The panel was convened at 10:45 a.m., Thursday, March 29, by its moderator, Joel Ngugi of the University of Washington Law School, who introduced the panelists: Angela Banks of the College of William & Mary School of Law; Chinwe Esimai of MetLife, Inc.; Marjorie Florestal of the University of the Pacific McGeorge School of Law; and Stefaan Smis and Stephen Kingah of the Institute for European Studies, Faculty of Law, Vrije Universiteit, Brussel.
INTRODUCTORY REMARKS BY JOEL M. NGUGI *
Since this is a panel on "new" voices on Africa, it is incumbent upon me to undertake the tough task of mapping out what the "old" voices were. While founders of a discipline or discourse have the privilege to shape it in their initial writings, newcomers, armed with the keen retrospective foresight and idealism, have the privilege to map out the founders, categorize their writings, and critique them. The panelists here are privileged to belong to the latter group on international law scholarship on Africa, so I will spend a few paragraphs to lay out an eagle's-eye-view map of the constitution of the field--by no means ah easy task, since the story begins with the Berlin Conference of 1885 and remains ongoing.
One could think of Africa's relationship with international law in terms of the dilemma one faces when asked to eat the mythical Indonesian simalakama fruit: if you eat it, your father dies; if you don't, your mother dies. Right from the time of the Berlin Conference of 1885, Africa had little choice but to engage with international law. (1) After all, as Professor Florestal tells us, the Berlin Conference was as much about "free trade" as it was about colonization. Yet engagement meant accepting the lopsided, Eurocentric vision of the discipline which in the first place justified the colonial project in Africa. (2) This truism has shaped many of the voices of those writing on Africa in international law.
In the early post-colonial period, there emerged two groups of scholars on Africa. The first group of scholars, the Mainstream Reconstructionists, saw the problems of international law as constituted but believed that the discipline could be reformed and reconstructed through constructive engagement truly to reflect a post-hegemonic order. (3) However, most of these scholars believed in the modernization paradigm: Africa could benefit from the fruits of international law by engaging in the modernization and industrialization project. The mechanism for doing this was using state-led capitalism. As it became obvious in the 1980s, the modernization discourse became a totalizing discourse. Modernization became a justification for some of the worst predatory practices of the African state.
As a result of this buy-in to the modernization paradigm, scholars of international law did not seriously study the African state; their domestic politics and how these politics provided different (sometimes perverse) incentives for the African state in setting its development agenda and policies. This neglect of issues of institutional design and incentives for politicians in setting policies was so complete that it was a surprise for the field when public choice and rational choice theorists announced in the 1980s that the African state was a rational actor as well. Rather than imagine the African state as a monolithic actor that is either predatory or benevolent, Rational Choice theorists reminded us that the African state was a coalition of economic and political elites with the objective of enhancing their economic and political powers often at the expense of the majority of the rural peasants--and that this accounted for a majority of the rural-urban modernization paradigm.
The second group of early scholars on Africa, on the other hand, was at the margins of the discipline. This group, the Radicals, saw no possibility of redemption for African from the international legal system. These scholars lambasted the discipline for its inherent, thorough-going, Eurocentric bias and saw it as an illegitimate order. They believed the international legal system was a predatory and oppressive regime that offered no hope for Africa without a rewriting of the rules of the system.
Like the Mainstream Reconstructionists, the Radicals failed to transform the place of Africa in the international legal order. However, for a brief period in the 1980s, the intellectual interests of the Reconstructionists and the Radicals were united: both were invested in their criticism of the predatory African state as it had emerged through the state-led capitalism of the 1960s through the 1980s. This unity in interest and purpose found expression in the so-called good governance and rule of law discourses of the 1990s. As the Rational Choice Theorists had demonstrated, and as the Radicals had been arguing all along, the modernization paradigm gave economic and political elites in Africa a pretext to usurp power from their citizens, and suspend the application of human rights in the name of modernization and economic development. In the end, the only outcome was significant consolidation of economic and political power in the hands of these elites. The good governance and rule of law discourses became the mechanisms which would be used to tame the excesses of the predatory African state. (4)
However, it soon became clear to a new group of scholars working on Africa that these two discourses--like the modernization discourse before them--were not neutral. In particular, in their strong neo-liberal formulation, these two discourses became so deeply critical and pessimistic of the African state, they suggested a minimalist approach to the state, and the construction of the market as the most effective mechanism to allocate resources and usher economic development. Ironically, it was incumbent upon the Radicals to defend and rehabilitate the African state. There is nothing inherent in the African state that makes it incapable of meaningfully intervening in the market to promote a transition to a more just, equitable, and sustainable society.
This realization generally accounts for the emergence of a majority of the "new voices" on Africa--many of whom are represented in the panel. Perhaps what is most unmistakable about the "new voices" is their attitude towards the African state: They accept the possibility that, like any other state, the African state could be reformed and harnessed to work for the greater good of Africans. Such reform must be both endogenous--through proper institutional design, genuine competitive politics, and an embrace of substantive humanistic goals and objectives aimed at achieving the philosophy of the good (however locally defined) of the polity, and exogenous--through the reform of the structural aspects of international law that make it predatory, unfair, and oppressive to African states and their citizens.
It is therefore not surprising that the common thread among the panelists is that they take the state in Africa and the political, economic, and legal processes which contribute to policymaking seriously. With this serious focus, it has become possible to engage the African state. This is in keeping with a score of mainly young scholars who are writing from a "Third World perspective" who do not take Africa and its fifty-plus states only as "law takers" but as participants in the international community. This serious focus on processes taking place in Africa presents an opportunity seriously to engage African scholars, politicians and policy makers.
The "new voices" who present today are also united in their optimism that this engagement could be fruitful and transformative. Chinwe Esimai believes the human rights discourse can be used to empower the powerless. Marjorie Florestal believes that understanding the trauma of the colonial project would make African states better able to tap into the trade discourse and system. Angela Banks believes that we can enhance democratic governance by taking seriously institutional design in fashioning participatory systems in constitution making. Finally, Stefaan Smis and Stephen Kingah cautiously believe in the ability of the Chadian government to properly balance its international obligations respecting the Chad-Cameroon Pipeline Project while delivering the proceeds of the project to its citizens. For these "new voices," clearly, the neo-liberal pessimism about the African state has given way to sober and pragmatic optimism.
THE CONVERGENCE OF LOCAL AND INTERNATIONAL LAW: FAMILY LAW IN THE PROTOCOL ON THE RIGHTS OF WOMEN IN AFRICA
By Chinwe Esimai **
When the Maputo Protocol (1a) failed to pass in the Niger parliament, a government spokesperson, Mohammed Ben Omar, was quoted in a Reuters news story as saying: "the rejection of the motion is a serious setback for Niger (vis-a-vis the human rights movement), but this is a proper application of democratic principles." (2a)
Mohammed Ben Omar challenges us today, as we gather for this 101st meeting and assess the future of international law. Our challenge is to review these two ideals that are in tension: (1) universal, cosmopolitan ideals of human rights; and (2) local, corporate rights of self-determination. Both are enshrined in the Universal Declaration of Human Rights: (1) inalienable rights on the one hand, as stated in the preamble, and (2) the will of the people as the basis of authority of government on the other, as stated in Article 21. These ideals do not necessarily conflict, but they are in tension, and the manner in which this tension is handled will determine the degree of effectiveness of local and international lawyers in attaining mutually desirable goals.
Although the Maputo Protocol will be enforced in the recently merged African Court of Justice, where jurisdictional determinations will be raised and adjudicated, I think that the points of true convergence may be found in those areas where the protocol sets policies...