Africa’s History Shows the Perils of Degrading the Rule of Law By Chidi Anselm Odinkalu

The rule of law is undergoing chastening times in many African countries as rulers and their parties – struggling to hang on to power – look for convenient devices to eliminate the uncertainties associated with democratic competition, kettle their opponents (both real and imagined), disrupt vocal civics and dismantle legal constraints on abuse of power.

Across the continent, governments are doing their best to intimidate judges and degrade the rule of law. In December 2018, for instance, Kenya’s Chief Justice, David Maraga, and his wife survived a suspicious-looking car crash. The following month, Nigeria’s ruling party decapitated the judicial tenure of the Chief Justice, Walter Onnoghen, with a dubious ex-parte order from an executive organ. In the third week of August 2019, Gabon’s government procured the suspension of an appeals court judge, Paulette Mba, for doing her job when she accepted to hear an application on whether or not to evaluate the medical fitness of a manifestly crocked President Ali Bongo.

It’s all redolent of the immediate post-colonial period, whose abiding lessons for the would-be destroyers of the rule of law appear to have been lost on a contemporary rulership deliberately devoid of memory. Some illustrations may drive home the point.

As French West Africa prepared for De Gaulle’s self-rule referendum in 1957, Ernest Boka was one of the most promising stars in the region’s politics. In his native Côte d’Ivoire, Boka was only eclipsed in popularity by the Felix Hophouët-Boigny, the wealthy Baoulé Chief who was the first black person to be appointed Minister in France. Born in 1928, 23 years younger than Hophouët, Boka was a bright lawyer who appeared destined for greatness. At just 28 in 1957, he became Chief of Staff to the Governor-General, before rising from 1958 to 1959 to ministerial portfolios, first in education and then public service. As Independence approached in 1960, Boka was one of the leaders of Houphouët-Boigny’s Parti Démocratique de la Côte d’Ivoire (PDCI), who strong-armed other platforms from the contest, enabling Houphouët to emerge unopposed as Côte d’Ivoire’s President.

As Boka’s reward, Houphouët appointed him Côte d’Ivoire’s first Supreme Court President in 1960, where he initially proved to be a trusted believer. But Boka was always a man of the people with socialist sympathies. At 35, in March 1963, Ernest Boka resigned as Supreme Court President. Shortly thereafter, in August 1963, he was among hundreds rounded up under the direction of Houphouët-Boigny for allegedly plotting to kill the President with Juju. A special security court sentenced 19 to life terms and condemned another six to death. But Ernest Boka did not live long enough to stand trial. His lifeless body was found hanging from the ceiling of his cell in Abidjan bearing marks consistent with torture. In response to strong rumours that Boka’s death was not suicide, Houphouët-Boigny himself called foreign diplomats and correspondents to a briefing in April 1964 at his presidential palace for what turned out to be a trial of a dead man. At the briefing, Houphouët announced that Ernest Boka had confessed to an attempt to use Juju to assassinate the President. As evidence, Houphouët-Boigny, a practising Catholic, produced two suitcases containing an assortment of magic potions, dried remains of dead animals and a collection of puny coffins reportedly seized from Ernest Boka’s family house.

About the time Ernest Boka was being liquidated in Côte d’Ivoire, a lowly court clerk and interpreter was working his way into reckoning in Spain’s African plantation in Equatorial Guinea. Francisco Macias Nguema was famous for allowing financial inducements to dictate the content of his translations. As one of few locals with facility in Spanish, the colonialists came to hang on his every word, mistaking him for a man of influence. In one year between 1966 and 1967, Macias rose from assistant interpreter to Mayor, then Minister for Public works before becoming Deputy President of the Governing Council. When the gong sounded for Independence in 1968, he was well placed to be installed as Equatorial Guinea’s first President on 12 October 1968.

But Macias was unwell and given to outbursts of paranoia and violence fueled by dependence on tropical hallucinogens. Six months after being installed as President, in March 1969, he personally bludgeoned his foreign minister to death before having opposition leader, Bonifacio Ondo Edu, abducted from exile in neighbouring Gabon and executed. A reign of terror ensued during which Equatorial Guinea’s small population of professionals, including lawyers and judges were either killed or exiled. Rules were dismantled. With no judges, regime enemies were tried and executed by youth militias organized and administered by Macias’ nephew, Teodoro Obiang Nguema M’ba N’Zogo, an army Lieutenant-Colonel.

On 3 August 1979, Teodoro Obiang toppled his uncle and had him put on trial for mass atrocities, including genocide and embezzlement. As there were no judges left in the country nor lawyers to defend accused persons, the trial was conducted in a cinema hall by militias of precisely the same sort that liquidated his enemies. Macias’ fate was predictable. On 29 September, 1979, the militia found him guilty and sentenced him to death. Hours after his predicted condemnation, an elite military unit flown in specially from Morocco executed him by firing squad at the Black Beach Prison in Malabo.

Two years after the death of Macias, on Christmas Eve in 1981, the government of Dr. Hastings Kamuzu Banda abducted Malawi’s exiled, first Attorney-General and Justice Minister, Orton Chirwa, and his wife, Vera, from Zambia and returned them to Lilongwe. Orton Chirwa was the founding President of the Malawi Congress Party (MCP), which led Malawi to Independence in 1964. He was also Malawi’s first lawyer. As minister in the transitional government in 1962, Orton took issue with the presumption of innocence and burdens of proof in criminal trials, arguing for their replacement with traditional African norms and institutions. As Attorney-General, he pushed for these reforms but was turfed out of Cabinet in September 1964 in a power tussle with Banda, his successor as MCP President, before they were promulgated. Following the collapse of the Chilombe Murder trials in 1969, Banda scrapped criminal trials by regular courts, transferring jurisdiction over crimes to Traditional Courts, comprising a traditional chief as chair, with three citizen assessors and one lawyer. The traditional court system was appointed by Banda, who was both President and Justice Minister. They also reported to him.

In an ironic twist of fate, Orton would be arraigned for treason in 1983 before the kind of traditional courts he had advocated for as Attorney-General. His trial was a charade. The court denied him and his wife – herself also Malawi’s first female lawyer – legal defence or the right to call witnesses. Initially sentenced to death on conviction, Banda commuted this to life imprisonment. Orton spent the remainder of his life in solitary confinement at the Zomba Prison in Malawi, where, in December 1992, he died at the age of 73.

As Nigeria’s military ruler from 1985 to 1993, Ibrahim Babangida eviscerated the courts, mostly precluding them by military decree from jurisdiction over whatever his regime did. In 1991, he issued a special decree making legal proceedings against his regime a felony punishable with up to two years’ imprisonment. Out of power in 2001, a successor regime asked him to appear before a Commission of Inquiry to defend his record. Rather than do that, the man who made going to court a crime hired a coterie of highly prized lawyers to go to court and question the powers of an elected civilian administration to ask him to account. The case ended up before a Supreme Court presided over by judges, some of whose judicial careers Babangida had advanced.

Africa’s history has firm lessons for powerful men who want to get ahead by retarding legal process. The biggest argument for defending and preserving the rule of law is self-interest – those who degrade it often end up in need of it, usually to save them against their own collaborators. Karma has a brutal sense of humour.

Odinkalu, co-convener of Nigeria Mourns, works with the Open Society Foundations.