Re-thinking “Law” and “Development” in Africa

Written by:

Oludolapo Makinde
PhD student, Allard Law

Sara Ghebremusse
Assistant Professor, Allard Law

Toby Goldbach
Assistant Professor, Allard Law

Re-imagining Agenda 2063: A Sociolegal Foundation of the Africa We Want

Six decades have passed since Africa was emancipated from the tyrannical rule of colonialism.(1) For much of this post-colonial era, African states have worked towards promoting development both within their individual states and on a continental basis through organizations such as the African Union. (2) Nonetheless, the continent still faces a host of struggles ranging from irregular power and water supply, political corruption, unemployment, drought, hunger and illiteracy. Throughout, law and development scholars have continued to press for solutions to these urgent challenges.(3) Unfortunately, theories and prescriptions hailing from scholars and practitioners from the World Bank and other international financial institutions (“IFIs”) have dominated the field. As such, African states have struggled to promote an independent and domestically sourced vision of development. 

The first wave of western development interventions following colonial withdrawal from the continent stressed policy that maintained fiscal restraint, managed import regulations and set macroeconomic strategies.(4) With the growing prominence of the World Bank and other Washington-based IFIs, developmental theory moved away from promoting industrialization through import substitution to stressing export-led growth, free markets, privatization and foreign direct investment. In a period of semi-direct control over newly independent states, Washington-based IFIs directed government policy by providing loans and other development assistance only on the condition that states agreed to implement particular sets of laws and policies.   

After the failures of World Bank and IMF conditionality programs in the 1990s, IFIs and Western aid organizations shifted their attention to institution building as the path to development. The new focus reflected the work of Douglass North, 1993 Nobel Prize winner in Economics, which argued that institutions—those “humanly devised constraints that structure political, economic and social interaction”(5)—played a supporting but crucial role in driving economic activity. Institutions were seen as necessary for effective enforcement of “complex and impersonal forms of exchange”(6) that were the drivers of cooperation and economic activity. Where the earlier Washington Consensus approach to development targeted substantive changes to laws and fiscal policy, Neo-Institutionalists argued that enacting new legislation was insufficient without institutional reform to apply and enforce said laws.

A re-examination of the continental development plan is crucial at this time as past and present law and development measures have proved unsuccessful in achieving holistic and sustainable development.

Development practitioners and donor organizations thus directed their attention to governance and the legal and judicial institutions that would secure the foundations for a stable state. As the World Bank wrote, a “focus on governance and anticorruption follows from [the World Bank’s] mandate to reduce poverty, since a capable and accountable state creates opportunities for poor people, provides better services, and improves development outcomes.”(7)  
Emphasis on the role of institutions in development sparked a global resurgence in discussions about the importance of the Rule of Law, both normatively and instrumentally. As a 2010 World Bank Report on regional justice in Africa states, “The rule of law means that a country provides a much more favorable climate for investment: contracts can be enforced, private property is protected, and business can be conducted according to a predictable set of rules.”(8) While enthusiasm for strengthening the rule of law and capacity building to encourage effective justice system entails its own common sense quality, here too many scholars have criticized the absence of evidence that would prove rule of law initiatives have the positive impact that proponents claim.(9) Rather than operate within these endless cycles of optimism and skepticism about the possibilities of using law for development,(10) this project asks scholars to reimagine what domestically-sourced development agendas might look like.  

In doing so, we take a closer look at Agenda 2063, birthed in 2013, during the African Union’s 50th anniversary celebration. Agenda 2063 takes the shape of a 50-year plan providing guidance on how sustainable development in Africa can be achieved.(11) The African Union describes Agenda 2063 as “Africa’s blueprint and master plan for transforming Africa into the global powerhouse of the future.”(12) It therefore functions as a strategic tool for promoting holistic development within and amongst African countries.  

While ultimately Agenda 2063 is a 50-year long-term plan, drafters also conceived of the development agenda as consisting of five ten-year plans (medium term). The first implementation plan for 2014 – 2024 is underway with the goal of ensuring an improved standard of living for the African citizenry.(13) A number of ambitious targets were set, including, a 30% increase in income earnings, secure job opportunities for every one out of four persons, governmental income support for marginalized persons, 80% decrease in hunger and malnutrition and 25% decrease in the number of persons not earning a livable wage. Unfortunately, despite being only three years away from the stipulated end date of the first ten-year plan, it is clear that there is still a long way to go to realize the lofty goals set by the drafters. The First Continental Report on the Ten-Year Implementation Plan issued in February 2020 particularly notes that “the continent saw a weak performance under Aspiration 1A ‘prosperous Africa based on inclusive growth and sustainable development’, with an aggregate score of 29%.”(14)  

This sluggish achievement of the aspirations under Agenda 2063 thus far requires that scholars take a step back to re-imagine the continental development plan. It is this understanding that led to the formation of an international research collaboration—with the project title, Re-imagining Agenda 2063: A Sociolegal Foundation of the Africa We Want—to bring together scholars and practitioners desirous of transforming the continent. A re-examination of the continental development plan is crucial at this time as past and present law and development measures have proved unsuccessful in achieving holistic and sustainable development. Development challenges are also exacerbated by continuous population growth, globalization and increased foreign investment from BRIC countries—in particular, China’s Belt and Road Initiative—and more recently, the COVID-19 pandemic.  

In embarking on this exercise, we ask a pertinent question, “how should law respond to Africa’s development challenges under Agenda 2063?” To answer this question, we intend to apply a postmodern and pluralistic perspective, by deconstructing our understanding of “law” and “development,” which have hitherto been situated in western-centric philosophies and worldviews. We equally seek to identify how a renewed sense of law could help reconstruct our understanding of development under Agenda 2063, in order to move beyond a perception of development as purely economic. We hope to explore the relationship between “law” and “development,” particularly by re-examining law and its efficacy as a tool for promoting development within and amongst African states. 

It is our hope that this first conference will provide a platform for African scholars and practitioners to lend their voice to the discourse and to work collaboratively in bringing forth “the Africa we want.” 

1 The year 1960 is regarded as the “Year of Africa” when several African colonies gained independence.

2 This includes the 1980 Lagos Plan of Action, the 2001 New Partnership for Africa’s Development (NEPAD), the African Peer Review Mechanism and the 2013 Agenda 2063. See William Henry Chamberlin, “Africa’s Year: The Problems and Possibilities of the Dark Continent Will Be a Leading Discussion Topic in 1960”, Wall Street Journal  (1923) (5 January 1960) 10.

3 See I Ayua, “Law and Development in Africa” (1986) 3:1 International Journal on World Peace 71–81. and Jong-Dae Park, Re-Inventing Africa’s Development: Linking Africa to the Korean Development Model, 1st ed. 2019 ed (Cham: Springer International Publishing : Imprint: Palgrave Macmillan, 2019).

4 David M Trubek & Alvaro Santos, eds, The New Law and Economic Development: A Critical Appraisal (Cambridge: Cambridge University Press, 2006).

5 Douglass C North, “Institutions” (1991) 5:1 The Journal of Economic Perspectives at 97.

6 Ibid at 100.

7 World Bank, Strengthening World Bank Group Engagement on Governance and Anti-Corruption (GAC) (2007), online: (pdf): World Bank. <http://www1.worldbank.org/publicsector/anticorrupt/corecourse2007/GACMaster.pdf>.  See also Ibid at 1.

8 Ibid at xxii. World Bank funding thus supported regional integration of business and commercial laws through OHADA, the Organization for Harmonization of Business Law in Africa. For example, OHADA countries drafted a Uniform Act of Arbitration in 1999, which was subsequently adopted in eighteen countries. Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Côte d’Ivoire (Ivory Coast), Democratic Republic of Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Niger, Republic of Congo (Congo Brazaville), Senegal, and Togo.

9 Desai, Deval and Michael Woolcock. 2015. “Experimental Justice Reform: Lessons from the World Bank and Beyond.” Annual Review of Law and Social Science 11 (1): 155-174.

10 Davis, Kevin E. and Michael J. Trebilcock. 2008. “The Relationship between Law and Development: Optimists Versus Skeptics.” The American Journal of Comparative Law 56 (4): 895-946.

11 Agenda 2063 was developed through the collaborative efforts of the African Union Commission (AUC), NEPAD Planning and Coordinating Agency (NPCA), the United Nations Economic Commission for Africa (UNECA) and the the African Development Bank (AfDB).

12 “Agenda 2063: The Africa We Want,” online: African Union <https://au.int/en/agenda2063/overview>.

13 “Key Documents of Agenda2063 – Agenda 2063 First Ten-Year Implementation Plan”, online: African Union <https://au.int/en/documents/20141012/key-documents-agenda2063>.

14 “Agenda 2063 – First Continental Report on the Ten-Year Implementation Plan”, (February 2020), online: African Union <https://au.int/sites/default/files/documents/38060-doc-agenda_2063_implementation_report_en_web_version.pdf>.