Legal Pluralism Crucial to Advancing the Rule of Law in Sub-Saharan Africa

The successful promotion of the rule of law in sub-Saharan Africa requires adherence to a combination of indigenous and international laws, according to research recently published in the Canadian Journal of African Studies by Berihun Adugna Gebeye, a PhD candidate in the Department of Legal Studies.

In “The Janus face of legal pluralism for the rule of law promotion in sub-Saharan Africa,” Gebeye discusses the ways two distinct forms legal pluralism, or the application of multiple legal orders within one country, operate in tandem.

“The first, classic legal pluralism includes indigenous laws, customary laws and even religious laws that support the state in its delivery of law and order. The second, new legal pluralism has an international element to it, including respect for human rights, democracy and international law,” explained Gebeye.

Gebeye consulted multiple rule of law indexes to examine and categorize the state of rule of law in sub-Saharan countries. He found that, in relatively stable rule of law countries like South Africa and Botswana, indigenous laws exist alongside a commitment to human rights and democracy. These countries show how rule of law can successfully function in constitutional democracies, specifically in the African context. In comparison to their stable neighbors, fragile rule of law countries like Zimbabwe and Ethiopia do have indigenous laws that help maintain internal law and order, but defy international law by violating human rights or not holding free elections.

Countries in sub-Saharan Africa have struggled with constitutional rule of law since the 1960s, when many gained their independence. Over the course of several decades, the international community, including governments and institutions like the World Bank, provided resources intended to help these countries enforce constitutional law. The international community has alternatively pushed for either state-centric, indigenous laws and institutions or for international laws, thus failing to recognize the essential interaction between both, according to Gebeye.

“Projects of rule of law promotion should be mindful of the existence of these two types of legal pluralism. Both have their own advantages and shortcomings in rule of law promotion, and both forms of legal pluralism are situated in a constitutional system. If we want to have sustainable rule of law practiced in sub-Saharan Africa, we need to be mindful of two forms of legal pluralism and their relationship to the constitutional systems,” concluded Gebeye.