Colonial Legacies Endure in Africa’s Legal Systems — Undermining Rule of Law

Recently there was a huge controversy in Zimbabwe over the alleged purchase of British horsehair wigs for Zimbabwean judges. Given the financial challenges faced by ordinary Zimbabweans, it was not surprising that the issue manifested in a larger debate over government financial mismanagement and its failure to provide adequate legal services for regular citizens.

More poignantly, in the larger African context the debate was also about the continued influence of European metropoles over their former African colonies in many aspects of life. That the Zimbabwean judges needed to purchase British horsehair wigs — which are no longer required even in many British legal contexts — is a telling relic of the colonial legacy foisted by Britain on its African colonies. Not only must Zimbabweans pay Britain for the wigs, but they do so to fuel a legal system rooted in the colonial era, when Britain systematically created and maintained legal systems, constitutions and other institutions patterned after its own. While in recent decades those colonial-era legal systems and institutions are being replaced by many African nations, they continue to hold such influence that a formerly colonized African nation’s adherence to the “rule of law” cannot be evaluated without considering the impact of its subjugated past.

As Britain established its colonial rule in Africa, it brought with it ideas about the rule of law, with the two becoming inseparable.

In 1844, the legal system in what was then the Gold Coast colony became attached to the British legal system. Before 1821 several European powers held claims in this region and established commercial settlements and forts to facilitate the trans-Atlantic enslaved person trade. The British consolidated control gradually over the 19th century. Local groups gradually submitted to British “protection” in an ongoing conflict with the Asante state to the north. Finally in 1844, some Indigenous Ghanaian chiefdoms accepted British sovereignty over them in exchange for protection from their warring neighbors. While conceding to British sovereignty, the chiefdoms also agreed to the British adjudicating serious crimes and to a long-term plan of adapting their customs and practices in conformity with British law.

When the British formally colonized the chiefdoms, they agreed to accept Indigenous law as part of the dual legal system. But they also added “repugnancy clauses” that excluded aspects of the Ghanaian customs or cultures that the British considered “appalling,” “ridiculous” or “unhelpful to maintaining Christian ideals.”

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Notably, Ghanaian legislators eliminated the repugnancy clauses right after independence between 1958 and 1960, because they were insulted that their own laws were somehow “repugnant.” Even so many provisions of Ghana’s criminal code and supreme court decisions closely tracked British law and influenced judicial administration in a post-colonial Ghana. For example, Ghana’s current Criminal Code specifically criminalizes consensual same-sex sexual acts between males. This law is a relic of British colonial era when the metropole transported its anti-sodomy laws to its colonies.

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Ghana is not the only African nation struggling to rid itself of its colonial legacies. Kenyans are having the same conversation about the continued influence of the colonial past. They are questioning local governmental laws that prohibit making noise on the streets, committing acts deemed contrary to public decency, washing or repairing vehicles in non-designated areas, and loitering at night, all traceable to laws instituted during the colonial era. The #EndSARS movement against dismantling the SARS (Special Anti-Robbery Squad) unit of the Nigerian police was in large part a protest of overall police brutality common in Nigeria since the institution was created during the colonial era. {snip}

While the leaders and people of African countries have gradually made changes to these institutional structures to limit the influence of colonial legacies, many ordinary African citizens are still suffering colonialization’s ill effects when subjected to contexts involving the rule of law.