ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 615-617.
BUILDING THE RULE OF LAW: FRANCIS NYALALI AND THE ROAD TO JUDICIAL INDEPENDENCE IN AFRICA by Jennifer A.
Widner. New York: W. W. Norton & Co., 2001. 454 pp. Cloth $29.95. ISBN: 0-393-5037-8. Paper.$29.95. ISBN: 0-393-97689-0.
Reviewed by Peter d'Errico, Legal Studies Department, University of Massachusetts, Amherst.
Jennifer Widner has written a very readable and informative judicial biography, a "story" as much as
a history: in her own words, it is about "a man and his times" (p. 10). BUILDING THE RULE OF LAW is a
coherent overview of events and personalities in the 40 or so years since African nations have emerged from colonial
"protectorates." The book will especially fascinate those who recall the early fervor of such powerful
figures as Patrice Lumumba, Kwame Nkrumah, and Julius Nyerere and the open clash of ideas and systems they represented.
Widner delves into those parts of the story where law and lawyers were most clearly involved. Her social science
focus is clear throughout: What happened at the level of law(s), courts, judges? What were the problems of judicial
administration, of popular access and allegiance to nation-state legality?
Widner's skill in weaving together empirical and theoretical aspects and in providing an analysis that transcends
the specifics of the central story is evident from the start. The book opens with a quick survey of critical factors:
political difficulties posed for judicial independence where the state is party to most litigation affecting wealth,
as was typical in developing countries in the last century; conceptual difficulties in defining the "rule
of law" as distinct from a "law of rules"; and scarcity of
resources for judicial institutions, especially in the context of "the deep legal pluralism that characterized
most African countries" (p. 31).
She notes a variety of strategies toward building independent courts in these circumstances and points out the
difficulties of measuring success. She contrasts the pessimism of outside academic observers with the optimism
of participants like her central figure, Francis Nyalali, who served as Chief Justice of Tanzania from 1976 through
1999: "Academic authors often observed that courts had neither the power of the purse nor the ability to take
up arms. Therefore, they concluded that judges must play little role in building independence" (p. 33). Her
own perspective is that of Justice Nyalali, who emphasized his kinship with U. S. Chief Justice John Marshall as
"judges [who are] visible actors on the stage" (p. 34). Speaking of them both, Widner asserts that judges
can provide "a way to make the values implicit in the rule of law part of everyday life" (p. 37).
Subsequent chapters follow Nyalali's career in some detail, using his experiences and challenges in Tanzania as
markers for substantive investigations, including: the structure and processes of the courts, East African experiments
in post-colonial state-building, socialist legality, the human rights movement in Africa, the impact of multi-party
politics, court calendar and personnel
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management, and lawyer training and legal education. This impressive array of topics amounts to a tour de force
exploration that sheds light beyond Africa in the 20th century, to include the history of the rule of law generally.
Justice Nyalali's admiration of John Marshall allows Widner to frame her discussion as a cross-cultural investigation,
acknowledging her own status as an "outsider" (albeit a very informed one) while emphasizing the dilemmas
and opportunities that shape and have shaped the development of the rule of law across cultures and historical
eras.
Any history of law must approach the question of law's relationship to custom. The basic questions are built into
the common law and have been the focus of sustained scholarly debate in a number of fields. The questions have
a special significance in Africa, where state legality arose in the context of colonial enterprises. As a result,
legal institutions and social control generally are characterized by complex hybrids of imperial impositions and
indigenous processes. Widner's approach offers a clear picture of this complexity.
Chapter Four, "Pluralism and Legitimacy," is a particularly helpful presentation of the understanding
that "in Africa, norms from very different systems were uneasily juxtaposed, and race or ethnicity played
a large role in determining which rules applied to which people" (p. 75). However, these issues are also interwoven
throughout the book. One of the most interesting and provocative aspects of the pluralist environment is that women
and family law matters became crucial to the development of judicial independence. Widner notes in the introduction
that in the effort to "reconcile the customary laws . common law . and . new constitutions and international
covenants . some judges felt that the real action at the end of the century lay with family law, and especially
with matters that affected the equality
of women" (p. 31). Chapter Seventeen, "Custom, the Constitution, and the Common Law," develops these
themes in depth, with attention to the eastern and
southern African region generally.
History books often record in a few sentences changes and events that occupied years and even centuries. "Reception
of Roman law" or "evolution of tribal governments" or "transition to democracy": these
are phrases whose utility as overviews masks the perspective of lived history, in which an assertion of progress
in any direction is often contradicted and obscured by countervailing tendencies and forces. In this regard, Widner
has done an unusual job. Her decision to write history as a story provides her with a standpoint from which to
assert the drive toward overview as a lived experience. From Francis Nyalali's career, we gain the richness of
close accounts of struggles and setbacks; from his persistence and survival, we get the overview.
Widner accomplishes the combination of overview and lived history in part by a grammatical and rhetorical trick:
the shifting of verb tense to treat the present as the past. The trick has a price. Widner's insistent use of the
past tense carries the manifestly false implication that the place of the state and law in African societies is
an accomplished fact, with only the details still to be worked out. For example, in the quotation from Chapter
Four above, Widner presents the conflicts among and between customary and common laws as if they are a thing of
the past. Yet later in the chapter she points out, "Even in the mid-1990's, the fragmentary evidence available
suggested that most village and neighborhood disputes
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were handled informally or in old ways, not through the common law courts" (p. 81). The mid-1990's, for all
practical purposes in regard to this subject, is the present. The quotation from Chapter Seventeen above, referring
to "the real action at the end of the century," carries the tone of one writing about a time long ago.
In fact, given the book's 2001 copyright, those words must have been written as a prediction rather than an assessment.
It is similarly strange to read, in regard to the 1994 Malawi constitutional provision for juries of peers in capital
cases, that "By the end of the century, the results of the experiment remained unclear" (p. 67). The
common law jury has evolved through centuries of "experiment" and the results may still be said to be
"unclear"! The danger of the "man and his story" approach may be that what ought to be reported
as news is instead presented as history.
The time period since the end of formal colonialism in Africa--leaving aside the question whether African states
are really post-colonial, given their colonial-built boundaries and the fact that "laws that originated in
Europe would continue to be part of the living tradition in Africa" (p. 79)-- is so short on a world historical
scale and the changes in law and judicial administration so many, that we must not pretend that the rule of law
is an established fact. (Perhaps, in light of events since the destruction of the World Trade Center, we must reassess
the status of the rule of law globally.)
This is only a small dispute with a very good book. However, it is not insignificant, and the examples are numerous.
Discussing a 1996 Commission of Inquiry into the Judiciary in Botswana, Widner has Nyalali commenting "many
years later," with citations to a 1994 article and a 1998 personal communication (pp. 96-97). Quoting Justice
Robert Kisanga in the present tense in a 1996 interview, "corruption is a corollary of the resource problems,"
Widner shifts to the past tense, "circumstances remained very difficult through most of the 1990's" (p.
284).
Perhaps Widner's quotations past tense is only an expression of optimism, reflecting the optimism of her chief
subject, Francis Nyalali. In any event, her (and his) ideological and theoretical stance is clear: the rule of
law is a necessary vehicle for the survival of modern African nations. The implications are profound. Much of what
appears today as civil war in Africa is the expression of conflicts among peoples whose indigenous boundaries were
violated by colonial gerrymandering. Because African nations have mostly been built from the institutional relics
of colonial imperialism, the tasks of state building, including the role (and whether it is to be rule) of law
are especially tricky.
Widner seems to want us to believe that the rule of law has been accomplished, at least in Tanzania, even when
her informants speak more tentatively. Perhaps she sees this sacrifice of doubt as necessary to Nyalali's project
of affirming the rule of law. Whatever the motivation for her presentation, Widner has nevertheless provided us
with a valuable resource for our study of law and society.
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Copyright 2001 by the author, Peter d'Errico.