Independence of the Judiciary and Security of Investments-Opportunities & Challenges

*Chief Charles A. Taku

Introduction

Africa is endowed with abundant largely unexploited natural resources and raw materials yet the continent is afflicted by poverty, diseases and violent conflicts in the midst of plenty. Unfortunately, these resources when exploited are often not done so for the benefit of the people of Africa.

The availability and abundance of these resources present Africa with great investment opportunities. The paucity of a credible continental legal and economic framework defining Africa’s investment needs has led to a scramble for Africa’s resources by the leading nations of the world, from West to the East. This scramble has in turn generated an economic coldwar that affects all sectors of Africa’s economic, political and social life.

Investing in Africa under the prevailing economic, judicial and political condition breeds significant challenges and invites critical questions that require answers.Significant among these is the question whether a credible independent judicial mechanism exists within Africa that regulates investment contracts in Africa that benefits Africa. Do African countries possess independent judiciaries capable of guaranteeing the security of investments in the continent through fair trial processes?Who negotiates the terms of the investments? Are the terms of negotiated investments favorable to Africa?Do investment contracts in Africa contain transfer of technology clauses aimed at transforming African economies from markets of cheap raw materials to markets for processed finished products?Is Africa endowed with an enabling legal environment for negotiating, drafting, interpreting and adjudicating investment conflicts? What are the opportunities and challenges that investors face in Africa?How can these challenges be surmounted? The answers to these questions and more are the subject of this paper.

The Universal Foundations of the Independence of the Judiciary

Among the founding objectives of the United Nations enshrined in the preamble of the UN Charter was a reaffirmation of “ … faith in fundamental human rights, in the dignity of nations large and small, and the establishment of conditions under which justice and respect for the obligations arising from treaties and sources of international law can be maintained, to promote social and better standards of life in freedom; and to employ international machinery for the promotion of the economic and social advancement of all peoples”.[1]

These universal conditions for the administration of justice significantly inspired and informed the founding of the United Nations in 1945.Justice for all was therefore, conceived and proclaimed a critical instrument for the promotion and protection of peace, and “the economic and social advancement of all peoples”.

In furtherance of this objective, the UN multilateral human rights treaty regime adopted provisions that guarantee the independence and impartiality of the Judiciary and recommended that they be enshrined in the laws of state parties to the respective conventions.[2]To safeguard, protect and promote the independence of the judiciary within the international and national justice systems, the United Nations adopted the “Basic Principles on the Independence of the Judiciary”.[3]

The preamble of these basic principles emphasizes that the organization and administration of justice in every country, member state of the United Nations must be inspired by the principles. It states that efforts must be undertaken to translate these principles fully into reality. And that the rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with the principles, because “judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens”.

There is therefore no gainsaying that the United Nations Charter foundation of universal tenets of Justice as the underlying principles for the attainment of world peace, security, economic well-being and prosperity of nations big and small, is well settled in customary international law. It is on this basis that these principles are enshrined in the Constitutions of member states.

It cannot reasonably be disputed that at the founding of the United Nations in 1945, Africa was not a subject of international law. Africa and peoples of Africa descent were not contemplated by the founding fathers of the United Nations when they made the justice, economic, human rights and security pledges as the salvific tenets of a new world order and civilization. The so-called big and small nations that came under the protections afforded in the UN Charter did not include Africa and peoples of African descent. They were then invariably considered as chattel, European possessions, colonies by any other name but nations or states. Emerging from the humiliation of its World War defeat and occupation by Germany, France for example, led a genocidal campaign in its French Africa possessions orchestrating the extermination of millions of pro-independence nationalists and armless civilians in French Cameroun and Algeria.[4]

Without the protections afforded by the United Nations Charter Africa was deprived on the economic sovereignty over its vast natural resources.Africa could not exercise judicial independence over commerce, industry and investments in the continent. There was therefore no investment charter for the benefits of African European colonies or possessions. Investments benefitted the colonial masters and their national economies. Africans were valued as slave labour and nothing more.

Decrying this situation in 1949 Dr Nnamdi Azikiwe( Zik of Africa) in an Address delivered at the Plenary Session of the British Peace Congress powerfully submitted “There is gold in Nigeria. Coal, lignite, tin, columbite, tantalite, lead, diamonite, thorium, (uranium-133), and tungsten in Nigeria, rubber, cocoa, groundnuts, benniseeds, coton, palm oil, and palm kernels. Timber of different kinds is found in many areas of this Africa fairyland. Yet despite these natural resources which indicate potential wealth, the great majority of Nigerians live in want”.[5]DrAzikiwe speaking for all Africans stated emphatically, “therefore, we are compelled to denounce imperialism as a crime against humanity, because it destroys human dignity and is a constant cause of wars”.

Invoking the human carnage and devastation of the just ended World War 2 in which Africans were drafted to combat not as free people fighting for the interests of Africa and African Peoples, but as mere tools or instruments of warfare deployed to protect the economic and security interests of their colonial masters,DrAzikiwe made the following proclamation amongst others: “We shall no longer be dragooned to act as cannon fodder in the military juggernaut of hypocrites who dangle before our people misleading slogans in order to involve humanity in carnage and destruction”.

The conscience awakening alarm raised by Zik of Africain the threshold of the founding of the United Nations with lofty principles underpinning justice and economic empowerment as the salvation credo for a peaceful, prosperous world which ignored the situation of Africa and black peoples the world over, endures to this day. It endures becausethe cosmetic independence that was granted to many African states did not alter the European economic and political vassal possessions status that was imposed on them by European colonial treaties.

Due to the enduring effects of these injustices against Africa,it is safeto submit that the supposed tenets of universal justice, that includes the independence of the judiciary are elusive in Africa making the security of investments in the continent attainable but elusive.

Identifying the Investment and Justice Needs for Africa

The submission that the attainment of the goals of fair, credible and independent justice for Africa faces serious though surmountable obstacles may better be articulated through the following address credited to His Excellency President Jakaya Kwikete to the United Nations in New York in 2008.

Addressing the United Nations as Chairman of the African Union, President Kikwete reminded the world body that Africa rejected war, HIV Aids and Poverty as templates on which to anchor a just world security and economic order.He warned that highlighting the adoption of the UN political declaration on African development needs must not obfuscate the fact that poverty and the need to establish economic growth to overcome it was the continent’s greatest challenge.He pointed out that some so-called Millennium Development Goals were inadequate in addressing the serious shortfall in resources to meet African development needs. President Kikwete stated that “In trade, Africa’s prospects remained bleak as the Doha Round was stalled.New negative trends included climate change and soaring fuel and food prices”. [6]

In the face of this bleak picture of the African condition, there is an urgent need for investments in Africa must aim at attenuating poverty, Africa energy self-sufficiency and production industries for the processing and transformation of raw materials into finished products.There is an urgent need for the establishment ofefficient healthcare, food security, science and technology and communication industries in Africa by Africans. Foreign investors are invited to invest in Africa but the investments must aim at and relevant to the attainment of Africa economic and investment goals. Investments in Africa that not include aim at the transfer of technology for the transformation of Africa’s raw materials and natural resources to finished products for the universal market are deemed not to benefit Africa.

To satisfy Africa’s investment needs, stable, credible, efficient and effective legal frameworks capable of attracting foreign and national investments must be established. Do the existing legal institutions in Africa provide adequate security for foreign and national investments that aim at promoting growth and the economic prosperity of the continent and its people?I hesitate at this point in time to answer this question in the positive. This is not for the lack of capital building capacity by African investors, economic operators, capable independent judiciaries or competent professional lawyerswho can manage the continent’s investment portfolio. The critical obstacle to attaining these goals is the ghost of Africa’s colonial past  whichis still  lingering within the continent and manipulating the soul of the continent at all levels of constitutional governance;making profitable investments that benefit Africa and its people difficult.

The Constitutional Guarantee of the Independence of the Judiciary

When most of Africa gained independence in the early 1960’s, the newly independent countries became member states of the United Nations. By their membership of the UN, they pledged allegiance to the United Nations Charter and thereafter ratified or adhered to many conventions in the UN Economic and Human Rights regime.

The constitutions of almost all independent African countries have provisions on separation of powers with the judiciary being an independent arm of government. The constitutions of these African countries guarantee the independence of the judiciary.Despite of the provision of article 26 of the African Charter on Human and Peoples’ Rights guaranteeing through constitutional protections the independence of the judiciary, the effective independence of the judiciary as a constitutional arm of government remains illusory in many African countries. The enabling legislation regulating the administration of justice in many African countries contradicts the intendment of the constitutional guarantees of independence of the judiciary; compromising its independence.[7]

A decision of African Commission on Human and Peoples’ Rights in a case brought by the Southern Cameroons against the Republic of Cameroon, better explains this point succinctly. In that case the African Commission decided that Cameroon lacked independence of the judiciary despite the existence of a constitutional provision guaranteeing the independence of the judiciary and separation or powers[8].In that decision, the African Commission found that the lack of independence of the Cameroon judiciary violated article 26 of the Africa Charter.

The decision was predicated on an admission by Cameroon that it did not have an independent judicial service commission and that the President of the Republic was the Chairman of the Higher Judicial Council while the Minister of Justice the Vice President of the Council. The said council has a mandate for the administration and guaranteeing the independence of the judiciary. The African Commission found that by subjugating the judiciary to the executive arm of government, Cameroon was in violation of its treaty obligations by violating article 26 of the African Charter. The Commission asked Cameroon to provide an effective remedy by making its judiciary genuinely independent, a decision Cameroon has failed to implement.

A melting pot of competing conflicting investment interests

An anxious look at foreign and national investment policies in Africa against available investments opportunities and the investment needs of the continent, there is justification in characterizing Africa as a melting pot of competing conflicting investment interests. Foreign investment in Africa has a checkered history and a tortious purpose. Like a chameleon, it assumes different colours while remaining in substance, the same.

Prior to independence, foreign trade policies of African European colonies were imposed rather than negotiated. African economies were rudimentary and mainly aimed at producing and supplying raw materials for the European industrial and commercial markets.The huge mineral deposits and agricultural potential which DrAzikiwe talked about in his 1949 address referred to earlier in this paper, although belonging to Nigeria and Nigerians, as a matter of colonial and imperial policy,in reality belonged to Her Majesty the Queen of England’s Government.

The colonial institutions at independence contained imposed military, monetary, economic, educational, social and cultural cooperation treaties that subjugated the economic sovereignty of the colonies to the erstwhile colonial powers. In former French Africa colonies, France imposed pre and post-independence cooperation agreements imposed that subjugated their economic, monetary and defense sovereignty to the control of France[9].

The subsistence of these treaties and colonial policies in Independent African countries renders an effective exercise of sovereignty over constitutional institutions among them independent judiciaries illusory.This state of affairs led Osagyefo Dr. Kwame Nkrumah to conclude that “any form of economic union negotiated singly between the fully industrialized states of Europe and the newly emergent countries of Africa is bound to retard the industrialization, and therefore the prosperity and general economic and cultural development, of these countries. For it will mean that those African states which may be inveighed into joining this union will continue to serve as protected markets for the manufactured goods of their industrialized partners, and sources of cheap raw materials”.[10] The existence of these colonial and neo-colonial economic treaties have retained  Africa in what Dr Nnamdi Azikiwe characterized as “a perennial source of war”[11].

In seeking to safeguard and enforce these subsisting colonial and neo-colonial imposed preferential economic and investment treaties, the erstwhile colonial powers and the economic blocs in which they belong have resorted to using coercive methods to impose unfavourable terms of trade and investment terms that auction away African mineral resources and raw materials at prices and conditions intended to recolonize supposed independent states. These includes, economic sabotage, political instability, coups, military intervention and the manipulation of international institutions to discredit, subvert and isolate governments and peoples who dare turn their backs on colonial and neo-colonial puppetry.

In attempts to render the resource endowed countries of Africa ungovernable, alternative sources of power control are funded among the civil society, national and international Non-Governmental Organizations, the Military and the political class. With the use of weapons and funds supplied to these organizations, violent political activism triumphs over laudable civil society activism whose primary purpose ought to have been protecting and promoting the social, economic, political and civic rights of the citizenry.

The sources of instability arising from political and socio-economic factorsare easily traced to the desire to control the natural resources and raw materials of African countries. The militarization of the political and economic life of the continent aimed at destabilizing many resource endowed African countries can be traced to this factor. Examples abound, but suffice to cite the failed recent violent regime change attempts in Burundi, Central Africa Republic, South Sudan,Angola and Libya.

According to AdekeyeAdebajo and Kaye Whiteman, “the EU willingness to find ways of being militarily involved in Africa has been encouraged by France (seeking ways to justify its own continued military presence in Africa).[12] The problem with the ambitious mission of the EU to support peace and security initiatives as outlined in the EU Common Position on the Prevention, Management and Resolution of Violent Conflicts in Africa is that in conceptual terms, the EU initiative seems good. But it conflates and conceals the colonial and neo-colonial treaties entered into by individual erstwhile colonial powers like France and Belgium in significant regards.

These colonial treaties and policies fuel and sustain the instability that the EU aims to prevent or redress.The erstwhile colonial powershabouring economic and political ambitions to control and micromanage the economic and political life of their former African colonies targeted by the EU initiative are not faithful participants in the EU initiative.There is overwhelming evidence establishing that they are thesources of instability in Africa. These former colonial powers have consistently used their EU members to attempt to railroad the EU initiative to attain their neo-colonial agenda.

The mitigated result of the EU initiative in Central Africa Republic even with the presence in the territory of French troops who have maintained a military base there since independence is an alarming example of this policy of duplicity on the part of France. Mineral resources Burundi has consistently accused Belgium which recently accepted responsibility and apologized for the assassination of Patrice Lumumba plunging the Democratic Republic of Congo into a blood bath that endures till date, for supporting a rebellion within its national territory aimed at effecting a regime change and controlling its natural resources.

The failed belligerent EU policy towards Burundi demonstrated by an overwhelming objection of an EU resolution submitted to the 33^rd Session of the Joint EU-ACP Parliamentary Conference on 19 June 2017 arises from this policy. For the EU initiative to attain its objective, the EU must call on its member states to rescind with immediate all colonial and neo-colonial treaties or so-called cooperation agreements that undermine the sovereignty of African states and constitute a “perennial source of war”, violence, instability, impunity and criminality. These perennial sources of war have subverted the rule of law and sound constitutional governance.

Africa does not manufacture weapons but the investment in arms through legal and illegal channels fuels internecine armed conflict on the continent. For this to occur, the mineral resources and raw material of African countries are carted away to support materialistic and capitalist cartels in foreign in other continents.These colonial and neo-colonial treaties are not subject to legal challenges before the judiciary of the African countries concerned depriving the citizens of those countries the opportunity to test their validity and legality before independent judges.This keeps significant areas of the African investment and commercial sectors out of independent judicial scrutiny. The Neocolonial economic cartels have also concluded treaties keeping the judicial scrutiny before national courts, keypublic and private investment sectors in the defense industry, the oil industry, the energy industry and some strategic mineral contracts. With this, corruption is institutionalized at the expense of the people’s sovereignty over their resources, their economic well-being and prosperity.

[1] Preamble, Charter of the United Nations, 24 October 1945.

[2] Articles 8 and 10, UN General Assembly, Universal Declaration of Human Rights, 10 December 1948. Article 14, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

[3]Basic Principles on the Independence of the Judiciary Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

[4] The French campaign in French Cameroun commenced in 1948, the same year the UN Declaration on Human Rights was proclaimed against the Union des Population du Cameroun UPC founded by Um NyobeMpodol and continued this campaign directly or by proxy until 1971 when the last nationalist leader of the UPC Ernest Ouandie was assassinated.

[5] From an address delivered at the Second Annual Conference of the Congress of Peoples Against Imperialism on “Colonies and War” Poplar, London, on October 9, 1949 quoted in Wilfred Cartey and Martin Kilson: The Africa Reader: Independent Africa Rabdom House New York 1970 pp 74 and 75.

[6]President JakayaKikwete, AU Chairman Address to the United Nations in New York 23 September 2008.

[7] Article 26 of the African Charter states that “State Parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter”.

[8]Communication No. 266/2003, 27 May 2009, African Commission for Human Rights, NgwangGumne v Cameroon para. 132.

[9]Cooperation Agreement signed between AhmadouAhidjo and France dated December 12, 1959. Cameroon attained independence on January 1, 1960 .The cooperation agreement in its articles 1-6 reserve the authority to 1) determine Cameroon’s economic, political, and socio-cultural orientations to France.2) France shall manufacture currency for Cameroon called the CFA.3) France shall guide the determination of educational programs at all levels.4) The French national treasury shall have a portfolio named operations account to cover 100% of Cameroon’s foreign exchange. After a series of revisions, the percentage stands at 50% today. 5) France shall have strategic priority in the exploitation of Cameroon’s raw materials.6) On 10^th November 1961, shortly Cameroon annexed and colonized the Southern Cameroons in the evening of September 30, 1961, President Ahidjo signed a military cooperation agreement with France in which the French army may be invited by the Cameroon President or the French Ambassador in Cameroon to send French troops to suppress an internal rebellion or insurrection or any threats to the regime in place. The Southern Cameroon had voted in a UN sponsored plebiscite to attain independence by joining the independent Republic of Cameroon upon terms to be worked out prior to independence. The independence was attained leading the way for the termination of the trusteeship over the Southern Cameroons but the sovereignty to negotiate a union treaty was subverted by the annexation and military occupation of the territory.

[10]OsafgyfoDr Kwame Nkrumah: Neocolonialism in Africa in Africa Must Unite, (New York, 1964 cited in The Africa Reader: Independent Africa edited by Wilfred Cartey and Martin Kilson Random House New York, 1970 p. 220.

[11] The African Reader, p. 60.

[12]AdekeyeAdebajo and Kaye Whiteman: The EU and Africa: From EuroAfrique to Afro-Europa, 2012, Hurst and Company, London, p.17.