On 27 June 2018, Dr Willy Mutunga delivered a memorable lecture at the Institute of African Studies, University of Ghana. This Is Africa was privileged to have the astute Kenyan lawyer, intellectual and Pan-Africanist share his lecture with us. This article summarises and discusses the lecture, which was titled “Pan-African Jurisprudence for the Liberation of Africa”.
Considering Dr Mutunga background, it is unsurprising that he settled on that topic for his lecture. He presents a new dimension to the fight for the total liberation and emancipation of the African continent: one that calls for the involvement of the judiciary in advancing Pan-Africanism in the 21st century.
This essay is divided into three sections, based on the themes of the lecture. The first section discusses the revival of Pan-Africanism in its radical sense – “radical Pan-Africanism”. The second section looks at the developers and shapers of jurisprudence, namely the judiciaries, the legal profession and the lawyers in academia. It also examines the participation of judges in politics. The third section discusses the development of “a Pan-African progressive jurisprudence”, as advocated for by Dr Mutunga.
Resurrecting radical Pan-Africanism
Pan-Africanism, as we know, was a reaction to the dehumanising conditions Africans suffered as a result of slavery, which ensured the mass exodus of energetic Africans from their homeland across the Atlantic Ocean to the Americas, the Caribbean and parts of Europe. However, in the 20th century, Pan-Africanism served as a shield for Africa against colonial domination and exploitation of Africans. This was after the famous 1945 Manchester Conference, which nurtured the [radical] minds and actions of nationalists such as Dr Kwame Nkrumah, Julius Nyerere and Jomo Kenyatta, among others.
But with the phenomenon of neo-colonialism (globalisation) still blossoming on the African continent, there is the urgent need for the resurgence of the radical stance that Pan-Africanism assumed in the fight to topple colonialism in Africa. It is impossible to engage in a discussion of Pan-Africanism without cognizance of the dynamics of the international system now. It is imperative to re-launch the Pan-African movement to insulate Africa from the “onslaught of the imperialist vultures” (Shivji, 2015). Africa is required to keep the looming threat of recolonisation – as is argued in the case of China – at bay; the continent is being fleeced continuously and its resources plundered by the industrialised states who operate through their representative multinational corporations.
There is an urgent need for the resurgence of the radical stance that Pan-Africanism assumed in the fight to topple colonialism in Africa.
According to Dr Mutunga, “As imperialism of the West and East move to steal Africa’s resources, subject the African people to military, economic, social, cultural and political domination, we have no alternative but to think our freedom and emancipation.” Having recognised this, the question is: Who is to take charge of this project of liberation and emancipation? Dr Mutunga is convinced that the onus is now on the “revolutionary and progressive” youth of Africa to turn the fortunes of Africa around.
The continent is being fleeced continuously and its resources plundered by the industrialised states who operate through their representative multinational corporations.
Moreover, in respect or recognition of the fact that Pan-Africanism is not misogynistic, he underscores the overwhelming importance of the contribution of women towards the fight for liberation. Nkrumah, in Handbook of Revolutionary Warfare, states, “The influence of women over the youth of the country, and the fact that they are the wives, sisters, and mothers of future freedom fighters, must be utilised to the full by the revolutionary cadres.”
The task of the African youth will be to uproot the “elite pro-imperialist politics of division, discrimination, religious alienation and polarisation and usher in politics of unity and anti-imperialism.” For instance, in Ghana, a Pan-African youth movement, Economic Fighters League (Fighters), has risen to the occasion by demonstrating an unwavering resolve to challenge the status quo – divide and rule among the ruling class, which deprives the Ghanaian masses of the chance to attain economic freedom in their lifetime. They are intensely energised by these words of Nkrumah: “On our youth depends the future of Africa and the continent’s total liberation and unity”. A greater sense of camaraderie and Pan-African solidarity must exist among the youth of Africa. It will be needed to reinforce the global anti-imperialist forces seeking to overturn the exploitative capitalist system.
With reference to Walter Rodney’s works, Dr Mutunga bemoaned the lack of credible leadership in Africa. African leaders have failed to espouse the tenets of servant leadership; self-seeking politicians (leaders) view their positions as opportunity for amassing wealth at the expense of the collective aspirations of their people. The dream of African unity remains a distant mirage because of the lip service paid to the resurrection of the radical Pan-African project, which fuelled the passion of our forebears to resist oppressors’ rule. Sadly, some African leaders serve the interests of their erstwhile colonisers and betray the hopes of the people. These interests are “as irreconcilable with genuine Pan-Africanism as Pan-Africanism is irreconcilable with the interests of international capitalism”. Pan-Africanism’s anti-Western/imperial stance warrants that Africans realised that “the principal enemies of the African people are the international bourgeoisie in the West”. African unity encompasses resistance against imperialism (neo-colonialism) and its African agents, and the “construction of African socialist societies”, which will eradicate all forms of the exploitation of Africa.
The courts and politics
According to Dr Mutunga, the question “whether law and the courts can advance, stagnate or impede transformation and revolution” has attracted a unanimous response that “law, indeed, has a role to play in societal transformation and revolution”. This debate is enhanced by the idea of “transformative constitutionalism”. A transformative constitution is “the idea that the constitutional superstructure is embedded on a theory that it will be an instrument for the transformation of society rather than a historical, economic and socio-political pact to preserve the status quo, as the earlier constitutions did.” This gives credence to the view that the judiciary cannot decouple its activities from the mainstream political activities of the country since it reflects as well as expresses the will of the ruling class, which sources its protection from the power of the state. However, it is expected that the courts will desist from using (interpreting) the constitution to protect the ruling class and to “use the constitution and law in moving society towards fundamental transformation”. Dr Mutunga emphasises that to contribute significantly to the transformation agenda, “judicial officers should stop deluding themselves that they are not doing politics” because “there are political struggles in the judiciary itself based on each judicial officer’s intellectual, ideological, political, social, and cultural position.”
Prof. Upendra Baxter makes us understand that there are two categories of judges, whose contributions are crucial to the development of a progressive Pan-African jurisprudence: One group poses as an impediment whereas the other is a catalyst for its realisation. Active judges, according to Prof. Baxter, regard themselves as “trustees of state regime power and authority…and support other forms of violent exclusion”, where activist judges “possess to mould the greater good of the society as a whole”. It is obvious which of these groups will be most vital for the realisation of a progressive jurisprudence. In order to make a significant contribution to the resurrection of radical Pan-Africanism, the independence of the judiciary and judicial officers cannot be overlooked.
To achieve this independence, judges (courts) need to be clear in focus who the beneficiaries of their independence are. Dr Mutunga reminds us that “judicial independence is for all people”. That said, central to the idea of independence of the judiciary is integrity. Judicial officers are required to exhibit ethically moral acts such as insusceptibility to bribery and corruption while promoting transparency and accountability. The independence of the judicial officers is needed to “collectively give birth to the protection of the institutional independence of the judiciary”. After the independence of the judiciary has been achieved, what must be done next is to take a position on the freedom and emancipation of Africa, which undergirds Pan-African jurisprudence.
Towards a progressive Pan-African jurisprudence
Dr Mutunga believes that transformative constitutions are much needed for the realisation of “progressive and transformative jurisprudence by African courts”. He indicates that South Africa’s constitution, which assures the rights of homosexuals, is one such transformative constitution. As explained in the previous section, a transformative constitution is an integral component in the contribution of African judiciaries towards the total liberation of Africa from imperialism (neo-colonialism), exploitation of Africa’s resources and the neglect of the people’s aspirations and interests by African governments. Pan-African jurisprudence cannot be developed by jurists who have not taken positions with the people of Africa against the imperialism of the West and East.
Here, possible “entry points” that can manifest the engagement of Pan-African jurisprudence are identified by Dr Mutunga. First, he decries the exploitative tendencies of contracts or agreements that African governments enter into with their “development partners” In this case, negotiations between African governments and the industrialised nations is one such an entry point where progressive Pan-African jurisprudence can be witnessed.
However, Dr Mutunga notes that “the fundamental principle in contract law is the doctrine of freedom of contract that gives legitimacy to domination, oppression and exploitation by the party who has the greatest bargaining power”. In an international relations lesson, one is reminded of the realist theory, which stresses the primacy of state interest within the international system; the economic strand of realism, mercantilism, engenders states to maximise its trade negotiations to serve its interest and the collective interests of the people. Clearly, in agreements between African governments and the developed (imperialist) nations, Africa has not benefitted at all. What is required of African governments is “to identify its interests as it negotiates with the imperialism of the West and East”.
In this respect, it has become increasingly necessary that erudite African professionals, especially judicial luminaries and legal scholars, team up to negotiate in the interests of the continent and its peoples. Their expertise will be a great resource since they “can, indeed, draft a standard form contract that can be used by AU members”. It must be noted that public participation, made possible by the judiciary, proves to be an important aspect of the negotiation process of these agreements. In the case of Kenya, “the courts have interpreted the value of public participation broadly on the basis that Kenyans think and know their materials needs” which entails that there is “disclosure of all necessary information in these agreements for the people to make up their minds if they want this ‘development’.” What makes this move worthwhile is the fact that the governments enter into these agreements with foreign nations under the notion of transforming and improving the standard of living of the people, so to make the people privy to the terms of an agreement to ascertain its impact or otherwise on them misses no point. As Africa seeks to avert the possible recolonisation of Africa, the judiciary cannot be left out of struggle.
Also, legal scholars and experts are expected to engage in the reparative justice discourse to ensure that Africans are recompensed for the loss it suffered at the hands of the foreign states. This calls for a collaborative effort between law schools, African governments and African brothers/sisters of the diaspora. The African Justice System is expected to “reach the majority of our people” and must serve the people. The courts are often considered the enemies of the poor and friends of the rich; the ruling class, who interpret the law to their advantage, are shielded from paying for their corrupt deeds, while power is taken away from the masses who need real protection and justice. In fact, “Pan-African jurists want the law to serve the people”.
Therefore, one key factor in developing a working Pan-African jurisprudence, which will work in favour of the people, is language. The majority of the people are unable to access the constitution and appreciate its meaning because “the language of the conqueror becomes the language of power” and the majority does not have access to this language of power. A constitution in the language of the people, according to Mutunga, is essential for deepening Pan-African jurisprudence.
A constitution in the language of the people is essential for deepening Pan-African jurisprudence.
No state institution can sit aloof while the fight for the liberation and decolonisation of Africa is taking place; the court must frontline the campaign [and interpretation] for the localisation of the constitution which brings the judiciary closer to the people, who are the fulcrum of Pan-African jurisprudence. As in the case of Kenya, where the robust (rich) decolonised, de-imperialised, patriotic, progressive, indigenous and transformative jurisprudence is derived from the provisions of the 2010 Constitution and the provisions of the Supreme Court Act, 2011. Dr Mutunga advocates for the setting up of a Pan-African Progressive Institute in either Tanzania or Ghana.