Africa’s quest for strong, stable and thriving democracies that are anchored by the rule of law will continue to flounder as long as access to legal information in Africa remains the ideal rather than the reality. This was one of the insights shared at two regional workshops that were organized to discuss the contributions of free access to law (or legal information) to democracy, the rule of law and economic development in Africa.
The workshops, organized under the theme Partnering to Sustain Free Digital Access to Law in Africa, held in Nairobi and Accra in October 2016 and February 2016 respectively, and examined challenges that were unique to accessing legal information in East and West Africa, as well as opportunities for free and standards-based open access.
Participants included members of the judiciary, justice departments, lawmakers, lawyers, academia, government printers and commercial law publishers. Also present were members of civil society, development partners who support justice sector reforms, open source technology providers and of course, legal information institutes (LII).
Deliberations at the workshops were rich and robust, covering a wide range of issues including partnerships that promote free access to public legal information, added value for legal data, the sustainability of free access to law services in Africa, and strengthening the LII community in Africa. Unfortunately, we cannot reflect here on all of the outcomes of these deliberations, expressed through resolutions that outline a course of action that LIIs and free access to law supporters must begin to engage with. We will reflect on some of these in subsequent blogposts. However, it will be useful to preview the reflections by sharing two brief workshop insights here.
To begin with, we can accept the conventional wisdom that democracy spurs development, which in turn, deepens democracy. After all, businesses need stable political climes to invest, and we generally agree that political systems in which citizens participate meaningfully offer better portraits of political stability. However, the quest for stable and economically viable polities can hardly be realized when it is not regulated by the rule of law. Not surprisingly therefore, and as the World Bank has rightly observed, the rule of law has become ‘a prominent concern in [today’s] development community’, a goal of development policy as it were. Policymakers also realize that it is a precondition for ‘[e]conomic growth, political modernization, the protection of human rights, and other worthy objectives …’
Indeed, when one looks at regional and global development agendas, one sees rule of law themes plaited right into their focus on building stronger democracies and engendering sustainable development. Aspiration 3 of AU’s Agenda 2063 aspires to a culture of democracy in which justice, rule of law amongst others are entrenched, and serviced by developmental, democratic and accountable institutions that facilitate citizen participation in the social, economic and political spheres of African societies. Goal 16 of United Nation’s Sustainable Development Goals (UN SDGs) similarly places access to justice, the rule of law, and effective, accountable and inclusive institutions at the heart of promoting ‘peaceful and inclusive societies for sustainable development’.
Where does this place access to law? Conceivably at the heart of entrenching the rule of law not just as a democratic project as envisioned in the above development agendas, but as a developmental one as well. Say, what is the rule of law when citizens do not know the law, and how can citizens know the law when it is not widely published? How can citizens and businesses know and engage with their rights meaningfully when the laws are not lucidly presented, and judicial interpretations thereof not published for all to see? Certainly, the UN was well advised when it adopted ‘[ensuring] public access to information – including legal information - as one of its targets for achieving Goal 16.
Development partners may want to think a bit more about the access to law components of the access to justice and rule of law programmes that they support in African countries. As a member of the Free Access to Law Movement, AfricanLII and its African LII associates believe and advocate for programmes and state policies that enhance and expand free and open access to legal information.
The second insight pertains to the state of legislation in most African countries, and what African governments and regional institutions need to do to address it. The pattern across most African countries portrays disarray or failure in institutional management of information. Parliaments pass laws, the executive signs and implements them, but neither institution has a comprehensive database of the laws. In some cases, not even the judiciary can access all the laws as and when needed. Same applies to by-laws, which are critical to grassroots governance but hardly ever get published, leaving local communities ignorant of their rights and duties. The laws could be anywhere but where they ought to be, or even nowhere to be found. Delegates at the Accra Workshop described the laws as scattered, mysterious, poorly preserved or archived.
A few practical steps can address this challenge. Fortunately, the World Bank Group’s Doing Business Report 2016 observes that it would not necessarily require substantial resources to make legal information available (or accessible). Only some degree of internal organization is required. Although the report was speaking about judgments specifically, the observation applies to legislation as well. African governments and regional institutions should look to strengthen institutional management of information.
One way to do so – in relation to legislation particularly – is to enact laws that make legislation more accessible. The laws – which could be described as laws about legislation - should promote internet access to legislation, and provide for the structure and ‘life cycle’ of legislation, the form and language, as well as elements that enhance usability and searchability, amongst others. Such laws will become an important policy tool that expresses government commitment to facilitating standards-based access to legal information.
So, where does this reflection point us? If free access to legal information is so integral to African aspirations for democracy and for social and economic development, it becomes imperative that African states and regional institutions adopt policy frameworks and legislation that facilitate free and unhindered access to legal information in the region.
About the Open Law - Africa Workshops
The Open Law – Africa Workshops are an annual forum where legal information institutes (LIIs) in Africa and supporters of free access to law come together to discuss the contributions of free access to law to the rule of law, democracy, and development, and to advance the Free Access to Law Movement in Africa. The Nairobi and Accra Workshops were organized through the collaborative efforts of the African Legal Information Institute (AfricanLII) and Kenya Law, and between AfricanLII and the Faculty of Law, University of Ghana, and the Ghana Legal Information Institute (GhaLII), respectively.
Another Open Law – Africa Workshop is being organized for Southern Africa. The dates will be announced shortly.
To access the reports and resolutions of the Nairobi and Accra Open Law workshops, click here.