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Post-Colonial Public Law: Are Current Legal Establishments Democratically Illegitimate?
Originally published by the African Journal of Legal Studies, 3(1), 2012, Pp. 21-43.
[My time serving as an intern at the International Labour Organization in Geneva, Switzerland is directly responsible for this essay. It was there, learning from diplomats and delegates, furiously scribbling notes from assemblies and special lectures, that I came to gather more about legal theory and its interest in democratic legitimacy. There’s a vibrant concern for democracy from the gaze of legal jurists. See, for example, Tom Daley‘s Democratic Decay & Renewalresearch platform for more.]
The extant literature covering indigenous peoples resident on the African continent targets colonial law as an obstacle to the recognition of indigenous rights. Whereas colonial law is argued by a wide body of literature to be archaic and in need of review, this article takes a different route and argues the perspective that colonial law is democratically illegitimate for ordering the population it presides over – specifically in Africa. It is seen, in five case studies, that post-colonial public law structures have not considered the legitimacy of colonial law and have rather modified a variety of constitutional statutes as country contexts dictated. However, the modified statutes are based on an alien theoretical legality, something laden with connotations that hark to older and backward times. It is ultimately argued that the legal structures which underpin ex-colonies in Africa need considerable revision so as to base statutes on African theoretical legality, rather than imperialistic European ones, so as to maximise the law’s democratic legitimacy for both indigenous and non-indigenous Africans.
The legal remnants of colonial public law in African polities are problematic for several reasons. In the first, colonial theory in law is laden with inappropriate connotations and sociological paradigms which continue to negatively affect the pluralist citizenry’s capacity for equality, representation, and indigenous rights. This can be shown, for example, by discussing Senghor’s’  work on la nigitude and Adotevi’  explanations of les nigrologues. These two authors depicted the particular social paradigm black Africans found themselves in during and after colonial reign. Senghor looked into what it meant to live as a black individual in a white legal system with Adotevi contributing en masse to this sociological theory by having compiled a number of relevant works. A more recent example comes from Odambo’s  efforts concerning his pygmitude theory. Rather than focus on being black in Africa, Odambo used Senghor and Adotevi as a platform from which to centre his attention on what it meant to be a pygmy, living in mainstream black societies predicated on white ex-colonial law. He argued that the majority of Africans have become Europeanised as a result of the cultural paradigms inherent in colonial law. This contemporary law came into being arguably because of imperialistic power structures that did not substantially change when independence was wrought or ‘given’.
The justification for this argument, and indeed the novel approach to this subject, is wholly based on the perspective of democratic legitimacy. This way of observing public law demands that we ask who were involved in the creation of these laws, how were these laws imposed and enforced, and – but not limited to – how public law changed over time and who was involved in that process. This paper will come to show that the vast majority of Africans, self-identifying as black, Arab, or indigenous, had little or no role to play in the creation, adoption, and evolution of public law since colonial powers enforced these alien dynamics.
Indeed, so evident is this argument that qualitative and quantitative analyses will show that constitutions in five African countries (our case studies) have not substantively changed since their inception: in some cases from over fifty years ago. There is contemporary relevancy to this argument too. Just as black Africans had to fight white colonial domination to preserve their freedoms, cultures, and identities, so now too do indigenous Africans fight for themselves against a Europeanised Africa. The justification for this argument is that it is seeking to save Africa from the ill-effects of colonial public law by questioning the legitimacy of this law and encouraging the endogenous development (if not creation) of culturally relevant, inclusive and democratically legitimate African public law. 
Moving from the three examples derived from African thinkers mentioned above, there is a substantive and large extant literature on this subject stemming from legal studies. The majority of these works look not only to public law (the focus taken herein), but almost every category of law. Together, they can be said to argue not the illegitimacy of colonial laws but rather, in legal terms, the ineffectiveness of Eurocentric law in contemporary African societies. For example, Joireman  argues that common-law is more effective than civil-law in providing the rule of law in Africa. This is an argument that I am in disagreement with. Certainly, Joireman’s analysis is both robust and convincing, but I reason that she missed the greater question of whether either legal system is democratically legitimate. This is the argument that Ayyitey made when he argued that European legal structures were not new to Africa: rather, they were different institutions designed to address the same problems both Europeans and Africans faced in their legal lives. As will come to be seen, this article argues for the need to continue analysing pre-colonial African legal structures and to employ them in African public law.
Indeed, what we see in the extant literature is a consistent level of blame on the ill-effects of colonial rule and in many cases there are calls to return to “African values.” There is also a significant level of concern regarding the prison of a postcolonial telos in Africa where current normative and mainstream social, economic and political methods are predicated on ineffective “Western” institutions. This paper is a contribution toward this movement of trying to get “Africa back to Africa.”
This work tries to contribute to the political theory of legal legitimacy (see, for example, certain works of Carl Schmitt  and Max Weber)  in that it argues law must emulate the pluralist citizenry rather than be formulated and imposed on the pluralist citizenry. In other words, the diversity of individuals which compose the citizen body are the ones that need to define, structure, and thematically formulate the laws which are meant to govern them. In one respect, it could be argued that this extreme is the only way legitimacy can be given to law (the condition being that we are taking a democratic and republican perspective). In another respect, however, legitimacy might be conveyed if concepts of justice, equality, and ethics are in the process of being defined by the population. In either case, legitimate law is culturally relevant to the social particulars found in a certain country’s plural citizenry. It is argued that it is thus the responsibility of the government, in concert with NGOs and MNOs (or more broadly local and international civil society), to facilitate the gathering of this information from its citizenry and commence an inclusive review of its laws and legal theories.  Should we apply this perspective to the African context, the irrelevancy of colonial legal structures (on which most Africans polities have built their legal codes) hopefully becomes apparent.
The argument, made above, concerning the illegitimacy of colonial law in African polities, will be shown in five case studies. Each country is selected to represent a different European colonial legal structure: those of the French, English, German, Portuguese, and Belgian. Algeria represents French law; South Africa English law; Tanzania German law; Angola Portuguese law; and the DRC Belgian law. Although most European countries practiced law influenced by the Napoleonic Code, lex Romana, or English common law, these legal structures will not be used to distinguish the style of law in the five selected countries. Rather, the goal of this observation is to highlight the existence of illegitimate colonial law in African polities so as to support the argument that legal legitimacy needs to be made in African countries.
The methodology used in the forthcoming observation is a conceptual analysis of the law in those five aforementioned African countries. Recent constitutions, amendments, and statutes will be scrutinised for resemblance to the constitutions generated during these countries’ periods of independence. The corresponding number of correlation between the two, using frequency and relational analyses of the data, will try to determine a quantitative level of illegitimate colonial legal theory present in those five modern African polities. Prior to the quantitative analysis, a qualitative conceptual analysis will take place to mine the connotations colonial law has brought into the modern period so as to further ingrain the nature of legal illegitimacy by examining the first constitutions created after independence.
It should be noted that the quantitative analysis is purposefully simplistic. It selectively targets terms that are arguably colonial: this part of the argument is thus meant to add to the veracity of the central point rather than act as a standalone determinant of the point itself. The most this paper can do is open wide a new argument and hopefully generate the drive to bring democratic legitimacy to colonial law – the quantitative analysis is but one small part of that.
The International Labour Organisation’s NATLEX  (national legislation) database will serve as the primary source for the document data required for this qualitative analysis. When possible, constitutions will be analysed in their original language of conception (such as French, German, English, and Portuguese where applicable) and will then be translated by the author for the purposes of this article. Furthermore, and the most substantive argument corresponding to all case studies, is that no African country before European colonisation had an explicit constitution. Certainly there were ethnic or ancient imperialistic codes of law, with some like the Egyptian literally written on stone, but nothing (to the academy’s present knowledge) in the context of managing the European or ancient Chinese notion of the Westphalian or Qin Dynasty nation-state (respectively; see the first three chapters of Fukuyama  for more). Independence perhaps forced countries to determine their legal structures in a manner that fit the context of Eurocentric global realpolitik. The leaders and administrations that took the efforts of independence and nationalism to heart were rarely representative of the plural citizenry (that composition of individuals forming various social formations within a bounded territory); and rarely, if ever, had an inclusive process concerning the development of independence.
In other words, there was no attempt to establish culturally relevant legal codes as that was perhaps irrelevant. Actors in Algeria, for example, and as can be seen in the Preamble to the 1963 Constitution, wrote in what might be called the European legal paradigm. The document identifies a political party; political theories of democracy, socialism, and populism; and only differentiated itself in regards to superficial qualities such as state religion (Islam), state language (Arabic), and geopolitical affiliation (Arab and African). The constitution is understandably a snub to the French, but what the actors probably did not realise was that they were already playing by French rules and had lost their own legitimacy over the relevancy of public law.
It is hopefully now understandable how European paradigms and connotations attached to legal terminology affected various populations – because pluralist populations were not included in the creation and evolution of public law, they were left to the dominance of elites already playing by European rules. Whether it was the black Africans or Arab Africans struggling to determine their identity in the post-colonial state (or currently rebelling against this lack of inclusion and representation), or the current plight of indigenous and minority Africans that were (like most others) in majority excluded from the process of independence, it is perhaps logically clear that the context of law to be used in their respective countries was preordained. It was necessary for Africans to dominate the imported European power structures as their cultures did not have the requisite political systems to deal with colonisation. Only levelling the playing field could have provided the chance to overthrow the overlords. This meant that the agents had to join the game, play by the principals’ rules, and in the end prevail. What is disconcerting is that the rules of the game have not changed even though the principal has, in many ways, stopped playing.
The 1963 constitution of Algeria  displayed in typically elegant fashion the cessation of French colonialism and the establishment of a socialist Algerian government. The Preamble of the text described how the Fellahs,  non-rural labouring individuals and the intellectual vanguard would maintain the ‘democratic’ revolution which successfully expunged the French invaders from Algeria’s European defined borders. If we were to move past the ideological rhetoric, we could potentially argue that the 1963 document defined the Algerian state using European concepts of the “nation-state.” It, as stipulated above, mentioned state language, religion, and geopolitical affiliation – all common attributes to a number of European constitutions. Article 10 is particularly relevant to this point:
Les objectifs fondamentaux de la Republique algerienne democratique et populaire sont: la sauvegarde de l’independance nationale, l’integrite territoriale et l’unite nationale; l’exercice du pouvoir par le peuple dont I’avant-garde se compose de fellahs, de travailleurs et d’intellectuel revolutionnaires; I’edification d’une dimocratie socialiste, la lutte contre I’exploitation de I ‘homme sous toutes ses formes; la garantie du droit au travail et la gratuite de l’enseignement; I’elimination de tout vestige du colonialisme; la defense de la liberte et le respect de la dignite de l’stre humain; la lutte contre toute discrimination, notamment celle fondee sur la race et la religion; la paix dans le monde; la condamnation de la torture et de toute atteinte physique ou morale a l’intigrite de l’eire humain. 
The fundamental objectives of the Democratic and Popular Republic of Algeria are: The safeguarding of national independence, territorial integrity, and national unity; the people exercising their power where the avant-garde is composed of fellahs, workers, and intellectual revolutionaries; the edification of a socialist democracy, the battle against the exploitation of man in all its forms; guaranteeing the right to work and free education; the elimination of all vestiges of colonialism; the defence of liberty and respect for the dignity of Man; the battle against all forms of discriminations, notably those founded on race and religion; peace in the world; the condemnation of torture and all threats, physical or moral to the integrity of Man.
The example above shows the type of rhetoric used in the foundation of Algeria. Notions of nationality, territory, revolution, human rights, and socialism, are all arguably political theories mainly contributed to by the “West.”  However, democracy and peace are also arguably post-universal concepts evident in even the most remote ethnic communities which might lead to the argument that indigenous, or even mainstream Africans, could have created or may still create their own political destinies that resemble but are not predicated on Eurocentric legal theory. This, I argue, is a relevant point to make (especially for Africa) and is a perspective many aid societies should take into consideration so as to remove the parochialisms aid brings to Africa.
There is a counter-argument to this very point: if Africans and indigenous people are capable of creating their own systems similar to those exported by the ‘West’ and adopted by revolutionary Africans, is colonial public law in Africa then legitimate? The answer, is no. Even if an African plurality would come to develop an identical institution created in the ‘West’, the only way this can be legitimated is through a highly inclusive democratic process with many procedural stages for deliberation, discussion and consensus formation (preferably with a minimum 80% majority). There is promise here, however, to revise existing institutions in a number of African countries and open them for a process of democratic legitimation. This could be one way of turning an existing and functional illegitimate colonial institution into a culturally-relevant and democratically legitimate African institution. Even in the form of a ritual, there is a significant element of the sacred in this process which is why this argument should not be ignored as an important yet fanciful point.
In South Africa, the 1996 Constitution  replaced the 1993 interim government constitution formed after the general election which formally terminated Apartheid. Although the constitution has been amended 16 times since its inception, it has arguably been only in the last few years that amendments have begun to bring cultural relevancy back into the South African polity. This is strongly evident in the 11th Amendment Act of 2003 in which the Northern Transvaal/Northern Province was renamed Limpopo after its major tributary river that has cultural significance to the traditional local African populations living there. 
Here we must raise a crucial question: what does it matter if a territory has been renamed from a colonial fetish to a local traditional one? Indeed, this change, like others in the South African Constitution falls squarely within the sights of most critiques levelled against public law – mainly that without enforcement these articles in the constitution are legally irrelevant. It then does not matter whether public law is colonial or African: nobody takes much notice. Although this argument that public law is poorly enforced in Africa (and most other regions in the globe) is in many respects true, the act of renaming the Northern Transvaal to Limpopo is sacred. Like the widely acclaimed and tragically long-awaited apology from the Australian Government to many indigenous peoples that suffered through the Lost Generation, the act of the apology was a step closer to reconciliation and one step closer to including indigenous peoples as partners in government and not subjects (something which the aboriginal plurality has been viewed as for hundreds of years).
The point is best described by deploying the Aristotelian concept of eudaimonia. As Ober  came to argue some years ago, by removing the right for a people to govern themselves, to have laws that reflect their cultures, is denying them – as a collective plurality – the right to happiness. It removes the capacity for a culture to create and exercise its legal phronesis and denies a culture the chance to establish its legal praxis. In this respect, the simple act of renaming the Northern Transvaal to Limpopo is of the highest importance even though enforcement is lacking when taking other articles into consideration. The key to this point is that Ober linked eudaimonia with democracy (that is, democracy was the path to eudaimonia) – and to have democracy a polity must create relevant laws. Otherwise it is the rule of foreign laws wherein the people it orders had little to no role or say in its development.
Although changes in terms of cultural relevancy to law in South Africa are slowly coming about, the constitution is perhaps a shining example for other countries. Probably due to the tragic events that led to the constitution’s late inception (most African countries gained independence in the 1950s-1970s), the 1996 South African constitution displays international legal standards and promotes equity at almost every given opportunity. (As is well known this is unfortunately not a common reality in the governance of South Africa). This is visible even in what might be called the small things, such as a signing off in the Preamble written in six of the country’s eleven recognised languages (who recognised only these languages, for what reasons and why not having included others is still unclear).
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso. God seen Suid-Afrika. God bless South Africa. Mudzimu fharutshedza Afurika. Hosi katekisa Afrika. 
Furthermore, the constitution takes an official stance recognizing the need to teach and promote indigenous languages (Khoi, Nama, and San), but not at the expense of disrespecting the languages of minorities in Africa (for example German, Greek, Gujariti, Hindi, Tamil, and Portuguese). The word “equitable” is used sixteen times in the document, “equity” twice, and “equality” nineteen. Basically, it may be argued that the South African constitution is implicitly providing the opportunity for the plural citizenry to shape law and be rid of the remnants of colonial paradigms. Whether that is actually happening remains to be investigated.
Further light can be shed on why South Africa’s constitution is different from the other cases in this paper. It is reasonable to infer that this occurred through the galvanizing effect Apartheid had on African society. Decades of battling unpopular and internationally condemned racial policies probably created the paradigmatic context for South African legal theory to emerge as expressed in the 1996 constitution.
Blaustein et al.  provided the original 1961 Independence Constitution of Tanganyika (later renamed Tanzania once Tanganyika and Zanzibar were joined in 1964). This Tanzanian Constitution (which was not drawn. up by Tanzanians – rather it was imposed on them) is evidently based on some form of Westminster model which is perhaps best expressed through this part of the document:
Be it enacted by the Queen’s most Excellent Majesty, by and with consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by authority of the same… 
It is uncertain whether the importance (if any) of a distant queen, lords, and ‘commons’ (lower house) sanctioning independence for Tanganyikans was realised by the vast plurality at the time. Rather, the elitist Tanganyikan individuals engaging with British power structures were most likely the only ones to appreciate those nuances in the 1961 Constitution handed to them. This is particularly evident with the following description of Tanganyika’s territory in Article 1, section 1.
On the ninth day of December, nineteen hundred and sixty-one (in this Act referred to as the appointed day) Tanganyika (the limits of which are defined in Article 1 of the Tanganyika Order in Council, 1920) shall become part of her Majesty’s dominions under the name of Tanganyika…
The British legal paradigm in the Tanganyikan constitution is evident. However, Tanzania may also be pertinent to showing German influences in law which was mostly wiped out in official documentation as British dominion took hold of the country. We might argue that the contextualisation of law in the elitist Tanganyikan mentality may have been influenced earlier during German colonisation. Iliffe  provided telling evidence. The author described how after the Maji Maji rebellion of 1905, Berlin ordered a German political system instituted in Tanganyika. It is the militaristic defeat of the combined Tanganyikan pluralities involved in the Maji Maji rebellion – arguably the largest resistance to early European colonisation in Africa  – that drove the resistance into focusing on economic and educational progress and away from failed military efforts. Iliffe  rightly explained that it is in the defeat of the Maji Maji rebellion that the Tanganyikan social narrative changed as power was sought through the German context since militaristic opposition was no longer realistic. This then may demonstrate that those Tanganyikans involved in the power struggle had perhaps already begun playing by European legal rules before English dominion. Whether this made the elite in later Tanzania more receptive to European legal paradigms is indeed another matter requiring further thought.
The 1975 Constitution of Angola  focused heavily on the traditional formation of the state, but also had a certain degree of international legal standards concerning human rights – namely the protection of the person against state violence. (That aspect of the constitution had unfortunately, for many individuals, not worked as planned). Furthermore, although the 1975 constitution only made use of the word “equal” a total of 7 times (“equity” and “equality” both had zero incidence) in the English translation, there is no indication that the original constitution in Portuguese would have been much different. .This reasoning was helped by scrutinizing Decree 458-A  which, in April of 1975, established the Portuguese government’s position granting independence to Angola. This approved Constitution explicitly gave land and mineral rights to the government which, as the extant literature on indigenous affairs showed,  is an unethical position when concerning the protection indigenous populations require.
1. All natural resources existing in the soil and subsoil, in internal and territorial waters, on the continental shelf and in the exclusive economic area, shall be the property of the State, which shall determine under what terms they are used, developed and exploited.
2. The State shall promote the protection and conservation of natural resources guiding the exploitation and use thereof for the benefit of the community as a whole.
3. Land, which is by origin the property of the State, may be transferred to individuals or corporate bodies, with view to rational and full use thereof, in accordance with the law.
4. The State shall respect and protect people’s property, whether individuals or corporate bodies, and the property and ownership of land by peasants, without prejudice to the possibility of expropriation in the public interest, in accordance with the law. 
The law was perhaps balanced towards giving the state the necessary powers, at least felt at the time, to deal with a violent and divided country.  However, the hasty pull-out by Portugal may have left the state – despite its considerable powers – unable to manage conflict.  And this is perhaps still the case should we consider indigenous populations in conflict with what might be called “mainstream” or “colonialized” Africans over the defence of indigenous lands. We might also argue (should we consider the quote above once more) that there is an irony in Article 12. The Constitution is allocating land that was defined and structured by European powers. This is a common theme throughout the five case studies.
A metaphor is relevant here. Imagine your house, one in which you had been living in for time immemorial with other individuals, has been taken over by violent thieves. You have attempted to rebel against this invasion but the thieves are too powerful. The only option left is to try and understand the thieves, their culture, network and power-dynamics. The next step is to use this socio-political cultural paradigm to your advantage and to fight the thieves out of your house via their levelled playing field. But now that the thieves are gone, the house is completely different: it had been re-arranged and re-designed during occupation. Instead of changing things gradually so as not to disturb other inhabitants or neighbours, the house is left the way the thieves made it and you have become the thing which you had so first hated.
As can be seen, this relates strongly to the argument made by Odambo in the introduction of this article. Indigenous Africans that did not conform to the Eurocentric socio-political cultural and legal paradigms but rather preserved their own distinct systems are discriminated against by non-indigenous “mainstream” Africans. They are now having their houses invaded by those which once had the same happen to them.
The transitional Constitution of Zaire to the DRC in 1992 is shown in its original French content.  The Preamble discussed the first independent Congolese government’s affirmation toward unity, peace, and progress despite regional differences. This may have been due to the extreme history of violence perpetuated by Belgian atrocities.
Affirmant notre volonte d’organiser une transition non conflictuelle pour en faire une pdriode de rassemblement de toutes les filles et tous les fils du pays; Convaincus de la necessite du changement et de la preparation dans la paix et la concorde, de l’avenement de la Troisieme Republique reellement democratique garantissant un developpment integral et harmonieux de la Nation… 
Affirming our will to organise a non-conflict transition to create a period of reunification of all the daughters and sons of the country; Convinced of the necessity for change and the peaceful preparation and accordance concerning the coming of the realistically democratic Third Republic guaranteeing an integral and harmonious development of the Nation…
That part of the Preamble, as translated above, depicted this commitment to national unification. This particular Constitution is younger than its 1960s counterparts and exhibited a similar degree of international legal standards as seen in South Africa (for example, a focus on human rights, the sanctity of the individual, and no state religion). Its shortcomings, however, are also evident. For example, Article Three states: “Le sol et le sous-sol appartiennent a l’Etat. Les conditions de leur concessions sontfixies par la loi,”  meaning that the land and that which is found beneath the land belongs to the State. The conditions regarding their concession are fixed by law. It is also evident that there is a disparity between individual and state. There is a focus on the structures of the state, parliament, voting, and so on as well as the establishment of human rights. But what is lacking is the rhetoric concerning the nature of representation, inclusiveness, and greater definitions of equality as are found for example in the 1996 Constitution of South Africa.
It can hopefully be seen in these short glimpses of five African independence era constitutions that international legal standards are perhaps the new shapers of constitutions. This is not entirely a bad thing. Yes, it would be more constructive to create constitutions that are culturally relevant to their pluralist populations; but international legal standards may in fact be pointing constitutions in that very direction. Recalling the South African and DRC constitutions (1996 and 1992 respectively), it can be seen that there is a greater focus on equality, equity, and equal rights not only amongst cross-cutting issues such as gender, labour, human rights, and environmental concerns, but also regarding minorities and indigenous peoples which was seen in South Africa’s focus on recognizing and preserving certain indigenous languages.
International legal standards, for example, display a grave concern for peace, levelling the social playing field, and environmental ‘safety’ (preservation and rehabilitation of biospheres for example). The argument is that these emerging standards contribute to the opportunity for greater dialogue, more education, and ultimately the time for individuals to think rather than focus mental energies on just staying alive. This then creates a chance for culturally relevant laws to emerge as citizens become more aware of the laws that govern them and as the people of the North Transvaal did, rename their regional home to something relevant like Limpopo. This process can be sped up if a focus is taken on rejecting illegitimate laws by challenging the legal theory that they are based on and replacing it with a culturally relevant theory of law derived from pluralist citizenry statistics (that is, identifying and recognizing the legal phroneses and praxes of plural cultures).
This idea of statistics requires further explanation. It is argued that robust polling of the plural citizenry on a law-by-law basis is a first step to inclusive democratic review of a given law. A government in power, present civil societies and international actors should have access to this information so as to understand the positions a pluralist population has concerning whatever law might be put under review. Gagnon’s  inclusivity index would be of use here to keep track of indigenous and minority populations so as to ensure they have ease of participation and minority populations so as to ensure they have ease of participation and contestation, a referendum can be held with democratic legitimacy concerning whether an ex-colonial law should be kept, reformed or rejected. This result can be quantified and then used by various players in governance to perhaps speed the improvement of the human condition in that given country or political level. That is, however, a discussion beyond the scope of this article.
The qualitative survey picked one or two examples from each of the five countries’ earlier or earliest constitutions. These examples revealed the connotative baggage colonial law left in African polities which is argued to have resulted in the imposition of alien legal paradigms on African pluralist citizenries. South Africa had the bitter benefit of having its constitution created most recently and clearly shows a legal structure that is much further distanced from colonial law – most likely due to the influence of international standards. It was also seen that South Africa is already engaging the process of legally instituting cultural relevancy at least in name (concerning the aforementioned 2003 Limpopo constitutional amendment).
This quantitative analysis will engage a comparative frequency analysis of terms to quantify the nature of paradigmatic correlation between the constitutions looked at in the qualitative analysis and their newer (amended) counterparts. This is done to gauge one level of carry-over concerning colonial legal theory so as to gain a better understanding of how law is shifting in Africa: is it still supporting discriminatory colonial concepts and needs change as suggested above; is it creating its own culturally relevant legal theory; or is it displaying accordance with international legal standards? Although this quantitative work will only be scratching the surface of these questions, it is still deemed important to conduct because – at the very least – it brings a multi-methods approach to this article. It can also be argued that this quantitative analysis will come to support the findings in the qualitative work done earlier. Table I shows the documents that will be comparatively analysed.
The methodology employed involves populating a list of key terms that are considered to be laden with colonial legal theory. These terms are selected from the earlier constitutions and searched for in the latest constitutions. The incidence of frequency between each constitution will statistically dictate the carry-over of colonial legal paradigms – to be certain only for these selected words – and either reinforce the argument of legal illegitimacy or reduce it. Table 2 shows the list of explicit search terms.
The relevancy of this analysis would mean little without some political theory behind the choice of the explicit search terms found above. The major justification for why these terms were chosen and not others is because they are each probably etymologically alien to traditional African languages over which they now preside (or had presided). This inference of course requires a serious analytic investigation – one that is unfortunately beyond the scope of this article. We will, however, try to build some evidence to show that the inference may be correct. A suitable place to begin is the Kingdom of Kongo which, according to certain accounts, 0 spanned most of what are now Angola and the DRC (formerly Zaire). It is presently reasoned that Portuguese merchants had first encountered this “kingdom” which was already divided into what Lewis related as provinces4′ (we are uncertain what the “King” may have called them or what the “King” was originally addressed as by his “people” in the late 1490s). There is then a sense of bounded territory: one account sees the “kingdom” spanning from the Atlantic to a number of different rivers and another arguing the land stretched as far north as the DRC and at least 150 miles inland from the coast. 
Given that “territory” is a term relatable to other terms like “commonwealth”, “republic,” “nation,” “jurisdiction” and “people,” it deserves careful consideration. A useful way to approach this discussion is to understand that conceptions of territory differed between colonial laws and, in this example, the existing laws of the Kongo. The main difference is that the Kongo was a tribal kingdom as opposed to the emergent “nation-states” of 15th century Western Europe. Thornton and Hilton support this argument as it was the involvement (some might argue interference) of missionaries in the “royal court” that led to the alienation of “nobility” as power became centralised in a manner expected by Europeans of the time: a state required a strong “prince.” This disempowerment of the nobility, it is argued, led to civil war and the destruction of this tribal kingdom. Territory in the Kongo is argued to have been more fluid. Power rested in the hands of ‘provincial’ rulers that could withdraw support of what was certainly a chieftain, and not a European conception of a “king.” (This is similar to the power brokerage of pre-13th century Britain perhaps best exhibited by the tensions between King John and the upper nobility).
In this one example it is clear that territory was possibly understood and practiced in what certain anthropologists would label ‘tribal organization’. It is different to conceptions of territory that came out of European or Chinese developments in the nation-state. Although it is herein argued that the nation-state is a mythological fabrication by powerful elites and illegitimate (non-democratic) governments over time, the point stands that in the history of African ‘national’ development, the plurality (as in Europe) had precious little involvement in the process.
Thus although it was possible in the tribal empire of Kongo to identify different peoples, to (as an foreigner) gain a conception of bounded and different territories, and to come to some understanding of governmentality therein, such was different in development, conception, and practice than what happened in the nation-states of Europe. Because the plurality of Africans had not the capacity to develop their own union-states  and by way of that were not given the chance to mature the praxis of their phronesis concerning concepts of “people” or “territory,” it can be argued that the concepts used in the quantitative analysis are colonial and not African. 
To give added clarity, the term “people” was chosen due to its aspects relating to mass society, populism, and representation. African countries are in no circumstance culturally homogeneous and this incorrect theoretical application of the “people” which arguably promotes homogeneity over these diverse populations is considered inappropriate.
“Liberty” is another oddly applied legal paradigm relating to those freedoms found within the constructs of law. In other words, liberty as conceived in this article is the capacity to act in the confines of the way society is ordered.  This viewpoint, indeed askance from several other perspectives concerning liberty, is however built on a combination of Nozick,  Rawls,  Montesquieu,  Mill,  and Locke.  It is contended that much of liberal theory describes the parameters that can be used to achieve liberty: liberal theory in that manner is mature. However, African polities today are having liberty with parameters already preset foisted upon them which is entirely wrong. Liberty, like democracy, is something that needs to be culturally relevant and defined by the pluralist citizenry. How can liberty be given to a pluralist citizenry that were not included in the a priori formation of these laws?
It is argued that the heterogeneous people of those five African countries need to re-arrange the furniture found in the room of liberty (to borrow from Turner)  so as to create the right cultural Feng Shui: these pluralities were never given the capacity to generate meaningful contexts of liberty and rather had that predetermined Europeanised political theory enforced upon them. Patriotism, socialism, nationalism, territories, and republics are all terms clearly vested in this “Western” or even “Eastern” legality (we can argue this form of legality to have been present in mainland China from as early as the Qin Dynasty).
The extant literature regarding, for example, peace and conflict resolution in Africa  cites the Berlin Conference of 1884 which arguably began the official “territorialisation” of Africa. That arbitrary period of settling borders solely based on land unequivocally claimed by a European country with no consideration for the populations becoming fragmented by these policies has caused a great deal of discord in Africa. Different examples include the way patriotism, nationalism, and unity in the form of republics, democracies, or other forms of governmentality led to the forceful implementation of xenophobic and homogeneous mass social paradigms which arguably resulted in civil wars and international conflicts.
This is not to say that countries in Africa should not be governed by “Western” or “Eastern” political concepts, but rather that they should be given the chance to shape their governmentality rather than having to continue playing by ex-colonial rules. If colonial concepts fit the room (borrowing from the analogy made above once more) then they probably should be kept – but only after undergoing the sacred ritual of legitimizing laws and institutions democratically. The irony of the “West” still pushing these notions of democracy, for example on “developing” countries, is that the “West” does not have a common agreement as to what democracy is. Political theory has not in any way shape or form provided a postuniversalistic accepted theory concerning the general laws of democracy. So we are left to wonder why this alien dogma is still being pushed, which for many critical realists is perhaps not a difficult question to answer.
Finally, the rationale behind choosing five unique sets of four terms for each country (and the necessity of having one figure for each country) is that they represent their own category and history of evolution in colonial public law. Four terms is reasoned to be an adequate number to illustrate the point being made herein: that at least five African constitutions have not significantly changed their wording in contemporary periods from their colonial origins.
Rather than extrapolate on correlative results, which are arguably evident in themselves, it is thought best herein to take a causative approach.
Figure 1 depicts the results of the quantitative analysis for Algeria. The 2008 document has a stronger focus on “liberty” and the idea of “people.” “Patriotism” and “social” maintain the same constant which is intriguing in itself. It is uncertain as to why a focus on the “people” has increased without a noticeable impact on other aspects logically attached to the term like “patriotism.” It is inferable that this increased focus on “liberty” and “people” in the 2008 Constitution is due to the State’s desire to strengthen its autonomy and independence from France. The “Berber question” may also play a role in this heightened focus as separatist activities and the battle for indigenous recognition by Berbers is ongoing.
Figure 2 shows that the focus on the nation and presumably nationality has grown. It could be that the state of internal affairs is still being challenged as it was in 1975 where the government of Angola was fractured and its citizenry suffering the perils of civil war between various liberation armies – not to mention the encroachment of Congo-Kinshasa rebels from the north. Another possible cause of this concerns the State’s desire to effectively promote its territorial integrity and ‘national’ coherence in a manner reflecting European systems. It is arguable that this is being done to secure rights over minerals in the north east and north west of the country. These are borderlands with the DRC that have, for most of the 2000s, been troubled by separatist warfare.
There is also a noticeable increase in the frequency of “sovereignty,” “territory,” and “independence” (or soberano, territdrio, and independente) in the 2010 constitution from its 1975 version. This, together with the argument concerning the term “nation” (or nafdo) points to a truly contemporary concern for the integrity of the state: surprisingly one more robust than was made during independence in 1975.
Figure 3 shows that the latest constitutional focus of the DRC is toward state building due to the growth of attention concerning “democracy,” “republic,” and “unity” (or dimocratie, republique, and unite). It is quite obvious that this may be so simply due to the fact that the country is aptly named the Democratic Republic of the Congo (formerly Zaire). Although certainly more in-depth causative analysis is called for, the key to this discussion is the growth of the term “unity.” Why would the 2006 constitution be more concerned with “unity” than its 1992 version when war, in 1992, was perhaps an increasingly brutal reality? It is argued that the prolonged multi-state and certainly skirmish-based warfare throughout the beginning (if not most of) the 2000s had led to this instance: unity was emphasized because there was precious little of it to be seen.
For Tanzania (Figure 4) there is the complete abandonment of the “Queen,” a twelve point drop for the incidence of “commonwealth,” and a noticeably large rise regarding “republic.” There is also a rise of use concerning the term “jurisdiction” but this mostly due to an increased bureaucratisation within the constitution and points to the further development of the state. Nevertheless, “jurisdiction” and “republic” are, as concepts, closely linked. It is argued that the 1995 constitution points to a distancing between Tanzania and the Queen’s commonwealth. (Tanzania, however, remains a member of the commonwealth – for how long that will likely be is uncertain). This is somewhat unique as it reflects a growing attitude in Australia and Canada for those countries to become their own republics. The politics behind public law in Tanzania may then be argued to have a decidedly “Western” bent, but may also be pointing to the desire for greater autonomy and distance from the Queen. This, coupled with the growth of international standards in Tanzanian public law, may hold significant promises for the recognition of cultural relevancy in law – perhaps in time leading to a process of democratic legitimation.
Finally, Figure 5 shows some change between South Africa’s constitutions (1996 and 2005 respectively). There is a greater focus on the republic and the nation which is a theme nearly all case studies share. It is arguable, and unexpected, that this quantitative analysis supports the view that at least five African countries are each concerned with strengthening the State. The contrast between constitutions for South Africa is greater than the DRC’s despite both having a similar temporal difference between versions of their constitutions. It is argued that this is the case because South Africa has a stronger central government. Whereas the rise of incidence for “democracy” and “republic” in the DRC is caused by the fact that the country has both words in its name, such is not the case for South Africa (although republic is used in its title). This is a comparative finding in need of further investigation.
In overall, the quantitative results answer the research questions only in part. It is apparent that in all cases, save for South Africa, the use of illegitimate legal terminology has grown. From a perspective rooted in democratic theory, it seems a terrible shame that alien constructs of the state, society, and governmentality have grown in promulgation. The qualitative study was more helpful in showing that yes, international legal standards are probably influencing new foundations for redrawn or amended constitutions, and that South Africa has just begun culturally shaping the legal constructs of its state (concerning the Limpopo amendment for example). It is hoped that this small two-pronged empirical study will spark interest into pursuing the questions asked herein and further debate concerning the theoretical point about the illegitimacy of law if its legal theory is alien to the resident population it is meant to order.
Clearly, when extrapolating the results of this study over the rest of African polities, African legal structures based on colonial theories of law are most likely illegitimate. However, a great deal of further research is needed to establish this point as fact. The aforementioned was seen by an analysis of five former colonies in Africa (Algeria, South Africa, Tanzania, Angola, and the DRC) representing five different influences of European imperialism (French, English, German, Portuguese, and Belgian respectively) so as to depict the necessary breadth this argument required.
Algeria displayed an initial constitution laden with revolutionary remarks and a focus on the power of its society’s avant-garde which was arguably carried through to the modern era by an increased focus on the “people.” South Africa based its changes on nation-building, but as the amount of time between constitutions was not as great, the differences are perhaps subtler than with the other four constitutions. Tanzania showed the same concern as South Africa on statebuilding but also completely abandoned its previous constitution’s inclusion of the Queen and for the most part the commonwealth as well. Angola showed, for reasons presumably having to do with state-building, a major rise in the use of the concept of nation in its latest constitution by 107 points; and the DRC exemplified, like South Africa and Tanzania, a much larger focus on state-building (predicated mostly on the term “unity”). What is evident, and what has come out of this study, is that the law in Africa is probably still illegitimate and that for the most part international legal standards are influencing modern constitutions in a way that will likely produce conditions viable to allow the plural citizenry to shape its laws into something culturally relevant and ultimately legitimate.
As previously detailed, and now evident, legitimizing public law in African polities is a current necessity. It not only provides the requisite rationality that democratic law needs, it also helps to shape and order a unique number of cultures. From this it can be inferred that the progress of a particular country might shift more in the direction the plural citizenry want, rather than something influenced by elites, interest groups, business, or supranational entities. The added legitimacy can also be inferred to provide a greater chance for trust to form between the plurality and its governing structures which the extant literature has shown lowers the incidence of political violence.  Trust in governance is also a boon to accountability, transparency, and representation. Understandably there are a lot of other possible benefits from legitimizing the law, but such results require robust empirical analysis during and after the legitimation process.
In light of that, future research regarding the feasibility of converting legal structures from illegitimate colonial ones to laws that are shaped by the plural citizenry is needed. Questions such as “what is the most realistic way for this transition to be made?”, “how much would this transition cost?” and “who are the most relevant partners for this kind of endeavour?” require answering.
To end, it is reasoned that we should take notice of a small argument made by Yakpo.  This author argued that “[a]fter thirty or forty years of independence, it is only to be expected that former colonies make their own fiscal arrangements and not depend on the fiscal policy of the former colonial master.” Despite this argument’s focus on fiscal policy, it still works on the level of legal policy. As argued throughout this work, African states must come to engage the ever important aspect of democratic legitimacy not only in their systems of public law, but in other legal areas as well.
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L. Odambo, ‘Droits des Peuples Autochtones en Afrique Centrale: Le Gabon Vu de Plus Prs’ (2001) International Work Group for Indgenous Afain.
This argument, of whether public law is democratically legitimate, can be made in countries or continents outside of Africa. This is reasoned to be the case because this type of analysis is novel: it may be opening a new line of questioning and may contribute to the democratization of law in contemporary societies.
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M. Weber, The Theory of Social and Economic Organisation (trans. A.M. Henderson and P. Talcortr, Oxford, Oxford University Press, 1947); M. Weber, The Vocation Lectures (D. Owen, T.B. Strong, Trans, R. Livingstone, eds., Indianapolis, Hackett Pub, 2004); M. Weber, Max Weber on Charisma and Institution Building (S.N. Eisenstadt, ed., Chicago, Chicago University Press, 1968).
For one example of a model for ensuring and measuring inclusivity in public policy formation and implementation, please see J.P. Gagnon, ‘Establishing Indigeneity in African Pluralities using PRO 169 Parameters and a Case Study for Measuring their Inclusivity’ (2011) 10(4) Brill Journal of African and Asian Studies 323-346.
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Algeria. Constitution 1963. Available at: http://www.elmouradia.dz/francais/symbole/textes/constitutions/constitution l963.htm> (last accessed 10 June 2011).
“) Agricultural workers; rural peasants or villagers.
Algeria, Constitution 1963 at Article 10, Principes et Objectifi Fondamentaux [Fundamental Principles and Objectives].
See D. Marquand, TheEndofthe West: The OnceandFuture Europe (Princeton, NJ, Princeton University Press, 2011) for more on the trouble of “West” and “East” as concepts.
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See, for example, S. Gall, ‘The Bushmen of the Kalahari’ (2003) 33(7) The Ecologist at 27; G.A. Bradshaw ‘You See Me but Do You Hear Me?’ (2010) 20(3) Feminism and Psychology at 407; E.P. Dictaan-Bang-Oa, ‘Traditional Water Management Practices of the Kankanaey’ (2006) 29(4) Cultural Survival Quarterly at 22; and J.P. Gagnon, ‘Surface and Sub-Surface Land Ownership: Realpolitik for 4th World Empowerment’ 14(4) Journal ofAustralian Indigenous Issues 31-46.
Constitution of 1975 at Article 12.
V. Brittain, Death of Dignity – Angola’s Civil War (London, Pluto Press, 1998); C. Cramer ‘Homo Economicus Goes to War: Methodological Individualism, Rational Choice and Political Economy of War’ (2002) 30(11) WorldDevelopment 1845-1846.
For more on this discussion, see for example J. Schubert, “Democratisation” and the Consolidation of Political Authority in Post-War Angola’ (2003) 36(3) Journal of Southern African Studies, G. Baines, ‘South Africa’s Forgotten War’ (2009) 59(4) History Today at 22; H. Lopez Blanch and 1. Liebenberg, ‘A View from Cuba: Internationalists Against Apartheid’ (2009) 34(1) Journalfar Contemporary History at 81; and S. Rogue, ‘Manuela: A Social Biography of War Displacement and Change in Angoli (2008) 26(4) Journal of Contemporary African Studies at 371.
DRC, Democratic Republic of the Congo. Acte Constitutionnel de la Transition. (1992, although sometimes dated 1994-1997).
Acte Constitutionnel de la Transition at the Preamble.
Gagnon, supra note 8.
Algeria Constitution de la RdpubliqueAlgirienne Dimocratiqueet Populaire (2008, JORADP, n. 76).
Angola Constituiro da Reptiblica de Angola (2010, Assembleia Constituinte).
South Africa, The Constitution of the Republic ofSouth Africa No. 108 of l996 (2005, Statutes of the Republic of South Africa).
John Thornton ,’Demography and History in the Kingdom of Kongo, 1550-1750,’ (1977) 18(4) The Journal of African History 507-530; Anne Hilton The Kingdom of the Kongo (Oxford, Clarendon Press, 1985); RG. Saccardo, Congo eAngola, con ia storia dell’antica missionedei Capuccini (Venice-Mestre, Curia Provinciale dei Cappuccini, 1982); Thomas Lewis ‘The Old Kingdom of Kongo” (1908) 31(6) The Geographic Journal 689-611.
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Thornton, supra note 40 at 516 and in a number of instances in the works of Hilton, 1985; as well as Saccardo, supra note 40.
As opposed to nation-states, see J.P. Gagnon ‘Nation-State or Country-State: How do we discuss belonging in an age of fluidity?’ Opendemocracy, available online at: http://www.opendemocracy.net/ ourkingdom/jean-paul-gagnon/nation-state-or-country-state-how-do-we-discuss-belonging-in-age-offlui (accessed 5/01/2012).
A similar argument can be made for the Bantu-Khoisan culture that emerged in South Africa, the rules of Carthage and Numidia in Angola, or the trading “towns” of Tanzania’s coast. It is inferable that these temporal and spatial entities had their own conceptions of territory with their own unique practices that differed to 15th century Western European understandings. Nevertheless, this is yet another area of thought that requires a separate and robust investigation.
With the standard proviso that should laws be unjust, citizens have the right to peacefully protest, which in terms of violence, does not infringe upon the normative freedoms of others.
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See, for example, C.J. Corich, ‘The Curse of Berlin: Africa after the Cold War’ (2011) 48(10) Choice at 1977; A. Barrows, ‘”The Shortcomings of Timetables”: Greenwich, Modernism and the Limits of Modernity’ (2010) 56(2) Modern Fiction Studies at 262; E.I. Udogu, ‘Historicizing and Contextualizing the Discourse on African International Law and A Concise Overview of the Pacific Settlement of the Cameroon-Nigeria Bakassi Peninsula Dispute’ (2008) 7(1) African andAsian Studier, and M.T. Vamble and A. Zegeye, ‘Amilcar Cabral and the Fortunes of African Literature’ (2006) 4(1) African Identities at 23.
See, for example, C. Knox ‘Building Trust Amidst Corruption in Bangladesh’ (2009) 98 Round Table, and S. Mosoetsa ‘Compromised Communities and Re-emerging Civic Engagement in Mpulamanga Township, Durban, KwaZulu-Natal’ (2005) 31(4) Journal ofSouthern African Studies at 857.