The biggest hurdle to the development of the rule of law in Africa is corruption, according to a new report by LexisNexis in partnership with Africa Legal.
52% of survey respondents said corruption was the the number one impediment to advancing the rule of law.
This was followed by government inefficiency, lack of transparency and accountability, lack of awareness, and a lack of motivation to change, although there were some jurisdictional disparities.
Respondents in Nigeria said the lack of access to reliable legal information was their third biggest problem, as did respondents from organisations with more than 5000 employees, in-house counsel and trainee lawyers.
Meanwhile, respondents from the judiciary across all surveyed jurisdictions ranked underinvestment in technology as their third biggest problem.
Other hurdles respondents noted were lack of leadership, lack of education and literacy, and poverty.
One Kenyan private practice lawyer was quoted as saying that poverty “hinders the ability of the bulk of the population from accessing justice, since they are not able to afford legal representation”.
Undue political influence – for instance, when offenders are related to political leaders and are subsequently pardoned – also undermines the rule of law.
And the same is true for the “constant criticism of judges by political parties” if a judgment does not go their way, a South African-based respondent said.
Brenda Chanda, co-managing partner of Moira Mukuka in Zambia, said that in some African countries state capture has also had a significant negative impact on the rule of law.
With state capture, institutions created to check the excesses of government have themselves being compromised and are not able to act independently.
This is usually aimed at weakening the democratic pillars of society and capturing politicians and political parties, journalists, the media, and key state institutions, said Chanda.
The latter include the legislature, the executive, the judiciary, and regulatory and enforcement agencies.
“Countries experiencing democratic transition are particularly vulnerable to the manipulation of illicit political finance,” she said.
Other challenges respondents highlighted included a lack of investment in rule of law institutions, poor accountability and a lack of political will to enforce the rule of law and deal with efforts to undermine it.
As one respondent in Nigeria noted, there is a deliberate refusal and lack of commitment to adhere to the rule of law in their jurisdiction.
Meanwhile, a private practice lawyer in Kenya said public servants actively interfere with and sabotage initiatives to make doing business easier, in order to protect vested interests.
Overall, 8% of respondents said their government had used the pandemic as cover to seize more control, become more authoritarian or otherwise abuse their power.
All respondents, including government employees, believe the government has the greatest role to play in advancing the rule of law followed by the judiciary.
While respondents overall believe that lawyers have the third most important role to play in advancing the rule of law, respondents from 5000+ headcount organisations think lawyers are the least important.
Geoffrey Kiryabwire, Justice of the Court of Appeal in Uganda said the rule of law in Africa is still work in progress, including the courts, the police, and the legal society organisations. And local lawyers, and organisations like the African Union are pushing for respect of the law.
He said there is a greater move towards constitutionalism in Africa compared with 30 to 40 years ago.
“Many African countries now have stable constitutions,” he said.
However, there are too few courts, not enough judges, it takes a long time to get to a court in most African countries, and people sometimes have to travel hundreds of miles to get to the courthouse. He says the real challenge for the courts is lack of manpower.
“In Uganda, in the Court of Appeals we have for the 11 justices a workload of about 7500 to 8000 matters sitting on our tables.”
Overall, 40% of respondents believe the rule of law will improve in their home jurisdictions over the next five years, compared with 36% who believe it will decline, and 24% who expect it to stay the same.