Legal systems and constitutionalism in sub-Saharan Africa: An empirical examination of colonial influences on human rights

Human Rights Quarterly

Volumn 29, Issue 4, 2007, Pages 1065-1097

  Keith, Linda Camp ^a   Ogundele, Ayo ^b  

^a UNIVERSITY OF TEXAS AT DALLAS   (United States)

^b Kilgore College   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

COLONIALISM; CONSTITUTIONAL REFORM; EMPIRICAL ANALYSIS; HUMAN RIGHTS; LEGAL SYSTEM; POLITICAL POWER; POLITICAL SYSTEM; STATE ROLE;

AFRICA; SUB-SAHARAN AFRICA;

EID: 36348981016     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2007.0043     Document Type: Article

References (133)

1. Linda Camp Keith, National Constitutions and Human Rights Protection: Regional Differences and Colonial Influences, in UNDERSTANDING HUMAN RIGHTS VIOLATIONS (Sabine C. Carey & Steven C. Poe eds., 2004).
2. Bonnie Ibhawoh, Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State, 22 HUM. RTS. Q. 838 (2000);
3. Amani Daima, Challenges for Emerging African Democracies, 10 PEACE REV. 57 (1998);
4. Atilio A. Borón, Latin America: Constitutionalism and the Political Traditions of Liberalism and Socialism, in CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD (Douglas Greenberg, et al. eds., 1993);
5. Samuel P. Huntington, The Clash of Civilizations?, 72 FOR. AFF. 22 (1993);
6. Franck Moderne, Human Rights and Postcolonial Constitutions in Sub-Saharan Africa, in CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE UNITED STATES CONSTITUTION ABROAD (Louis Henkin & Albert J. Rosenthal eds., 1990);
7. Claude Ake, The African Context of Human Rights, 34 AFRICA TODAY 5(1987);
8. see also Abdullahi Ahmed An-na'im, Introduction, in HUMAN RIGHTS UNDER AFRICAN CONSTITUTIONS: REALIZING THE PROMISE FOR OURSELVES (Abdullahi Ahmed An∇'im ed., 2003).
9. ABDULLAHI AHMED AN-NA'IM, AFRICAN CONSTITUTIONALISM AND THE RULE OF ISLAM 171 (2006).
10. CLAUDE E. WELCH, HUMAN RIGHTS AND DEVELOPMENT IN AFRICA 75-89 (1984).
11. Ibhawoh, supra note 2, at 846, notes that many of the colonial-engineered constitutions have now been revised or entirely rewritten to reflect the "new national realties" of the post-colonialist state in Africa.
12. See also Moderne, supra note 2;
13. WELCH, supra note 4;
14. Makau Mutua, Justice Under Siege: The Rule of Law and Judicial Subservience in Kenya, 23 HUM. RTS. Q. 96 (2001).
15. See also An-na'im, Introduction, supra note 2.
16. WELCH, supra note 4, at 13.
17. H.W.O. Okoth-Ogendo, Constitutions without Constitutionalism: Reflections on an African Paradox, in CONSTITUTIONALISM AND DEMOCRACY, supra note 2, at 69.
18. Mutua, supra note 5, at 97.
19. Ibhawoh, supra note 2, at 846.
20. Daima, supra note 2, at 59.
21. Eboe Hutchful, Reconstructing Political Space: Militarism and Constitutionalism in Africa, in CONSTITUTIONALISM AND DEMOCRACY , supra note 2, at 218.
22. John Rusk, Structure of Neo-Colonialism: The African Context of Human Rights, 33 AFRICA TODAY 73 (1986).
23. Steven C. Poe & C. Neal Tate, Repression of Human Rights and Personal Integrity in the 1980s: A Global Analysis, 88 AM. POL. SCI. REV. 853 (1994) (hereinafter "Repression");
24. Steven Poe, C. Neal Tate & Linda Camp Keith, Repression of Human Rights to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976-1993, 43 INT'L STUD. Q. 291 (1999) (hereinafter "Repression Revisited").
25. Henry F. Carey, The Postcolonial State and the Protection of Human Rights, 22 COMP. STUD. SOUTH ASIA, AFRICA & MIDDLE EAST 59, 66 (2002).
26. Chris Lee et al., Ethnicity and Repression: The Ethnic Composition of Countries and Human Rights Violations: Regional Differences and Colonial Influences, in UNDERSTANDING HUMAN RIGHTS VIOLATIONS, supra note 1.
27. Carey, supra note 14, at 65-66.
28. Sandra F. Joireman, Colonization and the Rule of Law: Comparing the Effectiveness of Common Law and Civil Law Countries, 15 POL. ECON. 4 (2004).
29. Moderne, supra note 2, at 335.
30. Id. at 328.
31. Id. at 329.
32. Id. at 335.
33. Carey, supra note 14.
34. B. O. NWABUEZE, CONSTITUTIONALISM IN THE EMERGENT STATES 35 (1973).
35. Moderne, supra note 2, at 340.
36. NWABUEZE, supra note 23, at 31.
37. H. Kwasi Prempeh, A New Jurisprudence for Africa, 10 J. DEMOC. 135, 140 (1999). The jurisprudence of executive supremacy is discussed as needing to give way to what Prempeh terms "a jurisprudence of constitutionalism."
38. Poe & Tate, Repression, supra note 13, at 854.
39. The countries are assigned a rating according to the following rules from Raymond Gastil: (1) Countries [are] under a secure rule of law, people are not imprisoned for their views, and torture is rare or exceptional.... Political murders are extremely rare. (2) There is a limited amount of imprisonment for nonviolent activity. However, few persons are affected, torture and beating are exceptional.... Political murder is rare. (3) There is extensive political imprisonment, or a recent history of such imprisonment. Execution or other political murders and brutality may be common. Unlimited detention, with or without trial, for political views is accepted. (4) The practices of [level 3] are expanded to larger numbers. Murders, disappearances are a common part of life.... In spite of its generality, on this level terror affects primarily those who interest themselves in politics or ideas. (5) The terrors of [level 4] have been expanded to the whole population.... The leaders of these societies place no limits on the means or thoroughness with which they pursue personal or ideological goals. Michael Stohl & David Carleton, The Foreign Policy of Human Rights: Rhetoric and Reality from Jimmy Carter to Ronald Reagan,7 HUM RTS. Q. 205 (1985)
40. (citing RAYMOND D. GASTIL, FREEDOM IN THE WORLD: POLITICAL RIGHTS AND CIVIL LIBERTIES, 37 (1980)).
41. Examples of level 5 repression would be seen in Afghanistan in 1985 and Colombia in 1991. The Philippines in 1990 and Libya in 1987 are examples of level 4 countries. Cuba in 1991 and Ghana in 1982 are examples of level 3 countries. Congo in 1985 and Cameroon in 1987 are examples of level 2 countries. Benin in 1991 and Oman in 1991 are examples of level 1 countries. Full sets of examples and excerpts of country reports for each level of repression are available in Mark Gibney & Matthew Dalton, The Political Terror Scale, 4 POL'Y STUD. & DEVELOPING NATIONS 73 (1986).
42. Because Amnesty International reports tend to leave out countries with good human rights behavior, a potential bias would arise if we used only countries on which Amnesty International reported. Therefore, consistent with Poe, Tate & Keith, in cases in which Amnesty International did not issue a report but the US State Department did, a score gained from applying the same set of standards to the US State Department reports was substituted. Poe, Tate & Keith, Repression Revisited, supra note 13, at 291.
43. For fuller details see Poe & Tate, Repression, supra note 13;
44. Poe, Tate & Keith, Repression Revisited, supra note 13. The Poe, Tate, & Keith 1999 dataset (Repression Revisitecd) is used here with the exception that the Polity III measure has been replaced by the Polity 98 measure and the author has extended the data set to include 1994-1996.
45. Conway W. Henderson, Population Pressures and Political Repression, 74 SOC. SCI. Q. 322, 325 (1993).
46. Poe, Tate & Keith, Repression Revisited, supra note 13;
47. Christian Davenport, Assessing the Military's Influence on Political Repression, 23 J. POL. & MIL. SOC. 119 (1995);
48. Poe & Tate, Repression, supra note 12;
49. Linda Camp Keith, The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior? 36 J. PEACE RES. 95 (1999);
50. Sabine C. Zanger, A Global Analysis of the Effect of Political Regime Changes on Life Integrity Violations, 1977-93, 37 J. PEACE RES. 213 (2000).
51. Henderson hypothesized that growth in population size would increase the likelihood of repression. Henderson, Population Pressures and Political Repression, supra note 31. While he did find evidence of this effect in his single-year study, those results have not been found to hold up in fuller studies of human rights abuse. Rather we have found population size to be the significant factor, both statistically and substantively.
52. Neil J. Mitchell & James M. McCormick, Economic and Political Explanations of Human Rights Violations, 40 WORLD POL. 476 (1988);
53. Conway W. Henderson, Conditions Affecting the Use of Political Repression, 35 J. CONFL. RESOL. 120 (1991).
54. For example, Mitchell & McCormick, supra note 33;
55. Poe & Tate, Repression, supra note 13;
56. Poe, Tate & Keith, Repression Revisited, supra note 13;
57. Keith, The United Nations International Covenant on Civil and Political Rights, supra note 32.
58. Despite some criticism of national GNP data, GNP has continued to dominate as the most appropriate measure of economic development. Alan Heston, A Brief Review of Some Problems in Using National Accounts Data in Level of Output Comparisons and Growth Studies, 44 J. DEVELOPMENT ECON. 29 (1994);
59. Jack Donnelly, Human Rights, Democracy, and Development, 21 HUM. RTS. Q. 608, 623 (1999).
60. Poe & Tate, Repression, supra note 13, at 853.
61. See, e.g., SAMUEL HUNTINGTON, THE SOLDIER AND THE STATE (1964);
62. R.D. McKinlay, & A.S. Cohan, A Comparative Analysis of the Political and Economic Performance of Military and Civilian Regimes, 8 COMP. POL. 1 (1975);
63. James Zwick, Militarism and Repression in the Philippines, in THE STATE AS TERRORIST: THE DYNAMICS OF GOVERNMENT VIOLENCE AND REPRESSION (Michael Stohl & George Lopez eds., 1984);
64. Ekkart Zimmerman, Macro-comparative Research on Political Protest, in HANDBOOK OF POLITICAL CONFLICT: THEORY AND RESEARCH (Ted Robert Gurr ed. 1986);
65. Poe & Tate, Repression, supra note 13;
66. Davenport, Assessing the Military's Influence, supra note 32.
67. Poe & Tate, Repression, supra note 13;
68. Poe, Tate & Keith, Repression Revisited, supra note 13.
69. Hamed Madani, Socioeconomic Development and Military Policy Consequences of Third World Military and Civilian Regimes, 1965-1985, 61 (1992)(unpublished Ph.D. dissertation, University of North Texas)(on file with UNT Library).
70. Id.
71. This information was not in the shorter study, Poe & Tate, Repression, supra note 13, but was in the extended study, Poe, Tate & Keith, Repression Revisited, supra note 13.
72. Davenport, Assessing the Military's Influence, supra note 32;
73. Data is not available across the global set of countries or the complete time period under study here; ARTHUR S. BANKS, CROSS-NATIONAL TIME-SERIES DATA ARCHIVE, 1991 (Databanks Int'l CD-ROM, current through 2001).
74. Davenport's subsequent studies have either not continued to control for military influence or have not reported those results. See Christian A. Davenport, "Constitutional Promises" and Repressive Reality: A Cross-National Time-Series Investigation of Why Political and Civil Liberties are Supressed, 58 J. POL. 627 (1996);
75. Christian A. Davenport, Liberalizing Event or Lethal Episode?: An Empirical Assessment of How National Elections Affect the Suppression of Political and Civil Liberties, 79 Soc. Sci. Q. 321 (1998).
76. See e.g., LARRY DIAMOND, JUAN LINZ, & SEYMOUR LIPSET, DEMOCRACIES IN DEVELOPING COUNTRIES, VOL. 4 (1988);
77. Conway W. Henderson, Conditions Affecting the Use of Political Repression, 35 J. CONFL. RESOL. 120 (1991);
78. Helen Fein, More Murder in the Middle: Life Integrity Violations and Democracy in the World, 1987,17 HUM. RTS. Q. 170 (1995);
79. Davenport, Assessing the Military's Influence, supra note 32;
80. Christian Davenport, Multi-Dimensional Threat Perception and State Repression: An Inquiry Into Why States Apply Negative Sanctions, 39 AM. J. POL. SCI. 683 (1995);
81. Davenport, "Constitutional Promises," supra note 43;
82. Davenport, Liberalizing Event or Lethal Episode?, supra note 43.
83. Poe & Tate, Repression, supra note 13;
84. Poe, Tate & Keith, Repression Revisited supra note 13;
85. Stephen C. Poe et al., The Continuity of Suffering: Domestic Threat and Human Rights Abuse Across Time, in PATHS TO STATE REPRESSION: HUMAN RIGHTS AND CONTENTIOUS POLITICS IN COMPARATIVE PERSPECTIVE (Christian Davenport ed., 2000);
86. Zanger, supra note 32.
87. See, e.g., Ted Robert Gurr, The Political Origins of State Violence and Terror: A Theoretical Analysis, in GOVERNMENT VIOLENCE AND REPRESSION, supra note 37, at 45;
88. Henderson, Conditions Affecting the Use of Political Repression, supra note 33;
89. Poe & Tate, Repression, supra note 13;
90. William J. Dixon, Democracy and the Peaceful Settlement of International Conflict, 88 AM. POL. SCI. REV. 14 (1994);
91. RUDOLPH J. RUMMEL, POWER KILLS: DEMOCRACY AS A METHOD OF NONVIOLENCE (1997).
92. See, e.g., Gurr, The Political Origins of State Violence and Terror, supra note 46;
93. Philippe C. Schmitter & Terry Lynn Karl, What Democracy Is ... and Is Not, 2 J. DEMOC. 75 (1991);
94. Poe & Tate, Repression, supra note 13;
95. Dixon, supra note 46;
96. RUMMEL, supra note 46;
97. Zanger, supra note 32.
98. See Center for I nternational Development and Conflict Management, Polity IV available at http://www.cidcm.umd.edu/polity. In order to simplify and facilitate the presentation of the analysis, we have chosen to use only one measure of democracy for this study. We have chosen to drop the Freedom House measure in this analysis for several reasons. it has been criticized for being "highly impressionistic, being no more than an estimate by a person who has collected a lot of seemingly relevant information on all of the countries of the world." John. F. McCamant, A Critique of Present Measures of Human Rights Development and an Alternative, in GLOBAL HUMAN RIGHTS: PUBLIC POLICIES, COMPARATIVE MEASURES AND NGO STRATEGIES Ned P. Nanda, James R. Scarritt, & George W. Shepard eds., 1981). While the measurement has improved over time and is considered less impressionistic, see Poe & Tate, Repression, supra note 13, the measure does include one dimension that may overlap with the behavior captured in the dependent variable. Additionally, the measure is counter-intuitive in that the small score represents a higher a level of political rights and the higher score a lower level of rights. The results produced with this measure have performed nearly identically to both the Vanhanen measure and the polity measure. We did run the full model with the Freedom House measure and the results generally held.
99. Wesley Milner, Steven Poe, & David Leblang, Security Rights, Subsistence Rights and Liberties: A Theoretical Survey of the Empirical Landscape, 21 HUM. RTS. Q. 403 (1999);
100. Zanger, supra note 32.
101. Davenport, Multi-Dimensional Threat Perception, supra note 43;
102. Davenport, Assessing the Military's Effect, supra note 32;
103. Davenport, "Constitutional Promises," supra note 43;
104. Davenport, Liberalizing Event or Lethal Episode, supra note 43.
105. Kristian S. Gleditsch & Michael D. Ward, Double Take: A Reexamination of Democracy and Autocracy Patterns in Modern Politics, 41 J.CONFL. RESOL. 361 (1997);
106. Linda Camp Keith, Constitutional Provisions for Individual Human Rights (1976-1996): Are They More than Mere "Window Dressing"?, 55 POL. RES. Q. 111 (2002);
107. Linda Camp Keith, International Principles for Formal judicial Independence: Trends in National Constitutions and Their Impact (1976 to 1996), 85 JUDICATURE 194 (2002)
108. See University of Ottawa Law School website, available at http://www.droitcivil.uottawa.ca/world-legal-systems/eng-monde.php.
109. See, e.g., L.W. H. Ackermann, Constitutional Protection of Human Rights: Judicial Review, 21 COLUM. HUM. RTS. L. REV. 59 (1989);
110. THE GLOBAL EXPANSION OF JUDICIAL POWER (C. Neal Tate & Torbjörn Vallinder eds. 1995);
111. Antonin Scalia, Federal Constitutional Guarantees of Individual Rights in the United States of America, in HUMAN RIGHTS AND JUDICIAL REVIEW (David M. Beatty ed., 1994);
112. NWABUEZE, supra note 23;
113. Penuell M. Maduna, Judicial Review and Protection of Human Rights Under a New Constitutional Order in South Africa, 21 COL. HUM. RTS. L. REV. 73 (1989);
114. Rosenthal, Afterword, in CONSTITUTIONALISM AND RIGHTS, supra note 2;
115. Leszek Garlicki, et al., Roundtable Discussion, in CONSTITUTIONALISM AND HUMAN RIGHTS: AMERICA, POLAND, AND FRANCE (Kenneth W. Thompson & Rett R. Ludwikowski eds., 1991).
116. The principles are as follows: 1. All necessary measures should be taken to respect, protect, and promote the independence of judges. 2. In particular, the following measures should be taken: a. The independence of judges should be guaranteed pursuant to the provisions of the Convention and the constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law. Subject to the legal tradition of each State, such rules may provide, for instance, the following: i. decisions of judges should not be subject to any revision outside any appeals procedures as provided by law; ii. the terms of office of judges and their remuneration should be guaranteed by law; iii. no organ other than the courts themselves should decide on its own competence, as defined by law; iv. with the exception of decisions on amnesty, pardon or similar, the Government or the administration should not be able to take any decision which invalidates judicial decisions retroactively. b. The executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges. c. All decisions concerning the professional careers of judges should be based on objective criteria and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of government and administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules. However, where the constitutional or legal provisions and traditions allow judges to be appointed by government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to the objective criteria mentioned above. These guarantees could be, for example, one or more of the following: i. a special independent and competent body to give the Government advice which it follows in practice; or ii. the right for an individual to appeal against a decision to an independent authority; or iii. the authority which makes the decision safeguards against undue or improper influences. d. in the decision-making process, judges should be independent and be able to act without any restrictions, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary. e. The distribution of cases should not be influenced by the wishes of any party to a case or any person concerned with the results of the case. Such distribution may, for instance, be made by drawing lots or a system for automatic distribution according to alphabetical order or some similar system. f. A case should not be withdrawn from a particular judge without valid reasons, such as cases of serious illness or conflict of interest. Any such reasons and the procedures for such withdrawal should be provided for by law and may not be influenced by any interest of the Government or administration. A decision to withdraw a case from a judge should be taken by an authority which enjoys the same judicial independence as judges. 3. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists. Report of the Special Rapporteur on the independence of judges and lawyers, Dato' Param Cumaraswamy, Question of the Human Rights of All Persons Subjected to Any Form of Detention or Imprisoning, submitted pursuant to Commission on Human Rights Resolution 1995/36, Comm'n on Hum. Rts., 52d Sess., Provisional Agenda Item 8, U.N. Doc. E/CN.4/1996/37 (1999), ¶ 119;
117. see also United Nations Basic Principles on the Independence of the Judiciary, available at http://www.ohchr.org/english/law/ indjudiciary.htm.
118. Id. Items 1-4 are principles that appear in both the UN Basic Principles and the Report of the Special Rapporteur (at least in general form). The fifth item is strictly from the United Nations Basic Principles and the last two items are strictly from the Special Rapporteur's report.
119. Gerard J. Blasi & David L. Cingranelli, Do Constitutions and Institutions Help Protect Human Rights? in HUMAN RIGHTS AND DEVELOPING COUNTRIES (David Cingranelli ed., 1996).
120. Compare id.;
121. Rosenthal, Afterword, supra note 52.
122. INTERNATIONAL COMMISSION OF JURISTS, STATES OF EMERGENCY: THEIR IMPACT ON HUMAN RIGHTS (1983);
123. Ackermann, supra note 52;
124. Maduna, supra note 52;
125. SUBRATA ROY CHOWDHURY, RULE OF LAW IN A STATE OF EMERGENCY (1989).
126. In many constitutions it was easy to identify the constitutional provision for judicial review because the document explicitly stated that courts exercise "constitutional review" or "judicial review." In other cases, we used the following definition as the standard for determining whether constitutional or judicial review existed: Right and duty conferred on a court or particular courts of a country to interpret authoritatively the constitution of that country, to decide authoritatively the constitutionality of laws, executive and administrative acts, and in appropriate cases, to declare such laws and acts invalid and un-enforceable when they conflict with the country's constitution.
127. Ackermann, supra note 53, at 60.
128. The data sources for these variables come from ALBERT P. BLAUSTEIN, CONSTITUTIONS OF THE WORLD (1993);
129. GISBERT H. FLANZ, CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (1997).
130. BLAUSTEIN, supra note 60, at 70-71.
131. FLANZ, supra note 60.
132. The marginal level of statistical significance employed by this study is p < .10.
133. An-na'im, supra note 2, at 7-8.