Consolidating democracy on a troubled continent: a challenge for lawyers in Africa.

• Author: Oko, Okechukwu

ABSTRACT

African countries during the post-colonial era have struggled to establish democratic governments, too frequently succumbing to authoritarian, usually military, rule. This instability, as nations swing from one regime to another, has hindered the economic growth and respect for civil rights that citizens had hoped would be the legacy of independence. Despite such abuses, both the elite and the masses in Africa recognize that democracy represents the best hope for future stability. In countries like Nigeria, citizens are demanding the replacement of corrupt, paternalistic military officers with democratic, civilian rule.

Even the election of civilian administrations, however, offers no guarantee that democracy will take root. African nations continue to confront challenges from politicized militaries, fragmented civil societies, and dysfunctional institutions. To negotiate their way through such obstacles, these countries require institutional changes consistent with democratic ideals, including passing new laws and educating citizens in democracy.

The legal profession, more than any other segment of society, is in the best position to lead African nations to these goals. Lawyers play a prominent role in checking arbitrary governmental power, protecting civil rights, and reforming legal institutions. Yet most observers have largely ignored this role that the legal profession must play in building African democracies. Unfortunately, lawyers too often have tainted themselves by their association with despotic regimes, thus requiring the legal profession to regain the public trust.

This Article examines the necessary role of lawyers in democratic transitions in Africa, offering suggestions for addressing the inadequacies of the legal profession and for improving the public perception of the legal profession in these countries. Ultimately, the Article argues that despite their current weaknesses, lawyers are well suited to solve the problems that the transition from authoritarianism presents.

1. INTRODUCTION

   In the dawn of the new millennium, the quest for a durable democracy in Africa remains largely unsolved.(1) As democratization efforts that engulfed Africa immediately after colonial rule quickly atrophied, authoritarian rule supplemented them,(2) mostly in the form of military regimes(3) and one-party states.(4) Even in countries with elected civilian administrations, democracy serves as a gloss that veils abuses by tyrants and despots masquerading as democrats.(5) Some commentators blame the failure of democracy on the unchecked predatory instincts of a politicized military.(6) Others insist that the selfish impulses of political elite who seek the power of democracy but reject its concomitant obligations,(7) coupled with the absence of meaningful democratic traditions,(8) are what frustrate democratization efforts in Africa.

   A review of the democratic experiment in African nations reveals that most attempts to establish democracy are often short-lived and typically followed by military regimes.(9) The gyration from democracy to authoritarianism has left most African nations in deep turmoil as no African government has significantly advanced the welfare of its citizens.(10) Consequently, most African nations have not experienced the social equilibrium, respect for human and civil rights, or economic development that the citizens hoped would flow from the attainment of independence.(11) Far too often, the political elite that admirably won the battle for independence turned into despots and unleashed a reign of terror on their citizens.(12) As Professor Ndulo aptly observed, "[t]he dreams of prosperity following independence and self rule became a nightmare of insecurity and poverty."(13) The frequent collapse of democracy in Africa has created a continent that is less stable, economically crippled, and incapable of resolving conflicts in a peaceful manner.(14)

   Despite democracy's checkered history in Africa, there remains an enduring commitment, at both the elite and mass levels, that elevating the citizens' well-being, economic development,(15) and social equilibrium are best achieved through democracy.(16) Africans are increasingly demanding the restoration of democracy, especially the right to govern themselves free from paternalistic, corrupt, and often abusive military officers.(17) Olusegun Obasanjo, Nigeria's new President, spoke for the vast majority of Africans when he observed during his inauguration that "[w]e will leave no stone unturned to insure [the] sustenance of democracy because it is good for us, it is good for Africa, and it is good for the world."(18) Even the despot, civilian, and military rulers(19) grudgingly concede that democracy is an idea whose time has come in Africa.(20) Thus, democratic transitions are taking place in Africa,(21) some violently, others peacefully.(22)

   The transition from authoritarianism to democracy(23) creates intriguing challenges as African nations battle to implement constitutional democracy within the existing but severely distorted institutions, processes, and political attitudes of the prior authoritarian regimes.(24) The election of a civilian administration is the most important preliminary step toward democratization, but it offers no guarantee that democracy will be actualized.(25) The major challenge for African countries making democratic transitions is how to preserve and consolidate democracy amidst threats and challenges by politicized militaries,(26) morally bankrupt political classes,(27) fragmented civil societies, pervasive and palpable lack of democratic traditions, ethnic tensions,(28) and dysfunctional political, economic, and legal institutions.(29) Democracy cannot be realized unless African countries meaningfully address the human and structural problems that threaten democratic reform.(30) Perhaps no one appreciates these challenges more than Nelson Mandela. He stated that

   the world is grappling with the problems of governance, legitimacy and human rights. In recent years, particularly during the past decade, there has been a remarkable movement in various regions of the world away from undemocratic and repressive rule towards the establishment of constitutional democracies. Transition in these societies has therefore been accompanied by enormous challenges. While it has signified new hopes and aspirations, it has at the same time brought into sharp focus the difficult choices that these countries would have to make on their road to democracy and economic progress.(31) Democratic transition results in the intersection of two profound challenges: (1) emancipating citizens from the clutches of authoritarianism,(32) and (2) erecting a democratic infrastructure that can withstand the avalanche of implacable environmental factors that threatened and ultimately derailed past democratization efforts.(33) To meaningfully address these challenges, African nations require institutional, structural, and behavioral changes that are consistent with their democratic aspirations.(34) New laws are needed to bring these societies in line with democratic ideals,(35) institutions and structures required to operate the democratic machinery must be strengthened and rejuvenated,(36) and attitudinal changes are required to counteract the citizens' skepticism about the democratic process.(37)

   These solutions, in turn, call for creative and imaginative lawyers to assist in defining, enforcing, and enhancing the principles and standards of democracy.(38) The legal profession has always occupied a preeminent position in society.(39) It is often the most powerful institution in any country. Lawyers are defenders of liberties and formidable opponents of totalitarian and dictatorial regimes.(40) Lawyers, therefore, more than any other group in society, have the capacity to check the arbitrary powers of government, expand and protect citizens' rights, reform legal institutions, rejuvenate the civil society, and induce attitudinal changes necessary to sustain democracy.(41)

   Despite the preeminent role played by lawyers in the birth, growth, and perpetuation of a democratic process, the role of African lawyers in the Continent's search for democracy has been largely ignored.(42) This Article examines the important yet often ignored roles played by lawyers in democratic transitions. It also offers suggestions that will address the legal profession's inadequacies and improve the public perception of lawyers as they battle to enthrone democracy on a troubled continent. The central thesis of this Article is that the problems presented by the transition from despotism to democracy are challenges that lawyers are well suited to undertake.(43)

   Although the issues raised and discussed herein are relevant to most, if not all, of Africa, the focus will be on Nigeria to give the study significant concreteness.(44) Furthermore, while data and literature from other African countries will be referred to as a general background, reliance will be on Nigerian experiences and practices that illustrate and typify the plight and role of lawyers in the democratic process. Nigeria provides an important model for this study because "in no African country has the effort to create democracy been more far-reaching or of longer duration that in Nigeria."(45) The Nigerian experience demonstrates that lawyers have not shown sufficient commitment to the democratization process. Inadequate training, lack of strong ideological commitment to civic responsibilities, and harassment by the military have prevented lawyers from making meaningful contributions to the search for democracy.(46)

   The transition to democracy cannot be meaningfully discussed without examining the era of despotism, especially the impact of military dictatorship on the legal process and civil society. Understanding the machinery of military governance will put the democratic transition program in its...