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Podcast: Phil Clark summarises reactions to ‘Distant Justice: The Impact of the ICC on African Politics’ during a book tour of five countries

Niki Wolfe — Fri, 05 Jul 2019 11:16:41 +0000

Introduction by Phil Clark to a roundtable discussion about the International Criminal Court and Africa, held at Africa Research Institute on 12 June 2019.

The post Podcast: Phil Clark summarises reactions to ‘Distant Justice: The Impact of the ICC on African Politics’ during a book tour of five countries appeared first on Africa Research Institute.

Why international justice must go local: the ICC in Africa – Phil Clark

Niki Wolfe — Tue, 12 Mar 2019 17:06:13 +0000

Criticism of the International Criminal Court (ICC) on the grounds of anti-African bias or neo-colonialism is simplistic. It overstates the power of the ICC and underestimates the ability of African states to manipulate the Court for their own ends. There are other, more compelling reasons to question the Court’s record in Africa. The ICC aspires to complement domestic judiciaries and other local institutions. Instead, in its early years it actively chased cases in the Democratic Republic of Congo and Uganda. By intervening in situations where domestic courts were already investigating and prosecuting cases, the ICC has actively and fundamentally undermined its guiding principle of complementarity.

After 17 years in operation, the ICC has also proven structurally incapable of prosecuting heads of state or sitting government officials, encouraging malefactors to cling to power. While maintaining relations with national governments that have too often been cosy, and thereby confounding the claim to be apolitical, the Court has been unresponsive to local people who attribute great importance to prosecuting state crimes.

The ICC has sought to enact a highly particular – rather than universal – brand of legalist, procedural justice. This approach is intolerant of alternative legal or non-legal responses to addressing mass crimes. Adherence to a model of ‘distant’ justice, ostensibly to maintain impartiality, has been counter-productive. Reliance on Western investigators with little or no experience in the areas where they operate, and investigations of very limited duration, are major shortcomings in the ICC’s modus operandi. Most trials have either collapsed or been abandoned due to poor-quality evidence.

In African societies affected by mass atrocity, ICC involvement has made justice and lasting peace less, rather than more, likely. This Counterpoint argues that major reform of the Court is urgently required if it is to serve the needs of African communities, including victims of mass crimes.

By Phil Clark

Intro
A poor record
Distant justice
Damaging relations
When courts collide
Towards reform
Timeline of the International Criminal Court (ICC)
Notes

Intro

On 28 January 2009, before a packed courtroom in The Hague, the Prosecution of the International Criminal Court (ICC) called its first ever witness, a young man from Ituri district in north-eastern Democratic Republic of Congo (DRC). For the ICC and its supporters this represented the moment the seven-year-old Court truly arrived – when the dream of building a permanent global institution to prosecute genocide, war crimes and crimes against humanity became a reality.

The young man, testifying under the pseudonym ‘Mr Witness’, stated that he had been recruited as a child soldier when the forces of rebel leader Thomas Lubanga abducted him on his way home from school. Shortly afterwards he attended a military training camp run by Lubanga, who now sat in a crisp three-piece suit, listening intently on the other side of the courtroom. Leading up to the trial, critics questioned why the Prosecution had only charged Lubanga with the crimes of enlisting and conscripting child soldiers, and using them to participate actively in hostilities, when communities in Ituri accused him of orchestrating much graver atrocities, including mass murder and rape. The Prosecution responded that the charges reflected the strongest evidence it had gathered against Lubanga and a vital opportunity to spotlight the global scourge of using child soldiers.

When Mr Witness returned after the lunch break, he stunned the courtroom by announcing that he wished to retract his entire testimony. A Congolese non-governmental organisation the Prosecution had tasked with finding witnesses for the Lubanga case had, he stated, told him what to say on the stand. Everything he had claimed in the morning was false.

Outraged, Lubanga’s defence team asked the judges for a permanent stay of proceedings – in effect, a collapse of the trial – on the grounds that if the Prosecution’s star witness had been coached, all of its evidence was likely to be tainted. Perhaps realising the institutional perils of ending the ICC’s first ever trial when it had barely begun, and mindful it had already been stayed the previous year, the judges ordered the case should continue, but not before issuing a stark warning to the Prosecution about the quality of its investigations.

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A poor record

Ten years later and with ICC cases currently open in eight African states, most of the problems apparent in the Lubanga case – including the Prosecution’s outsourcing of investigations to local intermediaries and the weakness of much of its evidence – continue to bedevil the Court. Only five of the ICC’s 28 cases have been completed; five have collapsed either before or during trial for lack of evidence. The remaining 18 cases have not progressed because of insufficient evidence, the failure of states and international peacekeeping missions to capture and transfer suspects to The Hague, or the death of suspects on the battlefield.

No serving head of state or government official has ever been prosecuted by the ICC. By 2016, the Prosecution had dropped charges against all suspects in cases relating to the 2007-8 post-election violence in Kenya, including those against President Uhuru Kenyatta and Deputy President William Ruto; and all cases concerning Sudan, including that of President Omar al-Bashir, have been ‘hibernated’. After 17 years of the ICC’s work, one of the most telling realisations is that – without a police or military force of its own and reliant on states for the security of its personnel and enforcement of arrest warrants – the Court is structurally incapable of prosecuting sitting members of government. It is, in effect, only able to tackle crimes by non-state actors such as rebel leaders or recently deposed government elites.

Even strong supporters of the ICC such as the United Kingdom have started to question whether the US$1.7 billion the Court has received from member states since its inauguration has been money well spent.¹ Its track record and the causes of its failure call into question whether the ICC, headquartered in The Netherlands, is fit for purpose in investigating and prosecuting complex atrocity cases in far-flung parts of the world.

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Distant justice

In my book Distant Justice: The Impact of the International Criminal Court on African Politics,² I argue that the principal reason the ICC has struggled to conduct effective investigations is that its modus operandi – attempting to dispense justice from The Hague, with mainly non-African staff who have limited experience in Africa and spend minimal time on the ground – is consistently found wanting when applied to African conflict zones. The ICC pursues distant justice because it believes this maintains the security and neutrality of its personnel, allowing the Court to hover above the political fray, investigating and prosecuting individuals regardless of the domestic consequences or local context. This smacks of political naiveté or hubris or both.

To date, neither the ICC Prosecution – nor the Defence – have hired a single investigator from any of the eight African states where investigations have taken place. Foreign nationals are perceived as more impartial. This practice has denied the ICC the domestic expertise essential to investigating atrocities in difficult environments where conflict is often ongoing. Without deep knowledge of local causes and agents of violence, political networks, languages and cultures, ICC investigators have struggled to gather evidence that can withstand scrutiny in the courtroom.

Compounding the lack of contextual familiarity at the ICC, the Prosecution has typically limited its investigators to only ten days in the field at a time and often divided their time between multiple cases across a number of states. Several investigators – seasoned professionals in their native Western countries – have complained that these conditions made the systematic conduct of their work almost impossible. ‘We probably didn’t know enough about these countries when we went in – how politics worked, how to get governments to work with us, what their concerns were, what they were trying to achieve,’ recalled one. ‘How many of us had ever been to Ituri or northern Uganda before our investigations started?…There’s no question it would have helped to know more before we went in.’³

These shortcomings in the ICC’s approach contributed directly to the acquittal of the ICC’s two highest-profile suspects to reach the dock, former Congolese rebel leader and vice-president Jean-Pierre Bemba and former president of Côte d’Ivoire Laurent Gbagbo. The judges who in June 2018 acquitted Bemba on appeal ruled that the Prosecution had provided only abstract evidence – much of it gathered from secondary sources rather than first-hand investigations on the ground – to show that Bemba, according to the theory of command responsibility, had failed to prevent his troops from carrying out rape, murder and pillage in the Central African Republic (CAR).

In January 2019, seven years after issuing a warrant for Gbagbo’s arrest for crimes against humanity during the 2010-11 post-election violence in Côte d’Ivoire, which claimed 3,000 lives,⁴ the ICC judges ruled that he and his youth minister Charles Blé Goudé had no case to answer. As the only former head of state to have been prosecuted by the ICC, Gbagbo’s acquittal is the biggest blow to the Court since its inauguration.

The damage to the ICC’s standing isn’t in the acquittal of Gbagbo per se: the role of a court is to convict or acquit based on the evidence presented. What condemns the Prosecution and the ICC as a whole are the flawed investigative practices and poor-quality evidence that led to the decision there was no case to answer. As the judges highlighted,⁵ the Prosecution failed to prove several key allegations against Gbagbo, including that he had an explicit policy of targeting civilians and that his public speeches contained direct orders to carry out atrocities. This failure conformed to a long-standing tendency of the Prosecution – dropping investigators into conflict environments for short periods – to present broad-brush evidence about atrocities, without the meticulous proof necessary to link those crimes incontrovertibly to the accused.

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Damaging relations

The impact of the ICC’s distant approach goes far beyond its difficulty in building sound criminal cases. Altogether more concerning are the negative consequences of its methods for the African societies in which the Court carries out investigations. The ICC has unwittingly established relations with African governments, local populations and national judiciaries that are damaging. It has also undermined domestic responses to mass atrocity that include amnesties for high-level perpetrators. Collectively, these relations highlight that distant justice makes the ICC unaccountable to conflict-affected communities and blind to the consequences on the ground.

First, lacking the necessary expertise in domestic political dynamics, the ICC has left itself open to interference and manipulation by African governments whose motivations and tactics the Court often doesn’t fully grasp. Seeking to distance itself from the political arena and thus remain impartial, the ICC has instead become more politicised. Relations with some African states have been antagonistic. The Sudanese and Kenyan governments, for example, systematically blocked the ICC’s investigations by denying ICC investigators access to crime sites, allegedly killing and threatening witnesses and refusing to hand over evidence. All the while, they rallied domestic and continental support by defeating what President Bashir – after the ICC called a halt to investigations into crimes in Darfur – branded the ICC’s ‘colonial’ justice designed to ‘humiliate’ African leaders.⁶

More often, the ICC has naively cultivated overly cosy working relations, especially with states that have referred situations to the Court; for example, Uganda, the DRC, CAR and Mali. Heavily dependent on state cooperation, the ICC has conducted investigations in lock-step with domestic governments, including travelling to crime scenes with members of the national army and police.

In Uganda and the DRC, close relations stemmed from the fact that the ICC chased cases in those countries, approaching the respective presidents to encourage them to refer their situations to the Court. During pre-referral negotiations, the ICC Prosecution assured the Ugandan and Congolese governments that it would focus only on rebel leaders and not state actors. This not only ensured impunity for widespread government atrocities during the same period, but emboldened these states. During all national elections in Uganda and the DRC since the launch of ICC investigations in central Africa in 2004, both states have brazenly and routinely committed crimes against civilians.

The ICC’s failure to address state criminality is a key reason the Court has scant legitimacy among conflict-affected communities across Africa. During more than a decade of field research I have conducted in northern Uganda and eastern DRC,⁷ interviewees emphasised the gravity of atrocities committed by their governments and their anger at the ICC’s neglect of these crimes. In northern Uganda, state violations have included forced displacement, murder, rape, torture and failure to protect the population from attacks by Lord’s Resistance Army (LRA) rebels. Many respondents argued that such actions violate the social contract between the state and its citizens. ‘We expect the government to protect us,’ said Michael, a 42-year-old man in the Pabbo camp for internally displaced persons in Acholiland, northern Uganda, who had lost his wife and two children to LRA violence.

Not only have they failed to protect us, they have murdered us…People start screaming when they know the LRA is coming but the UPDF [Ugandan People’s Defence Force, the Ugandan army] does nothing. It does nothing to stop the rebels and it violates us. Soldiers always come into the camp at night. They rape our women and girls and abduct the men they say collaborate with the rebels.⁸

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When courts collide

Local respondents criticised the ICC’s model of delivering justice from afar, lacking local presence and accountability to affected communities. The intimacy of conflict – in which many victims know their assailants personally and are likely to live side by side with them once violence subsides and they return to their communities – underscores a widespread need for victims and perpetrators to confront one another directly. This would enable them to deliver and receive apologies, and to engage in a dialogue about the crimes committed. ‘We need to bring the fighters together with the victims,’ said Patience, a 48-year-old victim of LRA attacks in the northern Ugandan district of Amuru. ‘They should apologise to the victims and ask their forgiveness. Only when that happens will we know that they won’t go back to the bush and continue the killing.’

In many interviews, the desire for direct engagement between victims and perpetrators – as opposed to their separation when the ICC holds trials in The Hague – extends equally to senior government and rebel leaders. ‘[Joseph] Kony and [Ugandan president Yoweri] Museveni should come here to Gulu,’ said Henry, an Acholi shop owner. ‘They should stand in front of all of us, apologise and ask for forgiveness.’

Meanwhile, the ICC has undermined national judiciaries in Africa by claiming jurisdiction over cases that could have been – and sometimes were already being – investigated by domestic courts. This conduct undermines the ICC’s own principle of complementarity enshrined in the Rome Statute, which stresses the primary responsibility of states to prosecute crimes committed by their nationals or on their territory. Instead, the Court has often intervened even when local courts have displayed a genuine willingness and ability to handle atrocity cases on the basis that its distance confers impartiality likely to be lacking in domestic institutions.

Judicial personnel in Ituri, in north-eastern DRC, were furious that rebel leaders Lubanga, Germain Katanga and Mathieu Ngudjolo, were whisked off to the ICC between 2006 and 2008 when their cases were still being investigated domestically. Under a US$40 million European Commission-funded judicial reform process begun in 2003, national military courts in Ituri successfully prosecuted a string of high-ranking members of the Congolese army and several rebel groups. Discussing the near-collapse of the Lubanga trial mentioned at the start of this Counterpoint, one Congolese investigator in Ituri said, ‘The ICC stole these cases from us and has done a worse job. What was the point of sending these suspects to The Hague, to face a lower standard of justice?’9 The ICC’s intervention in the DRC demoralised a domestic judiciary that has benefited from substantial internationally backed reform and will continue prosecuting atrocity cases long after the ICC has departed.

More broadly, the ICC’s distant justice has diminished the capacity of African policymakers and local communities to determine, on their own terms, how best to address mass conflict. Options available include domestic prosecutions, local reconciliation rituals or amnesty-based approaches such as peace negotiations, truth commissions, security sector reform or disarmament, demobilisation and reintegration of combatants.

During the 2006-8 peace talks between the Ugandan government and the LRA in Juba, in southern Sudan, the ICC’s issuance of arrest warrants for the top five LRA commanders was the principal stumbling block to reaching a resolution. The Juba process was consumed by debates over how to drop the warrants or pause the ICC investigations for one year renewable – permissible under the ICC’s Statute – and thereby enable the peace talks to proceed. The ICC and its international backers rejected these options, insisting that the pursuit of justice was essential to achieving sustainable peace.

One of the consequences of the ICC’s intransigence was that none of the LRA commanders would come to the negotiating table in Juba, fearing arrest and transfer to The Hague. The ICC also inhibited the substantive flexibility that is vital to any successful peace process, by thwarting the possible offer of an amnesty for the LRA leadership, to which they were entitled at the time under Ugandan law. This denied the negotiators one of the major incentives for the LRA to lay down its arms.

As one senior negotiator in Juba observed, ‘Imagine if South Africa wanted to use the Truth and Reconciliation Commission today and offered an amnesty [for high-ranking suspects from the apartheid era] the way it did after 1994. The ICC wouldn’t allow it. And without amnesty, the transition would’ve collapsed and then where would we be?’.¹⁰ Various issues contributed to the ultimate collapse of the Juba talks in 2008 before a comprehensive peace agreement between the Ugandan government and the LRA could be signed, but the shadow of the ICC was a telling factor.

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Towards reform

Major reform of the ICC is urgently needed if it is to become fit for purpose. A vital first move is to transform the profile of the Court’s personnel. The intricacies of the settings where the ICC intervenes require deep contextual expertise. Ivorian investigators should be hired to investigate crimes in Côte d’Ivoire, and Ivorian country experts – rather than legal generalists – to advise on how to navigate difficult political and social terrain. This approach would improve the quality of investigations, while assisting the ICC to develop more even-handed and productive state co-operation than the overly cosy relations developed with the governments of Uganda and the DRC.

The ICC must also increase its presence in the communities where it operates. This requires allowing investigators to spend more time on the ground and holding trials closer to atrocity sites, rather than in The Hague. This would make the Court’s work more visible and approachable for local communities, help build trust and encourage more local witnesses to assist the Court’s investigations – issues that have hamstrung the ICC since its inception.

More fundamentally, though, the ICC and international policymakers must afford domestic actors more latitude to address atrocities by whichever means they deem appropriate.

International prosecutions of a small number of elite suspects constitute only one response to mass violence – and, as highlighted in this Counterpoint, an often flawed and damaging one at that. There should therefore be no inherent impediment to Uganda, for example, deciding to use a conditional amnesty or community-based rituals to address the crimes of Kony and other LRA commanders – as some northern Ugandan civil society groups advocated during the Juba peace talks – if affected communities deem these the most appropriate way of ensuring accountability and pursuing reconciliation. As I argued in a 2012 Counterpoint,¹¹ while Rwanda’s decision to use the community-based gacaca system to prosecute 400,000 genocide suspects was roundly criticised by international legal and human rights commentators, the system delivered widespread and durable benefits for Rwandan society.

The ICC and its backers have paid insufficient attention to the diverse ways that mass crimes are being addressed across Africa. In various African states, a brighter future for justice is emerging at community, national and regional levels. Depending on the context, these practices need either international support or freedom from external intrusion to maximise their potential. A key reason the ICC was established was the expectation that domestic institutions would often be unwilling or unable to prosecute serious crimes, especially those involving their own state officials. African courts, however, are increasingly tackling atrocity cases – including against government suspects – and have much to teach the ICC about how to investigate atrocities on the continent.

The example of the Ituri courts shows that strategic investment in domestic judicial reform can enable national courts to prosecute complex cases in courtrooms accessible to victims and other groups directly affected by violence. Elsewhere in the DRC, in South Kivu and Maniema provinces, a system of mobile gender units between 2009 and 2012 prosecuted 382 cases of sexual violence, many involving high-ranking suspects in the Congolese army. These units were a creative collaboration between international specialists from the American Bar Association and US-based Open Society Justice Initiative, and Congolese judges, lawyers and investigators. Like gacaca, they held open-air trials in full view of local communities. The process involved ‘light touch’ international assistance that bolstered the independence of domestic actors.

Similar reforms have enabled the Rwandan national courts to handle numerous cases since 2008 concerning high-profile genocide suspects extradited from abroad. In 2014, the Constitutional Court in South Africa ruled that the South African police force was legally obliged to investigate Zimbabwean officials accused of torturing opponents of Robert Mugabe’s regime. The Southern African Litigation Centre and the Zimbabwean Exiles Forum successfully argued that South Africa has an obligation to prosecute these international crimes, having implemented the ICC Statute within domestic law.

Meanwhile, in 2016 the Extraordinary African Chambers in Senegal convicted former Chadian dictator Hissène Habré of crimes committed in Chad between 1982 and 1990.¹² All four investigating judges in the Chambers were African: the president of the court was from Burkina Faso and the three remaining judges were Senegalese. Chad and the African Union provided more than half of the tribunal’s budget, with the balance provided by international donors. The South Africa and Senegal cases highlight that, if some African states are unwilling to address serious crimes committed on their soil, other African states may intervene to do so. Under the principle of universal jurisdiction, the Habré trial was the first in the world in which one country prosecuted the former head of state of another. After the collapse of the Gbagbo case, the ICC was undoubtedly envious of the Chambers’ success.

The DRC, Rwanda, South Africa and Senegal examples show that external support for African courts can yield a more robust and accessible form of accountability than the distant justice delivered by the ICC. None of these legal processes – local or international – is perfect. However, domestic institutions have inherent advantages over international approaches, such as that taken by the distant ICC – namely, their visibility among affected communities and their longevity. The Court therefore needs to rethink its own practices, while ensuring it does no harm to competent domestic institutions. Equally, international donors and policymakers must recognise that more lasting and cost-effective results can be achieved by backing African remedies to violent conflict. While international justice has dominated external debates about addressing mass crimes in Africa over the past 20 years, the future is local.

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Timeline of the International Criminal Court (ICC)

17 July 1998 – Rome Statute of the ICC created and signed
11 April 2002 – Deposit of 60th ratification of the Rome Statute necessary for the ICC to be established
1 July 2002 – Rome Statute comes into force
11 March 2003 – First ICC judges sworn in
16 June 2003 – Luis Moreno Ocampo sworn in as inaugural Chief Prosecutor of the ICC
29 January 2004 – ICC receives first referral of a situation from the Republic of Uganda
23 June 2004 – Opening of first ever ICC investigations in Uganda
29 June 2004 – Opening of ICC investigations in the Democratic Republic of Congo (DRC)
December 2004 – Government of Central African Republic (CAR) refers situation to the ICC
17 March 2006 – Congolese rebel leader Thomas Lubanga becomes first suspect arrested and transferred to the ICC
May 2007 – Investigations commence in CAR situation
3 July 2008 – Transfer of Jean-Pierre Bemba, former Vice-President of the DRC, to the ICC
14 July 2008 – ICC prosecutor issues arrest warrant for Omar al-Bashir, President of Sudan
26 January 2009 – Opening of first trial in the case of Thomas Lubanga
8 March 2011 – ICC issues summonses for Kenya’s President Uhuru Kenyatta and Deputy President William Ruto
14 March 2012 – Thomas Lubanga becomes first individual convicted by the ICC
15 June 2012 – Fatou Bensouda sworn in as the second Chief Prosecutor of the ICC
27 January 2016 – ICC opens first non-African situation in the conflict between Georgia and Russia
8 June 2018 – ICC appeals chamber acquits Jean-Pierre Bemba on all charges
15 January 2019 – ICC trial chamber acquits former Ivorian President Laurent Gbagbo

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NOTES

1. See UK statement to ICC Assembly of States Parties 17th session, published 5 December 2018

2. Clark, Phil, Distant Justice: The Impact of the International Criminal Court on African Politics, Cambridge University Press, 2018

3. Author’s interview, ICC, Office of the Prosecutor official, The Hague, 7 May 2011

4. ‘‘They killed them like it was nothing’: The need for justice for Côte d’Ivoire’s post-election crimes’, Human Rights Watch, 5 October 2011

5. ‘Laurent Gbagbo, Former Ivory Coast Leader, Acquitted of Crimes Against Humanity’, The New York Times, 15 Jan 2019

6. ‘Sudan President Bashir hails ‘victory’ over ICC charges’, BBC News, 13 December 2014

7. Between 2006 and 2016, the author conducted 426 community-level interviews in Uganda and the DRC (229 in the Acholi, Lango and Teso sub-regions of northern Uganda and in Kampala, and 197 in Ituri, North and South Kivu and Equateur provinces of the DRC and in Kinshasa); and 97 interviews with customary and civil society leaders (53 in Uganda and 44 in the DRC)

8. Author’s interview, Pabbo, 11 March 2006

9. Author’s interview, Congolese investigator, Bunia, 15 April 2013

10. Author’s interview, member of mediation team to Ugandan peace talks, Juba, 16 February 2007

11. Clark, Phil, ‘How Rwanda judged its genocide’, Africa Research Institute, May 2012

12. See Hicks, Celeste, The Trial of Hissène Habré, Zed Books, 2018

Dr. Phil Clark is Reader in Comparative and International Politics at SOAS University of London, where he is also the co-director of the Centre on Conflict, Rights and Justice. His latest book is Distant Justice: The Impact of the International Criminal Court on African Politics (Cambridge University Press, 2018), which is available in paperback through the CUP website.

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Interview with Nkongho Felix Agbor Balla by Edward Paice

Niki Wolfe — Mon, 23 Oct 2017 16:00:05 +0000

Nkongho Felix Agbor Balla is a barrister, founder and executive director of the Centre for Human Rights and Democracy in Africa, and president of the Cameroon Anglophone Civil Society Consortium (CACSC). In January 2017, he and Fontem Aforteka’a Neba, secretary general of CACSC were arrested and imprisoned. They were detained until the end of August, when a presidential decree ordered the Military Tribunal of Yaoundé to drop all charges. Other civil society leaders remain in detention. Listen to Africa Research Institute Director Edward Paice interview Felix on 23 October.

Podcast

Further Reading

“Cameroon’s descent into crisis: the long history of anglophone discord” (IRIN, 4 October 2017)

“Cameroon’s Anglophone crisis isn’t about language, but economic deprivation” (Amindeh Blaise Atabong, Quartz Africa, 9 October 2017)

“Cameroon: A Worsening Anglophone Crisis Calls for Strong Measures” (Crisis Group Africa Briefing No. 130, 19 October 2017)

“The Anglophone Dilemma in Cameroon” (Ateki Seta Caxton, ACCORD Conflict Trends, Issue 2, 2017)

“Cameroon’s Anglophone Crisis at the Crossroads” (Crisis Group Africa Report No. 250, 2 August 2017)

“Cameroon and the tumultuous autumn of an African patriarch” (FT View, 28 March 2017)

The post Interview with Nkongho Felix Agbor Balla by Edward Paice appeared first on Africa Research Institute.

En Afrique de l’Ouest, les révisions constitutionnelles ont-elles contribué à la consolidation de la paix et de la démocratie, ou l’inverse ?

Niki Wolfe — Wed, 18 Oct 2017 16:14:54 +0000

Also available in English / en anglais

In West Africa, it seems that the time for coups is over and that cherub-like constitutional revisions are in fashion. The heads of state have learned their lesson: they no longer seek to cling to power but to “modernize” it. In Côte d’Ivoire, Senegal, Burkina Faso and Mali, constitutional revisions propose to contribute to lasting peace and to consolidate democracy. Still modernization, brought by this inflation of new Constitutions, should not be rejected by a restive political-social context.

In Mali and the Ivory Coast, plans for constitutional revision were underpinned by requirements enshrined in the peace agreements reached at the end of the crises which struck these two countries. The need to strengthen institutions and reconcile peoples was the main driver. However, in the sub-region, the only constitutional revision project which seems to strengthen the institutions and the rights of the people, at least on paper, is that of Burkina Faso. This was announced, from the start, through the type of commission set up to develop said project. Unlike the committees of experts from Côte d’Ivoire and Mali, whose members were carefully selected by the government,

Whatever the stated objectives of democratic consolidation of these plans to revise the Constitution, the political context in which they are introduced depends on all its success, and especially its failure.

In Senegal opposition is bothersome

In Senegal, President Macky Sall poses as a defender of democracy, by showing his wish to modernize the Senegalese institutional system through 15 measures . According to him, the 2016 Constitution strengthens the powers and independence of the Constitutional Council and inscribes new rights and duties of the citizen in the new fundamental text. Ostensibly, Senegal consolidates democracy by reducing the presidential mandate from seven to five years, but this measure will not be effective until 2019. Also, in the new Constitution, President Macky Sall expressly recognizes “the rights of the opposition and its leader ”.

And yet, this constitutional revision project quickly lost its sincerity: just a few days before the constitutional referendum, Khalifa Sall, rising figure of the Socialist Party, the former ruling party, and Mayor of Dakar, is imprisoned in a matter of alleged embezzlement of public funds. This incarceration resembles, according to several figures of the Senegalese opposition, a personal settlement of accounts against a politician who seems to be the only one capable of putting Macky Sall in difficulty during the presidential elections of 2019.

Teen looking for his dolphin

In Côte d’Ivoire, Alassane Dramane Ouattara (ADO) seeks to end a decade of fratricidal tensions by proposing major changes to the 2000 Constitution which carries the seeds of the 2002 – 2007 civil war. In October 2016, the Ivorian President has carved out important powers by creating a Vice-Presidency of the Republic, considered as a maneuver to oust the former rebel leader Guillaume Soro, current President of the National Assembly and therefore number two in the order of succession to the presidency of the republic.

In the new Constitution, Ouattara however regulates the thorny question of the nationality of the parents of the candidate for the Presidency of the Republic. Only one of the two parents must be of Ivorian nationality, a change provided for in the Linas-Marcoussis Agreements signed in January 2003. The new Constitution also proposes the creation of a Senate of which a third of the members will be appointed by the head of the state. The creation of this second chamber of parliament has just been postponed to a later date due to social crises and recent mutinies which would have tested the coffers of the state.

IBK’s personal ambitions

In Mali, the same scenario with a few exceptions. President Ibrahim Boubacar Keïta (IBK) for some months aspired to accommodate the Algiers Agreements signed in May 2015, in a new Constitution which would revise that of 1992. As if the powers of the President were not great enough, the draft constitutional revision of 2017 proposed a strengthening of the powers of the head of state. The latter could have, if the Constitution had been approved, appoint the President of the Constitutional Court, the President of the Court of Accounts and a third of future senators. He could also have amended all the articles of the Constitution by parliamentary means, without the need for a referendum stamp.

However, the definition of the “ high treason crime ” with which ministers and heads of state can be charged in the exercise of their functions is welcome. Also, the representation of the Malian diaspora in Parliament, and the introduction of proportional representation ballots in the mode of election of deputies can be considered as positive measures for democracy. Indeed, these allow a more equitable representation of all regions of the country in the hemicycle.

Following numerous demonstrations by the living forces of the nation fiercely opposed to the draft Constitution – notably under the platform “ Ante a banna », The revision project was suspended as a whole. The citizens were right to sound the alarm: among about thirty innovations brought to the Constitution of February 25, 1992, there was only the creation of a Senate which was in direct link with the Algiers Agreements. Among the innovations, one consisted in giving immunity from prosecution to the President of the Republic for the duration of his mandate. Another was to lift the requirement that ministers declare their assets when they take office. These had an almost non-existent relationship with the peace process underway and did not seem to strengthen democracy and the rule of law, on the contrary!

Despite the wishful thinking on the part of the heads of state of West Africa, these referendums are perceived in national opinion as presidential early, which crystallize the tensions between opposition and ruling party, divide the opinion and threaten an already fragile societal balance. In Senegal, Mali and Ivory Coast, the new Constitutions or draft texts now allow a revision of the basic text, without resorting to a referendum. This means that the people, under the guise of a modern democracy, indeed lose their most fundamental rights. Where reality is as hard as iron, myth loses its place of honor.

Kamissa Camara is the Africa Director of PartnersGlobal in Washington DC and a political analyst affiliated with the Center for African Studies at Harvard University.

Mahamadou Konaté is a professor and political analyst in several elite schools in Mali, including the National Staff School and the Alioune Blondin Beye Peacekeeping School . He is based in Bamako.

Have constitutional changes in West Africa contributed to peace and democracy or the opposite?

In West Africa, an era of coups d’état seems to have given way to a more sedate period of constitutional reforms. Heads of state have learnt that rather than seeking to cling to power, they can seek to “modernize” it. In Côte d’Ivoire, Senegal, Burkina Faso and Mali, constitutional revisions have been framed as a means to promote peace and consolidate democracy. But the socio-political context in which such modernization has occurred is critical to understanding this trend.

In Mali and Côte d’Ivoire, constitutional reforms stemmed from the provisions of post-conflict peace agreements. The primary drivers of such changes were the need to strengthen institutions, and to reconcile parties to the conflict. The only country in the region where constitutional changes would seem to strengthen the rights of citizens, at least on paper, is Burkina Faso. This was made clear from the outset with the choice of commission established to draft the new basic law. In contrast to the committees of experts carefully selected by the governments of Côte d’Ivoire and Mali, the constitutional commission in Burkina Faso is representative of different social groups, including the opposition and faith-based organizations.

Whatever the stated objectives of such constitutional reforms, the political context in which they are initiated can determine their success, or their failure.

Opposition blues in Senegal

In Senegal, President Macky Sall has positioned himself as a defender of democracy, displaying a desire to modernize national institutions through a series of 15 reforms . Taking him at his word, the 2016 constitution strengthens the independence of the Conseil Constitutionnel and introduces new citizen rights and obligations. Ostensibly, democracy in Senegal is being consolidated through the reduction of the presidential term of office from seven to five years; however, this change will not be effective until 2019. In promulgating the new constitution, President Sall has expressly acknowledged “the rights of the opposition and its leader.”

Yet the constitutional reform project promptly lost its credibility when only days before the referendum, Khalifa Sall, a rising star in the Parti Socialiste (the former ruling party) and Mayor of Dakar, was detained over the alleged misappropriation of public funds. According to several opposition figures, this arrest was the result of a desire to settle scores with a political rival – perhaps the only man who could challenge the incumbent in the 2019 presidential elections.

ADO searches for a successor

In Côte d’Ivoire, Alassane Dramane Ouattara (ADO) sought to bring to an end a decade of fratricidal tensions by overhauling the 2000 constitution, which had sowed the seeds for the 2002-2007 civil war. In October 2016, the Ivorian president carved out changes to executive authority by creating the position of vice-president, widely interpreted as a move to side-line former rebel leader, Guillaume Soro, who as president of the National Assembly was then number two in the constitutional succession order.

The new constitution resolves, once and for all, the thorny question of nationality. Presidential aspirants must prove that at least one of their parents is Ivoiran, a change foreseen in the Linas-Marcoussis Accords , signed in January 2003. The new constitution also lays the foundations for a Senate, in which one third of seats would be appointed by the head of state. The establishment of this second chamber of parliament has so far been delayed; a result of social and military unrest and its impact on cost to the exchequer.

IBK’s personal ambitions

In Mali, the story is broadly the same, albeit with certain exceptions. President Ibrahim Boubacar Keïta (IBK) has, in recent months, endeavored to integrate the Algiers Accor ds, signed in May 2015, into a new constitution modeled on the 1992 basic law. As if executive authority was not sufficient, amendments proposed to further strengthen the powers of the president. If the 2017 draft constitution had been approved, the head of state would have been able to appoint the president of the Constitutional Court, the president of the national audit body ( Cour des Comptes ), and one third of Senators. Additionally, the executive would have been able to amend any article of the constitution through a vote in parliament, without the need for a popular referendum.

Nevertheless, the proposed constitution did include certain welcome measures, such as plans to define “ high treason ”, accusations of which can be levelled at ministers and the head of state in the conduct of their office. Equally, plans for the Malian diaspora to be represented in the legislature, and to use proportional representation for the election of MPs can be seen as positive developments for Malian democracy. Indeed, these would offer to more equitable parliamentary representation for all regions of the country.

Following a number of demonstrations by activists opposing the planned constitution – notably under the banner of ” Ante a banna “, the proposals were dropped. Citizens were right to sound the alarm: among the 30-odd changes to the Constitution adopted on February 25, 1992, only the creation of a Senate stemmed directly from the Algiers Accords. One innovation proposed was to give the President immunity from prosecution during his term of office. Another was to waive the requirement for ministers to declare their assets upon assuming office. Such moves have next to no relationship with current peace process, and cannot be seen as strengthening democracy or the rule of law.

Whatever the pious vows of West African heads of state, constitutional referendums are viewed locally as presidential elections ahead of time. They escalate tensions between the opposition and the ruling party, divide popular opinion and threaten to disrupt fragile social equilibriums. In Senegal, Mali and Côte d’Ivoire, new constitutions or draft texts have opened the door to further revisions without plebiscites. Thus, under the guise of a modern democracy, citizens are being deprived of one of their most fundamental rights – a say in changes to the basic law.

Kamissa Camara is Africa Director at Partners Global in Washington, DC, and a political analyst affiliated with the Center for African Studies at Harvard University.

Mahamadou Konaté is a lecturer and political analyst at numerous institutions in Mali, notably the National Staff School and the Alioune Blondin Beye Peacekeeping School . He is based in Bamako.

The post En Afrique de l’Ouest, les révisions constitutionnelles ont-elles contribué à la consolidation de la paix et de la démocratie, ou l’inverse ? appeared first on Africa Research Institute.

How alternative dispute resolution made a comeback in Nigeria’s courts – Onyema and Odibo

Niki Wolfe — Fri, 23 Jun 2017 09:17:26 +0000

When the Lagos Multi-Door Courthouse (LMDC) opened in 2002, it was Africa’s first court-connected alternative dispute resolution centre. Adapted from a concept first articulated by a Harvard law professor, but embracing indigenous dispute resolution practices, the LMDC was both innovative and rooted in Nigeria’s past. It offers an appealing alternative to litigation. Cases are consistently resolved more quickly, cheaply and amicably than those heard in Nigeria’s congested courts.

Complementing, rather than seeking to replace, the formal legal system, the LMDC has improved access to justice in Lagos State. More significantly, by diversifying the dispute resolution options available to Lagosians, and familiarising lawyers and the public to their advantages, the LMDC has eroded a long-standing national bias towards litigation. Fourteen Nigerian states and the Federal Capital Territory (Abuja) have replicated the model, showcasing the efficacy of dispute resolution mechanisms that resonate with local culture and practice.

By Emilia Onyema and Monalisa Odibo

Foreign systems
Court short
From the Citizens’ Mediation Centre…
…to the Lagos Multi-Door Courthouse
Due process
Resolving disputes
Alternative dispute resolution on the rise
Notes

Nigeria is a highly litigious society. In Lagos State alone, over 30,000 new civil cases are filed each year.¹ Many claimants have to wait a decade for a verdict, which may then be subject to an appeal. It was not always thus. The modern court system is based on an imported model, introduced by the British. Before the colonial period, the various peoples that inhabit present-day Nigeria practised customary dispute resolution, elements of which are immediately recognisable to the lawyers of today. What is now termed alternative dispute resolution (ADR) embraces three distinct strands: negotiation, mediation and arbitration.²

Negotiation is a natural recourse for two individuals seeking to settle differences through discussion. Should this fail, disputants might approach an independent third party. Historically, in what is now Nigeria, this might have been a local elder or traditional authority, such as a king, emir, oba, obi or eze. Alternatively, it may have been a group of elders with a specific and recognised function in the community, or a council of chiefs.

Mediation sees the third party encouraging disputants to compromise in pursuit of a mutually agreed outcome. The participatory nature of the mediation process enables disputants to exercise a degree of control over the settlement, rather than having a decision imposed on them. In many cases, this makes for a “win-win” arrangement, and thus a durable resolution of the conflict.

Arbitration involves the third party conducting a simplified trial, hearing evidence presented by the disputants (or a family member representing them). Traditionally, this procedure was inquisitorial, with questions posed by the “judge”, rather than accusatorial, whereby arguments are advanced by advocates of the court (as under English law).³ Considering local customs and relevant precedents, the third party would withdraw to deliberate and eventually issue a verdict.

Under both arbitration and mediation, the focus of the neutral party was to resolve the dispute over and above punishing malfeasance. T.O. Elias, who would later serve as Nigeria’s first attorney-general and as chief justice of the Supreme Court, characterised the “African judge as a peace-maker anxious to effect a reconciliation.”⁴ If compensation was awarded or agreed to, a ceremonial reconciliation of the parties would often follow its payment. Igbos, Nigeria’s third-largest ethnic group, traditionally brought palm wine and oil beans to share with the aggrieved party.⁵ According to law professor Nonso Okereafoezeke, reconciliation is the “central pivot of Nigeria’s native justice systems”.⁶

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Foreign systems

During the colonial period, courts of law were introduced as and when the British administration required them. From the 1840s, merchants established “equity courts” to regulate trade on the Bight of Biafra, and in the Upper Niger and Benue basins. Ten specialised courts were established in the Colony and Protectorate of Lagos between 1861 and 1874.7 These systems were amalgamated into one political and administrative entity, with a common legal system, from 1906 to 1916.⁸

Although not immediately available to all Nigerians, the introduction of formal court processes and litigation provided those in cities with a new means of pursuing their grievances. For many, this new legal system had one major comparative advantage: enforcement. The colonial state had the authority to imprison misfeasors or confiscate their assets, potentially even awarding compensation to the aggrieved party.

The ability of the courts to enforce their decisions through the state apparatus raised the prominence of litigation above traditional dispute resolution processes. The English court system overtook customary processes in importance, popularity and use. As the idea of statehood, its powers and dominance became clearer, so did the supremacy of litigation before the courts and the public justice system.

The introduction of a formal legal system also established norms relating to access to justice. This encouraged urbanised Nigerians to view litigation before state courts and tribunals as the proper way to seek justice or assert a legal right, rather than pleading with a traditional leader to intervene. This adversarial foreign import thus became the dispute resolution mechanism of choice for city dwellers in colonial Nigeria. The formal legal system has remained pre-eminent since independence in 1960.

The 1999 Nigerian constitution entrenches the supremacy of litigation through Chapter VII, which sets out the hierarchy of the courts and their respective jurisdictions. A whole infrastructure perpetuates this state of affairs: from the Ministry of Justice and the legal practitioners who earn their living from litigation, to the judges delivering verdicts, and the police, sheriffs and prisons enforcing them. Equally committed to the status quo are the educational institutions that produce the employees who sustain the legal industry.

A lack of knowledge of ADR among lawyers and judges, and a perception that such methods might threaten their core business, contributed to a lack of interest in mediation and arbitration. The Nigerian legal profession has, however, belatedly acknowledged the need to relieve pressure on a congested court system, in which repeated adjournments see disputes indefinitely deferred and not resolved.⁹

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Court short

A typical court case now takes between two and 20 years to conclude. A 2012 review of commercial cases before the courts in Lagos, found that it took an average of 583 days to resolve a case in the court of first instance – that is, the initial trial court where an action is brought.¹⁰ After that, the appellant might still appeal the verdict, deferring resolution for a decade or more.

For example, in a dispute over fundamental legal rights, Ariori v Elemo was filed at the Lagos High Court in October 1960, with the first judgment in October 1975. An appeal was eventually heard by the Supreme Court in January 1983. Emeka Nwana v Federal Capital Development Authority, was filed following the claimant’s dismissal from employment in April 1989, but was not resolved by the Supreme Court until April 2007.

The situation is unlikely to improve. Since independence, the population of Nigeria has quadrupled to approximately 185 million. If the current growth rate continues, Nigeria’s population will double again by 2050, making it the third most populous country on the planet. Even if the entire legal infrastructure can expand at the same rate, it may not be suited to help Nigerians resolve disputes. Some 54% of Nigerians surveyed by Afrobarometer stated that they were unable to understand the legal process and procedures; 48% could not obtain legal counsel or advice; and 44% left court feeling that their side of the story had not been heard.¹¹

The adversarial nature of the courts means that a judge rules in favour of one party and against another, awarding sentences that often fail to satisfy either party. The winner-takes-all nature of the judicial system is encapsulated by the Yoruba expression “A ki ti Kootu de ka sore”, meaning you do not return from court and remain friends. The idea of a sympathetic third party hearing disputes and contributing to their resolution continues to resonate with Nigerians.

Since the 1990s, local businesses have moved to include arbitration clauses in contracts with suppliers, aware that a dispute is likely to be more promptly resolved by arbitration than the formal court system. The evolution of this practice encouraged Nigeria’s federal and state governments to regulate aspects of arbitration, making provisions to support the process and its outcome. Incrementally, arbitration became backed by the same enforcement powers as the formal system. Placing arbitration on an equal footing with litigation prompted a renewed interest in ADR among Nigerians. Mediation is increasingly recognised as the most appropriate means to resolve minor disputes that would normally proceed to civil court.¹²

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From the Citizens’ Mediation Centre…

Lagos, Nigeria’s commercial capital and most densely populated state, was an early centre of innovation. In 1999, the Lagos State Ministry of Justice established the Citizens’ Mediation Centre (CMC) to provide free dispute resolution services to indigent Lagosians. With 49% of Nigerians reportedly unable to pay the costs to pursue litigation, the new centre filled an evident gap.¹³ Targeting unresolved disputes over relatively small sums of money, the CMC focused on debt recovery, and quarrels between employers and employees, landlords and tenants, or among members of the same family.

The CMC became a separate legal entity in 2007 and now offers free services across Lagos. Its model has been replicated in 16 states. In addition to broadening access to justice and alleviating the burden on the court system, the CMC can boast a significant degree of success. It resolved 46% of cases handled in 2012-13, a figure that reached 54% in 2014-15. This has been against the backdrop of increasing demand for the centre’s services: the number of cases handled increased from 25,641 to 35,203 over the same period.¹⁴

The success of the CMC led the state judiciary to consider how it might broaden the dispute resolution channels available to Lagosians. In 2001, government lawyers enlisted technical support from the Negotiation and Conflict Management Group (NCMG), an organisation committed to the promotion of ADR in the public and private sectors.

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…to the Lagos Multi-Door Courthouse

NCMG founder Kehinde Aina was a commercial lawyer who was frustrated by the number of cases stuck in the system that were unresolved after a decade or more. In a bid for change, Aina adapted for Nigeria a model drawn up by Prof. Frank Sander at Harvard University: the Multi-Door Courthouse (MDC).¹⁵ In this context, the “doors” refer to accessing various processes of dispute resolution, as opposed to the single option of litigation. Sander envisioned:

not simply a courthouse but a Dispute Resolution Center, where the grievant would first be channelled through a screening clerk who would then direct him to the process (or sequence of processes) most appropriate to his type of case.¹⁶

Aina convinced the Lagos State executive and judiciary of the merits of the MDC scheme. He consulted with the Nigerian Bar Association, local corporations and communities to ascertain their needs. Working with the Lagos High Court, Aina piloted Sander’s comprehensive justice centre.

When it opened in June 2002, the Lagos MDC (LMDC) became the first court-connected ADR centre in Africa, its mission to provide timely cost-effective and user-friendly access to justice. During the initial three years, Aina managed the operations of the courthouse, demonstrating his commitment to the new institution and to promoting ADR. In May 2007, the state legislature enacted the Lagos Multi-Door Courthouse Law, providing statutory backing to the scheme. This enabled the private dispute resolution processes to exist alongside the public dispute management space of the courts. Aina terms these spaces where parties meet to resolve disputes “settlement rooms”.

The LMDC is situated on premises of the High Court on Lagos Island. It also manages an ADR track at the High Court in Ikeja. When cases are heard at these locations, a judge may determine that ADR is a more appropriate means of resolving the conflict than litigation, referring the dispute to the LMDC. Each year, during “Lagos Settlement Week” (LSW), judges from courts across the state are required to refer cases to the LMDC. The first LSW in November 2009 saw the LMDC settle 45% of cases it mediated, compared to 12.5% of cases pursued through litigation during the same period.¹⁷ All of these disputes were resolved in the space of an extraordinary session, which lasted only three hours. Aside from decongesting the courts, the week helps to make Nigerians aware of the advantages of ADR. LSW has become an established part of the judicial calendar, reminding lawyers of the benefits of settling disputes without litigation.

Judges came to regard the LMDC as an ally rather than a rival. In 2012 the Lagos High Court Procedure Rules instigated mandatory case-screening and referrals. All cases before that tribunal are now evaluated for their suitability for resolution by ADR, and, where appropriate, referred to the LMDC. Initially, the 2007 LMDC law had provided for the mandatory referral of cases only where “one of the parties to a dispute in court was willing to attempt ADR.”¹⁸

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Due process

Lagosians, however, do not need to approach a court to resolve their disputes. Individuals are free to contact the LMDC directly and initiate a case. Indeed, between 2002 and 2008, “walk-ins” exceed referrals from judges. The instigation of LSW in 2009 shifted the balance towards court referrals, which now run to thousands each year, whereas walk-ins remain in the hundreds. The surge in the number of cases the LMDC handles has significantly increased the number of disputes it has successfully resolved. This has, however, also led to an increase in the number of “unconcluded matters”. In 2014 and 2015 the number of cases that failed to be concluded exceeded those that went the distance. For concluded matters, the settlement rate has remained relatively high, averaging 65% in 2014 and 2015. In a 2015 survey of LMDC users, 69% of respondents described themselves as very satisfied or satisfied with the process; and 86% reported that they would recommend the scheme.¹⁹

Lawyers and officials in Lagos debate the pros and cons of mandatory referrals to the LMDC. Those in favour argue that this promotes the speedy and inexpensive resolution of disputes, improves access to justice and reduces the court backlog.²⁰ Each case the LMDC handles raises awareness of the scheme, and the existence of alternatives to litigation. Even when settlements are not reached, sharing their views outside of court may play a constructive role in helping parties to better understand their disputes. Disputants may benefit from exploring the possibilities of settlement at an early hearing, rather than enduring a lengthy and potentially expensive trial. Evidence from other contexts indicates that a majority of civil disputes are concluded on the basis of an out-of-court settlement, rather than a judicial determination.²¹

It is conceivable that disputants and their lawyers need to be coaxed towards ADR because of an inherent bias towards, or familiarity with, litigation.²² Only by meeting at the courthouse will litigants and lawyers become familiar with alternative means of resolving disputes, understand their potential benefits and consider ADR in future. Mandatory referral to ADR processes eradicates the “signalling effect of weakness”, eliminating hesitancy over ADR because of a fear that the opposing party might underestimate the strength of the disputant’s case or their resolve and means to sustain it through litigation.²³

Opponents of mandatory referral hypothesise that disputes successfully resolved by ADR following judicial referral would have been handled by the courts in due course and question whether it promotes more settlements than voluntary take-up of ADR. They maintain that a reduction in delay or cost is not an automatic benefit and is only the outcome of successfully resolved cases. Rather, where a case is referred to ADR but is not settled, it only delays the resolution of a dispute.²⁴ Counterfactuals aside, critics argue that pressuring an unwilling party to come to the negotiating table may diminish the perceived advantages of ADR. Informal dispute resolution is attractive because of its voluntary nature; accordingly, a consensual process is more likely to lead to agreement than one where a party or parties do not wish to participate.²⁵ Finally, it is possible to argue that not all cases are suitable for ADR and thus referrals should be discretionary.

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Resolving disputes

Regardless of how Lagosians find themselves at the courthouse, the process is simple: a disputant completes a request form and a statement of issues. These are then sent to the other party, asking them to respond with their submission within seven days. Next, at an intake screening, a dispute resolution officer (DRO) clarifies the nature of the claim and identifies underlying issues. The DRO describes the options available, assessing the needs of the case and helping the disputants to agree on an appropriate “door”.

Between 2002 and 2015, 98% of disputants opted for mediation. The registrar proposes a third party with relevant experience, who is assigned from the LMDC’s panel of neutrals – a group that consists primarily of lawyers, although legislation permits experienced ADR practitioners from any professional background.²⁶ A date is scheduled for a session and confidentiality agreements signed. If one party fails to attend, an ADR judge may intervene.

Mediation will take different forms depending on the nature of the dispute, but typically the neutral solicits presentations from both parties, unearthing information on their shared history, legal issues, damages sought, and subjective factors. Mediators seek to identify impediments to resolution, and common ground. Encouraging the parties to speak reveals hidden emotions and resentments, uncovering underlying issues of power and control. In discussion with the mediator, parties to the dispute can propose their preferred terms of evaluation and enforcement, shaping the outcome.

Assuming parties are willing to enter the settlement room without legal representation, the process can remain simple and free from complex legal terminology. Removing procedural and language barriers increases the likelihood of reaching a speedy and sustainable settlement. ADR practices also resonate with Nigerians from all three major ethnic groups: Hausa, Igbo and Yoruba.²⁷ By hearing the dispute behind closed doors, the LMDC provides confidentiality, thus preserving reputations and relationships. Dispensing with the need for witnesses to testify before open court also reduces the emotional costs of resolving disagreements. These factors tend to make mediation popular in family and inheritance disputes, and some commercial ones.

If a resolution is reached by mediation, parties sign a settlement agreement. This is initially equivalent to a contract; but once presented to one of the six ADR judges in Lagos, it becomes comparable to a court ruling, with the state required to act upon its breach. Awards that arbitrators make are similarly enforceable by leave of the court, albeit under different legislation.²⁸

Limitations remain, however. While the LMDC centres share premises with the High Court in Lagos, links with lower-level tribunals, such as magistrates’ courts and area courts, are still weak. If the LMDC, or indeed the CMC, had a physical presence at locations where most low-value disputes are first heard, a greater volume of cases could be resolved through mediation. Co-location at the Court of Appeal might encourage weary participants – and judges – to pursue an alternative means of resolving their differences.

More could be done to harmonise systems. Despite the physical co-location in Lagos Island and in Ikeja, the LMDC and courts do not yet share the same registry, as envisaged by Kehinde Aina. At present, disputants are required to file discrete papers and pay separate filing fees. Aina describes a shortage of funding as the reason behind the failure to centralise the registry and facilitate the tracking of cases suitable for resolution by ADR.

There are benefits to the LMDC remaining detached, however. By asserting its independence, the courthouse is able to offer a credible alternative to the formal legal system, rather than becoming an appendage of the state judiciary. ADR should be viewed as an alternative to litigation, rather than a supplementary process.²⁹

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Alternative dispute resolution on the rise

The success of the MDC model has seen it replicated across Nigeria. In October 2003, the judiciary of the Federal Capital Territory established an MDC in Abuja, where the majority of government departments are located. From 2006, MDCs followed in 14 more states.³⁰ Aina views the replication of the model as having been driven by innovation on the part of individuals with an appreciation of the needs of the private sector, rather than those seeking career advancement in the judiciary.

Chief Justice of the Federation Walter Onnoghen has pledged to establish a dedicated mediation centre at the Supreme Court in Abuja. This would ensure that even parties to litigation at its most advanced stage can resolve their disputes amicably while on-site. The National Industrial Court of Nigeria, responsible for hearing employment disputes and grievances brought by trade unions, has established ADR centres at its divisions in Abuja, Kano, Gombe, Enugu, Calabar and Ibadan. Similarly, the Chartered Institute of Bankers of Nigeria has promoted the use of ADR within financial disputes, while the National Judicial Institute has organised training for magistrates.

It is all the more impressive that such replication has been spearheaded by entrepreneurial Nigerians rather than co-ordinated by the federal government. There remains scope for working with the private and public sectors to promote awareness of ADR processes and their efficacy in resolving certain types of disputes. Courthouse advertisements in Pidgin English or Nollywood films and TV soap operas demonstrating the value of ADR could increase walk-ins, rather than relying on judges to refer cases or lawyers to recommend alternatives to litigation.

Some Lagosians already appear to recognise the potential. Businesses have adopted ADR with zeal, offering additional means of resolving disputes. Lagos now hosts several specialist centres, some of which have enacted bespoke arbitration rules for adoption and use by disputants, while others use the rules annexed to the Nigerian Arbitration and Conciliation Act. Such centres are increasingly targeting regional and international clients, as the state judiciary does not refer cases to private providers.

In November 2012, the Lagos Court of Arbitration (LCA) was launched at the Kuramo conference, a forum for lawyers and businesspeople convened by Nobel Prize-winning author Wole Soyinka. An independent initiative, operating out of premises donated by the state government, the LCA demonstrated the desire of the private sector to promote Lagos as a venue for commercial dispute resolution. The LCA operates out of the International Centre for Arbitration and ADR, the first purpose-built ADR centre in Africa.

The legal profession is gradually recognising the importance of ADR. In August 2015, the then chief justice, Mahmoud Mohammed, called on those attending the Nigerian Bar Association annual general meeting to engage more with ADR processes. Some local universities and the Nigerian Law School have now included ADR in their curriculum and qualified lawyers can acquire training from specialised ADR centres and arbitration institutions. The NCMG and University of Lagos intend to partner in establishing a College of Negotiation, loosely modelled on the globally renowned Harvard Program on Negotiation.

Nigeria would benefit from greater clarity in legislation. It remains possible for ADR to be further integrated into the formal justice system, through recognition under the constitution or laws clarifying their relationship with the state enforcement apparatus. Such steps would increase disputants’ confidence in the process and reassure them that participation in mediation or arbitration is equivalent to having their “day in court”. It would send the message that parties need not sacrifice expediency for durability. Here, Nigerian lawyers have a particular role to play in reminding Nigerians of their cultural heritage and the benefits of resolving conflict without recourse to the courts.

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NOTES

1. According to the Lagos State Government’s Digest of Statistics, between 2010 and 2012 a total of 96,994 civil cases were filed in the various high courts of Lagos State

2. The LMDC and ADR practitioners in Nigeria recognise early neutral evaluation and other hybrid processes

3. Elias, T.O., The Nature of African Customary Law, Manchester: University Press, 1956, p.247

4. Ibid., p.272

5. Green, M.M., Ibo Village Affairs, Sidgwick & Jackson, 1948, p.110, cited in Elias, The Nature of African Customary Law, p.269

6. Okereafoezeke, Nonso, Law and Justice in Post-British Nigeria: Conflicts and Interactions Between Native and Foreign Systems of Social Control in Igbo, Westport, CT: Greenwood Press, 2002, p.14

7. Elias, T.O., The Nigerian Legal System, London: Routledge & Kegan Paul, 1963, p.44

8. Ewelukwa, D.I.O., “Administration of Justice”, in Okonkwo C.O. (ed.), Introduction to Nigerian Law, London: Sweet & Maxwell, 1980, p.59

9. Onyema, Emilia, “The Multi-door Court House (MDC) Scheme in Nigeria: A case study of the Lagos MDC”, Apogee Journal of Business, Property & Constitutional Law, (Vol. 2; No. 7), 2013, pp.96–130

10. Arnot, Bob, “How Lagos judges are now resolving disputes more quickly”, British Council Voices Magazine, 20 February 2015

11. Logan, Carolyn, “Ambitious SDG goal confronts challenging realities: Access to justice is still elusive for many Africans”, Afrobarometer, March 2017, pp.21–22

12. While providing a non-adversarial alternative to litigation, mediation in Nigeria has yet to be afforded the same statutory backing as arbitration

13. Logan, op. cit., p.21

14. “Access to Mediation and Legal Assistance Services”, Justice for All Nigeria, CIP 2.3, Impact Report 6, 6 October 2015, p.4

15. Sander, F.E.A., “Varieties of Dispute Processing”, The Pound Conference 1976: perspectives on justice in the future Minnesota: West Publishing Co., 1979, pp.65–87

16. Ibid., p.84

17. Ani, Comfort Chinyere, “Alternative Dispute Resolution (ADR) in Nigeria: A Study of the Lagos Multi-Door Courthouse (LMDC)”, in Ernest Uwazie (ed.), Alternative Dispute Resolution and Peace-building in Africa, Cambridge Scholars Publishing, 2014, p.48

18. Odibo, Monalisa, “Access to Justice Through Court Annexed Alternative Dispute Resolution Programmes: A Critical Assessment of the Multi-Door Courthouse System in Nigeria”, Paper presented to the Society of Legal Scholars, Oxford, 8 September 2016, p.3

19. Ibid., p.9

20. Lukman, Ayinla, “Enhancing Sustainable Development By Entrenching Mediation Culture In Nigeria”, Journal of Law, Policy and Globalization (Vol. 21), 2014

21. Genn, Hazel, Riahi, Shiva and Pleming, Katherine, “Regulation of Dispute Resolution in England and Wales: a Sceptical Analysis of Government and Judicial Promotion of Private Mediation”, Regulating dispute resolution: ADR and access to justice at the crossroads, Bloomsbury Publishing, 2014, p.139

22. Dawson, Michael, “Non-Consensual Alternative Dispute Resolution: Pros and Cons”, Australian Dispute Resolution Journal (Vol. 4), 1993

23. Bernstein, Lisa, “Understanding the Limits of Court-connected ADR: A Critique of Federal Court-Annexed Arbitration programs”, University of Pennsylvania Law Review (Vol. 141, Issue 6), 1993, p.2169

24. Hensler, Deborah R., “ADR Research at the Crossroads”, RAND Corporation, 2001

25. Ojelabi, Lola Akin, “Improving Access to Justice through Alternative Dispute Resolution: The Role of Community Legal Centres in Victoria, Australia”, La Trobe University, September 2010

26. Lagos Multi Door Court House Law (2007), S20

27. Van Zeijl, Femke, “A new type of justice for Nigeria”, Al Jazeera, 8 October 2016

28. Settlement agreements signed by parties attending mediation are regarded as a legal agreement between the parties, enforceable under Section 19 of the Lagos Multi Door Court House Law (2007). Once an ADR judge has validated the agreement, it shall be deemed to be enforceable under Section 11 of the Sheriffs and Civil Process Act (1990). Arbitration awards are enforced under the Arbitration and Conciliation Act (1988). Terms of Settlement or Memoranda of Understanding reached at other institutions can be processed by the LMDC and endorsed by an ADR judge, enforceable as a consent judgment of the Lagos State High Court

29. Rooke, John, “The Multi-Door Courthouse is Open in Alberta: Judicial Dispute Resolution is Institutionalized in the Court of Queen’s Bench”, University of Alberta, 2010

30. These are: Kano, Akwa Ibom, Kaduna, Abia, Ondo, Cross River, Katsina, Delta, Bornu, Bayelsa, Ogun, Kwara, Edo and Enugu States

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Dr Emilia Onyema is senior lecturer in international commercial law at the School of Oriental and African Studies (SOAS), University of London, where she convenes postgraduate courses in dispute and conflict resolution and teaches international trade law, and law and development in Africa. Dr Onyema is a member of the editorial board of the Journal of African Law.

Dr Monalisa Ofure Odibo completed her PhD at Bangor University where her thesis was a critical assessment of the LMDC scheme. She obtained an LLM International Commercial Law at the University of Aberdeen, and LLB (Hons) at the University of Wolverhampton. Dr Odibo is a qualified mediator, barrister and solicitor and a member of the Nigerian Bar Association.

The post How alternative dispute resolution made a comeback in Nigeria’s courts – Onyema and Odibo appeared first on Africa Research Institute.

Justice without lawyers in Nigeria: How Lagos fashioned an alternative to litigation

Niki Wolfe — Fri, 02 Jun 2017 14:12:27 +0000

On Thursday 22 June, ARI hosted the launch of “How alternative dispute resolution made a comeback in Nigeria’s courts”. The authors, Dr Emilia Onyema of SOAS, University of London, and Dr Monalisa Ofure Odibo of Bangor University, reflected on the growth of the Lagos Multi-Door Courthouse (LMDC) since its founding 15 years earlier, and the resurgence of alternative dispute resolution (ADR) in Nigeria. Below are 10 salient points from the discussion:

Litigation was not always supreme

In pre-colonial Nigeria, local communities practised different dispute resolution processes which encompassed elements of negotiation, mediation and arbitration. By contrast, the colonial administration introduced a judicial system modelled on English laws and practices. Courts designed for European settlers gradually gained favour among Nigerians, primarily because their rulings were enforced by the state authorities. Litigation became the preferred means to resolve disputes. The 1999 constitution reinforces this prejudice, while law schools, attorneys, judges, court officials and police sustain the status quo.

Justice is slow and stressful

Nigeria’s courts face significant backlogs, cases are subject to severe delays, and the whole judicial process carries a huge emotional expense. Few disputants understand what is said in court. The system is structured to include procedural questions, with lawyers frequently appealing technicalities all the way to the Supreme Court. Nigerians are acutely aware of their constitutional right to appeal; however, the system is open to abuse. With many cases dragging on for 20 years or more, some disputes outlive the plaintiffs and defendants.

The LMDC offers a different model

In recent years, the Nigerian private sector has embraced arbitration as a means to resolve disputes without having to wait for a judicial ruling. In June 2002, Kehinde Aina introduced an adapted version of the Multi-Door Courthouse (MDC) in Lagos. This was an innovation spearheaded by Harvard law professor, Frank Sander, under which disputants are presented with a series of “doors” leading to different dispute resolution mechanisms (much as one finds doors to individual flats in an apartment block). The model stresses the equivalence of mediation and arbitration with litigation. According to Sander’s model, the MDC would share a single registry with the formal court system, facilitating case management; however, this has yet to come to pass in Lagos.

Lagos as a test-bed for ADR

Nigeria’s commercial capital has an innovative and forward-looking government. Babatunde Fashola was the first Senior Advocate of Nigeria (SAN) to serve as Governor of Lagos State. He supported the introduction of the LMDC during his term of office, May 2007 to May 2015, and prior to that as Chief of Staff to Governor Bola Tinubu. The Lagos State judiciary embraced the MDC scheme during the tenure of Justice Ayotunde Phillips, who served as Chief Judge from July 2012 to July 2014. Before the Lagos Multi-Door Courthouse Law was enacted in June 2007, the use of the LMDC was entirely voluntary, with disputants mandated to use the scheme if one or more of the parties approached a judge. The 2012 High Court Civil Procedure Rules provide for all cases filed to be screened for suitability for ADR, and if appropriate, referred to the LMDC.

Mandatory referrals are controversial

By referring cases for mediation, judges raise awareness of the MDC scheme among the public, which might not be aware of alternatives to litigation. Forcing parties to engage with the LMDC eradicates the “signalling effect of weakness” under which disputants – or their lawyers – might hesitate to propose settlement by ADR out of a fear that their opponent would then underestimate the strength of their case or their resolve. As a majority of civil disputes are concluded on the basis of an out-of-court settlement rather than a judicial determination, the very act of convening parties might expedite the resolution of their case – or at the least, help them to better understand the nature of their dispute. Finally, referrals reduce the number of cases handled by the courts, reducing the backlog in the formal system.

By contrast, informal dispute resolution is attractive precisely because of its voluntary nature. If the parties approach the process in good faith, it is more likely to lead to resolution than if they are reluctant to participate. This is particularly the case where disputants do not consider their case to be suitable for ADR. They may come to feel that they are being denied their day in court. Equally, the process is open to abuse – lawyers can use the additional step as a delaying tactic.

The Citizens’ Mediation Centre

Low value civil disputes are increasingly referred for mediation rather than proceeding to the magistrates’ courts. Since 2010, no cases have been heard by the Lagos State rent tribunal. These disputes have instead been handled by the Citizens’ Mediation Centre (CMC), which exists to provide indigent Lagosians with a free means of dispute resolution. CMCs are administered by Local Government Associations, rather than the Lagos State government. They are more accessible to ordinary citizens than the LMDC, located at the High Court. In Lagos, the CMC handles as many civil disputes each year as are filed with the courts.

How can the LMDC grow?

It would not be helpful for government to subsidise the LMDC in order to increase the number of cases it handles. The Courthouse offers a valuable service; users should pay a fee to use it. Once the state is the sole source of funding, an institution becomes dependent on the generosity of government, which is liable to change as politicians come and go. The LMDC should assert its independence. A recent pilot with three local banks, whereby the LMDC charged fees to resolve disputes raised by customers, demonstrates the potential. However, to undertake such initiatives, the LMDC must not be bogged down with small-value disputes – it needs to retain capacity to handle serious commercial matters.

What future for court-connected ADR in Nigeria?

The Supreme Court intends to open a mediation centre, but court-connected ADR is not the answer to every problem. Reducing the number of outstanding cases in the system would ease the burden on the judiciary in a much more effective manner. The government should instead promote ADR at the courts of first instance (magistrates’ courts and the High Court). Lawyers are also part of the problem – they want to keep cases in the system, rather than have them resolved.

Where do customary dispute resolution mechanisms fit in?

The more avenues available to resolve disputes, the better. That includes customary courts and area courts. The important question is how rulings from customary dispute resolution processes can be enforced by the state. It might be possible to borrow from the LMDC model and have a duty judge sign an agreement drawn up following mediation or arbitration. Enforcement remains key to increasing confidence in ADR. If traditional chiefs or community heads are able to resolve local disputes then they should be able to obtain a court order. In Ghana, customary arbitration is recognised in the ADR Act 2010. Chiefs in certain parts of the country are able to resolve disputes, reduce the agreement in writing, and have it enforced by a judge.

What more could be to convince trainee lawyers of the advantages of ADR?

Aspiring advocates attending the Nigerian Law School (NLS) can take a course in ADR, but this is delivered by a private provider and additional payment is required to participate. The NLS curriculum should be redesigned to reflect the breadth of potential practice areas. Trainee lawyers already spend four months attached to a local institution. Historically, this has been split to allow for a two-month placement with the courts; and a further two months working at a law firm. The LMDC is considered part of the court architecture so there is no reason why NLS students cannot be placed there. The Courthouse is short-staffed and could benefit from working with trainee lawyers, who also need to gain practical experience of case management. ADR should also be included in the law curricula at Nigerian universities so that aspiring advocates have a sense of its value before they attend the NLS.

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The State of Kenya

Niki Wolfe — Tue, 30 May 2017 14:51:46 +0000

On Wednesday 28 June we were joined by three speakers to discuss the state of the media, land matters and the economy, ahead of the August 8th election.

Kwame Owino is chief executive officer of the Institute of Economic Affairs (Kenya).

Ambreena Manji is Professor of Land Law and Development at Cardiff University and former director of the British Institute in East Africa. She is the author of ARI Counterpoint ‘Whose land is it anyway: The failure of land law in Kenya‘

Denis Galava is a former Managing Editor of the Nation Media Group.

The event marked the launch of “How Kenya is failing to create decent jobs” by Kwame Owino, Ivory Ndekei and Noah Wamalwa”.

The interview with Denis Galava featured in the event is separately available here as well.

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Land, Law and Traditional Leadership in South Africa

Yovanka ARI — Fri, 17 Jun 2016 14:04:16 +0000

June 2016

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More than two decades after the end of apartheid, land remains an emotive fault line in South Africa. Many in rural communities have lost patience with the paternalistic approach of traditional leaders, commercial farmers and mining corporations. The African National Congress (ANC) has assiduously courted the interests of these groups at the expense of the rural poor. By over-promising and under-delivering on land reform, the ANC has provided fuel to militant activists, who are calling for the expropriation of land without compensation.

In April 2016, ARI was invited to attend a symposium on land, law and traditional leadership that the Nelson Mandela Foundation (NMF) and Council for the Advancement of the South African Constitution (CASAC) hosted. On the 103rd anniversary of the Natives Land Act, which precipitated widespread dispossession and forced relocation of black South Africans, this Briefing Note summarises the provocation papers discussed at the symposium and sets out recommendations for a bold new approach to land reform.

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Land redistribution: tinkering at the edges
Tenure insecurity
Echoes of apartheid
Opportunities for enrichment
Inkosi yinkosi ngabantu – “A chief is a chief by the people”
A way forward
Sources

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Section 25 of South Africa’s constitution, which deals with the land question, was the last to be agreed by negotiators. It defines land reform as being in the “public interest”, albeit in a context where existing property rights are respected. Tension between individual freedom to hold property and the imperative to address historical injustices persists. While recognising that indigenous populations were driven off the land, redress for past wrongs has to be balanced with the need to provide security of tenure, maintain food security, promote economic growth and foster national reconciliation.

Some 8 million hectares of formerly white-owned land has been transferred to black South Africans through land reform.2 The state has purchased farms put up for sale ad hoc, on a “willing buyer, willing seller” (WBWS) basis at market value. However, little has been done to match demand with supply or devise a purchase programme with the potential to transform the agrarian economy and rural livelihoods.

The WBWS approach is more conservative than the constitution requires. The basic law empowers the state to take “reasonable measures” to foster “access to land on an equitable basis”. It provides for expropriation with compensation. The Constitutional Court has ruled that there are no consistent means of determining the amount of compensation, leaving the door open to negotiated settlements.3 In May 2016, however, parliament passed the Expropriation Bill, which, if enacted, would establish the office of valuer-general and provide scope for the government to determine “just and equitable” compensation for compulsory purchases of land, subject to court appeal. The legislation could expedite the acquisition and redistribution of land that is subject to historical claims.

Land redistribution: tinkering at the edges
If expropriation is pursued, a major challenge will be to prevent the enrichment of the politically connected at the expense of the rural poor. Under the Proactive Land Acquisition Strategy (PLAS), which began in 2006, the state purchased farms and leased them to applicants for 3-5 year terms, during which their productivity was monitored. The beneficiaries were for the most part not from the “rural masses”, undermining the purpose and potential of land reform.5 In 2010, a minister at the Department of Rural Development and Land Reform (DRDLR) claimed that 90% of redistributed farms were no longer productive, although researchers have contested this pessimistic assessment.6

In 2013, President Jacob Zuma applied a State Land Lease and Disposal Policy to farms leased under PLAS. This provided medium- and large-scale farmers with 30-year leases, renewable for a further 20 years, after which they would have the option to purchase the property. Small-scale farmers and households with limited access to land were overlooked. The apparent bias in favour of a relatively small elite was further replicated in the Recapitalisation and Development Policy Programme (Recap) in 2014, with its insistence on land reform beneficiaries having business plans and mentors from the private sector. Aspirant black commercial farmers have taken government grants and bank loans, and hired consultants, but done little to alter the structural imbalance in the agrarian economy.

The concentration of agricultural production in a small number of commercial farms remains by and large unchallenged. Over the past two decades, such enterprises have become integrated into the global economy, increasingly specialised and much less labour intensive. In addition to its drastic reduction of formal jobs, the large-scale farm model has failed to boost non-farm livelihood opportunities. At the other end of the scale, some 200,000 small-scale black farmers who supply informal markets, often via bakkie7 traders, have been neglected. Redistributing land from the former to the latter could promote agrarian transformation, especially if coupled with reform of water provision. This has been ignored, despite irrigation being a critical factor in agricultural productivity, and access to water being a constitutional right and a focus of the National Development Plan.

The emphasis in land reform on large-scale farms and racial inequality has been at the expense of satisfactorily addressing underlying grievances or the root causes of rural poverty. Issues of class and gender have been overlooked. The emergence of a new party, the Economic Freedom Fighters, led by former ANC Youth League president, Julius Malema, prompted the ANC to adopt a more radical position on land ahead of the 2014 elections. A “50/50” policy 8 proposed that those holding title to commercial farms would retain 50% ownership while ceding the balance to workers, with shareholdings determined by length of service, starting at 10 years. This followed a moratorium on farm equity share schemes based on an inquiry by the DRDLR into their effectiveness. Perversely, such a model creates an incentive for farm owners to lay off workers before they reach milestones to qualify for a shareholding. It provides landowners with a windfall of public funds and does nothing to protect farm dwellers from eviction.

Tenure insecurity
Land tenure, or the legal right of ownership, has yet to be meaningfully reformed. There is a misguided sense that private property rights remain the “gold standard”; anything else is perceived as a second-tier category of ownership. Yet around 60% of South Africans hold rights to land and property outside of the formal system. The 50/50 policy would not provide title documents to the estimated 2 million labour tenants on commercial farms.

Approximately 5 million South Africans have been awarded Reconstruction and Development Programme (RDP) social housing without title deeds, while some 1.5 million possess inaccurate deeds to an RDP property. Siyabulela Manona, a director at Umhlaba Consulting Group, told ARI that some South Africans decided to accept RDP houses because that was what was on offer, even though it was not what they wanted.

“In Mqanduli, Eastern Cape, I spotted hundreds of RDP houses without curtains,” says Manona. “On further inquiry, I was informed that the houses have been left empty because the majority of beneficiaries had migrated to cities in search of work. Those who remained used the homes as goat sheds.” Without title deeds, beneficiaries of RDP houses are unable to sell the property. Many reside in city slums, unable to access housing grants because government records list them as owning an RDP property in their home district.

An estimated 3.3 million South Africans live in informal settlements without any formal proof of land rights, while a further 1.9 million inhabit backyard shacks in similarly precarious locations. Every year, parliament must renew the Interim Protection of Informal Land Rights Act of 1996 to secure the rights of about 17 million citizens residing on communal land.
Many groups that were forcibly relocated to the Bantustans – or so-called black “homelands” – during the apartheid era have established Communal Property Associations (CPAs) to hold restored or redistributed land.9 Yet, in some locations traditional leaders have opposed such arrangements, sensing a challenge to what they perceive as their own rights to the land. On the platinum belt in North West province, for example, the Bakgatla-ba-Kgafela community had to litigate against their chief to preserve their rights to administer restored land under a CPA.

Such power struggles are in part the legacy of a deal the ANC struck with chiefs ahead of the 2004 general election. In what was widely interpreted as vote-buying, parliament passed the Traditional Leadership and Governance Framework Act (TLGFA) in November 2003, and the Communal Land Rights Act (CLaRA) in February 2004. Traditional leaders in KwaZulu-Natal shifted their support from the Inkatha Freedom Party (IFP) to the ANC, enabling the ANC to win elections in the province for the first time. This came at a cost to genuine land reform, entrenching rather than dismantling apartheid-era divisions over land rights and ownership.

Echoes of apartheid
Controversially, the TLGFA reinstated, in the guise of traditional councils, the tribal authorities created under the 1951 Bantu Authorities Act, and provided scope for them to administer land. CLaRA proposed to transfer land and title deeds within areas defined by the 1951 legislation from the state to traditional councils led by chiefs. Individuals and families were to have tenure rights under customary law downgraded to “institutional use rights” to communal land. This would in effect have made rural citizens subjects of the chiefs – as they were in the Bantustans during apartheid.

As a potential “land grab”, CLaRA attracted widespread opposition. Four groups that the Act would have deprived of formal land rights brought a case challenging the legislation. Two appellants had purchased land and two had been awarded land through restitution before finding it subsumed within an area subject to the jurisdiction of a chief.11 In 2010, CLaRA was ruled unconstitutional, albeit properly consulted about the legislation.

In 2014, a Communal Land Tenure Policy (CLTP) was prepared to address ongoing land tenure insecurity in the former Bantustans. The policy largely echoes CLaRA. Rather than legally securing land rights based on custom, or allowing land to be vested in CPAs, with their ostensibly democratic structures,12 it proposed handing authority over land administration to traditional councils, which would be provided with legal title and award institutional use rights to individuals and families.

Under the CLTP, traditional councils would also become responsible for overseeing local investment and development, as well as natural resources on communal land. The implicit bargain was that chiefs would benefit from greater authority over local mining, infrastructure, and forestry projects in return for delivering rural votes for the ANC by wielding, if necessary, their discretionary power over land distribution in their communities.13 This clientelist approach to governing was reminiscent of that adopted by the National Party in the Bantustans.

Opportunities for enrichment
The government continues to connect land issues with the electoral cycle rather than seeking to resolve an issue that has the potential to be politically destabilising. Despite the fact that in August 2013 more than 20,000 land restitution claims were “settled” but not yet finalised or implemented, and about half of the land already acquired for restitution was still to be transferred to its intended beneficiaries, less than six weeks before the April 2014 general election the ANC re-opened the window for lodging new claims. The window had been closed on 31 December 1998.

The Restitution of Land Rights Amendment Act (RLRAA), which the National Council of Provinces passed on 27 March 2014, allows for claims until 30 June 2019. A month before its enactment, speaking at the opening of the National House of Traditional Leaders, Zuma told the chiefs to “find good lawyers” and “to look at the claims on behalf of your people”.14 The decision to allow new claims that are likely to be settled with cash compensation or provide opportunities for traditional leaders belies a greater interest in “vote-catching and political theatre [than] meaningful rural change.”15

King Goodwill Zwelithini is the most prominent leader to announce his intention to lodge a claim under the RLRAA. In his case, it may possibly be for the entire province of KwaZulu-Natal, including the city of Durban, and parts of neighbouring provinces. The king already administers one-third of the land in KwaZulu-Natal – some 2.8 million hectares – through the Ingonyama Trust, of which he is the sole trustee. Legislation stipulates that the trust must administer land “for the benefit, material welfare and social well-being” of local communities. However, it has tended to impose leases on those who have customary rights to the land – usually a weaker form of tenure that forces people to pay rent for land they in effect “own”. In June 2016, King Zwelithini announced plans for those residing on Ingonyama Trust land to be awarded title deeds. Judge Jerome Ngwenya, chairman of the trust board, subsequently clarified that the task would take many years to conclude, and would require funds from central government to cover the cost of surveys and land audits.

The Ingonyama Trust has been criticised for authorising mining activities without popular consultation. One well-known example is in Makhasaneni, near Melmouth in northern KwaZulu-Natal, where the local chief granted permission for prospecting to the Indian mining company, Jindal, and its local partner, Sungu Sungu, without the written consent of the community.16 The people confronted the chief, Thandazani Zulu, following the destruction of crops, death of livestock from poisoned water and damage to ancient family graves. Their leader apologised to the community for not consulting them, but insisted that Jindal be allowed to continue prospecting. The chief’s brothers, employees of Jindal, have subsequently been accused of intimidating local activists.

This type of confrontation is not unique to KwaZulu-Natal. In Eastern Cape, Xolobeni, part of the Transkei homeland during apartheid, is now under the Amadiba Tribal Authority. Here, rural activists have opposed attempts by Australian company Mineral Commodities Limited and its local partner – in which the chief has an interest – to develop a titanium mine. In March 2016 Sikhosiphi ‘Bazooka’ Rhadebe, chairman of the Amadiba Crisis Community, was shot dead outside his home.

There is a growing feeling in South Africa that customary land rights are only respected in the absence of lucrative business opportunities. When presented with a choice between personal profit and rural livelihoods, some traditional leaders evidently opt for the former. By advancing the authority of traditional leaders at the expense of ordinary rural landholders, the proposed CLTP would only exacerbate the risk of chiefs ignoring the interests of citizens.

Aninka Claassens, a former adviser to the minister of land affairs now at the University of Cape Town, argues that “current policies are entrenching [the] legacy of exclusion, by bolstering the power of a small elite at the expense of the majority of rural South Africans.”17 This may help the ANC to secure votes, but in doing so the government is neglecting its constitutional obligation to address land tenure insecurity caused by apartheid discrimination.18

Inkosi yinkosi ngabantu – “A chief is a chief by the people”19
Parliament is currently deliberating the Traditional and Khoi-San Leadership Bill (TKLB), which is intended to replace the TLGFA. The TKLB would empower Khoi-San leaders to administer the affairs of their people, wherever they are. As with the TLGFA, it would give chiefs jurisdiction over defined geographical areas, thus entrenching Bantustan-era boundaries and policies rather than reflecting customary practices. It provides no safeguards for land tenure and instead risks locking rural citizens into the tribal structures established under the 1951 Black Authorities Act. The TKLB exhibits many of the same shortcomings and potential to stir controversy as CLaRA, which the Constitutional Court struck down in 2010.

In what looks to many like further electioneering, the ANC appears intent on again trying to push the Traditional Courts Bill (TCB) through parliament, despite failed attempts in 2008 and 2012-13. The TCB would enable traditional courts to withdraw land rights from rural citizens without respecting existing accountability mechanisms such as the need for a pitso (community meeting). Widows would become particularly vulnerable to expulsion from land, because the legislation would maintain current patriarchal practices that restrict women from representing themselves in traditional courts.

According to Mbongiseni Buthelezi from the Public Affairs Research Institute, the TCB would establish “a segregated legal system, subjecting rural citizens to traditional leaders who, in many cases, were complicit in forced removals in order to gain power.”20 On 19 April, Justice and Correctional Services Minister Michael Masutha announced that a re-drafted version of the TCB could be introduced in parliament in June ahead of elections on 3 August 2016. While it may be politically expedient for the ANC to rule by proxy in the former Bantustans and in Khoi-San communities across Northern Cape, the TKLB and TCB would only undermine structural land reform and agrarian development. If the ANC wants to address rural poverty rather than use land to its political advantage, it needs a new approach.

A way forward
Land reform has failed to address the structural realities of rural poverty, and economic and gender inequality in South Africa. A Bantustan-era approach to rural “development” has been employed that has not brought about the radical agrarian transformation required. At the NMF-CASAC symposium, Prof. Ben Cousins, chair in Poverty, Land and Agrarian Studies at the University of the Western Cape, made the following policy provocations:

1.Support smallholders
It is estimated that the top 20% of commercial farms – around 7,000 highly capitalised operations – account for 80% of South Africa’s total agricultural production by value. The land belonging to the remaining 80% of commercial farmers could be expropriated and redistributed to 200,000 market-oriented smallholder farmers. They already produce crops and livestock for sale, and have scope to expand in peri-urban areas by supplying informal food markets. The top producers should be left undisturbed for two decades to avoid putting urban food security and agricultural exports at risk. Large farms could be subdivided, where feasible.

2.Invest in the future
Changing section 25 of the constitution is unnecessary when the law already provides for expropriation with compensation. The state could achieve more “bang for its buck” if a formula for “just and equitable compensation” was agreed on that brought the price of land down to 15–20% below market value. The ANC’s proposal for a valuer-general might be a step in this direction. If the government were to allocate greater financial resources to land reform, increasing the sum by a factor of five – from 0.4% to 2% of the national budget – it could finally resolve the emotive and potentially destabilising “Land Question”. The increase in financial resources would need to be accompanied by additional investment in bureaucratic competence, additional extension staff, revising institutional structures and procedures, and improved systems for data collection and analysis.

3. End rather than extend
The majority of land restitution claims should be settled through cash compensation. The process has consumed a disproportionate amount of state capacity while yielding few sustainable benefits. The vast majority of claimants have no interest in returning to rural land, nor the skills to tend to the plots taken from them. A pragmatic approach would be to seek closure by paying compensation through standard settlement offers, as has been the practice for most urban land claims. In instances where claimants genuinely want to farm, restoration of some of the land could be considered. The decision to extend the period for lodging land claims until 2019 should be abandoned rather than further raising expectations on a sensitive issue.

4. Leave rural development to local government
The Comprehensive Rural Development Programme that the Cabinet adopted in 2009 has proved to be an expensive and ineffective distraction. Municipal governments should be responsible for the co-ordination of developmental investment in rural areas. Strengthening the capacity of local authorities would yield greater returns than the current restrictive Bantustan-era approach to rural “development”. Pilot projects to test what works in a given context should be encouraged and the results shared widely. In communal areas, efforts to enhance household food security should be the main focus of support and aimed at women in particular.

5.Secure informal land rights
Private ownership through individual titles remains too costly for most citizens. They could gain secure property rights through social tenures21– a continuum of land rights afforded to individuals or groups, but which transcend individual ownership of parcels of surveyed land – provided these were properly recognised and supported. This would require a step change from the cadastral system to an approach that adopted lower levels of precision in surveying plots of land; flexible social and territorial boundaries; means for registering co-ownership by family members; changes to township development procedures; new systems for the collection of rates; and the retraining of lawyers, surveyors and planners. New sets of skills would have to be developed to support the processual dimensions of land holding: facilitation, mediation, dispute resolution and oversight of governance.

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1. For the provocation papers by Ben Cousins, “Land reform in South Africa is sinking. Can it be saved?” and Mbongiseni Buthelezi and Stha Yeni, “Traditional Leadership in Democratic South Africa: Pitfalls and Prospects”, see: http://bit.ly/SAland1

2. About 3.2 million hectares has been transferred through restitution and 4.8 million hectares through redistribution. See Department of Rural Development and Land Reform, Annual Report, 1 April 2014 – 31 March 2015, http://bit.ly/SAland2

3. Michael Akomaye Yanou, Dispossession and Access to Land in South Africa: An African Perspective, Langaa Research & Publishing CIG, 2009 p.60.

4. A revised Expropriation Bill was published in the Government Gazette on 26 January 2015. The bill was adopted by the National Assembly on 23 February and the National Council of Provinces on 18 May. To become law it must be signed by the president. Similar draft legislation presented in 2008 was deemed to be unconstitutional.

5. Ben Cousins, “New land redistribution policies in South Africa”, Focus on Land, Landesa, January 2014, http://bit.ly/SAland5

6. Ben Cousins and Alex Dubb, “Many Land Reform Projects Improve Beneficiary Livelihoods”, PLAAS Land Reform Fact Check 4, Cape Town, 2013, http://bit.ly/SAland6

7. A ‘bakkie’ is a small utility van.

8. Outlined under “Strengthening the Relative Rights of People Working the Land draft policy framework”, DRDLR, 21 February 2014

9. For details see “Communal Property Associations”, Centre for Law and Society, University of Cape Town, February 2015, http://bit.ly/SAland9

10. ANC National General Council Discussion Document quoted in “A critical analysis of the Traditional and Khoi-San Leadership Bill, 2015: II – The current regulation of traditional leadership”, Helen Suzman Foundation, 8 December 2015, http://bit.ly/SAland10

11. Tongoane and Others v National Minister for Agriculture and Land Affairs and Others (CCT100/09) [2010] ZACC 10; Constitutional Court of South Africa, 11 May 2010.

12. By law, the constitutions of CPAs must provide for equal membership, fair and inclusive decision making, and democratic processes. A problem arises, however, where such principles are incompatible with local realities and subject to interference from local elites. See schedule 9 of the Communal Property Associations Act, 1996, http://bit.ly/SAland12

13. Lesego Loate, “Communal Land Tenure Policy: State land grabbing and the coercive use of land to create voting blocks?”, PLAAS, University of the Western Cape, 19 September 2014, http://bit.ly/SAland13

14. “Land reform: Find a good lawyer, says Zuma”, Mail & Guardian, 27 February 2014, http://bit.ly/SAland14

15. Ben Cousins, Ruth Hall, Alex Dubb, “The Restitution of Land Rights Amendment Act of 2014 – What are the real implications of reopening land claims?” PLAAS Policy Brief 34, 2014, http://bit.ly/SAland15

16. Tabelo Timse, ‘King’s Trust sells people out to mining’, Mail & Guardian, 5 June 2015, http://bit.ly/SAland16

17. Cherryl Walker and Ben Cousins, “Introduction”, Land Divided, Land Restored: Land reform in South Africa for the 21st Century, Jacana, Auckland Park, South Africa, 2015 p.8

18. “A person or community whose tenure of land is Iegally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.” Section 25 (6), Constitution of the Republic of South Africa (1996).

19. A Zulu and Ndebele proverb meaning that a leader’s power depends on popular support.

20 .Mbongiseni Buthelezi, “Government insults rural citizens on traditional courts”, Custom Contested, 27 November 2013, http://bit.ly/SAland20

21. H.W.O. Okoth-Ogendo, ‘The nature of land rights under indigenous law in Africa’, Land, Power and Custom: Controversies generated by South Africa’s Communal Land Rights Act, University of Cape Town

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Whose land is it anyway? The failure of land law reform in Kenya

Yovanka ARI — Fri, 20 Nov 2015 09:59:43 +0000

On 2 October 2015, ARI hosted the launch of “Whose land is it anyway? The failure of land law reform in Kenya” by Ambreena Manji, Professor of Land Law and Development at Cardiff Law School. This Counterpoint draws on Manji’s experience while Director of the British Institute in Eastern Africa between 2010 and 2014, when she served as a member of a consortium convened by the Katiba Institute. The respondent was Professor Yash Ghai, a Kenyan academic in constitutional law. He was the Sir Y K Pao Professor of Public Law at the University of Hong Kong from 1989 to 2006. From 2000 to 2004, he chaired the Constitution of Kenya Review Commission and in 2011 co-founded the Katiba Institute to promote understanding of constitutionalism and to facilitate the implementation of Kenya’s new constitution.

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Professor Ambreena Manji

High hopes: Sustained political debate across Kenya culminated in the agreement of a new National Land Policy in 2009, and a progressive 2010 constitution – or katiba. The need for land reform had been widely acknowledged in the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, known after its chairman, Paul Ndung’u, and the Report of the Commission of Inquiry into Post-Election Violence, compiled by Judge Philip Waki. The adoption in April 2012 of the Land Registration Act, the Land Act, and National Land Commission Act should have marked the end of a process of activism; instead it heralded a new era of debate over accountability and impunity.
Curious consensus: The drafting of these three bills provided citizens with little meaningful opportunity to express their views of impending changes. A consortium was established to promote debate on the contents of the draft bills, and provide a detailed commentary on legal issues, including the degree to which they were compatible with 2010 constitution. However, their passage through parliament was characterised by little debate or disagreement among legislators. This passivity amongst MPs was a disappointing outcome after a decade struggle over land policy.
Rush to the finish: Kenya’s 2010 katiba required parliament to enact new land laws within 18 months of promulgation, which set 27 February 2012 as an artificial deadline. Only on 15 February 2012 did the National Assembly hear the first reading of the bills. The government printer only released drafts in time for consultation on 22 February. Neither the parliamentary committee nor civil society had the benefit of reading these documents before the meeting. On 9 March 2012, the National Assembly voted by two-thirds majority to delay the vote by 60 days.
Complexities and contradictions: The draft bills failed to enact provisions of the Land and Environment chapter of the 2010 constitution; nor were they faithful to the National Land Policy. Many commentators questioned whether they met the test of constitutionality; others argued that the bills should be withdrawn and time allowed for their revision. As Yash Ghai noted at the time, the bills were “for the most part badly drafted, often copied from laws of other countries, often with internal inconsistencies or inconsistencies with other legislation… It is impossible for most Kenyans (including lawyers, other experts, ministers and parliamentarians) to understand the content of the bills (especially since, unlike the constitution, the drafting style is complex, convoluted, old fashioned). This effectively prevents the participation of the people in law making required by the constitution.”
Flawed process: The decision to adhere to narrow timeframes led MPs to foreshorten debate, whether by accident or design. Space for deliberation was limited. Ironically, one part of the constitution was used to defeat another containing important principles about popular participation in law making. When the texts re-emerged on 16 April, only brief amendments were visible, rather than fundamental revision or redrafting. Nevertheless, all three bills reached committee stage and were approved.
Civil society: Although the achievement of the National Land Policy and the Land and Environment of 2010 constitution were thanks to the efforts of civil society, activists were also partly responsible for the failure to translate these principles into new land laws. Kenyan civil society organisations attempted to position themselves as mediators between people and law, rather than wrest control of the debate from bureaucrats, recognise the political nature of the debate, and help realise the promise of popular participation in major policy changes.
Predatory elites: The distrust of bureaucratic power over land is widespread among Kenyans. Successive presidents, and their land commissioners, have long exercised the allocation of public land in pursuit of political patronage and personal accumulation. New land legislation should have provided an opportunity to redress Kenya’s grossly skewed structure of land management and to curtail predatory land practices by the state. Regrettably, it culminated only in shallow redistribution of land, challenging bureaucratic power rather than the structure of land holding.
The future: Land reform and constitutional promises have become intertwined in the minds of the Kenyan people. This has raised the stakes, and with it the risk that popular disillusionment with the new land laws becomes equated with the failure of the katiba itself to transform Kenya as promised.

Prof. Yash Ghai CBE FBA

Ministry of Lands: Not many countries have such a ministry given how many land issues relate also to planning, infrastructure and agriculture; but in Kenya, this is the most coveted government department for those seeking enrichment. The current minister is suspended from office due to corruption allegations. The relationship between the Ministry of Lands and the National Land Commission remains poor.
Community lands: Communal land rights remain contested, with the division of responsibility between national government and county governments unresolved. Where land ownership is based on traditional understandings of land rights, the whole community should be given a say over its alienation. Communal land rights were constitutionalised to prevent them from being grabbed; yet the national government appears determined to undermine efforts by the counties to reinforce such rights.
Forest communities: Kenya still has a few forests, part of its environmental heritage. These are viewed as the next big target for land grabbing and illegal logging. Although the constitution assures forest communities that they can maintain their lifestyle, a tension exists between those living in traditional forest homelands and others seeking to preserve forests.
Confiscation by government: Major infrastructure projects are taking place right across Kenya. Many involve the appropriation of land from local communities. This has not been sufficiently acknowledged by the government or in the media.
Legacy of the struggle: On 12 September 2015, a moving ceremony was held in Nairobi where the British High Commissioner acknowledged the wrongs done to Mau Mau veterans. Litigation in the English courts was withdrawn in return for a financial settlement with the affected families and a memorial to those who died in the cause of freedom. Many of the 25,000 or more who joined Mau Mau fought for land only to find it confiscated while they were incarcerated. Veterans and their descendants remain landless.
Kenya’s katiba: Despite a detailed programme for implementation, Kenya’s constitution has yet to deliver on all of its promises. The Commission for the Implementation of the Constitution was established with less authority than we recommended, but after only five years it remains too soon to tell whether it will achieve its objectives. Progress to date has been slow; however, the judiciary has improved despite pressure from the government.

Among the many interesting questions and points raised by a large audience, were those by Professor Catherine Boone (on community land legislation in the context of devolution, and the respective mandates of National Land Commission, the Ministry of Lands, and the Counties ); Sir Edward Clay, former British High Commissioner (on the desire to localise land allocations); Dr Richard Baines, (on the lessons which might be applied from devolution of the land registry in Mozambique); and Dr Pilar Domingo (on the role, capability and credibility of Kenyan courts to adjudicate disputes). Watch the video and listen to the audio to hear more.

Podcast:

Pictures:

The post Whose land is it anyway? The failure of land law reform in Kenya appeared first on Africa Research Institute.

Whose Land Is It Anyway? The failure of land law reform in Kenya – Ambreena Manji

Niki Wolfe — Sat, 01 Aug 2015 15:20:58 +0000

Land is a “key fault line”¹ in Kenya. Throughout East Africa, land reform has failed to confront the material consequences of unequal access. Since the 1990s, law reform has been the favoured means of addressing contentious land issues. Bilateral and multilateral donors have promoted the rule of law, administrative justice, formalisation of tenure, promotion of individual title, encouragement of property markets and technical solutions – the cornerstone of what has been termed “global land policy”. This template has led to land law reform, at the expense of substantive land reform.

New laws have not been redistributive or transformative in a positive way. Longstanding grievances and injustices have not been addressed. Legislation has failed to curtail predatory bureaucracies which in turn have stymied reform through delaying tactics and sabotage. After adopting a progressive National Land Policy and new constitution, Kenya missed a real opportunity to enshrine in law their radical principles for land reform.

By Ambreena Manji

Land and the Constitution of Kenya (2010)
The rise and rise of the rule of law
Getting technical
A grabbed land
The costs of impunity
Interconnected law and justice
A challenge to the constitution
Kenya’s new land laws: timeline
Notes

Land issues have been the cause of much violent conflict throughout Kenya’s colonial and post-colonial history. In 2009, a National Land Policy was approved by parliament. The following year, land policy was embedded in a new constitution widely regarded as being radical – and potentially transformative. The culmination of a decade of often fierce debate and civil society activism, these events were described as “two significant achievements [that] have inserted the interests of ordinary Kenyans into this constitutional moment in a way that elections and constitutional ratification alone would not have”.²

The 2010 Constitution of Kenya addressed longstanding grievances over land, including the centralised, corrupt and inefficient system of administration identified in a series of reports of inquiry during the 2000s. Article 40 (1) sets out the principles governing land policy. These include equitable access; security of land rights; sustainable and productive management of land resources; transparent and cost effective administration; and elimination of gender discrimination in law, customs, and practice related to land and property. The process of translating these principles into law was widely seen as an opportunity to redress Kenya’s grossly skewed structure of land management and end predatory land practices by the state. It was one of the first, and certainly one of the most important, tests of the new constitution.

Despite the backdrop of optimism and anticipation, the drafting of the land law bills was characterised by undue haste, opacity and a lack of genuine consultation and debate. Indeed the final stage of the reform process can easily be interpreted as a last ditch attempt by certain parties to stymie it, subvert the intentions of the National Land Policy and renege on the promises of the constitution. The draft land bills were flawed, weak and seemed to be almost entirely disconnected from their guiding documents.

Parliamentarians failed to grasp the enormity, gravity and urgency of the task of land reform

In the run-up to the first and second reading of the bills in the National Assembly in February 2012, legal scholar Kithure Kindiki and others drew attention to incoherent drafting in the new laws; widespread borrowing of the provisions of other African countries without due attention to their relevance or suitability for Kenya; the failure to identify misconduct that the laws needed to address; inconsistencies between the National Land Policy and the constitution; and the failure to specify in detail the functions of devolved land administration bodies. The land research group in which I participated, Kituo cha Sheria, co-ordinated by the Katiba (Constitution) Institute, criticised the inscrutability of the drafts and the absence of any useful explanation of what policies were being implemented, or how. “This,” Yash Pal Ghai warned in a foreword to Kituo cha Sheria’s submission to the Parliamentary Committee on Land and Natural Resources, “effectively prevents the participation of the people in law making required by the constitution”.³

Parliament neglected to scrutinise or amend the land bills adequately and disregarded its obligation to heed the contents of the land and environment chapter of the constitution. Like many others, parliamentarians failed to grasp the enormity, gravity and urgency of the task of land reform. In April 2012, the assent of the Land Act, the Land Registration Act and the National Land Commission Act marked continuity with the past and the basic tenets of neoliberal land policy, for example by promoting land markets, providing for the individualisation of land tenure, and enshrining in law a presumption against customary tenure. A “technicist” approach and what is perceived as international best practice was prioritised over addressing political realities and local context.

The central concern of the laws is bureaucratic power and its control. While they did offer citizens some means to challenge bad administrative practices and so perhaps retain access to land, they did not embody the prescriptions of the constitution and National Land Policy. They were neither equitable nor transformative of land relations, nor was the “deep” redistribution envisaged by the constitution and National Land Policy upheld. This failure cannot be dismissed lightly. One expert commentator observed that “upon the outcomes of these deliberations may well hinge the future stability as well as the democratic quality of the Kenyan state”.⁴

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Land and the Constitution of Kenya (2010)

Article 40 (1) of the Constitution of Kenya sets out the principles governing land policy and provides that “Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable”.Article 61 (1) states that “All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals”.Article 40 protects private property rights; 40 (6) states that “The rights under this article do not extend to any property that is found to have been unlawfully acquired”.Article 68 (a) provides that Parliament shall revise, consolidate, and rationalise existing land laws. Article 68 (c) specifies areas for future legislation, including legislation to prescribe minimum and maximum private land holding; to regulate the manner in which land may be converted from one category to another; to “protect, conserve and provide access to all public land”; to protect the dependents of deceased persons with interest in any land, including spouses in occupation; and to provide “for any other matter necessary” to effect the land and environment requirements of the Constitution.

Abridged from Manji, Ambreena, “The Politics of Land Reform in Kenya 2012”, African Studies Review, Volume 57, Issue 1, April 2014, p.118

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The rise and rise of the rule of law

Kenya’s recent experience exemplifies critical shortcomings of land reform processes throughout East Africa. Since the 1990s international financial institutions, donors and governments have embraced law reform as a means to address a range of land issues, with varying degrees of sincerity and commitment. In essence, land reform has been land law reform.

This approach was prompted by a rediscovery of the role that law might play in development. The emphasis on law is not new. In the 1960s, the “law and development” movement held that law reform could promote economic development in newly independent countries. Interest subsequently waned due to scepticism as to the merits of this argument. The recent revival of law in development policymaking, and in particular the focus on the centrality of the rule of law to development, has had a major impact on how land issues have been addressed. Law has played a key role in what has been labelled “new wave land reform in an era of neo-liberalism”:⁵ land reform in East Africa has taken place in an “intellectual climate which rediscovered the importance of law as a major contributory factor in the international community’s support and pressure for land law reform within countries in the region”.⁶

In essence, land reform has been land law reform

The renewed prominence of law as a proposed solution to land problems has supported the representation of land as a tradeable asset that can be used to leverage loans. Secure formal property rights and developed land markets are considered a desirable goal of international and national land policy advocated by the World Bank and other multilateral and bilateral donors. Such legal constructs are portrayed as prerequisites for economic growth, poverty reduction and establishing the rule of law in developing countries. The formalisation and monetisation of land tenure have gone hand-in-hand as part of a “market-friendly” approach to land described by pre-eminent scholar, advocate and practitioner Patrick McAuslan in an important paper published in 2001 as “the globalisation of land markets”.⁷ The formalisation of land title and access to credit are now intricately connected in development policy prescriptions.

David Kennedy, currently faculty director of the Institute for Global Law at Harvard Law School, has argued that there is an unarticulated hope among law and development practitioners and academics that working within a strictly legal framework can substitute for, and thus avoid confrontation with, “perplexing political and economic choices”. This has placed “law, legal institution building, the techniques of legal policy-making and implementation – the ‘rule of law’ broadly conceived – front and centre”. It has excluded, rather than encouraged, contestation over economic and political choices; and the hope that law might substitute for contestation “encourages people to settle on the legal choices embedded in one legal regime as if they were the only alternative”. The rule of law, according to Kennedy, “promises…a domain of expertise, a program for action, which obscures the need for distributional choices or for clarity about how distributing things one way rather than another will, in fact, lead to development”.⁸

This observation helps us to understand why and how, over the past two decades, East African nations have felt compelled to reconsider land tenure regimes, adopt new land policies, enact new land laws and introduce programmes to ensure their implementation.

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Getting technical

The consequences of a legalistic approach to land reform are starkly evident in Kenya’s new land laws. First and foremost, it foreclosed debates about redistribution, prioritising land law reform as the most effective way to address land problems and so evading more difficult questions about who controls access to land and how a more just distribution might be achieved.

A further consequence of the weight accorded to law as a means to resolve land issues is that amongst lawyers, civil society groups and scholars, it expedited a retreat into a technicist approach that ignored the wider political context and therefore missed an important opportunity for bringing about positive change. A constant rebuff deployed during public meetings of the Parliamentary Committee on Land and Natural Resources (the “Land Committee”) in Kenya was that the new land laws were highly technical and complex. Land law is complex, but this mantra, and severe time limitations, often seemed to be aimed at suppressing genuine debate and citizen participation.

Rather than challenging the retreat into technical legal responses, civil society groups largely accepted – and to some extent reinforced – this practice by assuming the role of mediator between the law and the people. This was mistaken. As Patrick McAuslan asserted, “to move from policy formulation to drafting laws is not, as some people assume, to move from a debate on policy to one on legal technicalities”. The technical is highly political. When ideas of equity and fairness come to be precisely defined, perceived winners and losers emerge. Objections and obstructions quickly arise. “These are not,” McAuslan continued, “objections on ‘policy grounds’ but on technical legal grounds; a particular clause ‘wouldn’t work’; a certain provision is ‘unnecessary’; another goes too far or is ‘impracticable’”.⁹

Acute distrust of bureaucratic power over land issues is widespread among Kenyans

Acute distrust of bureaucratic power over land issues is widespread among Kenyans. The allocation of public land in pursuit of patronage and profit has long been practised by successive presidents and their land commissioners. Civil society needed to wrest control of the debate from bureaucrats if the “intensely redistributive potential”¹⁰ of the National Land Policy and the constitution were to be realised. Instead, activists were distracted and mollified by the technical obfuscation that tends to be part and parcel of land law reform – and which typically reinforces the status quo.

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A grabbed land

The deficiencies of undue confidence in strengthening the rule of law and technical fixes are abundantly clear in Kenya when one examines the history of “bureaucratic sabotage”¹¹ of land management and reform. The publication of the Report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Land in Kenya (2004), widely known as the Ndung’u report after its chairperson, confirmed what Kenyans already knew: that land corruption was systematic and widespread. The commission found that at least 200,000 illegal titles to public land had been created between 1962 and 2002, 96% of them in the period 1986-2002, during the presidency of Daniel arap Moi. The categories of public land affected include forests, national parks and game reserves, wetlands, research farms, roads, government offices, settlement schemes, state corporation land and trust land. The Ndung’u report also showed how the constitutional requirement for public land to be administered “in the public interest” was consistently perverted by Presidents Jomo Kenyatta and Moi, public officials, members of the judiciary, well-connected politicians and businesses.To take urban land as an illustration, the commission found evidence of widespread abuse of presidential discretion with regard to unalienated urban land, that is to say public land legally available for allocation to schools, playgrounds and hospitals for the public good. Both presidents allocated land appropriated from landowners despite having no legal power to do so. Furthermore, the Ndung’u report also confirmed that a number of land commissioners had made direct grants of government land without any authority from the president. Often, land had been quickly sold by grantees at very high prices to third parties without any adherence to the conditions laid down by letters of allotment, which only have the status of letters of offer and cannot be sold. Far from being restrained by the principle of public purpose, successive land commissioners and many local authorities completely disregarded it and sold land reserved exclusively for public purposes. Forged letters and documents were commonly used. Records at the Ministry of Lands and Settlements were found to have been deliberately destroyed.The “juicy findings”¹² – the “what” – of the Ndung’u report attracted a great deal of attention. With a few notable exceptions, less was written about its exhaustive detail on the “how”: exactly how the law was routinely subverted and so much public land illegally or irregularly allocated for personal gain or political reward. Far from upholding the rule of law, the legal profession played a central role in land corruption for personal benefit, as did other professions. This is one of the most significant issues raised by the Ndung’u report, if not the most significant.

The legal profession played a central role in land corruption for personal benefit, as did other professions

The conduct of many Kenyan lawyers stands in stark contrast to the role of the legal profession envisaged and supported by donors – that of promoting good governance and the rule of law. Internationally-sponsored rule of law programmes are supposed to promote and embed a strict distinction between the professions and politics. The information about systemic professional misconduct and illegality revealed by the Ndung’u report should have rung far louder alarm bells internationally. It provided valuable lessons about the hazards implicit in translating the aspirations and promises of the National Land Policy and the constitution into law. Instead, the complicity of lawyers in the illegal and irregular allocation of land has been largely overlooked. Professional bodies have chosen to ignore the conduct of members in facilitating land corruption. To date, despite the findings and recommendations of the Ndung’u report, no investigations of professionals’ involvement or disciplinary action have been initiated.

When the legal framework governing the administration of Kenya’s land was reviewed, a key test that should have been applied was whether proposed changes in the law would have prevented the illegal and irregular allocations on the vast scale identified by the Ndung’u Commission. But the drafting, enactment and aftermath of Kenya’s new laws has facilitated “business as usual” for professionals who, screened by international and state endorsement of the technicist approach to land law reform, have sustained corruption for decades.

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The costs of impunity

It is important to consider the consequences for ordinary citizens of land corruption going unpunished. The misallocation of public land instigates a process whereby something that should be available for the public good is transformed into private property. Kenyans are routinely deprived of their right to access to land for homes, schools, clinics, parks and cemeteries. For example, in one prominent case a questionable change of use enabled 18 acres in a suburb of Nairobi that had been reserved to build two state schools to be sold to a diplomatic mission. The schools were never built on this or any other site. In another, land reserved for the development of a public medical clinic and day nursery was, again through a questionable change of use, given over to the building of a shopping centre in an exclusive suburb of Nairobi.

The very real losses suffered by citizens through illegal dealings in land dwarf those of household name corruption scandals like Goldenberg and Anglo Leasing. Furthermore, they are augmented by abusing control of state corporations, a practice highlighted by the Ndung’u Commission: its report provided critical details about what happens in the aftermath of illegal or irregular land allocations. Ndung’u showed how those allocated land would move quickly to sell it, in many cases, to state corporations at hugely inflated prices. Pressured into making illegal purchases of public property, these institutions become “captive buyers of land from politically connected allotees”.¹³ In some cases, state corporations had also been the victims and not just the conduits for realising the profits of land grabbing – a further injustice.

The economic and social costs of widespread land corruption… will be borne by Kenyans for many years to come

The primary state corporation targeted to purchase stolen land, often at inflated prices, was the National Social Security Fund (NSSF), the Kenyan workers’ pension scheme whose purpose is to provide social protection against old age, death and incapacitating physical or mental disability. Although the full cost of the plundering of the NSSF has not been quantified, between 1990 and 1995 it spent Ksh.30 billion (about US$400 million) on the purchase of illegally acquired property. The NSSF’s assets may well be overvalued as a result of holding grabbed land, raising questions about its ongoing financial viability. The economic and social costs of widespread land corruption facilitated by the connivance of professionals and government servants will be borne by Kenyans for many years to come.

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Interconnected law and justice

Another deficiency exposed by the statutory reform of land law in Kenya, and elsewhere in East Africa, has been the failure to reflect that different areas of law are interconnected. When law is the favoured means to improve land governance, reform has tended to focus on land law at the expense of other legislation. Often, inheritance law, family law and mortgage law are neglected despite their critical role in determining access to land. The effects on women are especially detrimental. For example, it is often at the point of inheritance that women can claim access to land so addressing women’s land rights needs to involve reform of succession, family, and other related areas of law. This is a point I raised when Tanzania’s new land laws were being formulated in the late 1990s.¹⁴ If the interconnectedness of law is not acknowledged and addressed, when the state wishes to resist progressive measures in land law, such as provisions that allow women to co-own property with their spouses, it can use inheritance law or family law to stymie women’s claims.A further, critical shortcoming in the way land law reform has been carried out in Kenya and East Africa is the failure to incorporate the concept of justice and connect it to wider struggles for equality. In his book Land Law in Eastern Africa: Traditional or Transformative?, Patrick McAuslan sought to encourage academics to frame land problems in terms of fairness, equity, and justice. The reports of international and domestic policymakers rarely discuss justice in the context of land, preferring to depend on the technicist approach. McAuslan contrasted this with South African scholarship in which writing about the African National Congress’s land reform programme, the constitutional provisions on land, and the future of urban planning have applied a justice framework.Fortunately, Kenyan civil society groups have not emulated the widespread neglect of the theme of justice in land law reform by academics, policymakers and donors. The Kenya Land Alliance, Kenya Human Rights Commission and others have made concerted efforts to introduce ideas of justice and injustice to discussions about the politics of land and debates about the direction of land law reform. I would argue that their work has had a profound impact on the terms in which land is discussed in Kenya today. In the wake of the post-election violence in 2007-8, Kenya established a Truth, Justice and Reconciliation Commission (TJRC) with a mandate stretching back to 1963. Its report, released in May 2013, provides perhaps the best illustration of links between land issues and claims to justice being openly acknowledged. The words “historical land injustices” are used throughout, despite not appearing in the legislation creating the TJRC. This term is said to have “entered the Kenyan lexicon in the context of activism and agitation for constitutional reform and the establishment of transitional justice mechanisms aimed at addressing past human rights violations”.¹⁵

Policymakers rarely discuss justice in the context of land

The 2009 National Land Policy and Article 67(1)(e) of the 2010 Constitution of Kenya preceded the TJRC in asserting the connection between land and justice, and significantly influenced its approach. The former, in setting out a land policy framework in Chapter 3, calls for “equity” and, most importantly, for “transparency” in relation to land. The latter refers specifically to the need to address “historical land injustices”. So, while justice is still largely overlooked in the pronouncements of donors and policymakers on land issues, and in the work of most academics, the very many injustices connected with land are gaining increasing domestic attention. Civil society groups now consider unlawful evictions due to insecurity of tenure, misallocation of land by powerful governments, land grabbing by elites, the use of land as a patronage resource during elections and for ethnic mobilisation as questions of human rights, equity, and justice. This is a significant step forward.

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A challenge to the constitution

The Ndung’u report has proved to be a resource of immense value, despite the failure to implement its recommendations and enshrine them in Kenya’s new land laws. The National Land Policy and the land and environment chapter of the 2010 Constitution of Kenya were milestones of great importance. The efforts of donors to strengthen the rule of law played a part in enabling Kenyans to realise these achievements. But the disproportionate focus of donors, policymakers and academics on law, the omission of the theme of justice, and an overly-technical approach that ignores political realities are deficiencies in the common “global” approach to land reform glaringly highlighted during the drafting of Kenya’s new land laws. Instead of the redistributive, transformative land reform enshrined in the National Land Policy and constitution, Kenyans received incoherent land laws that threaten further to undermine the rule of law and to perpetuate the country’s long-running land corruption, conflict, injustices and inequalities.

Kenyans received incoherent land laws that threaten further to undermine the rule of law

The most obvious response of the Ministry of Lands (MoL) to the reduction in its powers contained in the National Land Commission Act 2012 has been to underfund the new National Land Commission (NLC). The NLC was handicapped from the outset by the poor drafting of the act that established it as a supposedly independent body responsible for the administration of land in Kenya. Wrangles between the MoL and NLC over their respective mandates, staffing and funding have consumed more time and energy than addressing the very real land problems facing the country, not least ongoing land grabbing. This constitutes an important reminder of the difficulties of wresting control over land from those long accustomed to using it as a patronage resource.

Kenya’s land issues are not unique. But the attempt at land reform and the new land laws are a real test of the hard-won 2010 constitution. The inclusion of land tenure matters in the constitution raised the stakes. If the new laws fail to mitigate historical injustices and curtail predatory practices, it will create further disillusionment among ordinary Kenyans and risks being perceived as a failure of the constitution itself.

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Kenya’s new land laws: timeline

May 2002
Publication of the Report of the Commission of Inquiry into the Land Law Systems of Kenya (the “Njonjo Commission Report”).

December 2004
Report of the Commission of Inquiry into Illegal/ Irregular Allocation of Land 2004 (the “Ndung’u Commission Report”) presented to President Kibaki and released six months later, following widespread criticism of government’s failure to make it public.

October 2008
Publication of the Commission of Inquiry into Post-Election Violence following the December 2007 General Election (the “Waki Commission Report”).

3 December 2009
National Land Policy approved by parliament.

4 August 2010
Referendum on new constitution.

27 August 2010
Following approval by two-thirds of voters, new constitution promulgated.15 and 22 February 2012
Land Bill, Land Registration Bill and National Land Commission Bill receive first and second readings in the National Assembly. In the run-up to these readings academics, commentators and members of civil society attending consultative hearings struggle to find up-to-date versions of the bills.22 February 2012
Parliamentary Committee on Land and Natural Resources holds first consultative hearings with members of the public on the day the final draft bills are released by the government printer. Few attending, including committee members, had the opportunity to read the bills beforehand. Many groups state publicly that the bills fail to enact the land and environment chapter of the constitution, and call for complete withdrawal and revision of bills. Some point out that they would fail the test of constitutionality. Minister of Lands and Chair of the Committee on Land and natural Resources reject appeals on grounds that constitutional deadlines cannot be breached.9 March 2012
National Assembly approves by two-thirds majority an extra 60 days for wider consultation on the draft bills. Extension is supported by Constitution Oversight Committee, Legal Affairs Committee and Land Committee.19-23 March 2012
Members of the Land Committee undertake tour of Kenya’s 47 counties. Committee’s conduct of consultations widely criticised for “ineptitude” and “complacency”.
Late March – early April 2012
Land Committee convenes a retreat in Naivasha to discuss its findings, followed by one week “technical retreat” in Mombasa.

16 April 2012
Proposed amendments to land bills become available. Instead of the revision and redrafting widely called for, the amendments are brief. The most important changes on which commentators were unanimous, such as the need to detail the role and powers of the proposed national land Commission in relation to the Ministry of Lands, are left unaddressed.

26 April 2012
Largely unaltered land bills approved by Parliament.

27 April 2012
Land bills receive presidential assent and are enacted.

Abridged from Manji, Ambreena, “The Politics of Land Reform in Kenya 2012”, African Studies Review, Vol.57, Issue 1, April 2014, pp.115-30

NOTES

1 Hornsby, Charles, Kenya: A History Since Independence, IB Tauris, London, 2012, p.787

2 Harbeson, John W., “Land and the Quest for a Democratic State in Kenya: Bringing Citizens Back In”, African Studies Review 55 (1), 2012, p.15

3 Manji, Ambreena, “The Politics of Land Reform in Kenya 2012”, African Studies Review 57 (1), April 2014, pp.120-1

4 Harbeson, John W., “Land and the Quest for a Democratic State in Kenya: Bringing Citizens Back In”, African Studies Review 55 (1), 2012 p.15

5 Bernstein, Henry, “Land reform: taking a long(er) view”, Journal of Agrarian Change 2, 2002, p.433

6 McAuslan, Patrick, Land Law Reform in Eastern Africa: Traditional or Transformative?, Routledge, London, 2013, p.2

7 McAuslan, Patrick, “From Greenland’s Icy Mountains, From India’s Coral Strand: The Globalisation of Land Markets and its Impact on National Land Law”, paper given at a conference at Belo Horizonte, Brazil, 2001

8 Kennedy, David, “Laws and Developments” in Hatchard, John and Perry-Kessaris, Amanda (eds.), Law and Development: Facing Complexity in the 21st Century, Cavendish, London, 2003, pp. 9-17 passim

9 McAuslan, Patrick, Bringing the Law Back In: Essays in Land, Law and Development, Ashgate, London, 2003, p.251

10 Sessional Paper No. 3 of 2009 on National Land Policy, Republic of Kenya, p.75

11 McAuslan, Patrick, Bringing the Law Back In: Essays in Land, Law and Development, Ashgate, London, 2003, p.348

12 Southall, Roger, “The Ndung’u Report: Land and Graft in Kenya”. Review of African Political Economy 32 (103), 2005, p.142

13 Report of the Commission of Enquiry into Illegal/Irregular Allocation of Land, Republic of Kenya, 2004, p.92

14 See Manji, Ambreena, The Politics of Land Reform in Africa, Zed Books, London, 2006

15 The Final Report of the TJRC, The Truth, Justice and Reconciliation Commission of Kenya, 2013

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The post Whose Land Is It Anyway? The failure of land law reform in Kenya – Ambreena Manji appeared first on Africa Research Institute.

Party rules: Consolidating power through constitutional reform in Tanzania

Niki Wolfe — Fri, 27 Feb 2015 06:30:12 +0000

March 2015

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The basic law – katiba in Swahili – has been the subject of persistent controversy and contestation since the creation of the United Republic of Tanzania in 1964. Despite being presented at the outset with a seemingly unsustainable constitutional settlement, a strong executive has repeatedly deferred and obstructed a radical overhaul of the katiba. The imperative to preserve national unity has often been cited as the pretext. Successive presidents have carefully directed popular participation in reform, restricting it to the confines of the dominant party. The recommendations of legal experts have been routinely ignored, resulting in a series of incoherent, disjointed and sometimes even contradictory constitutional amendments that have failed to address the concerns of citizens and the key issue of the distribution of power. This Briefing Note summarises the history of constitutional reform in Tanzania – a history that renders unsurprising the ruling party’s steadfast response to contemporary demands for a fundamental overhaul of governance.

Click here to view a timeline of constitutional reform in Tanzania

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Two governments, one state
The party of the revolution, subordination and protest
Nyalali’s challenge
From Kisanga to Warioba
Dividing lines
Towards a popular referendum

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Two governments, one state

Pressure for constitutional reform in Tanzania has been primarily driven by – and repeatedly failed to address – tensions between the nation’s two constituent parts, mainland Tanganyika and the Zanzibar Isles. The 1964 Articles of Union provided for a stopgap constitution modelled on that adopted by Tanganyika in 1962, but required the president to initiate a constitutional review and establish a constituent assembly to debate the draft katiba within one year.

The Union was governed by an “imperial presidency”, with the executive pre-eminent over the legislature. As part of the ostensibly temporary arrangements, it had a dual-government structure rather than being a fully-fledged federation. Julius Nyerere became president of the new United Republic; as president of Zanzibar, Abeid Karume was automatically vice-president. A national assembly, or Bunge, was empowered to enact legislation relating to 11 “Union matters” for both the mainland and the Isles. Zanzibar retained its own executive, legislature, and judicial system for all non-Union matters.

[quote]Episodes of constitutional tinkering were characterised by the application of patches to the basic law as a means of perpetuating the political status quo[/quote]

In March 1965, an act of parliament granted the president discretion to commence the constitutional review “at such times as shall be opportune”, overriding the requirement of the Articles of Union. In the meantime, an interim constitution was adopted that formalised a dual-government but single-party system – led by the Tanganyika African National Union (TANU) on the mainland and the Afro-Shirazi Party (ASP) in Zanzibar. President Nyerere prioritised the promotion of national unity and self-reliance over a new katiba, despite this violating his promise upon forming the Union.

The party of the revolution, subordination and protest

In March 1974, faced with popular unrest caused by rising food prices, Nyerere tasked TANU and ASP executive committees with incorporating the doctrines of national unity and self-reliance into the interim constitution. This was the first of many episodes of “hesitant and disjointed”¹ constitutional tinkering, characterised by the application of patches to the basic law as a means of perpetuating the political status quo and consolidating power in the hands of a single party.² Debate was restricted to a joint party conference.

In June 1975, parliament unanimously approved the amendment despite the fact that it made Bunge, the national assembly, subordinate to the executive committees of TANU and ASP. By law, all political activities from then on were to be “conducted by or under the auspices of the party”. The following year, when a national debate on constitutional reform was launched, TANU and ASP local branches ensured that popular participation in the debate was vigilantly overseen and directed. Co-operation between the parties continued at a further joint conference to agree the draft text for a new national constitution and culminated in a merger to form Chama Cha Mapinduzi (CCM), the “party of the revolution”.

In March 1977, Nyerere mandated a 20-person CCM committee to act as the constitutional review commission. Bunge was transformed into a constituent assembly to endorse the new constitution. Twelve years after the adoption of the interim constitution, the imperial presidency and dual-government within a single-party state were enshrined in law. In 1979, Zanzibar adopted a first permanent constitution of its own, based on the new Union model. It provided for a partially-elected House of Representatives, reducing the influence of the Revolutionary Council, an appointed cabinet that had ruled by decree since 1964. It also stipulated that the president of Zanzibar be elected, albeit with a single name on the ballot.

In promulgating the new constitution, Zanzibaris lost their bill of rights, which predated the establishment of the Union. By the early 1980s, calls for a new katiba and a national bill of rights became increasingly voluble and widespread. Popular interest in human rights was fuelled by the language used to mobilise public opinion during the war with neighbouring Uganda in 1978-9; the invasion was justified after the event by accusations of abuses by the regime of Idi Amin. Tanzania was closely involved with the preparation of the 1981 African (Banjul) Charter on Human and People’s Rights. CCM responded by announcing a series of constitutional amendments. Party activists were again deployed to manage popular reactions and debate. The party dictated that the reform process would focus only on the powers of the president; the authority and representative nature of parliament; consolidating the union; and the power of the people.

[quote]The main stumbling block – as ever – was the structure of the Union[/quote]

The legitimacy of the one-party state was openly challenged in some constitutional debates. After Wolfgang Dourado, former attorney general of Zanzibar, questioned the dual-government structure at a seminar organised by the Tanganyika Law Society, he spent 100 days in custody³. In January 1985, the constitutional amendments were enacted. The presidential mandate was restricted to two terms and a system of two vice-presidents was introduced, one being the president of Zanzibar and the other the prime minister of Tanzania. Article 47 stipulated that the president of the United Republic and the first vice-president should come from different parts of the Union. The new provisions came into effect in the run-up to a general election, at which Nyerere stood down in favour of his chosen successor, Ali Hassan Mwinyi.

Nyalali’s challenge

In 1990, the year Nyerere retired as chairman of CCM, he delivered a series of speeches about political change and multi-party democracy that launched a further national debate under the auspices of CCM. President Mwinyi established a steering committee for constitutional reform and a commission, chaired by Chief Justice Francis Nyalali, was charged with assessing how Tanzania might implement multi-party democracy. The commission’s consultative meetings, of which more than 1,000 were held nationwide, attracted genuine popular interest and participation.

In his report to the president and CCM leadership, Nyalali called for a repeal of the 1977 constitution as well as 40 laws identified as being contrary to democratic principles and human rights. He recommended that a constitutional commission draft a new katiba with considerably reduced presidential powers; that this document be subject to a free and open public debate and a popular referendum; and that Tanzania embark upon a major public education programme on multi-party politics and democracy. However, parliament was not allowed to debate the Nyalali Commission report, and the executive largely ignored its recommendations. Instead, in February 1992 a CCM conference decided which of Nyalali’s proposals were acceptable. Among the laws the party failed to repeal was the 1962 Preventive Detention Act, a favoured tool of the Nyerere state.

Constitutional amendments were drafted with a view to entrenching CCM’s dominance in the multi-party era. For example, CCM was exempted from new rules regarding the registration of political parties⁴. Party leaders were given the power to dismiss elected representatives in parliament and replace them at will, strengthening the authority of the political parties at the expense of the United Republic’s institutions. Before the first multi-party elections could be held, the High Court ruled that preventing independent candidates from standing for election to the presidency, parliament and local councils violated constitutional provisions for freedom of association and political participation. In response, parliament passed an amendment stipulating that political participation had to be through a political party. Measures were also taken to mitigate the possibility of a “cohabitation” government, whereby a CCM president of the Union could be deputised by an opposition leader from Zanzibar. This was a genuine risk, underscored by closely contested elections in the Isles in October 1995 that saw the opposition Civic United Front (CUF) come very close to clinching victory.

From Kisanga to Warioba

In July 1998, Tanzania’s third president, Benjamin Mkapa, appointed a new constitutional reform committee, chaired by appeal court judge Robert Kisanga. Mkapa failed to consult the political opposition or civil society on the scope of the review, but gave Kisanga the mandate to consider a wider range of issues than Nyalali. These included the structure of the Union; powers of the executive; the voting system; independent candidacy; and human rights. The committee sought the views of more than half a million Tanzanians from across the country, but the ruling party was again active in “organising opinion they favoured”.⁵

CCM’s efforts did not prevent Kisanga’s 800-page report from including a recommendation that the United Republic should have three governments – for Union matters, the mainland and the Isles. President Mkapa was the first to publicly attack this counsel and insisted that it would have to be approved by CCM committees before being debated in the National Assembly. A 13th amendment to the 1977 constitution implemented some of Kisanga’s recommendations. The number of special seats reserved for women and minorities was increased, but so too was the authority of the president.

In 2011, Jakaya Kikwete, Tanzania’s fourth president, announced his intention to emulate his predecessors with a constitutional review. The diplomatic corps, assembled at the annual New Year Sherry Party, were told by the president that “the people of Tanzania will be fully involved in the process and ultimately, they will be the one to decide.”⁶ Fifteen months later he appointed a 30-member Constitutional Review Commission (CRC), chaired by Joseph Warioba, a former prime minister and attorney general of Tanzania. Between July and December 2012, the CRC visited all districts in the United Republic, held 1,773 meetings and received the opinions of 1.4 million citizens as well as civil society organisations and international experts.⁷

Further popular consultation was organised at ward level through constitutional councils, or baraza. On the mainland, CCM maintained its control over the process by using its dominance of ward development committees (WDCs) to screen those applying to join the councils. Civil society was permitted to convene its own meetings, although some observers noted restrictions on individuals and organisations. Despite the machinations of the ruling party, ever keen to preserve the status quo, the majority of those consulted on the mainland maintained that they should have an assembly and government of their own, as Zanzibar does.

Dividing lines

The commission released its final draft in December 2013, for consideration by a constituent assembly. Chaired by Samuel Sitta, former Speaker of Bunge, the assembly comprised 640 members: all 357 members of the Union parliament, 82 members of the Zanzibar House of Representatives and 201 civil society delegates. Endorsement of a constitutional text required a two-thirds majority among delegates from both Zanzibar and the mainland before the text could be put to a popular referendum. CCM representatives occupied just under half of the seats.

After scrutinising the draft, delegates promptly agreed that a new constitution must provide for an independent electoral commission and permit legal challenges to presidential election results. There was no consensus regarding the percentage of votes required for victory by presidential aspirants or permitting independent candidates to compete for the highest office. Similarly, opinion was divided over the CRC’s proposals to restrict MPs to serving three five-year terms and provide for their recall from parliament by the electorate in the event of malfeasance.

[quote]Politics has become increasingly polarised[/quote]

The main stumbling block – as ever – was the structure of the Union. CCM members steadfastly defended the status quo; opposition party members supported the CRC’s recommendation for a three-tier federal government. To advance their agenda, representatives of the three largest opposition parties – Chama Cha Demokrasia Na Maendeleo (Chadema), CUF, and the National Convention for Construction and Reform (NCCR) joined with delegates from civil society to form the Coalition of Defenders of the People’s Constitution, or Umoja wa Katiba ya Wananchi (Ukawa). In March 2014, Ukawa’s secretary claimed a membership of 286 delegates – a number high enough to enable the opposition to block approval of a constitution that failed to reform the government structure.

In April 2014, Ukawa announced that it was boycotting the constituent assembly until its grievances about the apparent rejection of key recommendations of the CRC were heard. Deadlock ensued until September, when President Kikwete met with opposition parties and promised that the assembly would be suspended on 4 October. However, Samuel Sitta, the assembly’s chairman, determined that it should press on with its business despite the pending suspension. Legislative provisions were amended to permit electronic voting by absent delegates, and provisions for a secret ballot were removed, thereby ensuring that CCM elected representatives towed the party line or risked losing their parliamentary seats.⁸ With the October deadline just days away, Sitta presided over a final sitting of the assembly that voted to adopt the draft constitution.

Outraged members of the opposition disputed the legality of the assembly’s proceedings, questioning the vote among delegates from Zanzibar in particular. The deputy clerk, Dr Thomas Kashililah, countered that 147 Zanzibar delegates had voted in favour – a single vote more than the two-thirds majority required. Ambar Khamis, an opposition politician from Zanzibar, claimed that a “yes” vote had been recorded for him despite his absence from the assembly since April. Zazia Meghji, a former finance minister who held a mainland seat, was listed as a representative of Zanzibar. Ukawa stalwarts accused CCM of bribing delegates to vote for a constitution that safeguarded continuity rather than promising change in the structure of the Union.

In Zanzibar, Attorney General Othman Masoud Othman was summarily dismissed for voting against three chapters of the draft constitution, including the one enshrining changes to the structure of the Union – a sacking that threatened to destabilise Zanzibar’s Government of National Unity, formed in 2010. Minister for Constitutional Affairs and Justice Abubakar Khamis Abubakar opposed the move to amend the Isles’ constitution to bring it into line with the proposed Union constitution.

Towards a popular referendum

Despite opposition protest, the government scheduled a referendum on adopting the new constitution for 30 April 2015, with one month of campaigning permitted. This contravened the advice of the National Electoral Commission (NEC), which maintained that the timeframe was overly ambitious. The NEC is legally obliged to educate the public about the draft constitution and the significance of the vote, yet copies of the text only began circulating in February 2015.

The haste to stage the referendum has been interpreted as an attempt by President Kikwete to prevent any judicial challenge to the vote and gain decisive “leverage on the process – and perhaps even the outcome.”⁹ Prime Minister Mizengo Pinda, eager for the president’s endorsement as his chosen successor, is also keen for Kikwete to leave a constitutional legacy. Meanwhile, uncertainty over the feasibility and outcome of the referendum is fuelling wider disquiet in the run-up to the general election in October 2015.

Politics has become increasingly polarised. In November 2014, youth aligned to CCM disrupted a public meeting where constitutional commissioners, including Justice Warioba, attempted to speak about the shortcomings of the proposed katiba. Intolerance of dissent has seemingly galvanised ties between the main opposition parties: Ukawa plans to field a single presidential candidate in October.

Drawing inspiration from the Orange Democratic Movement (ODM) formed during Kenya’s 2005 constitutional referendum, the opposition is first seeking to deprive the referendum of its legitimacy and President Kikwete of his legacy. Ukawa has criticised delays and shortcomings in the preparations to deploy biometric voter registration for the first time. A flawed registration process would disenfranchise voters and undermine the credibility of both the referendum and elections. As if recognising that fighting a referendum campaign and a general election within six months might overstretch its resources and stamina, Ukawa has threatened to boycott the referendum.

If the constitutional referendum goes ahead on 30 April, polling stations are unlikely to witness long queues of eager voters. Turnout for general elections fell from 72% in 2005 to 43% in 2010. Only 40% of the electorate registered for local government elections in December 2014. With the contents of the proposed constitution still unfamiliar to most citizens, the outcome could well be determined less by ordinary Tanzanians and more by the ability of the government and, if it participates, the opposition to mobilise their core supporters. With the katiba requiring a 50% popular endorsement on both the mainland and in Zanzibar to become law, the Isles could yet prove decisive. There, the House of Representatives must ratify any changes to the constitution by a two-thirds majority.¹⁰ As CUF hold 31 of the 82 seats, this requirement poses a significant obstacle to CCM’s plans.

While a defeat of CCM in the October elections is highly unlikely, the handling of the constitutional review process has generated significant antagonism. Opposition parties have found common cause in denouncing the ruling party’s resolute defence of the political status quo. Even if the referendum proceeds, politicking will have undermined the stature and popular espousal of the new constitution. President Kikwete will claim a constitutional legacy regardless. If the referendum is postponed, and it is left to his successor to revisit the constitutional question, the widely acclaimed draft proposed by the Warioba Commission would be a sound start point for the task. In the meantime, the constitutional controversy will ensure that Tanzania’s general election is the most keenly contested since the restoration of multi-party politics in 1992.

Nick Branson is Senior Researcher at Africa Research Institute

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1. Mwesiga Baregu, “Tanzania’s Hesitant and Disjointed Constitutional Reform Process”, Paper presented to conference on constitution-making processes, July 2000

2. Inconsequential constitutional amendments have been referred to as “patches” or viraka. See Chris Maina Peter, “Constitution Making Process in Tanzania: the Role of Civil Organisations – A Case Study prepared for the Civil Society and Governance in East Africa Project”, Dar es Salaam, December 1999, p.11

3. Chris Maina Peter, “Civil Society and Constitution Making in Tanzania: A Tall Order”, in Civil Society and Constitutional Reform in Africa, Mwengo, Harare, Zimbabwe (2014), p. 109

4. Mohabe Nyirabu, “The Multiparty Reform Process in Tanzania: The Dominance of the Ruling Party”, African Journal of Political Science, Volume 7, Number 2 (2002), p.104

5. Mohammed A. Bakari, “The Union Between Tanganyika and Zanzibar Revisited”, in Ulf Engel, Gero Erdmann, and Andreas Mehler (eds.) Tanzania Revisited: Political Stability, Aid Dependency, and Development Constraints, Institute of African Affairs, Hamburg (2000), p.145

6. “The President’s Sherry Party speech”, Dar es Salaam, 7 January 2011

7. Report of East African Consultative Theme on the Tanzania Constitutional Review Process, Kituo Cha Katiba: Eastern Africa Centre for Constitutional Development, Kampala, Uganda (2013), pp.21-22

8. Pesa Times, “CA to use both open and secret ballot”, 29 March 2014

9. Salma Maoulidi, “Proposed Constitution: Jinx or Providence?”, The Citizen, 31 December 2014

10. See Article 80 (ii) of the Constitution of Zanzibar [/message_box]

The post Party rules: Consolidating power through constitutional reform in Tanzania appeared first on Africa Research Institute.

How to make planning law work for Africa – Stephen Berrisford

Niki Wolfe — Fri, 15 Nov 2013 14:54:33 +0000

As competition for land intensifies in Africa’s rapidly growing towns and cities, planning laws assume a fundamental importance. They determine how urban growth is managed and directed. In most countries outdated, inappropriate and unintegrated laws are exacerbating urban dysfunction.

The reform of planning law is frequently advocated as a necessary step for better management of urbanisation in Africa. But reform initiatives consistently founder. This is inevitable, given the approaches adopted. The promotion of “one-size-fits-all” and “model” planning laws from outside the continent has not served Africa well. Invariably it has created further legal uncertainty and a series of unanticipated, often pernicious consequences.

This Counterpoint argues that more progressive, realistic urban planning in Africa will require a radically different approach to planning law reform. This is essential for sustainable and equitable urban development in Africa.

Stephen Berrisford is an adjunct associate professor at the African Centre for Cities at the University of Cape Town and an independent consultant working in the field of planning law and policy.

Grim reality
Chequered history
Good intentions…
Models – and fantasies
A new approach
Future planning
Notes

Grim reality

National and local laws, collectively referred to as planning law, play a central role in shaping the economic, social and political life of towns and cities. They regulate land use and land development, provide a sound basis for infrastructure planning, secure the rights of investors, protect environmental resources and mitigate environmental risks. Crucially, planning law determines which buildings are legal and which are not.

Planning law has a poor record in Africa. Legislation designed to protect the public from the negative aspects of urban land development has all too often been used by the state to enhance the value of land owned by the wealthy – and to penalise and intimidate the disadvantaged. Laws to protect public spaces and facilities that enhance civic life are seldom implemented as intended. In a context of insecure and unpredictable land rights, planning law is a major fault line running through society.

Planning law is a major fault line running through society.

Planning law is meant to reflect and assert the public interest. This is not the reality in Africa. Land use is largely unregulated. Integrated infrastructure planning is rare. Private rights and interests are not mediated by a comprehensive legal framework.

Instead, dire living conditions, diabolical traffic jams, neglected infrastructure and dangerous public spaces are the norm. Urban management is notoriously erratic and fragmented, and the overwhelming majority of buildings are constructed in contravention of planning laws.

There are three principal indicators of failed planning law in urban centres:

The predominance of illegal structures. For the majority of Africa’s urban dwellers the costs of complying with applicable planning, building and tenure laws are so out of kilter with their household incomes that legal compliance is unimaginable.
The use of planning and building laws against vulnerable groups. Sudden crackdowns resulting in demolitions or evictions are commonplace. One of the best-known examples is Operation Murambatsvina, or “Drive Out the Rubbish”, carried out in Harare in 2005. The eviction of some 700,000 people in Zimbabwe’s capital and demolition of their homes was justified on the basis of the 1976 Town and Country Planning Act.
Inviolate elites. Wealthy and powerful elites operate largely untroubled by planning laws. Any negative impacts on neighbours or the public interest are typically ignored. This culture of impunity has created the perception that there are two laws: one for the well-to-do and another for the rest.

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Chequered history

The founding fathers of the town and country movement in Europe and North America envisaged the law being used to constitute and control the resource of developable urban land – and to ensure that towns and cities developed in ways that maximised the public benefit. In Africa, however, planning law was unashamedly used by colonial regimes to assert the interests of a small minority over those of the majority. This situation has endured since independence, albeit with a different minority elite reaping the benefits.

The grip of colonial legislation on the mind-sets of policymakers and practitioners remains strong. Political elites and government officials see themselves and the legal framework as a bastion against informality, illegality – and ultimately anarchy. Planning law is deliberately wielded in an exclusive, not inclusive, manner.

Land that can be developed within the formal legal framework is a scarce commodity in most African cities. This scarcity keeps prices high, accessible only to a small pool of elite landowners and wealthy individuals. In this context, planning laws form part of a regulatory barrier that limits opportunities in formal land markets and exacerbates inequality.

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Good intentions…

There is broad consensus that planning laws in Africa need to be changed. Laws designed to regulate urban development in Europe or North America in the early and mid 20th century are an inappropriate blueprint for contemporary Africa. Leading international urban development organisations including UN-Habitat, the World Bank and Cities Alliance are committed to legal reform.

For example, UN-Habitat reports have consistently called for the reform of planning laws as an “important precondition for more effective urban planning”. Although country after country has embarked on ambitious programmes of comprehensive legislative reform, consensus and concern have seldom been translated into successfully implemented new planning law.

A generally shared view is that reform should focus on cutting superfluous red tape and regulation. The objective of reducing the regulatory burden on weak systems with limited technical and financial resources is pragmatic. But it is too glib a solution to a complex problem. As with many calls for deregulation, so too with urban legal reform in Africa – over time more law is generated, not less. A seemingly irresistible impulse compels governments and their external advisers to use new law to respond to each of the multiple, complex challenges that cities face.

Legislation designed to protect the public from the negative aspects of urban land development has all too often been used by the state to enhance the value of land owned by the wealthy.

Wishful thinking abounds, based on the mistaken premise that planning is solely a technical exercise. This is not a good basis for law-making and it usually founders on exposure to one or more of the following:

Misguided assumptions. Planners and legislators have over-ambitious or erroneous expectations of the officials who will be responsible for implementing the law. They fail to appraise the diverse economic and political motivations and interests of businesses, citizens and officials. In these circumstances, the interests of those drafting the legislation, or elites, invariably trump those of other intended beneficiaries – and social justice.
Inadequate appraisal of costs and consequences. Disregard for the true costs of a reform is self-defeating. For example, only when a draft planning law in Uganda was nearing completion did it emerge that its implementation could require up to 20,000 additional public officials.¹
Unrealistic expectations of law reform. Implementation of planning law must take account of what is possible in the specific context. Initiatives to develop land-titling regulations are notorious for their disregard of the costs of compliance for affected households.
Reality gap. There is a gap between what planners would like to see reflected in urban planning legislation and the reality of people’s lives in modern African cities. The planning vision is aspirational but invariably impossible to achieve on the scale demanded by rapidly growing urban areas. Many of the proponents of planning law reform seek to bring informal structures inhabited by the poor in line with regulatory standards. This results in the imposition of an administrative burden on those least able to bear it, often with negligible public interest benefit. Scant attention is paid to the regulation of powerful players, such as developers, commercial farmers, traditional leaders and wealthy citizens.

Planning law reform is difficult in any context anywhere in the world. Myriad competing interests need to be identified and balanced. Flawed design and drafting invariably consolidates existing privilege and enhances political and economic inequality. To harness the redistributive potential of planning law, policymakers and practitioners must address the typical shortcomings in reform processes. If they do not, ongoing attempts to update or even transform planning laws are unlikely to succeed.

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Models – and fantasies

The notion prevails that legislation employed successfully elsewhere can be adopted in Africa with minimal amendment, quickly and with similar results. This has been a further impediment to effective, progressive reform. In the late 1940s, the British Colonial Office developed a model town and country planning law for use across Africa and the Caribbean.² In Patrick McAuslan’s words, in Africa this has “been used in country after country to keep the urban masses at bay; to deny them lawful homes and livelihoods; to reinforce the powers of officials; and to weaken the institutions of civil society”.³

No matter how appealing the idea, there are no easy or one-size-fits-all solutions to the reform of planning law. It must be carried out in accordance with local conditions and practices. African countries have diverse law-making and planning practices, which reflect their different histories, as well as their present-day economic, social and political realities. There are disparate, complex underlying land tenure arrangements to consider. No model law can be equally appropriate and effective in Malawi, Angola and Burkina Faso, for example.

The imperative is to identify workable alternative approaches to planning law reform that enable more equitable urban development in sub-Saharan Africa. The universal failure of model solutions poses two important questions. Firstly, what constitutes an effective planning law? Secondly, why has it been so difficult to design new but appropriate planning laws in Africa?

Effective planning law must be practical. It is no good drafting a law that appears to address a wide range of concerns yet cannot be implemented. Many of the efforts to write new planning law for African countries are dead in the water because of this failure – as is often quietly, if sheepishly, acknowledged by those involved in the design and drafting.

Although the record of planning law reform is poor across the board, with very few examples of good practice to emulate, reform processes can be improved. But to achieve more efficient lawmaking – and laws – the way that new planning laws are conceived, drafted and implemented has to change. New legislative interventions need to be crafted more intelligently, and with due regard for the interests of the majority of those affected – the urban poor.

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A new approach

The most important fact when seeking to identify what might bring about positive change is that citizens – in households and businesses – determine the characteristics and growth of African cities. Inevitably, they do this inefficiently and, in most places, inequitably and unsustainably. But they are creating the dynamism and innovation that characterise urban centres the world over. The primary objective for urban planning and other laws must be to influence these patterns of investment and activity in such a way as to achieve better overall development outcomes for cities and towns.

The grip of colonial legislation on the mind-sets of policymakers and practitioners remains strong.

A first step is to identify the conditions that are conducive to achieving better results, rather than simply stating the desired outcome, either expressly or by implication. For example, we should examine what could facilitate a form of land development in urban centres that is less concerned with protecting elite interests and more in line with broader needs and interests. This would be more likely to achieve long-term success than a blithe insistence that a particular method must be followed.

To determine what is possible, the competing interests and concerns of all groups must be properly understood. The urban population as a whole needs to be presented with, accept and follow the rationale behind planning legislation that affects their day-to-day lives. Conditions that enable the authorities – officials and politicians – to implement legislation with realism and sensitivity to the impact of their actions on communities and livelihoods are vital.

Popular participation and consultation in planning reform is frequently a sham. In a context of high social inequality, political and economic elites dominate the lawmaking process. Strong civil society organisations can play an important role in mitigating this imbalance. They can exert influence and assert rights to make decision-makers more cognisant of the limits of their powers and more accountable to the general public.

There is a gap between what planners would like reflected in urban planning legislation and the reality of people’s lives in modern African cities.

This can be done either through the courts or through administrative processes. Among many others, the Social and Economic Rights Centre (SERAC) in Nigeria, the Social and Economic Rights Institute of South Africa (SERI), the Zambia Land Alliance and Shack/Slum Dwellers International (SDI) have all achieved successes which provide grounds for optimism – and emulation.

The emphasis should be on what can be done rather than what should not be done. A legal framework that protects the power of a municipality to levy user charges for service provision is a more useful measure than a set of regulatory hurdles that have to be cleared before a new home can be built. Obviously, compromises and balances must be struck, but it is essential to highlight what is allowed rather than what is prohibited. South Africa’s landmark Development Facilitation Act 67 of 1995 is an example of an attempt to make this shift, albeit one stymied by subsequent constitutional challenge.⁴

There should be a focus on the minimum standards needed to secure a basic level of health and safety. The appearance of buildings, even the building materials used, is generally irrelevant to achieving these standards and draconian regulations give rise to costs that households and businesses cannot afford.

More inclusive, just and economically productive urban centres cannot be created by new legislation alone. There needs to be a shift in the mind-sets of the officials responsible for implementing urban legislation in African countries. Officials are influenced by a mix of international, professional and legal pressures, which must be taken into account by planning law reformers.

Many of the visions and ideals that influence planners and officials in African cities are foreign. They are predicated on notions of what constitutes a city and how a city operates that too often are wholly divorced from the realities of urban life and governance in, for example, Luanda or Addis Ababa. Yet the force of these international models sweeps all before it – an insidious and unhelpful phenomenon.

This force is apparent in at least two important areas. Firstly, in the concept of a compact, contained city clearly defined by an urban edge. Secondly, in the prominent role of large-scale infrastructure projects, especially road networks. As a result, we increasingly see planning law used to criminalise informal land development beyond the urban edge and to clear land for the development of mega-infrastructure. This further constrains the opportunities for formal and legal land development, while destroying the homes and businesses of people who are unlucky enough to reside on land allocated to a new bypass.

All the key personnel in the urban legal system in Africa feel the cumulative effect of international and domestic pressures, both in their conception of what would constitute better new law and in their approach to changing the law. In almost all cases, these pressures hamper a realistic and practical approach to problem-solving and lead to negative outcomes.

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Future planning

The temptation to rewrite planning laws is seductive. However, it promises the opportunity to change a great deal more than is actually feasible. It is – at least in theory – a chance to redesign the planning system and reimagine how towns and cities could look, feel and work. But a wholesale rewriting of complex legislation is not realistic – and probably not desirable.

What is required is a more sanguine approach that leads to better understanding of the underlying conditions that make urban legal reform so difficult in African countries. Such an approach must take into account the interests of all parties, and the prospects and costs for implementation of legislation. Positive change depends on a sober assessment of what is realistic and practical. This can only be gained by asking what laws obstruct such change – and by bringing about shifts in deep-seated attitudes.

There are no easy or one-size-fits-all solutions to reforming planning law.

Fundamental changes in approach cannot be prescribed. They have to emerge and be grounded in the motives and interests of urban populations, the private sector, municipal authorities and donor organisations. This takes time. It is salutary to look at the example of the Brazilian City Statute, the product of 30 years of effort yet inevitably still imperfect.

A number of initiatives supporting a change of approach have been launched. In July 2012, at the first meeting of the Platform for Urban Law Reform in sub-Saharan Africa, a group of planning and legal experts from across the continent agreed to start work on a long-term strategy to bring about urban and planning law reform. In partnership with UN-Habitat, the conclusions of this meeting were presented to the World Urban Forum in Naples in September 2012. A model course for planning law at African planning schools has been drafted. A new African Urban Research Initiative, supported by the African Centre for Cities, the Rockefeller Foundation and Cities Alliance, was inaugurated in Addis Ababa in March 2013. An Urban Legal Guide is in preparation.⁵

It would, of course, be as hazardous to propose a model approach to planning law reform as to adhere to a model planning law. However, closer observance of certain basic rules of good regulation in drafting processes would be helpful. These include proportionality, accountability, consistency, transparency and targeting. Introducing these rules into urban legal reform will probably make the processes longer and more costly, but it will greatly improve the likelihood of establishing more workable legislation at the end.

In addition to the promotion of a more pragmatic approach to urban legal reform in Africa, the conditions that would make such an approach work need to be created and strengthened. This imperative has at least three dimensions. Firstly, it is about building capacity and awareness of what law and law reform can achieve. From the outset, due attention should be paid to the design of law reform processes that recognise the realities of implementation and compliance.

Secondly, it is about changing the urban planning discourses. Planning alone is not going to solve the problems of African cities. International agencies such as UN-Habitat and Cities Alliance, major bilateral doors, and international and regional professional associations need to assist in restraining unrealistic expectations for planning. Similarly, they should promote non-planning measures that can have significantly greater impact. These include municipal finance, especially in relation to infrastructure investment, and land tenure reforms, both in relation to securing formal land rights and recognising informal ones.

More inclusive, just and economically productive urban centres cannot be created by new legislation alone.

Finally, the conditions that allow civil society organisations to engage with urban development and planning issues constructively and coherently need to be fostered. Ideas and suggestions must be debated and absorbed – and state actors held to account. If future urban strategy and policy documents pay more attention to the creation of these conditions than to matching a list of urban horrors to a parallel to-do list of interventions, then we will start to see the outlook for effective urban legal reform improve.

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NOTES

1 McAuslan, Patrick, Land Law Reform in East Africa: Traditional or Transformative?, Routledge, 2013, p.89

2 McAuslan, Patrick, Bringing the Law Back in: Essays in Law and Development, Ashgate, 2003, p.92

3 Ibid., p.103

4 The Act provided extraordinary measures to facilitate and speed up the implementation of reconstruction and development programmes and projects in relation to land; but Chapters V and VI were invalidated in 2010 after a successful challenge brought by the City of Johannesburg regarding the division of powers between municipal and provincial authorities.

5 Authored by Patrick McAuslan and Stephen Berrisford, initiated by the African Centre for Cities at the University of Cape Town and funded by Urban LandMark, Cities Alliance and UN-Habitat.

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