Competing Aspirations for the Rule of Law in Africa

The law and freedom are two sides of the same coin.

Africa is not only at war with itself when it comes to electoral politics and democracy. Aspirations for the rule of law often get mired in similarly vicious struggles. Democracy is not possible without the rule of law. Neither is freedom possible since it is the practical expression of democracy; freedom is how people live democracy.

Freedom is choice. When you don’t have choice, freedom remains abstract because you can’t put it into practice. At the individual level, freedom of choice gives people independence to pursue life as they deem fit. Freedom of conscience allows them to make choices in line with their inner-most convictions.

At the collective level, these freedoms allow people to mobilize those with whom they share aspirations in order to pursue collective goals, such as choosing who should lead them or which policies they should promote or oppose. 

At both levels, there’s a need to reconcile competing choices, however. The law serves this need. It makes individuals give up their ideal choice for the greater good. Indeed, the individual choices are amalgamated and standardized to an acceptable degree that allows each person to see themselves in, and identify with, the resulting consensus. In other words, some degree of individual freedom is the cost – the price to pay – for the common good of stability and social harmony.

Otherwise, anarchy would ensue if everyone chooses to live exactly – with zero sacrifice –as they wish. It would be a recipe for conflict and, potentially, violence stemming from the desire by some to impose their choices on others. This is why consensus is needed. Law, therefore, moderates and reconciles competing choices. An outlaw rejects this tradeoff. Society, in response, protects outlaws from themselves by placing them in a secluded (correctional) facility for reflection and “rehabilitates” those who have reflected “correctly”; it does so in order to protect the consensus.

The law, therefore, prevents us from doing whatever we desire. The law and freedom are two sides of the same coin. The law is meaningless – akin to a balloon that isn’t inflated – if its objective isn’t to secure freedom. Ideally, freedom is everything that isn’t explicitly proscribed in law. The out-limits to doing as we desire is marked by the law. 

The rule of law is the practice of this consensus and its key outcomes, as noted above, are stability and social harmony. And because our instincts are to do exactly as we desire, which isn’t acceptable in the interest of the desires of others, the law must be enforced, in the interest of everyone – hence law enforcement.

Consequently, law enforcement violates the law when it infringes on what isn’t proscribed by law – the territory of freedom. Similarly, freedom is violated when it trespasses into what law proscribes. It must be underscored that the primary objective of law enforcement is to protect freedom and the secondary objective is to enforce the law. In similar fashion, the primary task of a security guard at a public facility, such as a five-star hotel or stadium, is to facilitate entry; however, depending on how the instructions are given to the security guard, he might conceive his task as blocking people from entering the premises – a secondary task that should only be applied when there are risks to granting entry.

It appears, therefore, that institutions of law enforcement ought to be referred to as Bureau of Freedom Protection or something of the sort in order to underscore the distinction between primary and secondary responsibilities. This understanding appropriately conceives their role as referees enforcing fair-play between individuals and society (the state) in a given territory, in the interest of stability.

Law enforcement or freedom protection agencies? 

When it lacks the consent of society, the law is illegitimate. The rule of law becomes rule by law – coercion. Africa’s experience with the rule of law has been greatly influenced by the colonial legacy. Precisely because colonialism is dictatorship, it is rare to find an entire legal framework whose letter and spirit can be traced to the consent of society. Law was – and largely is – imposed on society. Rarely does it express society’s deliberate and conscientious intent to balance the interests of the state (the collective) in its quest for stability and those of the individual in her desire for freedom. When the law is imposed on society, as was the case during colonialism, the people are subjects. They are citizens when the law speaks to their aspirations for freedom.

In Africa, this is where the rubber meets the road. The competing values of the urban elite and the rest of the population have ensured overwhelming contestation over whose values should be expressed in the law. In other words, the very definition of freedom is a terrain for contestation.

The urban elite, due to their relatively stable economic means, desire minimal state involvement in their lives, which they call “interference.” If they had their way, the state – the law – would do no more than secure them and their property. Anything beyond that would be an infringement on their freedom.

On the other hand are the economically vulnerable, who happen to constitute the vast majority in most African countries. They desire an interventionist state, active in every aspect of their lives, responsive, “intrusive,” and emotionally available. The state they want is one that is intimate with them, one that goes as far as ensuring that they have food (salt and sugar) and even shelter. It secures their basic needs and interests itself in their human security.

For them, all government officials exist to improve their socioeconomic conditions. They desire a patrimonial relationship with the state. The government is a family and leadership exists to solve their problems.

Therefore, poverty remains a key factor in this contestation over whose value systems and aspirations ought to prevail in the definition of freedom. Unlike the elite who expect law enforcement to limit itself to the provisions of the law, the economically vulnerable would think it is a dereliction of duty if, for instance, a police officer would disinterest himself or herself in the problems a community faces on the grounds that they aren’t matters of law. They would be shocked if the police officer failed to discipline a notorious errant youth disturbing the peace in the community on the grounds that he or she isn’t breaking any law. In other words, they conceive of the law in the broadest possible form and their ideas about law enforcement are aligned to that conception. Indeed, while the urban elite see the police officer in narrow terms and define professionalism as law enforcement, ordinary people define professionalism as being a community leader. In the example above, the government is failing when its officers don’t care about problems in the community. And so they will vote accordingly.

The aspirations of the vast majority have prompted effective (responsive) law enforcement agencies in Africa to broaden their mandate beyond law enforcement. Instead, they are engaged in providing human security. In their role as referees that secure the balance of law and freedom, these agencies understand that while the elite would prefer they limit themselves to law enforcement, the vast majority seek security. Balancing these competing aspirations requires sophistication, innovation, and outside the box thinking.

When government “interferes” where there’s no clear violation of the law (anathema to elite conception of the rule of law) it is being responsive and is living up to non-elite expectations. However, in a situation where the law does not pronounce itself on a given matter, the elite in the same society would conceive of this as an overzealous government that is eager to overstep its authority. In other words, in the elite’s thinking, government “interference” is a violation of freedom and abuse of the law.

How to reconcile the minimalist elite aspirations for the law and the maximalist aspirations within the same jurisdiction – since the law must be the same for all – leaves a subtext of tension that places the government between a rock and a hard place. If pressed and must take a side, it will “vote against freedom” any day. After all, the world over, law is politics.

Absentee governments, as they have done with almost every aspect of their responsibility to the people, have chosen silence vis-à-vis this tension: the individualistic versus communitarian conceptions of the law. The result has been lawlessness. However, for serious governments, what appears like a deficiency of freedom and democracy to the liberal world and to the urban elite is actually their strength. It is how they secure the continued support of the vast majority.

The elite keep going to villages to give capacity building training that aims to fix the people (to know their rights) as if they are defective. They are not. The narrow conception of the rule of law that does not speak to their aspirations for human security denies them freedom. It is the law that is defective when it isn’t responsive because it is not grounded in their realities. Ultimately, democracy will continue to elude Africa as long as it isn’t grounded in the quest for freedom and the rule of law. But whose freedom?

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