A well-functioning legal system offers security of persons and property. It also ensures that the laws of the land are obeyed by all, with no exceptions. Individuals cannot do what they please outside their homes. In their interactions with others, they must follow the law. In other words, the law “rules,” taking precedence over the whims or caprices of individuals. For example, the law may say that it is larceny to acquire property by stealing it from someone else. Anyone guilty of such a felony, whether that person is a doctor, a chief, or even the president of the country, shall be prosecuted to the full extent of the law and punished for all to see.
Embezzlement or theft of public funds falls into this category, since the victim is the taxpayer. And when one’s security is threatened or one’s property is stolen, one does not “take the law into one’s own hands” but follows laid-down procedure to seek a redress, usually by hauling the culprit, even if it is the government, into a court of law. When these conditions are met, the rule of law, which means respecting and following established ways of doing things, is said to prevail.
The rule of law is important for economic development because the constitution and the system of laws define the parameters or the legal framework within which economic activity or competition takes place. If the parameters are constantly being shifted or violated, confusion, uncertainty, or even chaos may result. Economically, it is difficult to make investment plans when laws are suddenly abrogated and new decrees issued without notice. People cannot be expected to follow the rules when the authorities themselves flout the law or apply it capriciously to favor one person over another. It would not be fair to a competitor to see a rival company blatantly violating the law while the authorities look the other way. And yanking a company’s license to operate simply because the president of the country dislikes the owner’s political views or ethnicity can have a chilling effect on business investment and innovation.
For the rule of law to prevail, the most fundamental prerequisite is the existence of an independent and impartial judiciary that is free from government control or manipulation. The judges must not all be appointed by the president or hail from his ethnic group. Judges must be free to deliberate on issues without fear of incurring government displeasure, abduction and murder — as happened to three Ghanaian judges in 1982.
The rule of law does not exist in many African countries, where the leaders themselves and their ministers flout the law. African governments arbitrarily seize people’s private property with impunity. People cannot obtain relief from the court system, because the judiciary is just another organ of the kleptocratic government, which appoints judges and justices of the peace. Looting and arbitrary seizures of property by undisciplined soldiers have become rampant in much of Africa, discouraging not only foreign but domestic investment as well. At the African Business Round Table in Cairo, Babacar Ndiaye, President of the African Development Bank, warned that “in order to improve the flow of foreign investment into Africa . . . African governments (must) focus more on areas such as ownership law, settling of disputes, exchange controls, incentives and political stability.”
Unfortunately, it is the leaders themselves and their ministers who break the law. In Cameroon, the official job of the “road police” who man hundreds of checkpoints across the country, is to ensure the road-worthiness of vehicles and the smooth flow of traffic. “In practice, they extort money at will by cooking up charges against drivers, whether their vehicle papers are up-to-date or not” (West Africa, March 13-19, 2000). “Foreign investors are particularly discouraged that the justice system is the most corrupt of all government departments,” said Severin Tchonkeu, publisher of the independent French-language newspaper, L’Expression in Cameroon. It is often easier to bribe a judge for a favorable judgment than to pay a lawyer to argue a case. Oscar Amorow, a Cameroonian lawyer based in Washington, D.C., said his father won a $6,000 claim against an insurance company but only received it after paying the judge in the case $1,000 to sign his judgment.
Rampant corruption and widespread cases of bribery and fraud testify to a complete break-down of the rule of law, diverting enormous resources from public coffers into private hands. In the mature African kleptocracy, corruption becomes systemic, pervading the civil service, statutory boards and public corporations. What began as occasional acts of public misconduct spread like a cancer and gave rise to a state in which `wrong-doing has become the norm,’ whereas the `notion of public responsibility has become the exception, not the rule.’ Corruption is then `so regularized and institutionalized that organizational supports back wrong-doing and actually penalize those who live up to the old norms. In the most pernicious types of kleptocracy, such as Angola, Kenya, Nigeria and Zaire, the head of state and his entourage systematically looted the wealth of the country.
More maddening, the loot is not invested in Africa to build factories and create jobs, but shipped out of Africa to develop the already rich countries. According to United Nation’s estimate, $200 billion or 90 percent of the sub-Saharan part of the continent’s gross domestic product (much of it illicitly earned), was shipped to foreign banks in 1991 alone. “Even Al Capone didn’t invest in Sicily, he invested in Chicago,” said John Stremlau, head of the International Relations Department at Wits University in Johannesburg (Reuters, July 13, 2003). An irate Bedford N. Umez, Nigerian Professor of Government at Lee College in Texas, chimed in:
“Even wild animals protect their own territories. These wild beasts, as we call them, use their own common sense to hunt together, share the price of their bounties together and, most importantly, protect their territories together. Not so the embezzlers of our public funds. A man who denies himself, his parents and his children good roads, hospitals, education, clean air and water by providing such amenities to his enemies (the rich countries) needs help — he is sick in the head (African News Weekly, 7-13 October 1996, 24).
The police protect the ruling bandits! In fact, if you report them to the police for stealing, it is you the police would arrest!! Ricardo de Melo, Editor of the Luanda-based Impartial Fax, was killed for writing stories about official corruption. On May 5, 2003, the weekly Le Temps in Gabon was suspended for three months after publishing an article about state mismanagement of funds. The crooks are a law onto themselves. In October 1999, Mr. Henry Cassel, the deputy immigration director of Liberia and brother-in-law of President Charles Taylor, “pulled out a gun in broad daylight in a busy Monrovia street and shot dead a taxi-driver who had overtaken Mr. Cassel’s vehicle.”
In Kenya, the ever-competent, efficient and highly professional police investigators routinely dismiss the mysterious deaths of prominent people as “suicides.” According to Kenyan police investigators, Foreign Minister Robert Ouko was presumed to have broken his own leg, shot himself in the head and set himself afire. Two years earlier, Kenyan officials suggested that a British tourist, Julie Ward, lopped off her own head and one of her legs before setting herself aflame.
In 2004, Kenya’s Police Force developed an ambitious plan for reform, aimed at transforming the Force into a modern, efficient and effective institution, responsive to the needs and expectations of the public. But less than two weeks later, the Nakuru police boss, Mr. Joel Lang’at, suspected that his men tipped off armed robbers about an impending raid. Those armed men shot and wounded a cashier, carjacked four motorists and made away with Sh130,000. Lang’at was reported to have been furious that somebody within the police force could give valuable information to the criminals and help thwart a plan to arrest them.”
Corruption prevails in one form or another in practically all countries, Western and communist alike. African states have however evolved into a predatory monster that uses a convoluted system of regulations and controls to pillage and rob the productive class — the peasantry. Heads of state, ministers, and highly placed African government officials raid the African treasury, misuse their positions in government to extort commissions on foreign loan contracts, skim foreign aid and inflate contracts to cronies for kickbacks. The very people who are supposed to defend and protect the peasants’ interests are themselves engaged in institutionalized looting. As Nigerian journalist, Tony Nze Njoku, noted: Leadership in Africa, with few exceptions, is an opportunity to get rich rather than serve the people. The extent and magnitude of this scourge is difficult to estimate, owing to its illegality and the painstaking efforts the culprits make to conceal it.
Ayittey was formerly a Distinguished Economist at American University. He is President of the Free Africa Foundation.
