to explain the success of Botswana’s resource-rich developmental state.