The impact of the colonial legacy and the decolonization process on the rule of law in sub-Saharan Africa encompasses virtually every component of the rule of law—governance, accountability, transparency, corruption, human rights, gender rights, access to justice, and the assurance of clear, publicized, stable, and just laws.Footnote ¹ These remarks are intended to provide an overview of some of the consequences of that legacy on the slow and delicate march toward a future where states and their leaders across the region embrace and abide by the rule of law.

At the outset, it is important to note that colonialism's impact is not just on the rule of law, but on every aspect of the lives of every citizen. At the Rule of Law Collaborative, we have over sixty faculty across eighteen departments, including political science, history, social work, public health, and education, who are affiliated with our work. For us, as important as access to justice is to the rule of law, access to education, access to potable water, and access to nutrition are just as fundamental to creating the foundations for an effective rule of law framework.

Colonialism has led to several negative consequences for the institutional capacity of African states. The common threads of these consequences can be condensed into several thematic areas occurring across postcolonial African states—neopatrimonialism, illegitimacy and dual governance, dependence on foreign aid, the impact of colonizers’ departure, and arbitrary boundaries.

Colonial rule was predicated on strong central rule, in contrast to precolonial African states’ use of local traditions and institutions to govern. Following independence, many African countries inherited a shell of the centralized system; the system was there, but capacity was not. Postcolonial political leaders used neopatrimonialism to fill the void in power, developing and adopting informal, nontransparent rules to reinforce their authority. These actions enforced and ensured the colonizers’ power, and in turn, left a colonial legacy. Such a legacy led to the centralized state's slow decay, exhibited in economic downturn, market failure, decreased democratic stability and participation, and an increased disconnect between the formal and traditional institutions.

In addition, colonialism has contributed to illegitimacy and dual governance in Africa. After the colonial powers departed, many newly independent African states attempted to domesticate the former colonial governments and bring them into conformity with precolonial institutions. These efforts were often unsuccessful, as citizens viewed the new governments as an illegitimate expression of the colonial regime. A dual system of governance was thus created in many countries as traditional and modern authorities competed for power. Such mistrust and power competition led to a growing disconnect between local institutions and formal state institutions, stunting the capacity and development of both. There remain countless examples of this issue across Africa—from the Democratic Republic of the Congo, to Liberia, Sierra Leone, Somalia, and Zimbabwe, among others—but its impact can be particularly illustrated by the present situations in Ghana and Nigeria.

In Ghana, the precolonial system was administered by traditional authorities headed by chiefs who led local governance and development. The British colonial state attempted indirect rule using a system of native administrations intended to mimic precolonial local institutions by empowering local, traditional leaders in the colonial system. This, in turn, created a dual system, with the formal central state system operating in the same arena as local traditional authorities. After decolonization, many of the traditional authorities continued to see their authority usurped by the postcolonial, inherited central government. Thus, in many ways, this dual system undermines not only institutional development, but centuries, if not millennia, of successful precolonial governance under the traditional structure.

In Nigeria, the British colonial system of indirect rule used a local unified government of native authorities that subsequently led to a diverse and divided system. The state was initially developed, with limited success, into two separate native authorities in North and South Nigeria. The bifurcation ultimately failed to meet citizens’ needs and expectations. A federal system was then implemented after decolonization that further fragmented local governments. This fragmentation, coupled with growing discontent with political participation, led to military rule, whereby twelve separate states were created, each operating under its own system of rules and structure. Now, the deep division and political chaos seen at times in Nigeria can generally be traced back to the dualist structures instated by the British.

For the French, traditional customs and laws were irrelevant to governance of the colonies. The French focused on direct rule and were not interested in customary mechanisms, in contrast to the British's indirect rule that sought, at least in some ways, to integrate customary law into the colonial legal system. The direct rule in the French colonies created a mechanism that entirely ignored the precolonial system. At the time, France had a policy of a self-sustaining colony—i.e., that the colony should not cost anything to the motherland. Such a policy meant that the French were not providing resources or support for tribunals or development of the justice system, often leaving a barren wasteland when they left.

During the colonial era, laws were not well publicized or just in the truest sense of those terms. During decolonization, the newly independent African states were left without a meaningful model to develop such laws. This legacy extends into the present, as countries continue to struggle with developing just, public laws.

Similarly, corrupt behavior can also be traced to colonial power. The endemic corruption seen in leadership around the continent (and elsewhere around the world) is a corruption based in kickbacks and political networks that were created to enforce and retain colonial authorities’ power structures. In addition to power-driven colonists and the lack of legitimate governments, colonization began around the time of the industrial revolution, sparking widespread financial growth and the emergence of white-collar crimes.Footnote ² In turn, the economies promoted by colonial governments nurtured conditions for corrupt practices because the colonized had little administrative experience and weak or nonexistent sociopolitical and economic institutions.

Finally, a note concerning gender rights, as the colonial legacy's impact on women has been both significant and negative. The discussion of gender constraints in Africa is generally limited to customary legal systems, not colonial systems or legacies, and is often cast only as a binary approach. By focusing only on the limitations of customary systems, the impact of the colonial period on gender inequities is lost. To illustrate this point, I would like to share a brief story. I recently met with Sierra Leone's new Minister of Justice, Priscilla Schwartz. We discussed the country's access to justice issues, including how to balance potential gender inequities in the use of customary legal mechanisms given that illiteracy in the country exceeds 60 percent and traditional legal mechanisms are often inaccessible to the majority of citizens. Minister Schwartz recognized the impact of customary law on women, which can often be negative. However, she pointed out that it remains the most effective system to provide access and meaningful remedies for citizens, particularly those who are illiterate. How did the country arrive in this position—decisions taken by colonial authorities and the consequences of those decisions.

Today, access to justice remains one of the most significant problems around the world. The legacy of the colonial powers who did not provide meaningful access to justice, specifically meaningful mechanisms that allowed citizens to gain entry into the courts and into other forms of justice, is far-reaching. This legacy has created a structure that is very difficult to overturn and overcome. Going forward, we may be witnessing a new form of colonialism as it relates to Africa, that of China. Through its approaches to investment and influence peddling across the continent, China threatens to create dependency relationships akin to those of the colonial era. The creation of relationships that echo those of the colonial era, debt diplomacy, willingness to engage in corruption, and technology dependence could create a new form of colonialism in a different form that exacerbates the issues identified above that are at the heart of the rule of law.