60 years later, are colonial-era laws holding Africa back?

When Ghana’s President Nana Akufo-Addo took the oath of office on Jan. 7, by his side was a judge wearing a traditional British horsehair wig and black judicial robes. Just how far had Ghana shifted away from colonial rule since gaining independence in 1957?

Many Africans — and political scientists — believed that the newfound sovereignty of African nations in the 1950s and 1960s would cure ills, from economic underdevelopment to political repression, from low levels of social trust to high levels of corruption.

Many of these hopes remain unrealized. While countries did gain independence, some researchers argue that they held on to many of the rules put in place by former colonizers. Our research examines if this idea of colonial endurance is plausible in the legal sector.

Do colonial rules persist?

Colonial-era bureaucracies and legal systems were designed to control the population and extract wealth from the colony back to the colonizing power. After independence, governing and judicial institutions continued to run much as they had in the past, like trains moving along the same track.

Jumping to a new set of tracks proved very difficult because of the increasing cost of switching to a different path. So, if there were only minimal shifts in these institutions after independence, then countries might be stuck with autocratic politics and bad economic institutions inherited from colonial times.

Examples are easy to spot. Judges in a number of other African Commonwealth nations continue to wear the horsehair wigs and robes of their British predecessors. Some laws in Commonwealth nations also mirror older British laws — many African countries still maintain harsh colonial-era laws criminalizing homosexuality, for instance.

In the United States as well, we can easily find antiquated laws. Hey, New Yorkers, it’s illegal to wear slippers after 10 pm. Seriously.

While we have some anecdotal examples of legal institutions staying the same, we also have examples of countries making major changes to their laws. Rwanda, for example, is in the process of changing its entire legal system from the colonial Belgian civil law system to the common law system.

So, we have competing narratives. Do examples of colonial endurance tell us something about the general state of institutions, or are they just weird exceptions to a more general pattern of change?

Do colonial laws hold countries back?

If these laws have stayed largely the same, this could help us understand why some countries have had slower economic growth. For example, researchers have found that there is a correlation between the kind of colonial legal system and economic outcomes today. Generally, civil law countries perform worse than common law countries.

So, if civil law countries kept their colonial laws, this might account for worse economic growth. Changing these laws might help them perform better economically. If, however, laws have already shifted, then further modifying the laws themselves is unlikely to promote economic development. In this latter case, there must be other reasons for the constrained growth, like informal institutions or norms.

We scrutinized the entire criminal code in 7 countries

Our research challenges the idea that there is widespread persistence of colonial legislation in African civil law countries. We examined how much of the colonial criminal code endured across much of French West Africa — Burkina Faso, Côte d’Ivoire, Guinea, Mali, Niger, Senegal and Togo. We looked at whole legal codes rather than cherry-picking individual laws.

The French implemented a single criminal code across its colonies, with a final version instituted in 1955 (five years before most French African colonies gained independence). We wanted to see how much of this colonial law was evident in the present codes of these sub-Saharan successor states of French West Africa.

Each criminal code includes hundreds of articles, so we wrote a program to make these comparisons. The program takes every article of the 1955 code and finds the article in each country’s present code that most resembles it. It tabulates what fraction of the old article must change in order to turn it into a new article. If very few changes are necessary, then the language of the old article carries into the present code. If a lot has to change, then this is evidence that colonial influence is waning.

All of these countries made large changes to their criminal codes

The figure below shows how much of the colonial code was retained in each of the seven West African countries in our study. Every country substantially changed more than half of the colonial criminal code. Most changed significantly more.

Senegal retained the largest share of colonial articles, but even then, less than half of the colonial code exists in the present code. Togo retained the least, keeping only a few colonial articles in its modern criminal code.

Figure 1: How much of the 1955 French penal code remains in West African nations? This figure measures the extent to which the 1955 AOF (Afrique occidentale française) criminal code remains embedded in present-day legal code. Every country in our study changed more than half of its criminal code after independence, though some countries changed far more than others. Source: Ryan Briggs

So what do our findings say about the persistence of colonial law? First, we should be skeptical of claims that Africa’s laws are unchanged since the colonial period. Our results suggest that the laws in these countries are dynamic and varied.

Second, these findings suggest that if inherited colonial institutions are responsible for economic or political outcomes today, then this effect probably occurs through the transmission of informal rules or culture. It’s not directly because of the laws themselves.

Third, these results imply that it is not enough, and potentially not even useful, to suggest that a problem like corruption or weak shareholder protection can be fixed simply by writing new laws. Any prescription for change should start from a proper diagnosis. In these countries, there is little need to rewrite laws to remove colonial influence; that influence has already waned.

Maya Berinzon is a researcher at Virginia Tech’s Institute for Policy and Governance.
Ryan Briggs is an assistant professor in Virginia Tech’s Department of Political Science.

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