Why is Justice Still Elusive for the Majority of Africans?
Key issues that are clear from the review of crime and criminal justice systems conducted by the Africa Human Security Initiative (AHSI) network revealed that African governments’ priorities regarding securing the lives of their citizens need readjustment.
Dr Annie Barbara Chikwanha, Senior Research Fellow, African Human Security Initiative, ISS Addis Ababa
Key issues that are clear from the review of crime and criminal justice systems conducted by the Africa Human Security Initiative (AHSI) network revealed that African governments’ priorities regarding securing the lives of their citizens need readjustment.
First of all, crime victimization surveys conducted in three west
African countries that are all at very different phases of the
democratic transition - Sierra Leone, Benin and Mali - revealed that
what the ordinary citizens consider to be debilitating crimes are those
that are largely central to their livelihoods. For instance, the act of
constantly guarding livestock deters one from reaching his/her maximum
development potential yet the focus on fighting crime tends to be
concentrated on the urban citizens whose behaviour determines foreign
direct investment and tourist inflows.
The same logic used in economic growth appears to appeal to the
security architects; that security will trickle down to the poor and to
the periphery. Is it a wonder then that justice has remained elusive for
the majority of Africans - rural and urban alike? Even though there are
variations that exist amongst African nations because of their
different backgrounds in terms of cultural values and political ideas,
we still find more convergence in terms of justice delivery
deficiencies.
How then do we assess the efficacy of Africa’s criminal justice
systems? We can fragment this into manageable proportions and look at
the forward and backward linkages in the criminal justice process such
as policing, prosecution, the judiciary, prison service, customary
justice and juvenile justice. But these components share the same
institutional weaknesses: poor funding, inaccessible data, and
inadequate remuneration for staff, poor training, poor infrastructure,
and human rights abuses. It is difficult to gauge the quality of justice
that the citizens experience in such circumstances.
All African countries are battling with high and increasing crime but
hard data is unfortunately not released to the public in most of the
countries. Corruption, pervasive in and outside government, in the
electoral process and public service delivery, is the one crime every
official talks about. Anti-corruption and oversight institutions like
the Anti-Corruption Commission, Parliament, the Auditor-General and the
Ombudsman are under-resourced and under-skilled and therefore proved
ineffective in combating the national scourge. Equally problematic are
criminal activities relating to drug and human trafficking, money
laundering, illegal migration but, like other crimes, there is
inadequate data on the scale of the problems. Authorities also have
inadequate capacities to deal with these pressing problems.
Part of the problem is that there is no diligence in compiling crime
statistics. And with the usual cultural interpretations of what
constitutes a crime, it is frightening to think of what those with
criminal tendencies get away with. There is no justification for crime
figures being a state secret. The system and the public can only fight
what they know.
AHSI’s findings concur with few other researchers who have observed
that most of Africa’s citizens rely on and opt for customary justice for
a number of reasons. The most disturbing being the prohibitive costs of
the modern formal justice system, which is absent in any case in most
of the areas. As has been touted by other scholars, criminal justice
agencies are organized sequentially — “output” from one agency is
“input” to the next — and this alone is a major deterrent to citizens
whose daily life consists of grinding poverty and counting bus-fare for
the duration of the month. ‘
Processing security and justice’ is just not an option. The
input/output connections are just too costly and often fraught with
mystery and mistrust such that it is easier to opt for the familiar and
quick customary system. It is against this background that we can read
the governments’ response as indifference to the cohabitation of common
and customary law across all African countries. This perpetuates the
niggling absurdity whereby the constitutionally recognised legal system
is known and accessed by the few while the majority mostly rural people
know, understand and access customary law.
The criminalisation of political behaviour is also another category
of crime that is fluidly defined and heavily punished in all
unconstitutional ways possible on the continent. African citizens and
the courts lack a clear understanding of the so called ‘seditious’
criminal laws’ requirements and prohibitions as these are not usually
explicitly stated. Worst of all, the statutes do not always entail some
verifiable standards of guilt.
Substantive criminal laws define crimes and may establish punishments
and `criminal procedure` describes the process through which the
criminal laws are enforced. Unfortunately, the procedures through which
many African governments enforce substantive laws are too often fraught
with irregularities infused with innuendo and vilification. This
blurring makes it easier to frame any emerging power centre and dialogue
as a threat to national security hence all legal procedures need not
apply in the prescribed manner.
Africa’s criminal justice systems will remain chronically weak if the
customary and formal justice systems are not harmonized in a way that
complies with modern constitutions, international standards and
protocols that are designed to uphold the rule of law and safeguard
human rights. Resolving this legal trifurcation is not an insurmountable
challenge and delayed reforms will continue to compromise justice
delivery severely.
