The Washington PostDemocracy Dies in Darkness

Colonial legacies endure in Africa’s legal systems — undermining rule of law

Formerly colonized African nations’ adherence to the ‘rule of law’ cannot be evaluated without considering colonial relics

A photo of Uganda's president hangs on the wall, left, as Judge Steven Kavuma reads the verdict at the country's Constitutional Court in 2014. (Rebecca Vassie/AP)
Comment

Recently there was a huge controversy in Zimbabwe over the alleged purchase of British horsehair wigs for Zimbabwean judges. Given the financial challenges faced by ordinary Zimbabweans, it was not surprising that the issue manifested in a larger debate over government financial mismanagement and its failure to provide adequate legal services for regular citizens.

More poignantly, in the larger African context the debate was also about the continued influence of European metropoles over their former African colonies in many aspects of life. That the Zimbabwean judges needed to purchase British horsehair wigs — which are no longer required even in many British legal contexts — is a telling relic of the colonial legacy foisted by Britain on its African colonies. Not only must Zimbabweans pay Britain for the wigs, but they do so to fuel a legal system rooted in the colonial era, when Britain systematically created and maintained legal systems, constitutions and other institutions patterned after its own. While in recent decades those colonial-era legal systems and institutions are being replaced by many African nations, they continue to hold such influence that a formerly colonized African nation’s adherence to the “rule of law” cannot be evaluated without considering the impact of its subjugated past.

As Britain established its colonial rule in Africa, it brought with it ideas about the rule of law, with the two becoming inseparable.

In 1844, the legal system in what was then the Gold Coast colony became attached to the British legal system. Before 1821 several European powers held claims in this region and established commercial settlements and forts to facilitate the trans-Atlantic enslaved person trade. The British consolidated control gradually over the 19th century. Local groups gradually submitted to British “protection” in an ongoing conflict with the Asante state to the north. Finally in 1844, some Indigenous Ghanaian chiefdoms accepted British sovereignty over them in exchange for protection from their warring neighbors. While conceding to British sovereignty, the chiefdoms also agreed to the British adjudicating serious crimes and to a long-term plan of adapting their customs and practices in conformity with British law.

When the British formally colonized the chiefdoms, they agreed to accept Indigenous law as part of the dual legal system. But they also added “repugnancy clauses” that excluded aspects of the Ghanaian customs or cultures that the British considered “appalling,” “ridiculous” or “unhelpful to maintaining Christian ideals.”

Hence, during the colonial era, customary Ghanaian courts led by Indigenous judges were allowed to adjudicate matters deemed to be part of the Indigenous customs on issues such as marriage and inheritance. But besides being subject to the repugnancy clauses, the legal system’s ultimate decision-maker, the supreme court, had a British official at the helm.

This system endured and became even more complete after the British consolidated rule over the entire Gold Coast territory by the turn of the 20th century. The British metropole introduced the 1925 constitution that empowered it to legally rule over Ghanaians as well as control the colony’s financial interests, including Ghana’s vast gold deposits and cocoa, which during that era was fast becoming a global cash crop. Notwithstanding the British introduction of new constitutions in 1946 and 1954 to appease Ghanaians by granting them some legislative powers, the metropole retained full powers over the colony’s legal systems, police and defense systems, and external affairs.

The metropole specifically created the police force in 1876 to protect the railways and gold mines, which generated significant financial benefits to it. While the colonial government tasked police with generally maintaining order, their primary responsibility was to protect Britain’s property interests and the colonialists’ personal safety. Policing was used as part of the empire’s tools for the larger commercial enterprise of colonization, to maximally generate funds for the mother nation and minimize its costs.

Eventually as the nationalist movement gained power, Ghanaians demanded full independence, which they achieved in 1957.

And yet, many parts of the colonial legal system endured.

Like other former British African colonies, Ghana has a pluralist legal system that includes the British common law, customary law and religious law. The current Ghanaian constitution, established in 1992, specifically identifies that the “common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.”

Notably, Ghanaian legislators eliminated the repugnancy clauses right after independence between 1958 and 1960, because they were insulted that their own laws were somehow “repugnant.” Even so many provisions of Ghana’s criminal code and supreme court decisions closely tracked British law and influenced judicial administration in a post-colonial Ghana. For example, Ghana’s current Criminal Code specifically criminalizes consensual same-sex sexual acts between males. This law is a relic of British colonial era when the metropole transported its anti-sodomy laws to its colonies.

Until 1993, Ghana utilized the British-created magistrate and circuit courts to administer its judicial system. With the 1993 Courts Act, Ghana finally created regional, circuit and community tribunals that replaced the British-instituted courts and were placed under the Judicial Service headed by Ghana’s chief justice.

Some legal commentators note that despite relatively recent changes to the Ghanaian constitution and its overall legal systems, the influence of the British colonial order persists even in the current constitution, evident by the subordination of customary law — “the rules of law which by custom are applicable to particular communities in Ghana” — to other sources of law. Customary courts have jurisdiction on issues such as marriage, divorce, child custody and guardianship. For example, a customary court may determine alimony and other marital benefits.

Besides the colonial legacy shaping Ghana’s legal system and constitution, colonial relics can also be discerned in other institutional structures driving the rule of law in today’s Ghana. For example, successive Ghanaian political and ruling classes since 1957 have used the police as their tool to oppress ordinary Ghanaians. For instance, the first Ghanaian president, Kwame Nkrumah, used the police to spy on his political opponents, and the police leadership was actively involved in the military coup that toppled Nkrumah in 1966.

Various constitutions introduced by successive post-independent Ghanaian governments retained the British Westminster-style government structure until the 1979 constitution, which adopted the U.S. presidential-style government. And similar colonial-era legacies and influences can easily be identified in other Ghanaian institutions such as the military (which was also established by the British) and the judiciary.

Similar to Zimbabwean judges’ tradition of wearing British horsehair wigs and judicial robes, Ghanaian lawyers and judges engage in the same behavior of wearing British-styled wigs and robes despite disdain and indignation by the general public who consider it a relic of a painful colonial past.

Ghana is not the only African nation struggling to rid itself of its colonial legacies. Kenyans are having the same conversation about the continued influence of the colonial past. They are questioning local governmental laws that prohibit making noise on the streets, committing acts deemed contrary to public decency, washing or repairing vehicles in non-designated areas, and loitering at night, all traceable to laws instituted during the colonial era. The #EndSARS movement against dismantling the SARS (Special Anti-Robbery Squad) unit of the Nigerian police was in large part a protest of overall police brutality common in Nigeria since the institution was created during the colonial era. And in my recent book on the rule of law, I systematically show how colonial legacy continues to manifest in five British-colonized nations (Ghana, Kenya, Nigeria, South Africa and Zimbabwe) and how it undermines each nation’s adherence to the rule of law.

While the leaders and people of African countries have gradually made changes to these institutional structures to limit the influence of colonial legacies, many ordinary African citizens are still suffering colonialization’s ill effects when subjected to contexts involving the rule of law.

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