Independence of the Judiciary and security of investments-opportunities & challenges

Introduction

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

It is generally agreed that Africa has great investment opportunities. There is an ongoing economic cold war among leading nations in the West and the East arising from investments in all sectors of the economy in Africa. The questions that beg for answers are, do the investments benefit African economies? Who negotiates the terms of the investments? Are the terms of the investments favourable to Africa? Do investment contracts contain transfer of technology clauses that will lead to the transformation of Africa 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 on investment conflicts? Do African countries have Independent Judiciaries that are competent enough to guarantee the security of investments in the continent? What are the opportunities and challenges that investors face in Africa and how can they be surmounted? The answers to these questions 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 UN Charter were a reaffirmation of the “ the 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”.

The establishment of universal conditions for the administration of justice was therefore a significant motivation for the founding the United Nations. Justice is therefore 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.

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”.

These preamble of the basic principles emphasizes that the organization and administration of justice in every country should be inspired by the principles, and efforts should be undertaken to translate them 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 for the universal tenets of Justice as the underlying principle for the attainment of world peace, security, economic well-being and prosperity of nations big and small, and humanity at large without prejudice on any discriminatory basis is well settled in customary international law and enshrined in the Constitutions of member states.

There is also no gainsaying that at the founding of the United Nations in 1945, Africa was not a subject of international law. For this reason, Africa and peoples of Africa decent were not contemplated by the world security, human rights and economic order ordained by the United Nations Charter. For this reason, the “never again” pledge to threats to peace and security to humanity, economic crimes and egregious human rights violations in “our times” that the Charter aimed at banishing were not applicable to Africa and peoples of African origin world-wide. The UN Charter was concerned with nations big and small and humanity while Africa and Africans were considered, as chattel, European possessions, call them colonies, or by whatever name but nations or states. France for example hardly emerged from the humiliation of its World War occupation by Germany to wedge a genocidal campaign its French Africa possessions that led to the extermination of millions of pro-independence nations in French Cameroun and Algeria.

This means that the protections afforded by the United Nations Charter notwithstanding, Africa had no economic sovereignty over its vast natural resources or the exercise of the judicial independence over commerce, industry and investments. There was therefore no investment charter for the benefits of African European possessions. Investments benefitted the colonial masters and their national economies.

Decrying this situation in 1949 Dr Nnamdi Azikiwe 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 in spite of these natural resources which indicate potential wealth, the great majority of Nigerians live in want”. Dr Zik concluded “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 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 Zik made the following proclamation amongst others: “ We shall no longer de 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 urgent cry of alarm and alert proclaimed by Zik of Africa in 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 that ignored the situation of Africa and black peoples the world over as painted by the Owelle endures to this day. I am impelled therefore to submit that the supposed independence of the judiciary in Africa and security of investments although attainable are still elusive for the reasons I will provide in this paper.

Identifying the investment and justice needs for Africa.

My submission that the goals for fair, credible and independent justice for Africa and Africa investments needs face serious though surmountable obstacles may be 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 stated 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 pointed 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”.

There is therefore a need for urgent investments in Africa in industries aimed at attenuating poverty. There is an urgent need for the establishment of energy self –sufficiency, efficient healthcare, food security, science and technology and communication industries in Africa by Africans and foreign investors primarily for the generation of African based solutions to African economic and investment goals.

The question that begs for an answer is whether Africa has a stable, credible, efficient and effective legal framework that attracts foreign and national investments. In other words do the existing legal institutions in Africa provide adequate security for foreign and national investments aimed at promoting growth and the economic prosperity of the continent and its people to occur? I hesitate at this point in time to answer this question in the negative.

The constitutional guarantee of the independence of the Judiciary

When most of Africa gained independence in the early 1960’s most of them pledged became member states of the United Nations and 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 and the independence of the judiciary. Despite of the provision of article 26 of the African Charter on Human and Peoples’ Rights, on the guarantee through constitutional protections of independent judiciaries, the independence of the judiciary as a constitutional arm of government ends with the constitutional provisions which the inner organization of the judiciary in many countries contradicting the intendment of the constitution and compromising its independence.

A decision by the African Commission on Human and Peoples’ Rights in the Southern Cameroons Case better illustrates the lack of independence of the judiciary despite a constitutional guarantee of the independence of the judiciary and separation or powers .In that decision, the African Commission found that the lack of independence of the Cameroon judiciary violated article 26 of the Africa Charter. Cameroon admitted before the African Commission 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, the Minister of Justice the Vice President of the Council with a mandate for the administration and guaranteeing the independence of the judiciary. The African Commission found that by subjugating the judiciary of the executive arm of government, Cameroon was in violation of its treaty obligations, in particular article 26 of the African Charter.

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 justify the characterization of Africa as a melting pot of competing conflicting interests.

Foreign investment in Africa has a history and a purpose. Like a chameleon, it has assumed different colours while remain in substance, the same. Prior to independence, the foreign and 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 Zik of Africa 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 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, sovereignty and economic survival of the colonies to the erstwhile colonial powers. In the French Africa vassal possessions in particular, pre and post-independence cooperation agreements imposed by France subjugated economic, monetary and defense sovereignty to the control of France . These treaties subsistence of these treaties and colonial policies in Independent African countries made the 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”.

The existence of colonial and neo-colonial economic treaties have held Africa in what Dr Nnamdi Azikiwe characterized as “a perennial source of war” .

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 resorted to every coercive methods available. 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 by these organizations, violent political activism triumph over laudable civil society activism aimed at protecting and promoting the social, economic, political and civic rights of the citizenry.

The sources of instability arising from political and socio-economic factors are 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 continent aimed at destabilizing many resource endowed African countries can be traced this factor. Examples abound, but suffice to cite the failed recent violent regime change attempts in Burundi, Central Africa Republic, the Democratic Republic of Congo, South Sudan, Angola and Libya. According to Adekeye Adebajo 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). 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 with the colonial and neo-colonial treaties entered into by individual erstwhile colonial powers like France and Belgium in significant regards. The colonial treaties and policies fuel and sustain the instability that the EU aims to prevent or redress. This means that the erstwhile colonial powers that linked to their African former colonials targeted by the EU initiative are not faithful participants in the EU initiative or like the overwhelming evidence of the sources of instability in Africa have established , these EU members hope to railroad to 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 policy duplicity on the part of France. The failed belligerent EU policy towards Burundi was demonstrated by an overwhelming objection of an EU resolution submitted to the 33rd Session of the Joint EU-ACP Parliamentary Conference on 19 June 2017. For the EU initiative to be 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. Although Africa does not manufacture weapons, the investment in arms through legal and illegal channels fuels internecine armed conflict on the continent while the mineral resources and raw material are carted away to support materialistic and capitalist cartels in foreign 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 therefore keeps significant areas of the African investment and commercial sectors out of independent judicial scrutiny. Some of the sectors concerned include 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.

Owning African investment dilemma and its judicial quagmire

For Africa to attract valuable national and international investments that meets African prosperity needs, they must aim at attaining economic sovereignty over its natural resources. Africa must put in place valuable judicial institutions that are competent, independent and reliable.

Investment contracts are quite often negotiated by non-professional bureaucrats and politicians without the assistance of lawyers and professionals in the varying sectors of the economy in which the investment is taking place. This often results in unfavourable terms in the investment contracts with adjudication clauses that defer the interpretation of the contracts and conflict resolutions to foreign arbitration and adjudication bodies outside the continent. African lawyers and the judiciary are often not even contemplated as key actors in the negotiation of investment contracts and the adjudication of investment disputes in case of conflict. This leaves investments in Key sectors of African economies in the hands of expatriates and foreign agents whose agenda is to stultify the much desired growth of Africa economies.

It has hardly been contemplated nor desired that a transfer of technology clause if inserted into foreign investment contracts could lead to the rapid transformation of Africa from a continent of perpetual slave labour to a continent that processes and transforms its raw materials for the universal market.Africa must own its problems and accept to conceive and apply some dose of painful remedy to this complex life threatening ailment.

Since President Kikwete raised the alarm and put the required focus on “poverty and the need to establish economic growth to overcome the continent’s challenges” citing also Africa’s prospects remaining bleak as the Doha Round stalled and new negative trends that included climate change and soaring fuel and food prices”, Africa has made frantic judicial and continental level efforts to address these problems. The AU made some adjustments in its focus towards security, economic, health, technological research, energy, mineral exploitation, communication, inter-African and Pan African justice. The efforts deployed so far though commendable but so far not commensurate to the magnitude of the problems.

The AU significantly made giant steps towards establishing an African Criminal Court to try crimes committed in Africa, relieving the continent of the humiliating focus of the international criminal court which gives the perception that Africans may be inherently criminal. The Malabo Protocol granting the African Court on Human and Peoples’ Rights have more than any international court in history criminalized which from Nuremburg and Tokyo World War Tribunals were not criminalized.

The Protocol targets a wide variety of crimes perpetrated on the continent including economic crimes. The crimes of illicit exploitation of resources, trafficking in hazardous wastes, terrorism, money laundering, unconstitutional change of government, piracy and the crime of aggression are the ghost of the crimes of slavery, imperialism, colonialism and neo-colonialism from which colonial cooperation agreements and treaties draw their legitimacy. Criminalizing these crimes at long last will target and slay the beast of colonial crimes and its offspring to allow room for Africa develop and prosper in peace.

The African Union needs to conceive and proclaim an African Investment and economic Charter and summon as a matter of urgency. Business operators in Africa need to set in motion a mechanism and frame work for investment in Africa. The African Union lacks a clearing house for informing African investors and entrepreneurs the business potential of each African country. The Proposed investment and business Charter should aim at the AU working on the harmonization of business and investment law in Africa to enable African investors to invest in the continent. Presently, colonial and neo-colonial treaties favour foreign investors, particularly those from former colonial powers.

There is no reason why investment contracts in specific areas or sectors of the African economies should not prioritize national and African investors making foreign investors come in as partners only. Africa has to start training its own road investor contractors. African banks have to start providing loans to support African investors.

African lawyers must mobilize to intervene and settle African conflicts of a political and economic nature. There is no reason why the AU cannot establish a Pan Africa institution for the settlement of investments disputes on the continent. There is no reason why the AU with the support of the African Bar Association cannot establish a Pan African Board of Arbitration to which the different arbitration bodies in the continent will be affiliated and establish a roaster of arbitrators whom would be appointed as need be to meet the arbitration needs of investors in Africa.

There is no reason why the AU cannot make article 26 of the African Charter more functional by establishing a more robust mechanism within the AU for the aimed at encouraging and protecting the independence of the judiciary in member states. In this regard, for a member of the judiciary of a state party to be eligible for appointment to a high judicial organ within the AU institutional framework or within an international judicial or quasi-judicial institution requiring AU support, the constitutional and institutional arrangement in the state party must guarantee independence of the judiciary. A failure to set standards in this regard, led to two Judges from the Cameroon Judiciary which the African Commission on Human found in the Ngwang Gumne v Cameroon (The Southern Cameroons Case) not to be independent to be elected to the African Commission on Human and Peoples Rights and to the African Court on Human and Peoples’ Rights making a total mockery of its decision indicting the Cameroon judiciary for not being independent.

Conclusion

The Assembly of African leaders’ lawyers, businessmen, professionals from all walks of life, the press and millions alive and unborn will look at this occasion with pride. With pride because African lawyers under the banner of the African Bar Association have risen to the occasion and the challenge to summon all of us here to lay down an enduring framework of investment, economic sovereignty and prosperity for Africa.

There is general agreement that investing in Africa will provide a much desired panacea for the dire economic situation facing our continent. The security of these investments needs be guaranteed by competent professional lawyers and an independent judiciary. Africa has significant investment opportunities, competent professional lawyers and independent judges. However, the ability of these key actors to manage Africa’s investment portfolio in ways that benefit Africa and the investors is hampered by powerful extraneous actors and factors.

There is a compelling need for all judicial actors in Africa and the judiciary to organize assert and prove their expertise, proficiency and relevance in playing the role of key actors in the managing the investment portfolio of Africa with unblemished expertise and uncontested independence. This conference on investment in Africa is critical and timely, the next conference on the independence of the judiciary and the rule of law complement our efforts. I respectfully submit that the proceedings of this conference and all the very rich conference papers be delivered to the Chairperson of the African Union Commission, the UN Economic Commission for Africa, all African leaders and universities in Africa to help refocus the desired attention on investments in Africa.