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 5  The Legal Legacy Twilight before Dawn In an era dominated by the strident polemical lucubrations of postmodernism, it is risky, to say the least, to argue for the relevance of modernity, specifically its political discourse, to an understanding of some contemporary phenomena. In the earlier chapters I argued that contrary to the claims of some of its apologists and those of its principal theorists, colonialism was a bulwark against the transition to modernity in Anglophone Africa.1 This chapter explains the first of the preemptions that colonialism procured in the colonies: that concerning the introduction of modern legal systems into Africa. One component of the modern way of life as manifested in the legal system is the ideal of the rule of law. Subsumed under this ideal are two assumptions regarding the moral autonomy of each person: the capacity to have her own conception of the good life and the right to realize it so long as she does not impair another person’s right to the same; and the impermissibility of affirming the supremacy of any particular conception of the good life over others. Both principles combine to deny to the modern state any right to force upon its citizens its conception of the good life. In the area of politics, these two principles yield liberal democracy in its many forms and in law; they are manifested in the institutionalization of the rule of law. These are the fundamental elements of the political discourse of modernity that failed to take hold in Africa and that I propose to use as a part of the explanation for the many problems that scholars have identified in the municipal legal systems in some African countries. This chapter focuses on law; the next one takes up politics. As independence dawned, almost all African countries proclaimed their commitment to the rule of law and established, if they did not inherit, judiciaries that (in form at least) were quintessentially modern. But these institutions are modern in appearance only. Even if we concede that colonialism introduced some elements of the rule of law and its political twin of liberalism into African countries, it quickly orphaned them in ways that shed more light on why the ideals and practices failed to develop in the post-independence period. Although African countries possess judiciaries with a full complement of judges, solicitors, advocates, and other officials, 158 The Aftermath the record does not permit us to conclude that the law rules in them. This is so in spite of the fact that the forms of legal discourse are properly “legal.” There is a repeated disjuncture between the appearance of the indigenization of modern legal systems and the reality of constant failures on the part of those who operate and direct these systems to deliver on their promise. Such failures are manifested in an inability and/or an unwillingness of the executive arms of government in African countries to uphold the rule of law and submit themselves to its demands and in the inability and/or unwillingness of judiciaries to see themselves as the citizens’ main bulwark against state “power’s all-intrusive claims.”2 Concrete illustrations of the failures are found in the fact that African governments rarely, if ever, lose cases in court, especially cases involving individuals and the abridgment of rights whose preservation and defense are integral, even defining, features of modernity . In cases involving conflicts between the rights of citizens and the claims of the state, judges behave more often like civil servants than like “oracles” of the law. The executive branch meanwhile behaves in ways that are inconsistent with the minimal requirements of a modern polity of respect for the law and respect for the autonomy of persons, the proverbial right to be let alone!3 On the rare occasions when they lose cases, governments try to tamper with the judiciary, up to and including removing “errant” judges without cause;4 indulging in blatant intervention to corral judges’ cooperation in the subversion of justice—nocturnal visits, threats, and so forth; and ostracizing judges to show displeasure with their failure to cooperate . Some executives have even contemplated abolishing the legal profession, tout court.5 Why is this so? Or, put differently: On the one hand, why is it that African governments insist that all institutions of governance must subserve their interests, often narrowly defined? On the other hand, why do judges in African countries either fail to see that they are impaneled to ensure that citizens...

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