In Doing Business 2012: Doing Business in a More Transparent World, the World Bank noted that many African countries have significantly improved their political and economic systems during the last several years, placing the continent in a position to emerge as a core center for economic development. However, as reported in the UN Development Programme’s Human Development Report, 2011, many Africans remain trapped in extremely high levels of poverty: they live in countries where existing societal structures make it virtually impossible for them to escape poverty or even meet their basic needs. Of the forty-two countries with the lowest levels of human development in 2011, 81 percent of them were in Africa, and in nearly half of those, over 50 percent of the population suffers from extreme poverty.


Thus, the immediate policy priority for African countries should be to reverse this unfortunate reality. Historical discussions among economists on how to achieve this goal have produced two policy options: (1) a redistribution of income, and/or (2) provision of opportunities for the poor to create their own wealth—all to be accomplished through progressive taxation. Aside from the usual controversies about whether high marginal tax rates would negatively affect innovation and investment in productive capacity or reduce the desire of recipients to invest in self-improvement, it is obvious that the African economies do not presently have the resources to fully implement meaningful income-support programs.

Even with significant flows of foreign aid, cash transfers to the poor as a way to deal with the continent’s poverty quagmire is not and can not be considered a sustainable public policy. The most effective and sustainable way to deal with severe poverty and minimize the chances that vulnerable groups will soon slip back into poverty is to enhance their ability to create their own wealth. Governments should follow a pro-poor growth policy that enhances the ability of the poor to participate fully and effectively in wealth creation and economic growth.


Revisiting the Source of the Problem

The decolonization project was expected to help Africans rid themselves of their European colonizers and then engage in democratic constitution-making processes to develop laws and institutions based on their own values, aspirations, traditions, and customs. These post-independence institutional arrangements were expected to minimize corruption, rent seeking, and other growth-inhibiting behaviors, in addition to securing peace and providing the wherewithal for peaceful coexistence, and enhancing entrepreneurship and wealth creation, especially among the poor.

Colonial public policy maximized the interests of Europeans. After independence, Africans hoped that public policies would be devoted exclusively to nation building, improvement of the welfare of citizens, and the protection of fundamental rights. In order for African countries to accomplish these important national goals, popular forces, with significant input from all of the country’s relevant stakeholder groups rather than ethno-regional coalitions, had to control post-independence public policy.

Such a vision of governance was not shared by all Africans, as evidenced by the fact that many of Africa’s post-independence ruling coalitions engaged in corruption and other behaviors that imposed significant costs on the people. The pervasiveness of venality in many of Africa’s public services is a manifestation of the desire of ruling elites to subvert national laws to enrich themselves.

During decolonization, many of Africa’s indigenous elites betrayed their preference for top-down, elite-driven, non-participatory approaches to constitution-making. For example, all former French colonies in sub-Saharan Africa except Guinea accepted de Gaulle’s offer of free association as autonomous republics within the French Community. By doing so, these elites adopted the French Constitution of 1958 as a foundation for their governance institutions and effectively deprived their citizens of the opportunity and right to select their own laws and institutions.

With respect to the former UN Trust Territory of Cameroons under French administration, for example, Victor T. LeVine in The Cameroons: From Mandate to Independence (1964) questioned the “appropriateness of modeling the Cameroun constitution so closely on that of the [French] Fifth Republic.” Whereas France’s 1958 Constitution was drafted “in the context of the constitutional crisis that brought De Gaulle to power,” the “circumstances surrounding the writing of the Cameroun constitution were not in any way analogous to those existing in France in 1958.”



These constitutions were supposed to provide Africans with the tools to organize their private lives, help them peacefully resolve conflict, adequately limit state custodians (i.e., civil servants and political elites), and enhance the ability of all citizens, including the poor, to engage in wealth-creating activities. Instead, most African countries adopted institutional arrangements that failed to provide the people with the wherewithal to live together peacefully and engage in productive activities.

The Top Policy Priority in Africa today

The recent events collectively referred to as the Arab Spring and the mass street demonstrations of the mid-1980s and early-1990s continued the efforts that began during the decolonization period to secure institutional arrangements that guarantee the rule of law and promote pro-poor growth policies. Although the Arab Spring re-awakened the yearnings of Africans for democratic governance, these and other such struggles have not been able to produce the types of political dispensations that enhance peaceful coexistence, adequately constrain the state, and enhance entrepreneurship, especially among the poor. Hence, the top policy priority for virtually all African countries is democratic constitution-making to produce institutional arrangements that guarantee the rule of law and hence, enhance peaceful coexistence and sustainable development.




Why the Rule of Law?

According to the United Nations, “[T]he ‘rule of law’ refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”

One of the most important obstacles to human development in Africa is corruption perpetuated by state custodians seeking ways to enrich themselves at the expense of their fellow citizens. Corruption pervades the economies of virtually all African countries and continues to hamper not just wealth creation and economic growth but also human development, especially among the poor.


One of the most important reasons why corruption continues to pervade virtually all African economies is that most institutional arrangements in Africa today do not guarantee the supremacy of law and those that do have failed to provide the mechanisms to enforce these guarantees. In “Rule of Law: What Does It Mean?” (2009), Professor R. Stein states that where the law is supreme, all citizens, including “government officials vested with either executive, legislative, or judicial power,” do not place themselves above the law. Within such a system, citizens can effectively question, monitor, and challenge the activities of their governors. Such an effective check of the government by civil society can significantly enhance accountability, improve efficiency of the public sector, increase trust in government, and enhance poverty alleviation efforts.

Cameroon, like many other African countries, is plagued with high levels of corruption. In “Cameroon: Jump-starting an Economic Crisis” (1991), Professor Nantang Jua determined that “higher-level bureaucrats are largely immune from trial by the [Financial] Disciplinary Committee,” especially if such individuals remain loyal to President Paul Biya and the ruling Cameroon People’s Democratic Movement (CPDM). It is not only Cameroon’s senior civil servants who consider themselves above the law. In 2008, Paul Biya, who had already reached the constitutional two-term limit as president, ignored the constitution he had sworn to uphold and asked a parliament dominated by his party to change the law so that he could remain in office.


That year, the CPDM-dominated National Assembly amended the constitution so that Biya could contest the 2011 presidential election (See Will Ross’s “Cameroon Makes Way for a King,”). Perhaps more important is the fact that the amendments enacted by Cameroon’s parliament in 2008 effectively made explicit what had been, up to that time, only implicitly understood in Cameroon legal circles—that President Paul Biya was above the law. Article 53(3) of the Constitution of Cameroon in 2008 stated that “Acts committed by the President of the Republic . . . shall be covered by immunity and he shall not be accountable for them after the exercise of his functions.” How can Cameroon maintain the rule of law if some of its public officials are above it?


Other African presidents have similarly amended their countries’ constitutions, not only to extend their stay in power but also to grant themselves additional powers (See France 24’s “Changing the Constitution to Remain in Power” (2009)).

Egypt, Tunisia, and Libya now have democratically-elected civilian governments, but none of these regimes have yet placed before the people a credible plan for institutional reforms to adequately constrain the state and promote pro-poor growth policies. Many citizens of these three countries, especially women and ethnic and religious minorities, openly express their fears that their new democratically-elected governments are likely to reject democracy once they consolidate their powers.

On November 22, 2012, Morsi issued a “constitutional decree” which exempted all his decisions from judicial review and effectively placed him above the law (See Ramadan Al Sherbini’s “Glance at Egypt President Mursi’s Decree” (2012)). Instead of leading Egypt to fully transform its critical domains, Morsi, like others before him, acted unconstitutionally, mocking the concept of separation of powers, and setting himself up as a dictator. Of course, in response to widespread criticism to this attack on the independence of the judiciary, Morsi’s office announced on November 25, 2012 that the decree granting the president sweeping powers was only temporary and that arrangements were underway for him to meet with senior judicial officers. The statement further reiterated that the decree was designed to “prevent democratically elected bodies from being undermined” and that it only applied to “sovereign matters.” The latter can be seen as a throwback to the days when the ancien re?gime justified its abuse of human rights, as well as its interference with the country’s institutions, on the grounds of “national” or “state” security. If Morsi is genuinely interested in fully and effectively resolving the country’s constitutional crisis, he should return the revolution to the control of all of Egypt’s relevant stakeholder groups and provide them with the faculties to engage in bottom-up, transparent and participatory constitution making.


Africans cannot deal effectively with venality, nor can they promote the type of economic growth that benefits the poor, unless they provide themselves with institutional arrangements that guarantee the rule of law. For, as long as some individuals consider themselves above the law, peaceful coexistence and human development will continue to elude these countries.

As South Sudan, Africa’s newest country, has discovered, the lack of institutional arrangements that guarantee the rule of law can significantly damage a country’s public finances. On May 3, 2012, President Salva Kiir sent a letter to 75 high-ranking current and former civil servants and political elites accusing them of illegally appropriating as much as U.S. $4 billion from the national treasury. President Kiir declared as follows: “We fought for freedom, justice and equality; however, once we got to power, we forgot what we fought for and began to enrich ourselves at the expense of our people.” The fact that South Sudan appears to be degenerating into a venal society is not unexpected—the country is currently governed by the anachronistic and dysfunctional governance structures inherited from the Republic of Sudan. No effort has yet been made to engage all relevant stakeholder groups in comprehensive institutional reforms.

Economists have long recognized self-interest as an important factor for explaining the behavior of individuals participating in political and economic markets. In The Reason of Rules: Constitutional Political Economy (1985), economists Geoffrey Brennan and James M. Buchanan argue that “man’s natural proclivity is to pursue his own interests and that different persons’ interests almost invariably come into conflict.” They suggest that each society should design and adopt rules that can effectively coordinate citizens’ activities and provide for the resolution of any conflict arising from socio-political interaction.


These laws and institutions would serve as constraints on the state and effectively minimize the ability of state custodians to act with impunity. Africans cannot continue to depend on their leaders’ willingness to love and care for them as an effective mechanism to deal with corruption and other forms of political opportunism. As is clear from the experiences of virtually all the countries on the continent, including South Sudan, appeals to patriotism, nationalism, and even pan-Africanism, are not sufficient to prevent those who serve in government from abusing their positions. Openness and transparency in government operations and communications, supremacy of law, and judicial independence would do more than appeals to nationalism to deal with corruption and other growth-inhibiting behaviors, as well as improve opportunities for the poor to create their own wealth.


Although government has a very important part to play in the fight against poverty in Africa, it may not be able to contribute positively to the alleviation and eventual eradication of poverty if it operates behind closed doors. Secrecy of governments, especially with communications, can create an environment that is highly susceptible to corruption and financial malfeasance, all activities that are antithetical to the creation of wealth.

Three aspects of openness and transparency are critical here. First, the constitution-making process must allow for full and effective participation of all relevant stakeholder groups. Second, the making of laws in the post-constitutional society must be open and transparent so that all citizens, groups, and communities know and understand how laws are made and why certain laws are selected over others. Finally, more open communication about the design and implementation of public policy improves participation, makes certain that the issuing policy reflects the values, interests, and aspirations of the country’s relevant stakeholder groups, and brings government closer to the people. If the public policy process is open and transparent, groups (e.g., ethnic and religious minorities) that fear marginalization are less likely to resort to violent mobilization, particularly if these groups either had the opportunity to participate or were quite aware of how the laws and/or policies were designed and why.


In their paper “Transparency of Environmental Decision Making: A Case Study of Soil Cleanup Inside Hansford 200 Area” (2004), C. H. Drew and T. L. Nyerges state that, at the minimum, “transparent decisions must be clear, integrated into a broader context, logical and rational, accessible, truthful and accurate, open (involve stakeholders), and accountable.” Why are openness and transparency critical to public policy and government in Africa? First, transparency enhances the ability of a citizen or community that believes or thinks that a given public policy might affect them or their values, to understand how the decision was made and why. Such an approach to public policy can be especially important where decisions have a significant impact on the welfare of various groups within the country. Second, because many African countries have governments that are not representative of their diverse population groups, having an open and transparent approach to public policy design and implementation can significantly reduce the distrust that some groups, especially historically marginalized minority ethnic and religious groups, have for their governments. In addition to the fact that an open and transparent approach to public policy can help all groups observe and understand how decisions affecting their lives and welfare are designed, such an approach can also provide these groups with the opportunity to participate and influence the outcomes of the process.


Finally, corruption has emerged as one of the most important constraints to economic growth and human development in Africa. While the long-term solution to Africa’s corruption quagmire is the provision of each country with institutional reforms that guarantee the rule of law, openness and transparency in government operations and communications can represent an important short-term measure to minimize impunity in the public sector. In their publication “Political Institutions and Corruption: The Role of Unitarism and Parliamentarism” (2004), J. Gerring and S. C. Thacker argue that “[s]ince corruption, by definition, violates generally accepted standards of behavior, greater transparency should discourage corrupt actions, at least facilitate appropriate mechanisms of punishment (legal, administrative or electoral).”

Of course, there are other benefits to transparency in government communications and these include increased support of the government by citizens, a more enhanced understanding of public of agency actions, increased trust of the government, and a much stronger democracy (See J. Fairbanks, K. D. Plowman & B. L. Rawlins, “Transparency in Government Communication” (2007)). Fairbanks, et al. also determined that “[t]ransparency in the decision making process, quells the fear that decisions in government agencies have been made as a result of undue political or industry influence because the process is open to the public” Finally, they determined that transparency in government activities usually produces in the general population “a feeling of trust in [one’s] government and the ability to realize a comfort in understanding that [one is] being treated equally with others and that the government is working in [one’s] best interest.”

Sustainable economic development in Africa requires that there be peaceful coexistence between all of each country’s population groups. For there to be peace, all the ethnic and religious groups in a country must feel that they are being treated fairly and equally by their government and that public policy is not being used to place them at a competitive disadvantage. One way to help restore the trust of the various groups in their governments is to ensure that public operations and government communications are transparent. Such trust can help the government secure the time-and-place information that it needs to develop and implement pro-poor programs.


The fight against poverty and the improvement of the human condition in Africa must include an effort to protect the fundamental rights of all citizens. All African countries are members of the UN, and most of them are signatories to the Universal Declaration of Human Rights and other international human rights conventions, including the African Charter on Human and People’s Rights. Additionally, many African countries have entrenched clauses in their constitutions that purportedly guarantee the protection of human rights. Nevertheless, the violation of the fundamental rights of various individuals, especially those of women, children, the poor, and ethnic and religious minorities, by both state- and non-state actors, is quite pervasive.

Human rights violations in Africa have many causes, some of which are related to the existence of extremely complex customs and traditions. The absence of institutional arrangements that guarantee the rule of law is one of the most important reasons why the continent continues to have such a poor human rights record. Where, for example, the law is not considered supreme, many civil servants and political elites engage in behaviors that violate the rights of their fellow citizens and, in the process, deprive many people, especially the poor and other vulnerable groups, of opportunities for self-actualization.

Conclusion

During the last thirty years, African countries have made significant progress in improving their political economies and are poised to become important players in the global economy. However, much work needs to be done to enhance the ability of the continent to emerge as a gainful participant in both the global economy and international affairs.





The most important policy priority for the continent as it seeks to take its place as an important player in global affairs is for each country to engage in institutional reforms through a holistic approach to produce institutional arrangements that guarantee the rule of law. Such laws and institutions should help the continent deal with such intractable problems as (1) effective management of ethnic and religious diversity in order to secure peace and enable investment in productive capacity; (2) encouragement and support of entrepreneurship; and (3) minimization of corruption, rent seeking, and other forms of political opportunism.

Effectively resolving these problems can set the stage for Africans to fully confront poverty and minimize the types of destructive mobilization by ethnic and religious groups that have resulted in prolonged political instability and brutal civil wars. Such violence has created, in many countries, environments that are not conducive to entrepreneurial activities and wealth creation. Peaceful coexistence can create opportunities for trade and other forms of voluntary exchange that promote wealth creation, as well as foster an environment that enhances free movement of capital and labor.