Speeches

African Regional Conference Of The International Bar Association African Regional Forum Held At The Munyonyo Commonwealth Resort, Kampala, Uganda

Aug 9, 2012 - It gives me great pleasure to be here today. This is a privilege of which I am most mindful and I would like to thank the Vice-Chair of the IBA Legal Practice Division, Mr. Michael Greene, for extending this invitation.

I would also like to thank Mr. Ashwin Trikamjee, the Chair of the IBA African Regional Forum; not just for the honour of this invitation but for the seriousness with which the Forum is taking matters relating to the legal profession in Africa and African lawyers.

Year in year out, African lawyers constitute a sizeable number of delegates to the IBA Annual Conferences. I'm sure Dublin will not be an exception. But we have hardly exploited the opportunity to interact with one another and express ourselves right here on home soil, until very recently.

This is ironic because we Africans understand only too well that "charity begins at home," so it is a most welcome development that we are taking ourselves more seriously and hosting our own regional conferences more regularly. I think our Chair and his worthy predecessor, Jacob Saah and their teams a tremendous applause of appreciation for 'finding the voice' of the legal profession in Africa and elevating the African Regional Forum to its rightful place.

"Building the Foundations of a Successful Future: The Rule of Law and Economic Confidence in Africa".

I pondered over this topic for a while, wondering what I would say on the subject that others have not said in the past, and perhaps many times over. I finally settled on what I hope will stimulate some thought and introspection amongst us, even though it is unlikely to be a completely novel theme.

At the start of the millennium, in September 2000 to be precise, all one hundred and ninety-three of the United Nations member states, and several international non-governmental and inter-governmental organisations, came together at the Millennium Summit organised by the United Nations and agreed to achieve 8 international development goals within 15 years.

They agreed to work together to eradicate extreme poverty and hunger; achieve universal primary education; promote gender equality and empower women; reduce child mortality rates; improve maternal health; combat HIV/AIDS, malaria and other diseases; ensure environmental sustainability and develop a global partnership for development.

Eight goals that represent a global attempt to achieve the basic tenets of social welfare. Eight goals that could (if achieved) form the basis for good governance in Africa.

The achievement of the Millennium Development Goals was of particular significance to us on the African continent because many of the countries that are its targets are right here. Fierce debate has raged back and forth over the last twelve years as to whether the MDG's are viable.

While some believe that they are a blueprint for the transformation of the human condition; others do not believe they are a blueprint for action, but they nevertheless believe that they are essential to stretch our collective ambition and mobilize commitment and public support.

There is a view that sees the MDG's as well-intentioned but poorly thought out; distracting attention from more appropriate targets and more effective policies; and yet another school of thought that holds the view that the development of the MDG's is a conspiracy by the West against less prosperous nations to obscure the world's attention from the real issues of global inequality and exploitation by the West .

For me, I see the Millennium Development Goals from what I call a 'realistically optimistic' viewpoint.

I believe they should be the minimum developmental goals that under-developed and developing economies in Africa should seek for themselves.

1. See generally Millennium Development Goals (MDG’s) – A Short History of the World’s Biggest Promise, David Hulme (2009)

And I believe that these goals can and will bring about global change. We may not achieve them within the time frame. We may not even achieve them all completely. But they have certainly served the very useful purpose of stretching our collective vision, our collective awareness and our collective commitment.

In Lagos, Nigeria where I come from for instance, our Government's developmental agenda, and my political party- the Action Congress of Nigeria's manifesto; written at different times, are closely connected to the Millennium Development Goals.

Recently, we have re-focused our energies and efforts on the vigorous pursuit of a developmental agenda distilled from the ten-point agenda, and defined along the key sectoral lines of Power, Agriculture, Transportation and Housing – P.A.T.H. This is because we see a growing population of young people who are facing the challenges of finding employment, and we firmly believe that investment in these key areas will drive economic growth, provide jobs and propel us on our path to prosperity and poverty eradication.

Without a doubt, in all the target areas all over the world, the pace of progress has been uneven. Very slow in some areas and relatively rapid in others. But I take the view that we would not even be measuring progress if we did not sign up to the idea in the first place.

Recognising the need to accelerate progress in achieving the MDG's, five years later in 2005, Finance Ministers of the G8 countries agreed to provide enough funds to the World Bank, the IMF and the ADB to enable them cancel an additional $40-$55 billion debt owed by the most heavily indebted poor countries (HIPC), so that those countries could channel the resources saved from debt relief to social programmes aimed at improving health and education indices, alleviating poverty and generally meeting the Millennium Development Goals.

I am sure it will come as no surprise that none of the 39 countries that comprise the most heavily indebted poor countries are in North America, Europe or Oceania; only 3 are in Central and South America and, as large as that continent is, only 1 is in Asia. The remaining 35 most heavily indebted poor countries are in Africa.

A sobering thought indeed. But not half as sobering as the fact that of these 35 countries, only 4 have not yet qualified to receive debt relief. The other 31 have had their debts cancelled either partially or in full.

And yet several countries on the African continent are still plagued by a level of sub-optimal development that belies the quantum of assistance they have received. This then begs the question, why? Why are we unable to rise above the levels of under-development that seem to characterise African nations. What is it about us that is so adverse or averse to steady growth, expansion and development?

I have a few answers, but one that has occupied my thoughts more than others in the recent past is this: I strongly believe that an established culture of the rule of law is the building block for achieving these targets. In fact it is more than a building block; it is the corner stone.

We all know what the rule of law is and we all know what it does, what it is capable of doing and indeed what it should be doing. We all espouse it; we are quick to spew forth rhetoric about it, and in fact most of us in this room today would readily lay claim to knowing it more than our 'unlearned' brethren do.

All African constitutions without exception embrace the doctrine and practice of the rule of law. In the same vein, almost all African nations without exception, pay lip service to the rule of law.

We embrace the rule of law in word, but not in deed. We observe it more in breach that in compliance and by so doing, we defeat the spirit and the letter of constitutional democracy.

Ladies and Gentlemen, I venture to suggest that what is missing is an entrenchment of the rule of law. What is missing is a culture of adherence the rule of law. And therefore what we have to do is to deepen our traditions so that they will reflect a culture of adherence to the rule of law.

And what do I mean by a culture? To me, culture is tradition over time; the habits and practices that are handed down from generation to generation. Some dictionary meanings have included: "the arts, customs and habits that characterise a particular society or nation", or "the beliefs, values, behaviour and material objects that constitute a people's way of life. Both definitions capture the essence of what a culture is. But I came across an article on the Canadian government website that defined culture in a way that ties in very nicely with what I am trying to advocate.

The article describes culture as something that rules virtually every aspect of our lives even though we are often completely unaware of it, and generally unconscious of its influence on how we perceive the world and interact with one another within it.

In other words, a culture is so deeply ingrained in us that we act involuntarily and almost automatically to the things that happen around us. The article goes on to say that the things produced by a culture which we perceive with our five senses are simply manifestations of the deeper meaning of culture – what we do, think and feel.

What we do, think and feel.

Note that the article did not add 'what we say'. My guess is that it is because what we say is a given if it flows from what we do think and feel. On the other hand, it could be an illustration of the fact that what we say does not necessarily tally with what we do, think or feel.

I am of the view, and this is my thesis this morning Ladies and Gentlemen, that in order to boost economic confidence in Africa; in fact in order to boost the economic confidence; first of we ourselves – Africans, in the future of Africa (because, remember: charity begins at home) and in order to boost the economic confidence of non-Africans in Africa's economy, we must embrace a deliberate acculturisation of the rule of law.

For example, how many of our businesses; especially the small and medium scale businesses that are the real drivers of economic opportunity, growth and prosperity, are registered and known? Is it not the case that a substantial percentage of these businesses operate outside the formal economy with very little or no records available to Government, and therefore pay little or no taxes?

This is an example of that culture of not embracing the rule of law.

It is unthinkable that you will successfully run a business in Europe and America outside the formal structure of Government. This is why in Lagos; I have started a campaign of a culture change that I call 'rebuilding the infrastructure of the mind'. This is being accompanied by a series of Government policies such as a new Traffic Law that substitutes the payment of fines with non-custodial sentences like Community Service or Psychiatric Evaluation for road traffic violations; a new Citizens Registration exercise that aims to capture the data of all citizens 18 years and above; and a business directory called the Lagos Yellow Pages, which contains the data of all small and medium scale businesses operating in Lagos, which we update annually.

Just imagine for one moment, what the African continent would be; the levels of development we could attain; how close we would be to achieving the Millennium Development Goals by 2015 - if we just "do" the rule of law, "think" the rule of law, "feel" the rule of law and not just "say" the rule of law.

Just imagine.

This is the point at which many of you will be wondering how this really concerns you. But, my learned friends, it does. Let me take off my government cap for a minute and speak to you as the citizen that first and foremost, I am.

We all seem to think that it is only government's prerogative to observe the rule of law. There is a constant mantra to force government to act in a particular way, often prescribed by citizens themselves. We confine our thinking to the notion that the rule of law is a concept that is limited only to actions by government, and that it is far removed from our own obligations as citizens.

But we forget that we all can and indeed should, practise the rule of law in our homes, in our clubs and associations, in our political parties and in our workplaces. We forget that we have an obligation to practice internal democracy; and that internal democracy should reflect in the way behave; otherwise we have no moral justification to expect it of our leaders.

Adherence to the rule of law cannot be turned on and off like a light switch, to give illumination only when it is needed. It must be nurtured, and as lawyers, advisers, community leaders, policy makers and policy influencers, we must be the people who by our actions, our utterances and our advice, promote the entrenchment of this culture.

Certainly, government has a primary moral obligation to its citizens – to lead by example. So it is actually beyond cavil that in order to be successful, government must establish a tradition of obedience to the supremacy of the constitution and equality before the law. It is only then that institutions and then citizens, will claim those traditions and make them their own.

I can think of four principles straightaway that every government should adopt, as the foundation for a deliberate acculturisation of the rule of law to be achieved in our respective countries.

1. Better enforcement of the economic rights of citizens;

2. Greater recognition of social rights;

3. Sincere anti-corruption strategies - this is crucial because the rule of law and adherence thereto defeats corruption; and

4. Law reform, to bring legislation closer to the culture of the rule of law and make it easier to entrench.

Let me dwell a little on anti-corruption strategies and the concept of law reform. We often see corruption only in the black and white terms of bribe giving and receiving. But corruption is not just about bribery.

Policies that are contrary to the sanctity of the rule of law or distort it, aid corruption. For instance, waivers and discretion in the hands of public officers are enemies of the rule of law.

Zoning and quota systems stultify growth at the expense of 'federal character'. We call it federal character in Nigeria and I'm sure the concept has equally curious nomenclatures in other heterogeneous and multi-ethnic African countries.

But the discerning amongst us will note that these are concepts that are alien to the Western world because they adhere to the time-held tradition that everyone is equal before the law, and the results speak for themselves.

This leads me to the concept of law reform. The law is the greatest antidote to poverty; the most powerful tool that can be deployed against under-development and metaphorically, the strongest advocate for good governance.

Good laws remove roadblocks to prosperity, empowerment and opportunity. Good laws encourage private sector participation in the production and provision of goods and services; and we all know that private sector participation (and I don't necessarily mean just conglomerates partnering with governments to build infrastructure, I'm talking also about the man in the street); is an essential component of a healthy economy.

Equality, equity and justice - these are aspects of a culture of the rule of law, although they are never really expressed in terms of it. The strengthening of institutions like the police, the justice sector, the electoral agencies through the reform of the laws that underpin them; and then submitting ourselves to their provisions; not once, not twice but all the time, will have the profound ripple effect that engenders good governance and consequently, rapid development.

Lawyers are the catalysts that can bring about this change. We have always been catalysts for change and we will always be catalysts for change. And it is a responsibility that we must take seriously.

As I move to conclude, let me return briefly to the point from which I started. I said I am pleased at the increasingly prominent role that the African Regional Forum is playing. It is indeed about time. As Africans, we must begin to seize our destiny in our hands and I can think of no more eminently qualified group of people to bring about that change than you, my learned friends.

We must begin to recognise our tremendous potential and not just speak about it or refer to it in passing. Our nations must begin to reject that handout mentality and change those Heavily Indebted Poor Countries (HIPC) statistics.

For a long time when I was growing up, I erroneously believed, like so many others I'm sure, that the saying "heaven helps those who help themselves" was from the bible. It is not from the bible, but the sentiments that underpin it are for me, very sound. It is time for us to help ourselves.

Last October, I read a newspaper report that quoted the former Premier of Malaysia, Mahathir Mohamad as saying that Muslim majority countries should look to the East for development models and not at Western nations, which he described as "failures", because countries like South Korea, Japan and China are 'swimming in money' while Europe and the U.S are mired in debt.

He went on to say that the problem in the West is that they have borrowed too much and cannot repay their debts, observing that such countries could not be used as models for development.

Ladies and Gentlemen, in the words of the late Kwame Nkrumah of Ghana, I say "we must face neither East nor West, we must face forward. And for me, forward means inward. We must face inward, because; and again I quote that great father of African unity, –"the forces that unite us are intrinsic, and greater than the superimposed influences that keep us apart."

I thank you all for listening.

Babatunde Raji Fashola, SAN
Governor of Lagos State, Nigeria