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There Is … Uncertainty About What the Essence of the Rule of Law Actually Is – Whether It Primarily Resides in Certain Insti

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There Is … Uncertainty About What the Essence of the Rule of Law Actually Is – Whether It Primarily Resides in Certain Insti Ntephe, Peter (2012) Does Africa Need Another Kind of Law?: Alterity and the Rule of Law in Subsaharan Africa. PhD Thesis, SOAS, University of London http://eprints.soas.ac.uk/13823 Copyright © and Moral Rights for this thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this thesis, full bibliographic details including the author, title, awarding institution and date of the thesis must be given e.g. AUTHOR (year of submission) "Full thesis title", name of the School or Department, PhD Thesis, pagination. TITLE PAGE DOES AFRICA NEED ANOTHER KIND OF LAW? ALTERITY AND THE RULE OF LAW IN SUBSAHARAN AFRICA by Peter Ntephe LLB (Nig), LLM (RSUST), LLM (London), MSc (Oxon), MSc (Brunel) Being a Dissertation presented in Partial Fulfilment of the Requirements for the Degree of Doctor of Philosophy in Law WORD COUNT: 100,000 WORDS School of Oriental and African Studies University of London Thornhaugh St, Russell Square London WC1H 0XG DECLARATION I have read and understood regulation 17.9 of the Regulations for students of the School of Oriental and African Studies concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination. Signature.......................................... Date..................................... 2 ABSTRACT Does the Rule of Law in Africa need another kind of law? This theoretical dissertation answers in the affirmative, drawing exclusively from secondary literature. The dissertation uses critical discourse analysis to challenge the Rule of Law Orthodoxy, a set of ideas and strategies accepted in development practice as formulaic for the Rule of Law. The goal is to demonstrate that an Afrocentric alternative to modern law is not only plausible but would better facilitate the Rule of Law in Africa. Establishing the plausibility of the alternative substantiates the cliché that Africa should look to its indigenous norms for renaissance. This should have implications for policy formulation as it fundamentally challenges the current paradigm for establishing the Rule of Law. The dissertation conceives of the Rule of Law as a state of functionalism rather than as the ‘Rule of Modern Law.’ The dissertation argues that the Rule of Law Orthodoxy assumes the essentialism of modern law. The dissertation uses coups and corruption to demonstrate that in the absence of systemic fidelity to modern law in Africa, the Orthodoxy is futile. The dissertation provides an Afrocentric critique of modern law which holds modern law alienating in Africa. The dissertation then makes the case for looking for an ‘Other’ of modern law which will attract systemic fidelity in Africa. The dissertation presents African customary law as a historic alternative to, and different form of law from, modern law. The dissertation argues that the legal cultures and rationalities that simultaneously produced and were embedded by African customary law have endured and continue 3 to undermine the success of modern law in Africa. The dissertation then uses the concept of alternative modernity as a contemporary framework to rationalise Africa’s need for an ‘Other’ of modern law and co-opts anarchism in support of the case. 4 TABLE OF CONTENTS TITLE PAGE ................................................................................................................. 1 DECLARATION ........................................................................................................... 2 ABSTRACT ................................................................................................................... 3 TABLE OF CONTENTS ............................................................................................... 5 TABLE OF CASES ..................................................................................................... 11 ACKNOWLEDGEMENTS ......................................................................................... 12 CHAPTER 1 - INTRODUCTION ............................................................................ 13 1.1 PROBLEM STATEMENT ........................................................................... 13 1.2 RESEARCH QUESTION ............................................................................. 14 1.3 RESEARCH AIMS AND OBJECTIVES ..................................................... 14 1.4 RESEARCH BACKGROUND ..................................................................... 15 1.4.1 The Rule of Law Orthodoxy .................................................................. 15 1.4.2 An Alternative Perspective .................................................................... 17 1.4.3 Caveat .................................................................................................... 18 1.5 RESEARCH APPROACH ............................................................................ 19 1.5.1 Theoretical Research .............................................................................. 19 1.5.2 Historical-Documentary Research ......................................................... 19 1.5.3 Subjectivist-Interpretivist-Constructivist Paradigm............................... 20 1.5.4 Qualitative Research .............................................................................. 21 1.5.5 Jurisprudence ......................................................................................... 22 1.5.6 Plain Commentary ................................................................................. 24 1.6 DEFINITIONS .............................................................................................. 24 1.7 DISSERTATION STRUCTURE .................................................................. 26 CHAPTER 2 - LITERATURE REVIEW ............................................................... 29 2.1 INTRODUCTION ......................................................................................... 29 2.2 PARADIGM ONE: RULE OF LAW AS CONSTITUTIONALISM ........... 30 2.2.1 A Concept for Lawyers .......................................................................... 30 2.2.2 African Lawyers’ Perspective ................................................................ 34 2.2.3 Conceptions of the Rule of Law ............................................................ 35 2.2.4 Weber and Formally Rational Law ........................................................ 39 2.2.5 The Washington Consensus ................................................................... 40 2.3 PARADIGM TWO: RULE OF LAW AS INSTRUMENT FOR DEVELOPMENT .................................................................................................... 43 2.3.1 Rhetoric and the Laissez Faire Approach .............................................. 43 2.3.2 Neo-Institutionalism and the Proactive Approach ................................. 45 2.3.3 Missing Questions .................................................................................. 48 2.3.4 Critical Reflection and the Rule of Law Orthodoxy .............................. 51 2.4 PARADIGM THREE: RULE OF LAW AS DEVELOPMENT .................. 54 2.4.1 Resurrecting the Law and Development Movement ............................. 54 2.4.2 Repudiating Link between Law Reform and Economic Growth........... 57 2.4.3 Rule of Law as End in Itself .................................................................. 59 2.5 INSUFFICIENCY OF EXISTING RESEARCH ......................................... 60 2.5.1 The Unseen Problem of Modern Law .................................................... 60 2.5.2 African Adherence to Something Else .................................................. 61 2.6 CHALLENGING THE HEGEMONY OF MODERN LAW ....................... 62 2.6.1 Critical Legal Perspectives .................................................................... 62 2.6.2 Anti-foundationalism, Representation and the Other ............................ 65 5 2.6.3 Orientalism and Postcolonialism ........................................................... 67 2.6.4 Postcolonial Theory and the Law .......................................................... 70 2.7 ALTERNATIVE TO MODERN LAW ........................................................ 73 2.7.1 Customary Law ...................................................................................... 73 2.7.2 Legal Pluralism ...................................................................................... 76 2.7.3 Modernisation, Social Evolutionism and Alternative Modernity .......... 79 2.7.4 Anarchism .............................................................................................. 82 2.7.5 Paucity of African Socio-Legal Research .............................................. 85 2.8 CONCLUSION: RESEARCH QUESTION JUSTIFIED ............................. 86 CHAPTER 3 – RESEARCH METHODOLOGY ................................................... 89 3.1 INTRODUCTION ........................................................................................
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