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.

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