View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Digital Commons @ American University Washington College of Law American University International Law Review Volume 33 Issue 4 Article 4 2018 Rule of Law, State Capture, and Human Development in Africa John Mbaku Weber State University, [email protected] Follow this and additional works at: https://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Mbaku, John (2018) "Rule of Law, State Capture, and Human Development in Africa," American University International Law Review: Vol. 33 : Iss. 4 , Article 4. Available at: https://digitalcommons.wcl.american.edu/auilr/vol33/iss4/4 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. RULE OF LAW, STATE CAPTURE, AND HUMAN DEVELOPMENT IN AFRICA JOHN MUKUM MBAKU* I. GENERAL INTRODUCTION....................................................772 II. STATE CAPTURE AND CORRUPTION: A GENERAL OVERVIEW..............................................................................774 III. STATE CAPTURE IN AFRICA...............................................783 A. INTRODUCTION ......................................................................783 B. STATE CAPTURE IN AFRICA: THE DEMOCRATIC REPUBLIC OF CONGO.............................................................................788 C. STATE CAPTURE IN AFRICA: THE REPUBLIC OF SOUTH AFRICA .................................................................................797 1. South Africa: A Long History of State Capture ..............797 2. A Note of Clarification....................................................801 3. The African National Congress and State Capture..........805 4. South Africa and the 2016 Public Protector’s State Capture Report...............................................................808 5. Findings of South Africa’s State Capture Report............811 6. Implications of the State Capture Report for Governance in South Africa ..........................................814 IV. STATE CAPTURE AND THE RULE OF LAW .....................817 A. INTRODUCTION ......................................................................817 B. WHAT IS THE RULE OF LAW? .................................................818 C. THE RULE OF LAW’S ELEMENTS ............................................822 D. THE RULE OF LAW AND STATE CAPTURE ..............................826 V. STATE CAPTURE AND ECONOMIC DEVELOPMENT ......830 VI. CONCLUSION AND POLICY RECOMMENDATIONS ......834 771 772 AM. U. INT’L L. REV. [33:4 I. GENERAL INTRODUCTION State capture involves the appropriation of state institutions, organs, and functions by individuals or groups. By doing so, these individuals and groups can have control over or influence the design and adoption of new laws, rules, and regulations, as well as the amendment or modification of existing ones.1 Ivor Chipkin2 argues that state capture occurs when “state institutions, potentially including the executive, state ministries, agencies, the judiciary and the legislature, regulate their business to favor private interests.”3 It has been argued that state capture is a “severe form of corruption.”4 Historically, corruption has been defined to include the subversion of existing rules by civil servants and political elites to generate extra-legal income for themselves.5 State capture, however, *JOHN MUKUM MBAKU is Brady Presidential Distinguished Professor of Economics & John S. Hinckley Research Fellow at Weber State University (Ogden, Utah, USA). He is also a Nonresident Senior Fellow at the Brookings Institution, Washington, D.C., and an Attorney and Counselor at Law (licensed in the State of Utah). He received a J.D. degree and Graduate Certificate in Environmental and Natural Resources Law from the S.J. Quinney College of Law, University of Utah, where he was Managing Editor of the Utah Environmental Law Review, and a Ph.D. (economics) from the University of Georgia. This article reflects only the present considerations and views of the author which should not be attributed to either Weber State University or the Brookings Institution. 1.See, e.g.,VESNA PESIC,STATE CAPTURE AND WIDESPREAD CORRUPTION IN SERBIA 1 (Ctr. European Policy Studies Working Document No. 262, 2007), https://www.ceps.eu/publications/state-capture-and-widespread-corruption-serbia (defining “state capture” as “any group or social strata, external to the state, that exercises decisive influence over state institutions and policies for its own interests against the public good). 2. Ivor Chipkin, Corruption’s Other Scene: The Politics of Corruption in South Africa, in GOVERNANCE, RESISTANCE AND THE POST-COLONIAL STATE: MANAGEMENT AND STATE BUILDING 21 (Jonathan Murphy & Nimruji Jammulamadaka eds., 2017). 3. Id. at 21. 4. Id. (explaining that the term “state capture” is an economic expression of corruption). 5. See, e.g., Nathaniel. H. Leff, Economic Development Through Bureaucratic Corruption, 8 AM. BEHAV. SCIENTIST 8, 8 (1964) (noting that corruption is an “extra-legal institution used by individuals or groups to gain influence over the actions of the bureaucracy”); J. S. Nye, Corruption and Political 2018] RULE OF LAW, STATE CAPTURE AND HUMAN DEV'T 773 implicates the taking over of “rule-making” and “rule-interpreting” processes by private interests.6 Studies of state capture can help us understand and more effectively appreciate the extent to which “firms, and the networks which control them, have acquired the ability to ‘shape the laws, policies and regulations . to their own advantage by providing illicit private gains to officials.’”7 Once private interests capture it, the state ceases to operate in the interest of the people. It functions and carries out its duties almost8 exclusively to maximize the interests of the private parties or agents that have captured it. Why should citizens of a country be concerned with state capture? In addition to abandoning its traditional functions, which include providing necessary public goods and services (e.g., security of the person and property of the individual) to all citizens, there may be a significant increase in government impunity, which may include increased abuse of the fundamental rights of citizens, especially those of historically marginalized and deprived individuals and groups (e.g., women, girls, and religious and ethnic minorities), increasing levels of corruption, especially of the grand type, Development: A Cost-Benefit Analysis, 61 AM. POL. SCI. REV. 417, 419 (1967) (explaining that “corruption is behavior which deviates from the formal duties of a public role because of private-regarding (personal, close family, private clique) pecuniary or status gains”); Herbert H. Werlin, The Consequences of Corruption: The Ghanaian Experience, 88 POL. SCI. Q. 71, 72-73 (1973) (referring to an assumption that political parties are often motivated by “individual self-interest and the possibilities of financial again”). 6. Chipkin, supra note 2, at 21. 7. Daniel C. Bach, State ‘Capture’ Without State Control: Regionalization Through Trans-State Networks, in STATE, POWER, AND NEW POLITICAL ACTORS IN POSTCOLONIAL AFRICA 235, 236 (Alessandro Triulzi & M. Cristina Ercolessi eds., 2004). 8. See generally John Mukum Mbaku, Providing a Foundation for Wealth Creation and Development in Africa: The Role of the Rule of Law, 38 BROOK. J. INT’L L. 959 (2013) [hereinafter Mbaku, Providing a Foundation] (finding that the extent to which the state neglects its obligations to the people is determined by how fully and completely the state’s institutions have been captured by private interests: In a country whose governing process is characterized by the separation of powers (with effective checks and balances) and an executive that is captured by private interests but a judiciary that remains independent, the government may still be able to function on behalf of the people because the judiciary, using its powers to determine the constitutionality of laws, can frustrate the ability of the executive to engage in rule-making and rule-interpretations that favor certain business interests). 774 AM. U. INT’L L. REV. [33:4 significant reductions in openness and transparency in government communications, a deterioration in economic competitiveness as well as in rule of law institutions (e.g., the courts), and a general failure of the state to engage in necessary reforms to improve the country’s institutional arrangements. Perhaps, more important, is the fact that the state would no longer be interested in promoting those activities, such as investment in formal and informal training for workers, that can significantly improve the people’s ability to engage in activities (e.g., entrepreneurship and the creation of wealth) that can greatly enhance human development.9 In this paper, we will examine state capture with specific reference to African countries. In Section II, we will revisit the definition of state capture and provide a much more robust examination of the concept and show how it differs from corruption. In Section III, we explore state capture in Africa by drawing from the experiences of a few countries. In Section