The ICC, Africa and the Travesty of International Criminal Justice

 

Uchechukwu Ngwaba*.

Abstract

The excitement with which Africa welcomed the International Criminal Court (ICC) has given way to wariness and outright opposition on account of perceptions of unfair targeting of the continent; double standards in the pursuit of international criminal justice and the feeling that the ICC is a tool for the perpetuation of global power matrices and asymmetries. This paper deploys third world approaches to international law’s framework to argue that Africa’s current predicament with the ICC is largely self-inflicted. The paper argues that it is absurd for Africa to expect too much from the ICC or that the ICC will be the answer to the injustices of impunity of the strong against the weak in the global system. Going forward, the paper examines the alternatives being pursued by the continent, namely, the expansion of the jurisdiction of the African court of Justice and Human Rights to include jurisdiction over international crimes.  

     INTRODUCTION

That the International Criminal Court (ICC or the Court) has disappointed expectations that it will be a forum where impunity will be reined, and persons responsible for “the most serious crimes of international concern”[i] brought to justice, is a much canvassed issue amongst many commentators that this paper should not be detained by that discussion.[ii] What has not been sufficiently canvassed however is what is argued to be the “travesty of international criminal justice”.[iii] The argument here is that international criminal justice (as currently engaged with by the ICC) is a travesty because it only provides the apparition of justice which, when subjected to the scrutiny of corporal critical dimensions, is revealed for what it is – an illusory vision. By this argument, the sole objective is to dismiss suggestions that all our faith and hopes for putting an end to impunity in the international system (for acts or omissions widely regarded as offending humanity)[iv] should be vested in the ICC.

Three key propositions are advanced in substantiating this framing argument. The first is to the effect that the ICC is not in a position to deliver on its promise of putting an end to impunity for crimes of the most serious concern to the international community because by design, it is not meant to achieve that purpose. The second says that the perception that Africa has been dealt a bad hand in the prosecutorial praxis of the ICC, while a major cause for concern, ignores the obvious fact that ultimately, the continent and its leadership are chiefly responsible for its problems as well as their resolution. As a final proposition, while hope(s) for a world rid of impunity, one whose playing field is level for all, remains an illusion not to be seriously entertained, it is within the realm of possibilities for African states to set up a “proper” mechanism for redressing impunity on the continent through the existing African Union (AU) system. If seriously pursued, such mechanism can offer a viable alternative to the ICC and consequently insulate the continent from the inequalities and asymmetries inherent in the current setup of the ICC – one that “fosters and reproduces a binary dichotomy that ruptures the globe into two conceptual communities, the one “heavenly” and the other “hellish”.[v]

The key objective of this paper is to systematically interrogate the claim that the ICC-centric paradigm of international criminal justice is a travesty by utilising critical third world approaches to international law (TWAIL) perspective(s) to ascertain the extent to which that claim is substantiated by the propositions in the preceding paragraph. As such the first objective is to unravel the extent to which the current set-up of the Court, that confers enormous power(s) of control and influence over the Court on a few states while at the same time insulating those same states (and their allies) from the processes of the Court, can achieve the objective of putting an end to impunity for international crimes. To what extent (if at all) is Africa responsible for the current predicament facing it (in terms of creating an environment for the ICC’s lopsided justice praxis to flourish)? Can African states set up mechanisms, within the existing AU system, that can be effectively deployed to put an end to impunity for international crimes committed on the continent? If so, what form should such mechanisms assume and what should be the nature of the relationship (of the mechanisms) with the ICC? Would such mechanisms be capable of insulating the continent from the perceived injustices of global power matrixes and asymmetries?

As this paper situates itself within the broad framework of TWAIL analytical tradition, it is necessary to briefly outline the content and nature of that approach. The intellectual roots of TWAIL go as far back as the Afro-Asian anti-colonial struggles of the 1940s-1960s, and even before then, to the Latin American de-colonization movements. In its current form, contemporary TWAIL scholars have engaged strongly with other critical schools of international legal scholarship.[vi] TWAIL scholars deploy a wide range of “analytic techniques/sensibilities”[vii] in their commitment to providing alternative approaches that “assail the creation and perpetuation of international law” in ways which subordinate the third world in the global order.[viii] Through this analytical techniques, TWAIL scholars seek, inter alia: (i) to write the third world’s broadly shared historical experiences of being discriminated against and subjugated, in part, via the instrumentality of international law and institutions (such as the ICC), into processes and outcomes of international thought and action; (ii) to take the equality of third world peoples much more seriously, resulting in the insistence that all thought and action concerning international relations (such as through institutions like the ICC) should proceed on the assumption that third world peoples and leaders deserve no less dignity, security and freedom from punitive international action than do the citizens and leaders of the more powerful states; (iii) to deeply interrogate all claims of universality, including claims that the ICC’s key mandate is to put an end to impunity for the most serious crimes of international concern, wherever such crimes are committed in the world; (iv) and to map/document/analyze the ways in which third world resistance has shaped and continue to shape the character, orientation and effectiveness of international institutions (such as the ICC).[ix] As utilized in the paper, the term “third world” is understood more as a “chorus of voices”[x] sharing similar historical experiences and concerns, and “less as a fixed geographical space;”[xi] this is not to however suggest that certain “geographies of injustice” do not remain discernible and significant in our time.[xii]

The discussion in this paper is organised around the critical and systematic analysis of the three broad propositions earlier advanced in support of the claim that the ICC’s paradigm of international criminal justice is a travesty. There are five major sections to this analysis (including this introductory section). Section II addresses the first claim that the ICC cannot deliver on the objective of putting an end to impunity in the international system because by design it is not meant to achieve that purpose. It utilises Twail techniques to answer the question whether the current set-up of the Court, that confers enormous power(s) of control and influence over the Court on a few states while at the same time insulating those states (and their allies) from the processes of the Court can achieve the objective of putting an end to impunity for international crimes in the international system.

Section III examines the second claim that despite perceptions and allegations of unfair targeting of Africa by the Court, the continent and its leadership remain the chiefly responsible for the continent’s problems as well as their resolution. Here again Twail analytical techniques are used to establish to what extent (if at all) the continent should be held accountable for its international criminal justice challenges.

Section IV responds to the claim that African states can set up a “proper” mechanism within the existing AU system, to address impunity on the continent and that such mechanism can (very well) serve as an alternative to the ICC system in the effort to rein impunity on the African continent. It utilises Twail analytical techniques to question whether the recent expansion of the jurisdiction of the African Court of Justice and Human Rights (ACJHR) to include international crimes satisfies the requirement of a “proper” mechanism to curb impunity on the continent.

ICC, STRUCTURAL ASYMMETRY AND THE POLITICS OF ENDING IMPUNITY

 Framing this section is the claim that the ICC cannot fulfil the key objective for which it was set up by the Rome Statute because its design is flawed. At first blush, this claim contradicts what the Rome Statute stands for. In particular, Article 1 which provides:

An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction for the most serious crimes of international concern, as referred to in this Statute, and shall be complimentary to national criminal jurisdictions…

There are two premises to this claim which are foundational. The first premise is an argument about structural asymmetry in the institutional design of the Court which perpetuates old patterns of subjugation (of third world peoples by the first world).[xiii] The second premise, which feeds off the first, is about how global politics (determined, at any given time, by what is the prevailing interests of global powers)[xiv] defines how the Court operates and what it regards as a serious crime of international concern. Here the point is that the assessment whether an act and/or omission is to be regarded a serious crime of international concern may not necessarily follow a consistent logic – sometimes other considerations come into play. Each of these points further explication.

  • Structural asymmetry of the ICC

 The structural asymmetry in the institutional design of the Court is occasioned by the referral powers conferred by Article 13 of the Rome Statute on the Security Council acting under Chapter VII of the Charter of the United Nations (UN). This power which is vested on the Security Council of the UN is one of three methods by which cases can be brought before the Court;[xv] two of the nine situations currently before the court (the situations in Sudan (Darfur) and Libya) were instituted through this method.[xvi]

While there is nothing inherently wrong with the Rome Statute provision that empowers the UN Security Council to refer cases to the Court, it is an altogether different consideration when more than half of the permanent members of the Security Council are not bound by the processes and proceedings of the Court because they are not parties to the Rome Statute: the United States of America (US), Russia and China are not parties to the Rome Statute[xvii] and as such, going by Article 12 of the Rome Statute (on the preconditions for the exercise of jurisdiction by the Court) they are insulated from its processes.

The only other method by which the trio of US, Russia and China can be brought before the Court to face prosecution for any serious crimes of international concern committed by them is where such crimes are referred to the Court by the UN Security Council. However that is a most unlikely outcome given the fact of veto power which each of these three powerful states can exercise over the decisions of the UN Security Council.

The consequence of this set up is that these “big powers” have been situated as “enforcers of justice internationally”[xviii] whilst at the same time almost completely insulating themselves from the processes of the justice system which they are suppose to be enforcing.[xix] This set up is one which is argued to perpetuate a perverse, perverted, and/or problematic form of normativity that bows at the feet of global power and reinforces global power matrixes and asymmetries.[xx] As such the fact that the US and Russia who have been involved (and continue to be involved) in conflict situations around the world cannot be held to account by the international criminal justice system (which the Court represents) for their actions in these conflicts (notwithstanding allegations of war crimes leveled against them)[xxi] is a clear indication that there is something seriously wrong with the current set-up of the Court. This feeling is shared by Mamdani who argues that:

The emphasis on big powers as the protectors of rights internationally is increasingly being twinned with an emphasis on big powers as enforcers of justice internationally... Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are US adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in eastern Congo, effectively conferring impunity on them.[xxii]

       The politics of ending impunity[xxiii]

The decision whether or not to prosecute, whom to prosecute, and for what to prosecute is essentially a political one. This is one of the main claims made by Sarah Nouwen and Wouter Werner in their seminal work about the ICC and its engagement with the situation in Uganda and Sudan. They argue that “the ICC has become a battleground for political contestation”.[xxiv] ICC officials would however have us believe otherwise.[xxv] But if one reflects deeply on the discussion in the previous subsection, good reasons present themselves why ICC’s denial of the influence of the political in its praxis should not be taken too seriously. Of greater concern, however, is the extent to which that knowledge inspires the fear of bias. This is an inevitable outcome of the current institutional set-up and praxis of the Court. Some commentators have expressed this fear arguing that:

...the relatively very invasive involvement of the ICC in Africa (especially as compared to other continents or places) has masked much more than it has revealed about the character, imperatives, and high politics of transitional justice praxis itself, and has in the result tended to leave all-too-many of us with the decidedly wrong impressions. Both in and of itself, and as the most prominent “representative” of international criminal justice today, the ICC’s apparent “geo-stationary orbit” over Africa (i.e. its near total focus on that continent) has wittingly or unwittingly masked (to a significant extent) the enormity and vast extent of the incidence of international criminality in all-too-many other parts of the globe. Given their notoriety, it is hardly necessary to name all of these places, but the names Chechnya, Iraq, Afghanistan, and Colombia (where by conservative estimates tens of thousands have been slaughtered in a manner that suggests international criminal conduct) may ring a bell in this respect.[xxvi]

INVESTIGATING AFRICA’S RESPONSIBILITY FOR ITS INTERNATIONAL CRIMINAL JUSTICE PROBLEMS

This section of the paper is organised around the determination of the extent to which the African continent should bear primary responsibility for its international criminal justice problems and how a proper response to those problems should be framed.

The early support which the ICC received from Africa[xxvii] was largely inspired by the hope(s) that the Court will usher in a new era of accountability for past criminality by powerful responsible elements on the African continent and stem the tide of impunity believed to be responsible for many of the conflicts and significant violations of international criminal law that have occurred (and continue to occur) on the continent. As such the early and widespread ratification of the Rome Statute by African states was on the basis of this hope and also the expectation of the dawn of a new era signified by the “rigorous” observance of new rules of engagement in international criminal justice – for which the ICC was a beacon of that hope for the continent.[xxviii]

Within a decade of the ICC’s work however, a radical shift has occurred in the dynamics of the relationship between Africa and the Court.[xxix] Gone is the enthusiasm and high hope of putting an end to impunity and promoting the rule of law on the continent through the work of the Court. In its place we see deep scepticism and accusations of a neo-colonial agenda against the Court by many among the leadership of the continent.[xxx] The most significant and telling development in this regard is the resolution/call made by the African Union (AU), between 2009 and 2010, to its member states not to cooperate with the ICC in the execution of the warrant of arrest issued by the ICC against Sudan’s President Omar Al-Bashir.[xxxi] AU resentment towards the Court appears to have deepened with the indictment of the President of Kenya (Uhuru Kenyatta) and his Deputy (William Ruto) for international crimes committed during the 2007/2008 post-election violence in Kenya that led to the loss of many lives.[xxxii] The AU unsuccessfully sought for the withdrawal of the cases against Kenyatta and Ruto from the ICC.[xxxiii]

While the AU’s objections should by no means be dismissed too quickly (as some have suggested/done),[xxxiv] there is a sense in which dwelling too long on that conversation tends to distract from the bigger task of determining who should ultimately be responsible for cleaning up the “Augean stables” of Africa. In this connection, there are a number of key points which need to be made.

First, there is no sense keeping up the “tirade” against the ICC for its unfair targeting of the African continent[xxxv] if the continent is unwilling and/or unable to draw the important lessons (that need to be drawn from that experience) in bringing about the much needed changes to the problem of impunity and lawlessness which lie at the heart of all too many of the international crimes perpetrated by powerful/responsible elements on the continent.

A second important lesson that needs to be drawn from Africa’s experience with the ICC’s justice praxis is that international criminal justice is a hotly contested “political space”[xxxvi] where the considerations that inform important decisions such as whom to prosecute and how to prosecute them may have very little to do with the ideals of transitional justice (with its focus on “the reclamation of language and the rediscovery of victim’s voices in post-conflict contexts”[xxxvii]) and more to do with the interests/motivations of the “big powers” which often determine international outcomes.[xxxviii]

The third important lesson that needs to be drawn is that from the outset, Africa missed the whole point of the usefulness of the ICC as a transitional justice mechanism when it appeared to invest all its hopes for the resolution of the crisis bedevilling the continent on the Court.[xxxix] There is only a very limited role that the Court can play in the continent both in terms of the breadth and depth of its engagement with the continent.[xl] As such, the hard task of cleaning the “Augean stables” of the continent remains with African states[xli] and the AU (the primary geo-political body of the continent).

The final point to be made here is that like the proverbial “Augean stables” the task of cleaning the mess that has become of the African continent - afflicted by years of conflict and gross violations of human rights – is both a “dirty” and “difficult” one whose accomplishment can only be possible where the individuals/entities having that responsibility are willing/able to innovate solutions that can bring about the desired changes.[xlii]

In concluding this section, the overarching argument here is that if we dwell too long on the inequities/injustices that have resulted from the ICC’s prosecutorial praxis (with its “geo-stationary orbit”[xliii] over Africa) we will be hindered from allocating responsibility where it should be properly allocated (that is with the leadership of the African continent). Ultimately, the continent will rise and fall on the way its leadership go about the very important task of strengthening its institutions and innovating solutions that will rein impunity on the continent. The ideals of transitional justice (the key motivation which inspired the wide embrace given to the ICC by African states) can only be fully attained on the continent if the principal pursuit of international criminal justice is first about “the reclamation of language and the rediscovery of victim’s voices in post-conflict contexts...”[xliv] and as a corollary, making those responsible for the most serious crimes of international concern on the continent accountable for their actions.

INTERROGATING THE MERITS OF THE “CRIMINAL JURISDICTION” OF THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS (ACJHR)

Ideationally, the traction gained by the proposal for an alternative framework to the ICC (for Africa) can be said to have been informed by the belief that the brand of normativity purveyed by the ICC is one that is greatly influenced by, and indeed bows at the feet of global power, as “global power matrices exert a strong influence on how, and to where, international criminal justice normativity travels, and how ICC praxis plays out.”[xlv] As a political fact however, it can be claimed that the process of empowering the ACJHR with criminal jurisdiction over international crimes was accelerated by the rift between the AU and ICC (discussed in the previous section).[xlvi] As such in 2010, the AU instigated a process aimed at empowering the ACJHR with the jurisdiction to prosecute international crimes committed by Africans in Africa. In May 2012, African Ministers for Justice and Attorneys General adopted the Draft Protocol on Amendments to the Protocol on the Statute of the ACJHR (hereafter, the Draft Protocol),[xlvii] which extended the jurisdiction of the ACJHR to international crimes.[xlviii]

In the aftermath of this process, a number of concerns have been raised by commentators about the entire exercise. The first has to do with the speed and secrecy with which the process of preparing the Draft Protocol was carried out.[xlix] The second is about the scope of the international crimes covered by the Draft Protocol, which has been argued to be unwieldy and impractical in view of the cost implications of international criminal trials.[l] The third issue is that the ACJHR is not properly equipped (financially and structurally) to deal with the increased burden to its jurisdiction as the Draft Protocol invests the ACJHR with jurisdiction over civil and criminal matters.[li] A number of other important issues have also surfaced in that discourse, all of which have made some commentators question whether the AU Assembly (the highest decision making Organ of the AU comprising Heads of States and Government) will adopt the Draft Protocol; and if so, whether the instrument has any real prospect of being ratified; and should that feat be achieved, whether the ACJHR can effectively prosecute those international crimes.[lii]

While a good number of these concerns remain relevant, some of them have been overtaken by events. For instance, the concern whether the Draft Protocol will be adopted by the AU Assembly was laid to rest at the 23rd Ordinary Session of the AU Assembly (20 - 27 June 2014) in Malabo Equatorial Guinea where the AU Assembly adopted the Protocol with a controversial amendment granting immunity from prosecution to African leaders and senior government officials accused of committing any of the international crimes within the jurisdiction of the ACJHR. This immunity covered the period during which such leaders or senior government officials are in office.[liii]

Quite expectedly, the immunity clause has attracted widespread criticisms and condemnation across the length and breadth of the African continent and even beyond (and will most likely continue to do so for some time to come). Some rights campaigners have gone as far as to call the move an “own goal”, while others say the measure “rolls back half a century of developments in international human rights and criminal justice law”.[liv]

This paper will however respond to this development from a different perspective, and in this connection, two sets of argument will be made. The first will seek to show that this development is testament to the fact that the ACJHR, as presently constituted, is not a “proper” mechanism capable of providing an alternative to the problematic of the ICC. The second argument offers a view on what a “proper” mechanism for Africa should look like.

(a)         Argument One -    As earlier pointed out, the main reason why the movement to find an “African solution to an African problem”[lv] gained traction is because of the belief that the ICC is out to serve the interests of global powers – which at the moment appears to be the continued subjugation of African people. Rightly or wrongly, the ICC has reinforced this belief by the “geo-stationary orbit” of its prosecutions on Africa to the exclusion of other parts of the world - where (perhaps more egregious) violations of international criminal law is taking place. By adopting an amendment to the Statute of the ACJHR which grants full immunity from criminal prosecutions to sitting African leaders and senior government officials, the AU has fallen into the same error which it has often accused the ICC of, namely, “selectivity” in the choice of the countries/continent where ICC’s prosecutions takes place.[lvi]

The second leg of this argument is to the effect that given the above facts, the AU and its Court (the ACJHR) cannot claim a moral high ground over the ICC as the AU is equally (if not more) guilty of the “exceptionalism” which it accuses the ICC of; and what makes the exceptionalism of the AU most dangerous is that it is expressly provided for by the Protocol of the ACJHR.[lvii] Whereas in the case of the ICC, Article 27 of the Rome Statute provides quite clearly that no one is immune from prosecutions. The only way global powers have been able to circumvent this provision is by refusing to become state parties to the Rome Statute, and also by entering into all manner of agreements and accords to protect their government officials and citizens from ICC prosecution.[lviii]

The third leg of the argument is that as a result of this development, the AU has only confirmed and reinforced what the likes of Elise Keppler and others have long been arguing, that the AU’s objections to ICC’s prosecutions in Africa is not so much about principles or indeed the interests of victims of gross violations of international criminal law on the continent, but rather (more or less) about the preservation of the culture of impunity which African leaders have always enjoyed in times past.[lix]

The final leg of the argument sums up by saying that as a result of the preceding arguments, there is no point of distinction or comparative advantage which the ACJHR has or enjoys over the ICC. Rather, the ICC’s position on the African continent appears set to be fully strengthened as the only fora where serious-minded individuals/bodies in search of international criminal justice should go to. While this does not in any way indicate a turn-around from the framing proposition of this paper (that the current ICC-centric paradigm of international criminal justice is a travesty) what it does indicate is that the alternative framework being fashioned out by the AU under the ACJHR system is highly likely to equally be a travesty as it exhibits all the unwholesome characteristics (and much more) which have been identified in the ICC framework.

(b)        Argument Two – What should a “proper” mechanism (capable of serving as an alternative to the ICC and consequently insulating the continent from the inequalities and asymmetries inherent in the current setup of the ICC) look like? It is clear that a detailed response to this question is capable of forming the subject matter of another paper altogether. As such, what is offered here is only a brief highlight of key considerations that should inform the framing of such mechanism.

First, it should be all about the reclamation of language for victims of gross violations of international criminal law. As Kirk Simpson sums it up:

the reclamation of language and the rediscovery of victim’s voices in post-conflict contexts are vital to the realization of full human rights for all citizens, and necessary preludes to processes of truth recovery. Allowing and encouraging victims to engage in dialogue and public storytelling constitutes a crucial part of the transitional legal and political process. However, as a consequence of campaigns of political murder, torture and detention by oppressive regimes, many victims of violence have been returned to a ‘pre-language’ state in which the articulation of coherent individual and group histories has become increasingly difficult. The reclamation and utilisation of language as a form of social, legal and political redress via a process of meaningful truth recovery is therefore a necessary and logical part of transitional democratic reconstruction.[lx]

With a focus on victims’ remedies, it is expected that the end goals of international criminal trials (on the African continent) should be about the promotion of the objectives of transitional justice and helping in the healing process for individuals and communities that have experienced gross violations of human rights and/or “serious crimes of concern to the international community”.[lxi]

A second consideration is that as useful as international tribunals/trials may be, they are not meant to replace national courts in the prosecution of “international crimes”[lxii] committed within a state’s territory. The principle of complimentarity enshrined in Article 1 of the Rome Statute is meant to serve as a reminder that states will always have the first opportunity to prosecute international crimes and it is only when they are unable (or unwilling) to do so that international tribunals such as the ICC will assume jurisdiction. In the case of the ACJHR, by crowding its jurisdiction with all manner of international crimes, the AU appears to have missed the point about what role that Court should aim to play on the continent.[lxiii]

A final consideration is that the underlying basis for the intervention of an international criminal tribunal is that it provides a forum in which national immunity provisions cannot be a bar to prosecution. The non-inclusion of immunity provision(s) in the Statute of international criminal tribunals is so well established that we need not be detained by that discussion.[lxiv] The whole idea here is that given Africa’s long history with impunity of power, the only way the AU can indicate to the world that it means business is to empower the ACJHR with the power to try every person, regardless of official capacity, on the continent. By failing to do so, the AU “scored an own goal” undermined the legitimacy of its fight against the ICC.

CONCLUSION

This paper began by making a highly significant and consequential claim that international criminal justice (as currently engaged with by the ICC) is a travesty because it only provides the apparition of justice which, when subjected to the scrutiny of corporal critical dimensions, is revealed for what it is – an illusory vision. This claim was backed by three broad propositions: first, that the ICC is not in a position to deliver on its promise of putting an end to impunity for crimes of the most serious concern to the international community because by design, it is not meant to achieve that purpose; second, that the perception that Africa has been dealt a bad hand in the prosecutorial praxis of the ICC, while a major cause for concern, ignores the obvious fact that ultimately, the continent and its leadership are chiefly responsible for its problems and their resolution; and third, that while hope(s) for a world rid of impunity, one whose playing field is level for all, remains an illusion not to be seriously entertained, it is within the realm of possibilities for African states to set up a “proper” mechanism for redressing impunity on the continent through the existing African Union (AU) system. If seriously pursued, such mechanism can offer a viable alternative to the ICC and consequently insulate the continent from the inequalities and asymmetries inherent in the current setup of the ICC.

Each of these propositions was systematically examined. What has emerged from that process is the realisations that although the ICC remains bedevilled by many shortcomings, principal amongst which is the unrestrained power which states such as US, Russia and China have over the Court without being bound by its processes, the alternative (ACJHR) being floated by the AU is afflicted by more serious shortcomings which inform the conclusion that the emergent ACJHR framework is highly likely to also be a travesty. Going forward, the paper offers some tentative guidelines on what must be considered in any serious attempt to establish a “proper” mechanism that can help insulate the African continent from the asymmetries of ICC’s brand of international criminal justice.

 

* PhD Candidate in Law, Macquarie University, Sydney, Australia. EMAIL: uche.ngwaba@gmail.com. This Paper was originally prepared for presentation at the Third Annual Conference of the African Society of International Law, Ouagadougou, Burkina Faso 29 to 30 October 2014.

[i] See Article 5 Rome Statute of the International Criminal Court, Rome, 17 July 1998, 2187 UNTS 90 (hereafter Rome Statute) which identifies the content of the “most serious crimes of concern to the international community as a whole” to include: (a) the crime of genocide; (b) crimes against humanity (c) war crimes; and (d) the crime of aggression. Article 5(1) provides that jurisdiction over the crime of aggression will be exercised by the Court once a provision is adopted in accordance with articles 121 and 123 of the Rome Statute, defining the crime and setting out the conditions under which the Court is to exercise its jurisdiction.

[ii] See Mahmood Mamdani, “Darfur, ICC and the New Humanitarian Order: How the ICC’s “Responsibility to Protect” is being turned into an Assertion of Neo-colonial Domination” online: http://www.pambazuka.org/en/category/comment/50568 retrieved 14 June 2014; see also Obiora Okafor and Uchechukwu Ngwaba, “Between Tunnel Vision and Sliding Scale: Power, Normativity and Justice in the Praxis of the International Criminal Court” (Paper presented by lead author at the international conference on “International Criminal Justice, Reconciliation and Peace in Africa: The ICC and Beyond” Dakar, Senegal, July 2014) (Conference Proceedings forthcoming);

[iii] Here the point is that notwithstanding general criticism(s) of the ICC for its perceived targeting of Africa, not sufficient effort has gone into analysing what the current set-up of the Court means for the attainment of the goal of putting an end to impunity in the international system. To be clear, this is not to suggest that such analysis are not to be found in the vast literature spawned as a result of the work of the Court. Rather, the point is that there is a sense in which attacks on the Court tend to focus on its “geo-stationary orbit” over Africa to the exclusion of other parts of the world and not on the question whether the Court is even in a position to deliver on its objective(s) of putting an end to impunity in the international system.

[iv] For the purpose of this paper, and consistent with the meaning of Article 5(1) of the Rome Statute, the crimes within this category are: (a) the crime of genocide; (b) crimes against humanity (c) war crimes; and (d) the crime of aggression.

[v] This perspective is a Twailian critique of international human rights praxis and discourse and is applied in the present context to highlight the double standards of the ICC’s prosecutorial praxis. For more about this Twail perspective, see Obiora Okafor, “International Human Rights Fact-finding Praxis in its Living Forms: A Twail Perspective” (2014) 1(1) Transnational Human Rights Review 59 at 67; Makau Mutua, “Savages, Victims and Saviors: The Metaphor of Human Rights” (2001) 42 Harvard Int’l LJ 201; Obiora Okafor and Shedrack Agbakwa, “Re-Imagining International Human Rights Education in Our Time: Beyond Three Consecutive Orthodoxies” (2001) 14 Leiden J Int’l L 563 at 566-573; Upendra Baxi, The Future of Human Rights (Delhi: Oxford University Press, 2006) at 4; Upendra Baxi, “ ‘A Work in Progress’?: The United Nations’ Human Rights Committee” (1995) 35 Indian Journal of International Law 34.

[vi] See Obiora Okafor, “Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective” (2005) 43 Osgoode Hall L. J. 171.

[vii] See Ibid at 176 for a further exegesis of some familiar techniques deployed by this critical scholarship.

[viii] See Vijayashri Sripati, “The United Nation’s Role in Post-Conflict Constitution-Making Processes: TWAIL Insights” (2008) 10 International Community Law Review 411 at 416; see also Makau Mutua, “What is TWAIL?” (2004) 94 Am. Soc’y Int’l L. pp. 31, 37.

[ix] See Obiora Okafor, Supra note 5; see also Upendra Baxi, “What May the ‘Third World’ Expect from International Law?” (2006) Third World Quarterly 713.

[x] See Karin Mickelson, Supra mote 1.

[xi] See Balakrishnan Rajagopal, “Locating the Third World in Cultural Geography” (1998-99) Third World Legal Studies 1.

[xii] See Upendra Baxi, “Operation Enduring Freedom: Toward a New International Law and Order?” in A. Anghie, B. Chimni, K. Mickelson and O. Okafor, eds., The Third World and International Order: Law, Politics and Globalization (Leiden: Martinus Nijhoff, 2003) at 46.

[xiii] See Mahmood Mamdani, supra note 2.

[xiv] The concept of the political in the international system has been noted by Nouwen and Werner to be quite elusive and as such requiring delimitation. See Sarah Nouwen and Wouter Werner, “Doing Justice to the Political: The International Criminal Court in Uganda and Sudan” (2010) European Journal of International Law 941, 944.

[xv] The other methods for initiating cases before the Court is by state party referral (self-referral) under Articles 13(a) & 14 Rome Statute; and proprio motu investigation by the Prosecutor of the ICC under Articles 13(c) & 15 Rome Statute.

[xvi] See ICC website, “About the Court”, online: http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx retrieved 27 October 2014.

[xvii] See “The State Parties to the Rome Statute” online: http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx retrieved 23 September 2014.

[xviii] See Mahmood Mamdani, supra note 2.

[xix] The US has left nothing to chance in how far it is willing to go to insulate its government officials and nationals from the processes of the ICC. Using Bilateral Immunity Agreements (BIAs) which it has compelled states in need of its assistance to sign, it has prohibited state parties to the Rome Statute from dragging any of its officials or nationals before the ICC to answer for international crimes. See “Status of US Bilateral Immunity Agreements (BIAs)“ online: <http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf> retrieved 16 June 2014. As far back as 2006, the US has signed 102 BIAs with different countries in the world, some of whom are ICC state parties.

[xx] See Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xxi] Russia has been accused of committing war crimes in Georgia and some other theaters of conflict while the US has been accused of war crimes during the 2003 invasion of Iraq by no less a person than Richard Clarke, a former Counterterrorism Official of the US. See “Ex-Counterterrorism Czar Richard Clarke: Bush Cheney and Rumsfeld Committed War Crimes” online: https://www.youtube.com/watch?v=5N9AknF0ZMk retrieved 23 September 2014.

[xxii] See Mahmood Mamdani, supra note 2.

[xxiii] This sub-section of the paper is based on a recently published paper: see Obiora Chinedu Okafor & Uchechukwu Ngwaba, “The International Criminal Court as a ‘Transitional Justice’ Mechanism in Africa: Some Critical Reflections” (2014) International Journal of Transitional Justice 1.

[xxiv] See Sarah Nouwen and Wouter Werner, “Doing Justice to the Political: The International Criminal Court in Uganda and Sudan” (2010) European Journal of International Law 941, at 964. The fact that the argue that the “ICC’s work is inherently political” does not mean that they are denouncing the Court for this fact. Rather they argue that: “…a sound normative assessment of the Court should be based on an acknowledgement and understanding of the political aspects of the ICC” at 946.

[xxv] For instance, the Court’s former President reassured states that: “there’s not a shred of evidence after three-and-a-half years that the court has done anything political. The court is operating purely judicially. See Herman, “Japan’s Expected to Support International Criminal Court”, Voice of America, 6 Dec. 2006, online: http://www.voanews.com/content/a-13-2006-12-06-voa14/311910.html retrieved 24 September 2014; The former Prosecutor, in turn, stated: “I apply the law without political considerations. But the other actors have to adjust to the law” (Keynote address “Mr. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Council on Foreign Relations”, Washingnton DC, 4 February 2010).

[xxvi] See Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xxvii] On 2 February 1999, Senegal became the first country in the world to ratify the Rome Statute of the International Criminal Court. See http://www.iccnow.org/documents/RATIFICATIONSbyRegion_15Feb2013_eng.pdf retrieved 27 October 2014.

[xxviii] Charles Jalloh, “Regionalizing International Criminal Law?” (2009) 9 International Criminal Law Review 445

[xxix] See African Network on International Criminal Justice, “Reflections on the African Union ICC Relationship” (January 2014) online: http://www.iccnow.org/documents/CivSocdocreAUsummit.pdf retrieved 28 October 2014.

[xxx] His Excellency Jean Ping, the former Chairperson of the African Union Commission, for instance is noted to have said: “We are not against international justice. It [just] seems that Africa has become a laboratory to test the new international law” (see BBC News, “Vow to pursue Sudan over ‘crimes’”, 27 September 2008, online: http://news.bbc.co.uk/2/hi/africa/7639046.stm retrieved 27 October 2014); His Excellency Paul Kagame, President of the Republic of Rwanda, on the other hand declared that: “Rwanda cannot be party to the ICC for one simple reason…with ICC all the injustices of the past including colonialism, imperialism, keep coming back in different forms. They control you. As long as you are poor, weak there is always some rope to hang you. ICC is made for Africans and poor countries” (see Kezio-Musoke David, “Kagame tells why he is against ICC charging Bashir” Daily Nation, 3 August 2008, online: http://www.hiiraan.com/news2/2008/aug/kagame_tells_why_he_is_against_icc_charging_bashir.aspx retrieved 27 October 2014); and finally noteworthy is the accusation leveled against the former ICC prosecutor Luis Moreno-Ocampo by the Sudanese Ambassador to the UN, Abdalmahmoud Abdalhaleem, who referred to the former quite derogatorily as “…a screwdriver in the workshop of double standards” (see Simon Tisdall, “Technicians in the workshop of double standards”, Guardian, 29 July 2008, online: http://www.theguardian.com/commentisfree/2008/jul/29/sudan.warcrimes retrieved 27 0ctober 2014).

[xxxi] See Amnesty International, “African Union refuses to cooperate with Bashir arrest warrant” 6 July 2009, online: http://www.amnesty.org/en/news-and-updates/african-union-refuses-cooperate-bashir-arrest-warrant-20090706 retrieved 27 October 2014; see also Elise Keppler, “Managing Setbacks for the International Criminal Court in Africa” (2012) 56(1) Journal of African Law 1.

[xxxii] See “Situation in Kenya” http://www.icc-cpi.int/en_menus/icc/about%20the%20court/Pages/about%20the%20court.aspx retrieved 27 October 2014

[xxxiii] See African Network on International Criminal Justice, supra note 29.

[xxxiv] For instance Keppler dismisses the AU’s decision of July 2010 not to cooperate with the ICC as lacking unanimity and the support of many on the African continent. See Elise Keppler, supra note 31; see also Dire Tiladi, “The African Union and International Criminal Court: The Battle for the Soul of International Law” (2009) 34 S. Afr. Y.B. Int’l L. 57.

[xxxv] See the discussion in part II above.

[xxxvi] See Sarah Nouwen and Wouter Werner, supra note 24.

[xxxvii] See Kirk Simpson, “Voices Silenced, Voices Rediscovered: Victims of Violence and the Reclamation of Language in Transitional Societies” (2007) International Journal of Law in Context 89.

[xxxviii] See Sarah Nouwen and Wouter Werner, supra note 24; see also Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xxxix] Here the key point being made is that the ICC does not provide an excuse for African states not to engage in the critical task of strengthening their national and regional institutions to be able to curb the incidence of impunity on the continent.

[xl] The prohibitive cost of the successful prohibition of a single case before the ICC means that only the most serious or notorious cases get to be tried by the Court and even then, not all such cases can be tried considering budgetary constraints and other challenges to be surmounted by the Court.

[xli] This is the basis of the principle of complimentarity espoused by the Rome Statute and which underlies much of the ICC’s engagement with international criminal justice.

[xlii] In Greek mythology, Hercules was faced with the almost impossible task of cleaning the stables of King Augeas in a single day. Now King Augeas owned more cattle than anyone in Greece and so the mess to be cleaned was quite significant. According to the myth, Hercules innovatively diverted the flow of a stream close to the stable to flow through the stable and with its flow, all the rubbish to be cleaned. That way he was able to accomplish what was an impossible mission.

[xliii] See Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xliv] See Kirk Simpson, supra note 37.

[xlv] See Obiora Okafor and Uchechukwu Ngwaba supra note 2.

[xlvi] As far back as February 2009 when the rift between the ICC and AU began to manifest over disagreements about the warrant of arrest issued by the ICC against President Omar Al Bashir of Sudan, the AU Assembly took a decision (Assembly/AU/Dec.213(XII)) in which it requested the AU Commission , in consultation with the African Commission on Human and Peoples’ Rights to assess the implications of recognising the jurisdiction of the African Court to try international crimes such as genocide, crimes against humanity and war crimes. See Chacha Murungu, “Towards a Criminal Chamber in the African Court of Justice and Human Rights” (2011) 9 Journal of International Criminal Justice 1067.

[xlvii] EX.CL/773(XXII), Executive Council, Twenty-Second Ordinary Session, 21-25 January 2013, Addis Ababa, Ethiopia.

[xlviii] See Ademola Abass, “The Proposed International Criminal Jurisdiction for the African Court: Some Problematical Aspects” (2013) 60(1) Netherlands International Law Review 27.

[xlix] See Max Du Plessis, “A Case of Negative Complementarity? Giving the African Court of Justice and Human Rights Jurisdiction over International Crimes” EJIL: Talk! (Blog of the European Journal of International Law) 27 August 2012, online: http://www.ejiltalk.org/a-case-of-negative-regional-complementarity-giving-the-african-court-of-justice-and-human-rights-jurisdiction-over-international-crimes/ retrieved 28 October 2014.

[l] Article 28A of the Draft Protocol lists 14 crimes which the ACJHR will have jurisdiction to try. Many of the listed crimes venture into previously uncharted waters in international criminal law. See Ademola Abass, supra note 48 at 29; see also Max Du Plessis, “Implications of the AU Decision to give the African Court Jurisdiction over International Crimes” (June 2012) Institute for Security Studies (Paper 235) online: http://www.issafrica.org/uploads/Paper235-AfricaCourt.pdf retrieved 28 October 2014.

[li] See Ademola Abass, supra note 48 at 29.

[lii] Ibid.

[liii] This amendment is contained in Article 46A of the Protocol on the Statute of the ACJHR. See International Justice Resource Center, “African Union Approves Immunity for Government Officials in Amendment to African Court of Justice and Human Rights’ Statute” 2 July 2014, online: http://www.ijrcenter.org/2014/07/02/african-union-approves-immunity-for-heads-of-state-in-amendment-to-african-court-of-justice-and-human-rights-statute/ retrieved 28 October 2014.

[liv] See Monica Mark, “African Leaders Vote themselves Immunity from New Human Rights Court” The Guardian 3 July 2014, online: http://www.theguardian.com/global-development/2014/jul/03/african-leaders-vote-immunity-human-rights-court retrieved 29 October 2014.

[lv] For further discussion on this matter see Sarah Williams, “The Extraordinary African Chambers in the Senegalese Courts: An African Solution to an African Problem?” (2013) 11 Journal of International Criminal Justice 1139-1160.

[lvi] Here the argument is that by excluding African leaders and senior government officials from the reach of the ACJHR, the AU has created Africa’s brand of “big powers and interests” that are above the law, regardless of the crimes they commit on the continent.

[lvii] A development that has been quite rightly described as rolling back half a century of developments in international criminal justice. See Monica Mark, “African Leaders Vote themselves Immunity from New Human Rights Court” The Guardian 3 July 2014, online: http://www.theguardian.com/global-development/2014/jul/03/african-leaders-vote-immunity-human-rights-court retrieved 29 October 2014.

[lviii] See the example of the US and BIAs discussed in section II of this paper. By adopting these measures, global powers have indirectly recognised the potency of the Rome Statute and have chosen to simply avoid it as a way of shielding themselves from its reach. They have not imperiously sought to insert an express provision in the Statute that grants them immunity from criminal prosecutions like African leaders have done with the Protocol on the ACJHR.

[lix] See Elise Keppler, supra note 31; see Dire Tiladi, supra note 34; see also Charles Jalloh, supra note 28.

[lx] See Kirk Simpson, supra note 37

[lxi] See the Preamble to the Rome Statute.

[lxii] This refers to crimes that have been defined as such in international Statutes. Some States may have domestic legislations with equivalent provisions for such crimes, even if bearing different names/elements of the crime and/or punishment thereof.

[lxiii] The ACJHR should only serve as an alternative forum and not the main one.

[lxiv] The wordings of Article 7(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia; and Article 6(2) of the Statute of the International Criminal Tribunal for Rwanda are both identical; both state that the “official position of any accused person, whether as Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute.”


Functional And Failed States In Africa Remain In Need Of Western Military Power To Curb Domestic Terrorism

Claire Metelits.

The events of 9/11 brought increased engagement with the African continent.1 Yet, while Africa's significance to U.S. foreign policy has shifted since the Cold War—particularly with the formation of the U.S. Africa Command (AFRICOM) in 2007—security doctrine remains rooted in political realist thought. The "state," for example, has kept its place of importance in security narratives through government-to-government interactions and consultations as well as weapons sales and training. Likewise, responses to poverty and under-development have become militarized, demonstrated by increasing numbers of U.S. civil affairs2 operations concurrent with shrinking Congressional allocations for traditional foreign assistance. In challenging the assumptions that are primary in traditional U.S. security approaches in Africa, a critical framework provides a context-specific and realistic view of security threats. The result is more effective security policy.

Western Dalliances

U.S. engagement with Africa has been selective. During the Cold War, Africa was one of several battlegrounds for the containment of the communist influence; the United States and other Western allies used various African leaders to limit Soviet power by supporting authoritarian regimes such as Zaire's Mobutu and Liberia's Samuel Doe,3 as well as resourcing insurgent groups that fought leftist governments such as Jonas Savimbi's National Union for the Total Independence of Angola (UNITA). The United States also provided emergency assistance in the face of famines and other humanitarian emergencies.

The end of the Cold War saw a significant decline in U.S. assistance to Africa. This new era of retreat was in part due to the failure of the U.S.-led and UN-authorized Unified Task Force (UNITAF) in Somalia (1992-1993). During this period, intermittent attention was drawn to Africa by continued conflict in Somalia and the U.S. Embassy bombings in Kenya and Tanzania. Still, at the end of the 20th century, for all intents and purposes Africa remained geopolitically insignificant.4

While security challenges have shifted since the Cold War, the way in which threats in Africa are framed remains entrenched in traditional or mainstream security thinking. Using such an approach, the West understands itself as living in a world threatened by hostile opponents, leading to security policy that requires urgent and radical defense measures. Furthermore, in a traditional framework, the state is the entity that must be secured; little attention is paid to what is inside the state. A critical approach reveals the underlying social, political, and historical structures that must be taken into account to successfully assess what is and what is not a true security threat. What follows is a discussion of two oft-identified "threats" in Africa framed in mainstream security approaches. These are then problematized using a critical approach.

Failed States and Ungoverned Spaces

The threat posed by states that do not control areas within their borders is a central security issue, and addressing them has become a basic strategic and moral imperative.5 Narratives on threats originating from Africa are riddled with phrases of "ungoverned spaces" and "failed states." U.S. State Department officials and defense analysts write about Africa's "anarchic zones" giving rise to "dangerous chaos,"6 while threat briefings claim that the "vast stretches of ungoverned areas"—lawless zones, veritable "no man's lands"—demand constant levels of scrutiny.7 As one analyst claimed, Africa, with its "war-ravaged areas and vast swathes of ungoverned territory," offers ideal conditions for extremists looking for a foothold.8 According to U.S. Army General Martin Dempsey, some of the most significant future security challenges will emanate from ungoverned spaces.9 Such narratives paint an alarming picture of Africa, full of desolate areas where young men ride in "technicals,"10 waving and shooting AK-47s.

The mainstream security rationale for addressing such spaces and states is that the chaotic conditions of these areas are the primary locations for operations by groups that Western powers designate as foreign terrorist organizations. Such areas are inextricably linked to terrorism, terrorist "safe havens," and other emerging security threats because such locales are used for planning, organizing, training, and preparing operations against the West.11 In the traditional view of security, territories that states do not control are geopolitical vacuums that illegal actors occupy. The governments in which these spaces are found are considered threats because they fail in their Westphalian responsibility to stop non-state actors from using their territory and populations to prepare and stage attacks against Western interests.12 A critical approach does not ask what is not in these spaces and states, (a formal, Western-looking government) but what is there and why the West cannot work with it. Mainstream approaches to security analysis mask our ability to see that what often appears to be the breakdown of political and social order can hide the emergence of informal order.13

There is no such thing as a failed state; whole areas do not fail and spaces do not become ungoverned; order exists in these areas, yet it is neither the kind of order the West recognizes, nor the institutions with which the West normally works. Furthermore, groups that are unfavorable to U.S. interests often govern these spaces.14 Such forms of order may look like the Nande traders in the Democratic Republic of the Congo who have developed self-sustaining, successful, transnational economic enterprises in the absence of a strong central government and in the presence of several violent armed groups. The Nande, who have built commercial enterprises and trust networks, challenge the assumption that a failed state signals a failed society. This community demonstrates how self-governing entities and property rights systems can coexist and reinforce one another—an idea that is inconceivable in a mainstream security perspective, which assumes that governmental institutions and state sovereignty are necessary.15

Using a critical lens, the term "ungoverned space" is geographically subtle, referring to both a physical area and an absence of effective state sovereignty and control.16 The specification of a "space" rather than a whole area acknowledges the improbability of an entire territory failing uniformly and in geographically similar terrain.17 In some areas, formal institutions are ineffective, or the government in the capital has little to no legitimacy. Yet, these areas will possess informal institutions. For example, local chiefs may have more legitimacy among people in some rural areas than do government-appointed officials. Painting an oversimplified picture of regions and states that host terrorist organizations and operations as "failed" or "ungoverned" decontextualizes such developments, treating them as discrete phenomena divorced from political, social, and historical lineages.
Furthermore, generalizations about such spaces and states do not reflect the logistical necessities and strategies of violent actors. Attempting to organize rebellions from peripheral areas is ineffective if the organization aims to gather supporters in advance and engage with enemy forces.18 "In chaos, not even terrorists are safe or, more to the point, in order to be safe to train, and plan, terrorists would have to divert their already limited resources to provide their own security or pay protection money to others."19

Operating in a "failed state" involves terrorists in local politics, which distracts them from their grander objectives. Furthermore, the infrastructure and logistical problems in such areas are disincentives for actors seeking a reliable base of operations.20 There has also been a trend toward assuming that all violence occurring in Africa (and elsewhere) is the work of terrorist groups. Branding all groups "terrorist" in nature is a tactic of national and foreign governments to attract attention of foreign policymakers and additional foreign resources. Groups operating in isolated areas are more likely to be insurgents dedicated to the overthrow of the state, or militias organized by local elites. The considerable attention paid to the Sahel, for example, seems generated by the presence of Al Qaeda in the Islamic Maghreb (AQIM), an organization that does not act beyond the Sahel and is more like an insurgency than a global threat. Furthermore, violent actors that do engage with international forces do not require vast ungoverned spaces to do so. The argument that ungoverned territory is necessary for violent actors implies that when an organization focuses on Western interests it automatically becomes a terrorist group whose development is blamed on a lack of state control when, in reality, the group employs a strategy that takes advantage of its own institutional environments.21

The Obsession with "Stability"

The danger posed by instability in Africa is another commonly identified threat in the post-9/11 narrative. Instability can range from the extremely violent—terrorist attacks, civil war, ethnic cleansing, massacres, coups, and revolutions—to lesser forms of instability such as protests, strikes, riots, and declarations of emergencies. The traditional security framework is preoccupied with external threats. Security involves the engagement of radical threat and consequently the adoption of equally radical measures. The idea that localized violence in Africa threatens the stability of the international community is based on the assumption that politically unstable environments breed terrorists.

Furthermore, the political realism of mainstream security narratives focuses on maintaining the status quo: change is dangerous and stability is safe. Reinforcing stability in Africa has led to an increasing Western military presence largely for the training of local forces and the reinforcement of democratic institutions in post-conflict settings. Hence, what has developed is a narrative focused on bolstering African military capabilities and establishing democratic institutions. When viewed critically, however, increased Western military presence on the African continent can be seen to have negative effects on stability because it can create more, not less, radicals.22

Furthermore, working with Western governments can make Africans targets of retaliatory violence.23 For example, the 2013 attack on the Westgate Mall in Nairobi was a response to Kenya's military presence in Somalia battling al-Shabaab along with other U.S. allies. The mainstream focus on stability plays out in international peace building efforts as well. These efforts result in pressure on post-conflict states to adopt democratic institutions. Such a perspective identifies and prioritizes elections, for example, but does not consider that elections are often a veneer that authoritarian regimes adopt to hide weak government institutions and deep-seated corruption. The focus on formal institutions underrates the impact of the informal realm, a bias that may be appropriate for established democracies where the rule of law is more apt to guide actors and where the ethic of constitutionalism reinforces a written constitution. Such conditions often do not exist in emerging democracies where the boundaries of state power have not yet been tested.24

Under such conditions, formal institutions fail when political actors ally themselves along lines of personal relations and informal institutions.25 A critical approach reveals that elections are merely one part of the stabilization process. It also problematizes elections, demonstrating that they can have negative consequences if they are not timed correctly or not designed to fit local conditions. Elections can mobilize rival factions, encourage the airing of grievances, and provide incentives for political abuse. Instability is more likely to occur when elections are used as a mode of conflict management. According to Salehyan, nearly all conflicts in Africa since 1990 were affiliated with elections.26 A result of the realist-influenced view that the status quo equates to safety is that many instances of instability are lumped into the broad category of "crisis." The general labels assigned to violence in Africa obscure the variation in violent acts that occur across states27 and demonstrate the casualness with which Africa is treated as "in crisis." Riots in one community or protests in a capital city are not the same as large-scale conflict. Yet the differences between such events and the characteristics that distinguish them from one another are unacknowledged or misunderstood. Policymakers and analysts often focus on areas with a history of instability as indicative of future violence and subsequent threats to security. Yet, the notion that conflict in the past equates to conflict in the future is a double-edged sword from a threat analysis standpoint. Conflict can be a precursor to future instability, though focusing on such states runs the risk of missing conflicts-in-the-making in "stable" countries.

Such was the case in Mali. A 2010 security brief published by the National Defense University-based Africa Center for Strategic Studies, described Mali as a stable country with "great credibility in dealing with ... competing interests" from civil society, including Islamist ones.28 Two years later, members of the U.S.-trained Malian military overthrew the regime, leading to a weak interim government and an Islamist insurgency in the north. Given that the U.S. military had been working with Malian forces for several years prior to the coup as part of the U.S.-initiated Trans-Saharan Counterterrorism Initiative (TSCTI), the lack of awareness of local political, historical, and social issues is surprising. As one observer remarked, "How was it possible for the Special Forces and their Pentagon bosses and the CIA to have had such a total lack of understanding of the Malian officers they'd trained and the country they'd been operating in for over five years?"29 A critical framework disaggregates political violence and makes room for analysis that uncovers the politics behind it, revealing the underlying causes, which leads to understanding and more effective security policy. Such an assessment reveals, for example, that instability in the Sahel was not an effect of terrorist influences from groups such as AQIM. Instead, instability in the Sahel was a result of underlying tensions that scholars had been writing about for years.30 The crisis in Mali was a conflagration of government corruption, continued armed rebellion in the north by the Tuaregs, and the illicit trafficking of arms, drugs, and other resources. A critical approach would have necessitated an examination of the layers of politics, history, and culture that led to the larger crisis, and could have informed more careful U.S. interaction with the Malian military.

Conclusion

The mainstream view of security depoliticizes Africans, characterizing them either as passive victims of underdevelopment, internal wars, and hunger, or in a negative light by their opposition as insurgents and terrorists. In part this reflects the continent's enormous social, historical, political, and cultural complexities. As the dominant narrative, a traditional approach to security proliferates a lack of understanding of Africa on the part of United States and other Western security officials. The traditional security framework, like any system that dominates primary (elite) narratives, defines what is reality and what is not. Given that the narrow confines of a mainstream security approach offer little to see other than the effect of insecurity, analysis that informs decision-makers does not portray fully the security challenges.

While the mainstream approach to security continues to dominate the West and the United States in particular, it is not the narrative that comes from Africans and the African continent. Though many African elites appeal to this perspective, whether to curry favor and resources from Western governments, or because they truly believe in its reality, the larger African population is witness to the enormous complexities that are compounded into insecurity. In many ways, African citizens (like much of the developing world) are the architects of the critical perspective if only because they live it.

This article makes no claim that terrorists do not use Africa to recruit, train and plan for their operations. They do. Yet locales where these processes occur and the issues that lead to them are grossly misunderstood and over-simplified. Understandably, in the military and policy world, the need to make swift decisions does not lend itself to lengthy, in-depth research. Still, this results in analysis that is at a minimum off the mark, and at the most dangerously incorrect. The problem is, "We don't know what we don't know." Such ignorance can be detrimental to sound defense policy. In fact it takes a broadminded approach to a complex situation to produce the kind of understanding that leads to effective policy decisions. Characterizing non-Western institutions as having a lack of governance and generalizing about political violence can lead to grave errors in assessing the threat environment.

Actual indicators of insecurity remain unknown and decontextualized if sources of information are limited only to encounters with fellow elites while ignoring institutions (formal and informal) outside government hallways. Knowledge acquired outside the context of high level officials, from the local, practical realities of daily life, along with an understanding of the social, political, and historical environments, will serve analysts and policymakers well when identifying threats in Africa.

NOTES

1 Of note, many argue that the U.S. focus on Africa has been about securing access to oil in addition to pursuing terrorist threats. Oil and the "War on Terror" became inextricably linked during the George W. Bush administration. The May 2001 Cheney Report identified sub-Saharan Africa as a critical source of future oil supplies. See Keenan, Jeremy. "AFRICOM: Its Reality, Rhetoric and Future." In US Strategy in Africa: AFRICOM, Terrorism and Security Challenges, edited by David J. Francis, 113-129. New York, NY: Routledge, 2010.

2 Civil affairs operations consist of projects such as well digging, building and repairing schools, hospitals, and bridges; and conducting Medical and Veterinary Civil Action Projects (MEDCAP and VETCAP). These efforts focus on establishing a point of entry into what the United States deems are hostile communities, developing local relationships, gaining knowledge of local populations and reducing tension between host populations, and US or partner military forces. See Ploch, Lauren. Countering Terrorism in East Africa: The U.S. Response. Congressional Research Service, Washington DC: Congressional Research Service, 2010.

3 The United States helped bring Mobutu to power after participating in a plot to assassinate the country's Soviet-backed prime minister, Patrice Lumumba. It is important to note that Lumumba approached the United States for assistance first, but was rejected.

4 Clough, Michale. Free at Last? U.S. Policy Toward Africa and the End of the Cold War. New York: Council on Foreign Relations Press, 1992.

5 Rotberg, R.I. "The Failure and Collapse of Nation-States: Breakdown, Prevention and Repair." In When States Fail: Causes and Consequences, edited by R.I. Rotberg. Princeton, NJ: Princeton University Press, 2004.

6 Reference to "anarchic zones" is not unique to the post-9/11 period; use of this phrase arose during the Clinton era when the United States became involved in Somalia and the former Yugoslavia. Ineffective governments became a security concern following the publication of Robert Kaplan's article, The Coming Anarchy. Kaplan warned of threats to international security emanating from "regressive" developments in Western Africa and elsewhere that had emerged in the modern world. See Kaplan, Robert. "The Coming Anarchy." The Atlantic Monthly. February 1, 1994.

7 Tenet, G. Testimony of Director of Central Intelligence George J. Tenet before Senate Select Committee on Intelligence on the Worldwide Threat 2003: Evolving Dangers in a Complex World. 2003. https://www. cia.gov/news-information/speeches- testimony/2003/dci_speech_02112003. html (accessed April 2013); Lyman, Princeton N. and J. Stephen Morrison. "Terrorist Threat in Africa." Foreign Affairs, 2004: 75-86; and US AFRICOM Public Affairs. "Transcript: General Ham Interviews with German Newspaper Stuttgarter Zeitung." United States Africa Command. March 13, 2012. http://www.africom.mil/Newsroom/Transcript/9037/transcript-general-ham-interviews-with-german-news (accessed February 2, 2013). For further references by a US AFRICOM Commander and a CIA Director see Rodriguez, David M. "Advance Policy Questions for General David M. Rodriguez, U.S. Army Nominee for Commander, U.S. Africa Command, Version 12, 1011500 Feb 13." United States Senate Committee on Armed Services; and Brennan, John O. "Open Hearing on the Nomination of John O. Brennan to be Director of the Central Intelligence Agency." United States Senate Select Committee on Intelligence . February 7, 2013. http://www.intelligence.senate.gov/130207/transcript.pdf (accessed May 19, 2013).

8 Pan, Esther. "Q&A: Terror Havens in Africa." NY Times. December 2003.

9 Roulo, Claudette. Dempsey: Budget Cuts, Global Challenges Raise Risk to Nation. Department of Defense. March 5, 2014. http://www.defense.gov/news/newsarticle.aspx?id=121775. (accessed September 17, 2014).

10 A "technical" is an open-backed civilian pickup truck used to carry armed gunmen often with a mounted support weapon such as a machine or anti-aircraft gun. Irregular forces often use these vehicles. They are also referred to as "battlewagons" and "gunships."

11 White House. "National Security Strategy of the United States of America." 2006; and US Department of State. "Country Reports on Terrorism 2011." US Department of State Publication.

12 Wyler, Liana Sun. "Weak and Failing States: Evolving Security Threats and U.S. Policy." Report for Congress, CRS, 2007.

13 Feldman, Robert. "Amidst the Chaos a Small Force for Stability: Somalia's Business Community." Small Wars and Insurgencies 23, no. 2 (May 2012): 295-306; and Harper, Mary. Getting Somalia Wrong: Faith, War and Hope in a Shattered State. London: Zed Books, 2012.

14 Clunan, A, and H. Trinkunasm. "Conceptualizing Ungoverned Spaces." In Ungoverned spaces: Alternatives to State Authority in an Era of Softened Sovereignty, edited by A Clunan and H. Trinkunasm, 17-33. Stanford, CA: Stanford University Press, 2008; and Hartmann, B. "Lines in the Shifting Sand: The Strategic Politics of Climate Change." Human Security and National Defense Conference. Throndheim, Norway, 2009.

15 Kabamba, Patience. Business of Civil War: New Forms of Life in the Debris of the Democratic Republic of Congo. Dakar: Codesria, 2013.

16 Piombo, J. "Terrorism and U.S. Counter-Terrorism in Africa: An Overview." Strategic Insights 6, no. 1 (2007): 45-59; and Hazen, J. "Understanding Gangs as Armed Groups." International Review of the Red Cross 92, no. 878 (2010): 369-86.

17 Raleigh, Clionadh, and Caitriona Dowd. "Governance and Conflict in the Sahel's ‘Ungoverned Space.'" Stability 2, no. 2 (2013): 1-17.

18 Ibid.

19 Simons and Tucker 2007, 389.

20 Ibid.

21Raleigh, Clionadh, and Caitriona Dowd. "The Myth of Global Islamic Terrorism and Local Conflict in Mali and the Sahel." African Affairs 112, no. 448 (May 2013): 498-509.

22 Adjaye, Joseph. "AFRICOM: A View From Below: What Security? Whose Security?" In African Security and the African Command, edited by Joseph Adjaye, Donald Goldstein and Louis A. Picard Terry F. Buss, 75-94. Sterling, VA: Kumarian Press, 2011.

23 Okumu, Wafula. "Africa Command: Opportunity for Enhanced Engagement or the Militarization of U.S.-Africa Relations?" Committee on Foreign Affairs, Subcommittee on Africa and Global Health, US House of Representatives, 2007.

24 Okoth-Ogendo, H.W.O. "Constitutions Without Constitutionalism: Reflections on an African Political Paradox." In The State and Constitutionalism: An African Debate on Democracy, edited by Issa Shivji. Harare: SAPES Trust, 1991.

25 Bratton, Michael. "The Democracy Barometers: Formal Versus Informal Institutions in Africa." Journal of Democracy 18, no. 3 (2007): 96-110; and Salehyan, Idean. "Elections and Social Conflict in Africa." CKC Speaker Series. Cultural Knowledge Consortium, 2013.

26 Salehyan 2013.

27 ACLED. Conflict Trends (No. 13): Real-Analysis of African Political Violence, April 2013. The Robert S. Strauss Center for International Security and Law, Austin, TX: ACLED, 2013.

28 Devlin-Foltz, Zachary. Africa's Fragile States: Empowering Extremists, Exporting Terrorism . Africa Security Brief, Africa Center for Strategic Studies, Washington DC: ACSS, 2010.

29 Lando, Barry. "Mali -- A Double Tale of Unintended Consequences." Huffington Post. January 15, 2013. http://www.huffingtonpost.com/barry-lando/malita-double-tale-of-uni_b_2481132.html (accessed January 17, 2013).

30 See for example Keita, Kalifa. "Conflict and Conflict Resolution in the Sahel: The Tuareg Insurgency in Mali." Small Wars and Insurgencies 9, no. 3 (1998): 102-28; Seely, Jennifer C. "A Political Analysis of Decentralisation: Coopting the Tuareg Threat in Mali." Journal of Modern African Studies 39, no. 3 (2001): 499-524; Lecocq, B. "Unemployed Intellectuals in the Sahara: The Teshumara Nationalist Movement and the Revolutions in Tuareg Society." International Review of Social History 49, no. Supplement (2004): 87-109; Benjaminsen, Tor A. "Does Supply-Induced Scarcity Drive Violent Conflicts in the African Sahel?" Journal of Peace Research 45, no. 6 (November 2008): 819-36; Keenan, Jeremy. "Uranium Goes Critical in Niger: Tuareg Rebellions Threaten Sahelian Conflagration." Review of African Political Economy 35, no. 117 (2008): 449-66; and Guichaoua, Yvan. Circumstantial Alliances and Loose Loyalties in Rebellion Making: The Case of Tuareg Insurgency in Northern Niger (2007-2009). Research Working Paper 20, Microcon, Brighton: MICROCON, 2009.

 


Creation of More States in Nigeria is A Bad Idea; Just Ask The Unemployed Millions

John O. Ifediora.

Nigeria, like its oil-exporting counterparts such as Venezuela, Iran, Algeria, and to a lesser extent, Indonesia, exhibits all the symptoms of a petrolized state ---the near exclusive dependence on petrodollars to finance its fiscal expenditure, and private-sector consumption. But its development path, while yielding generally similar results to those of similarly situated oil-producing states, is decidedly different. As is true with its peer oil-exporting states, Nigeria’s development trajectory was determined by unique colonial experiences, and post-independence policy choices. In this regard, its decision to decentralize and diffuse political and economic power within the country is pre-eminent in engendering the experience of diminished state capacity, and atrophied non-oil sectors that have come to define petroleum-led development. Nigeria’s creation of thirty-six states and a Federal Capital Territory in a very short time span sapped and misdirected needed revenue for development projects, and placed its economy on a downward trajectory through compromised social institutions, and a debased industrial capacity. That this is the case in Nigeria is facilitated by rent-seeking behavior, and misguided public policies initiatives.

It should be noted at the outset that the initial impetus to create more states derived from the political necessity to accommodate the fear of social and economic marginalization harbored by the country's multitude of ethnic groups. By the 1970s, the drive for more states could no longer be justified by concerns of political and economic subjugation; oil had become a major source of revenue, and the political elites needed more avenues to access its benefits, thus the drive for more states. The discovery of oil in commercial quantity energized this impetus on the mistaken assumption that further sub-division of the country on ethno-linguistic lines would enable the country to efficiently allocate its resources in different regions of the country, taking advantage of each region’s natural and technical endowments to propel robust and comprehensive economic growth in the entire country. This assumption was predicated on the belief that each ethnic group, by advancing its own social and economic interest, would use resources derived from the central government more efficiently. Moreover, creating and giving more autonomy to individual states would serve the beneficent goal of de-centralization of political and economic power; thus shifting power, as it were, from the federal government to individual states that know how best to serve the needs of its citizenry.

The problem with this model of development is that it failed to recognize the real possibility of dependency on the center for continuous fiscal support. That this is the current reality is no surprise, for the states, realizing that the federal government is a reliable and guaranteed source of financial aid, did not see the need to be self-sufficient. But worse, individual states allowed existing industries in their respective regions before the sub-division to fall into disuse, and ultimately ceased to exist. Northern states, known for their proficiency in the production of groundnuts, hides and skins simply abandoned the sector; southern states, where palm oil, palm nuts, and rubber were formally produced in abundance, and sustained subsistence and commercial productivity, found it unprofitable to expend idle resources in these endeavors ... it was less stressful to simply collect needed revenue from the federal government. Oil revenue thus effectively displaced almost all other sources of national income. Essential agricultural and primary commodities that once sustained the newly independent country became subjects of imports; the economy was not fully petrolized.

The damaging consequence of this chosen path to development was the disincentive for self-reliance. The policy of state creation did not, as a pre-condition for statehood, require proof of economic viability. As a result almost thirty of the thirty-six states cannot support important state functions without financial support from the federal government; but more importantly, the limited revenue from oil is used to duplicate state functions, i.e. to pay for the services of more governors, and their administrative staff, more commissioners and associated agencies. At the end, these duplicative services dissipate the limited revenue from oil, and fail to meet the stated objectives of targeted investment and development; they also provide more avenues for bureaucratic corruption, and outright theft of state resources.

The Early Years of Consolidation And Sub-Divisions

The geopolitical concern that is today known as Nigeria began its existence almost a 100 years ago through the efforts of British imperialist, Lord Frederick Luggard, who injudiciously (from the native’s perspective) amalgamated two ethnically, linguistically, and culturally distinct protectorates into a single entity. In the early 1900s, the British, in its quest to extend its colonial empire and secure extensive markets for its growing industrial capacity, gained control of three separate but contiguous regions that were malleable to administrative ease: its protectorates in the south and north, and the colony of Lagos. By merging the Lagos colony with its southern protectorate, it became a matter of convenience and administrative facility to merge the southern and northern protectorates into a nation-state christened Nigeria. The disturbing fact that the newly minted country comprised more than 250 ethnic groups, of which the Ibos, the Yorubas, and the Hausa-Fulanis constitute the major ones, was beside the goal of creating a ‘governable’ geopolitical entity that came into effect in 1914. The religious affiliations of the various groups, Islam, Animists, and Christianity gave the country a remarkable diversity that would later be a source of its discontent.

The creation of a nation-state from the consolidation of two regions made up of peoples with disparate, and in distinct respects, incompatible cultural and religious observances, was borne out of political and economic expediency. The northern region, mostly organized under a feudal economic regime had to be sustained economically by revenues derived, in large measures, from the southern region; and, with the exception of essential social infrastructure that were jointly held and necessary for governance (rail transportation, departments of education, and justice), both regions had very minimal contacts. Thus by 1946 the country was, in effect, two separate going concerns with obvious schisms and fault lines defined by tradition, self-identity, and national orientation but constrained by common geographical boundaries. The Richardson’s constitution of 1946 allowed the creation of another region from the original two, and further dispersed any semblance of a unitary nation, for it enabled the Ibos to claim ownership of the newly created Eastern region. Nigeria, through this constitution, was thus sub-divided into three regions, Eastern, Western and Northern regions, each dominated by one of the major ethnic groups; the Ibos in the east, the Yorubas in the west, and the Hausa-Fulanis in the north, and in between, a disgruntled multitude of smaller ethnic minorities now determined to prevent both political and economic subjugation.

Post-political independence

In 1960 when Nigeria finally gained political independence from Britain, it inherited the three regions created in 1946. As was the case in many African countries that were created by colonial rulers, Nigerian statehood preceded and undermined the crucial goal of nation-building, and as such the country became a country inhabited by many ‘nations’, each striving to maintain its unique cultural heritage, linguistic identity, and self-preservation as a distinct people. But by achieving each of these group-preserving goals, the nation-state of Nigeria was further removed from the ‘official’ aspiration of national integration that could, with time and diligence, bring into existence a nation with a defined sense of collective identity. This goal, however, has remained elusive because all ethnic groups in the country, by temperament condition by tradition, have continued to prefer the sub-national arena as their loci for political and social identification.

In order to achieve the goal of national integration, and thus move Nigeria away from destabilizing ethno-centric politics, successive governments embarked on further divisions of the regions to create more states with the expectation that, as more groups were given the right to semi-self governance through a state they could claim as theirs, a loosely governed federation would facilitate the establishment of an enduring nation, and economic prosperity for individual states and their citizenry. Moreover, the quest for self-governance by some of the major ethnic groups soon after independence added the needed impetus for the creation of more states, and by 1963 one more region was added to the federation. In 1967, the four regions evolved into twelve states; seven more were created in 1976, and by 1987 a total of twenty-one states had been created. Between 1991 and 1996 fifteen additional states were added to the lot, and today Nigeria is formally comprised of thirty-six states and the Federal Capital Territory, Abuja.

In 1970, for example, the military government changed the formula by which oil revenue was shared amongst the states. The new one set aside 50% of oil revenue in a Distribution Pool Account and allocated the funds equally to the states, and another 50% was proportionally distributed on the basis of the state’s population. This new formula meant that ethnic groups that remained intact were disadvantaged; more states from these groups were needed to off-set the obvious disadvantage. Thus as more states were created from a former region or ethnic group, more oil revenue accrued to that part of the country. The Ibos wanted more states in the Eastern region, and so did the Hausa-Fulanis in the Northern region, and the Yorubas in the Western region. The politics of asset sharing effectively became the driving force for state creation, and further sub-division of the country.

As of 2015, presumed benefits from the multiplicity of states are yet to materialize – the country exhibits many of the worst social and economic indicators in the world. More than seventy-five million of its citizens live below the poverty line; twelve million children are not engaged in formal education; one in five children die before the age of five in a country with an average life expectancy of forty-seven years (World Bank, 2011). It is such upside-down federalism that has allowed state governments and their respective governors to live on hand-outs from the federal government without accountability to the governed, and has transferred to the governors disproportionate powers that approximate those of former African traditional rulers or chiefs, but with one exception … they cultivate and rely on the same patron-client relationship but lack the consequent obligations. In practice, therefore, Nigeria’s ‘democracy at the national level is superimposed on a network of 36 states….the creation of more states  provided extra opportunities for contracts for the few, corruption, and patronage’ (London Financial Times, 2004). The result so far, as supported by data and empirical observations, is a country in various stages of economic and social stress … plagued by environmental decay, decrepit infrastructure, unsustainable debt-load, poorly educated work-force, a failing educational system, and a healthcare sector that is all but non-existent. Given these outcome, is it wise to have more states? Perhaps not.

 


To Bribe Or Not To Bribe? That Should No Longer Be The Question In Nigeria

 

 

A Two-Step Recommendation To The In-Coming Buhari Administration For Curbing Bureaucratic Corruption.

Editorial Commentary.

At the outset, it must be understood that corruption is a universal phenomenon, and not an exclusive preserve of Nigeria. However, its domestic manifestation is invariably conditioned by a wide range of unique cultural, social, religious and political realities extant in the territorial competence of a country, and thus shape its meaning and policy implications. Reducing the incidence of corruption is vital to a nation’s economic and social well-being for it sends the correct signal to its citizens and the outside world that the domestic climate is conducive to investment and economic growth, and together mediate the process towards political stability. Since bureaucratic corruption is a manifestation of human foibles, it is not possible to completely eliminate its occurrence, nor is it wise for public policy to pursue such objective. It is, nonetheless, possible to reduce its incidence to levels where it cannot have serious dislocative effects on resource allocation, and at worst, constitutes a ‘harmless nuisance’ to the social objective of good governance.

It is usually the case that governments are ‘forced’ into action to curb corruption by a state of crisis (Hong Kong, Mexico, U.S), or required to implement anti-corruption measures by donor nations (developing countries). In Nigeria, as was the case in Hong Kong, the impetus for change stems from a national crises that require immediate attention; but unlike Hong Kong this special crises require two sets of policy actions: one to address the short-term need to curb bureaucratic corruption in the interim period of 12 months, the other for a longer-term, approximately three years hence; the former to stabilize, the latter to ensure sustainability.

A twelve-month plan of Action:

In the normal run of things, a policy recommendation would be informed by a thorough understanding of the relevant social institutions that have meaning to the citizens of the state, i.e. political, religious, cultural, legal and economic institutions. In Nigeria the Council will assume that these relevant institutions are minimally functional for the simple reason that anti-corruption measures, especially ones that involve specialized units, are only effective in countries that have in place essential legal and political institutions necessary for effective governance. Thus, in poor countries where such minimal standards are lacking, and where the political elites have thoroughly debased existing economic infrastructure, anti-corruption agencies are usually ineffective. Anti-corruption measures in the next 12 months will mimic actions taken by a physician in a medical emergency --- first stabilize the patient, and then apply palliative medical procedure. In this case the Council would recommend a centralized anti-corruption agency that is immune from the body politics with broad powers to investigate, prosecute, and inform the citizenry of the harmful effects of corruption, but most importantly, reports directly to President-elect Buhari. The existing anti-corruption agencies now operational in the country are clearly compromised and should be decommissioned.

The new anti-corruption agency would be similar in scope and depth to Hong Kong’s Independent Commission Against Corruption (ICAC), or Singapore’s Corrupt Practices Investigation Bureau (CPIB), the two anti-corruption agencies widely recognized as role models for modern-day best practices in the fight against corruption. For expositional simplicity, the Council would identify such agency as The Nigerian Bureau of Investigations (NBI), and it would contain three divisions with well-defined duties:

  1. Division of enforcement and prosecution: This unit will be responsible for enforcing established laws promulgated by NBI, and prosecuting public officials who contravene such laws. It would have sweeping powers to investigate all areas of government activities, and private enterprises that receive contracts from all levels of government. If the country’s existing budget permits, prosecution should be held in a special court that hears only corruption cases.
  1. The Enlightenment/Education Division: The goal of this unit would be to educate the masses of the laws against corrupt practices, and to inform them of the harmful effects of corruption on the collective welfare of citizens. Individuals should be encouraged to report activities that violate such laws, and given the assurance that their safety would not be compromised, and that their complaints would be taken seriously. A monthly report on the progress against corruption should be issued to the public, and its reaction and assessment of the agency’s effectiveness recorded for evaluative purposes.
  1. Policy Enhancement Division: This unit would be responsible for policies that reduce institutional opportunities for corruption. The objective is to minimize the means by which public and private employees engage in corrupt practices, and may involve issuance of transparency rules in public employment, procurement procedures, and how public contracts are awarded and executed. The rules of transparency should also extend to the financial sector to monitor the receipt and transfer of foreign exchange instruments.

If well implemented, the NBI should have an immediate effect on curbing corruption through swift prosecution and stiff penalties, and making it clear to the citizenry that the new administration would not tolerate ‘business as usual’ from civil servants; and since it takes at least two participants to effect corruption, both the ‘giver’ and the ‘givee’ would be equally held accountable and punished if found culpable. The perception of corruption (the folklore effect) and actual incidence of corruption are both damaging to the country’s image and ability to attract investors, thus the NBI should devote significant resources to its Enlightenment/Education Division to enable effective propagation of NBI’s successful and high profile prosecutions. This is a useful strategy to change public opinion on the prevalence of corrupt practices, restore investor confidence, and provide social and political stability, albeit in the short-run.

Because bureaucratic corruption is essentially a rent-seeking activity, the use of a single-agency approach, such as the NBI, may only be effective as a short-term measure. And even then, it has the potential for a serious short-coming if relevant social and legal institutions that provide needed checks and balances are lacking. Specifically, the NBI has the potential to become the mechanism by which agency officials perpetuate the very acts of corruption they are employed to curtail. This is a common outcome in many developing countries in Africa, e.g. Nigeria. Therefore, the Council would recommend that the NBI remain under constant scrutiny by the press, the public, and the legal establishment.

The longer –term Approach (three years hence)

Once the Nigerian economy is stabilized by effective deployment of the NBI, the administration should immediately begin to put in place long-term anti-corruption measures that would complement the efforts of the NBI. These measures must be robust enough to reflect and accommodate the complexities of corruption, and must, at the minimum, engage the following steps:

  1. Embark on Sustainable Economic Development: A review of the literature on bureaucratic corruption would readily point to the fact that countries, at their infancy, and thus economically underdeveloped, are prone to high incidence of corruption primarily because essential social and political institutions are either nonexistent or too weak to provide effective deterrence. But with economic development, these countries are better positioned to provide funding for these institutions, educate their citizens, and pay competitive wages to civil servants. The long-run effect of economic development is a systematic reduction of petty bribery, and may even dampen grand corruption.
  1. Freedom of the Press: A powerful tool in the fight against bureaucratic corruption is a free press that serves as the ‘eyes’ and ‘ears’ of the citizenry. The ability of the press to report all forms of corruption serves as a check against would-be participants, and ‘shames’ public officials that are caught in corrupt practices. But for the press to have such effect on public officials, it must be the case that existing cultural sensibilities are unsympathetic to corrupt practices, otherwise a free press may achieve the opposite effect by pointing out to the public who to go to in order to effect their ‘corrupt activities.’ Lawrence Rosen (2010) points out this possibility:

“In the Arab world corruption is viewed as a failure to share any largess you have received with those with whom you have formed ties of dependence. Theirs is a world in which the defining feature of a man is that he has formed a web of indebtedness, a network of obligations that prove his capacity to maneuver in a world of relentless uncertainty. It is a world in which the separation of impersonal institutions from personal attachments is very scarce. Failure to service such attachments is thus regarded as not only stupid but corrupt.”

In other words, culture matters in the fight against bureaucratic corruption.

  1. Paying Civil Servants a Living-Wage: A well-paid government official, everything thing else being equal, is less likely to engage in petty bribery. In many instances in the developing world, the incidence of bribery is a direct consequence of inadequate compensation for civil servants. By instituting a policy of fair wage for all public employees, the government effectively removes the rationalization for accepting extortionary ‘gifts’ from the public in return for services the official is duty bound to provide. Furthermore, paying fair wages to public employees conduces to professional pride, which serves as a disincentive to engage in the demeaning act of accepting bribes. Again, Rosen (2010):

“It may be that professional pride is the key to reform. The rise in professional associations in the West coincided with the civil service reforms of the early 20th century, and those forums, which were not agencies of the state and were not configured as nongovernmental organizations in order to avoid government control, built on the self-respect and pride their participants craved. Nor is pride limited to the technical professions or the craftmen’s guild or labor unions….. Archibald Macleish was right when he said that there are two kinds of people in the world – the pure and the responsible. Pride can go either way in the dichotomy, but being indispensible to both, it cannot be ignored in either.”

These three policy instruments would be the Council’s recommendation for controlling and minimizing corruption in the long-term.

 

 

 

 

 

 

 

 

 


South Africa’s Shame

Bukola Bolarinwa.

In April 2015 another wave of xenophobic violence swept over South Africa. Starting in Durban, the attacks on foreigners spread to suburbs in Johannesburg and to Cala in the eastern Cape. At least six people have been killed and scores injured as they sought refuge in make shift camps and police stations. The authorities have arrested more than 300 people so far, forcing thousands of foreigners to flee the affected towns.

This isn’t the first time Africa’s rainbow nation has had attacks of this nature, targeting mostly its African neighbours and their businesses. Between 2000 and March 2008, at least 67 people died in what were identified as xenophobic attacks. The first such attack on a large scale happened over the course of two weeks in May 2008 when 62 people were killed. The African Centre for Migration Studies, an entity that has been tracking xenophobic attacks in the continent, estimates that about 357 foreigners have been killed over the past seven years with at least one attack a month.

These xenophobic attacks in South Africa are an ugly stain on the continent, a stain that would linger in our collective conscience for considerable length of time. Images of machete wielding citizens looting foreign owned shops, and maiming innocent retailers have shocked, and continue to shock the world. Horrific images captured by a Sunday Times photographer show four locals beat and stab a street vendor from Mozambique as he lay in a gutter begging for his life. The murderers did not attempt to hide their face, and videos of looting show them stealing goods in broad day light, often with journalists and the police not far away.

This bout of violence was incited by the Zulu king Goodwill Zwelithini who reportedly said at a recent gathering that foreigners "should pack their bags and go" because they are taking jobs from South African citizens. The king denied that his statement was a call for violence, and it would be hard to imagine that even he envisaged such a violent reaction.

The term xenophobia has often been used to describe these bouts of violence against foreigners in South Africa. Xenophobia in its common apprehension is “the fear and hatred of strangers or foreigners or of anything that is strange or foreign”. This word alone cannot convey the complex and multi-faceted problem plaguing the country. The South African version of xenophobia is a by-product of a deadly mix of deeply rooted social issues and economic hardships facing the country’s long unemployed citizens, and the poor. Poverty levels now exceed those experienced under apartheid. Officially, unemployment runs at 24%, though the real figure is much higher, with more than half of under-25-year-olds out of work. This high level of social inequality amongst black South Africans cannot be ignored, and has divided the country in the same way colour did. South Africa’s Institute for Race Relations, a liberal think-tank, points to the “absolute failure” of government policy to deal with unemployment and with failures in the education system. It warns that xenophobic attacks may well increase as the economy weakens. In the interim, both legal and illegal immigrants bear the brunt of the country’s failed public policies.

South Africa has very progressive asylum laws, which were promulgated after apartheid. According to Open Security, ‘the state cannot deny any migrant the claim and temporary status of an asylum-seeker, which includes the right to work’. This liberal approach was fully supported by the ANC elite who benefited immensely when their organisation was banned by the apartheid regime, and they fled as political refugees into countries like Zambia, Zimbabwe, Tanzania and Mozambique. The United Nations Population Division lists 2.4m migrants in South Africa in its 2013 global dataset. But this does not include undocumented migrants estimated at 5m-8m. Some 1.5m-2m migrants are believed to have come from Zimbabwe alone.

In the two decades since the end of apartheid, South Africa has absorbed largely peaceful migrants comprising more than 10% of its 50m population; this, in comparison, is a lot more than the recent influx of African migrants seeking refugee status in European countries, and thus begs the question of why this positive model of immigration seems to be collapsing. Toughening immigration and asylum laws is definitely not the answer as this will simply encourage illegal trafficking that does incredible harm to individuals and society at large.

Sithole-Zuma

President Zuma has condemned the attacks but has not provided any real solutions. Meanwhile Edward Zuma, his eldest son and incidentally born in Swaziland, told News24, a South African television station, that he agreed foreigners should leave. He warned that “we are sitting on a ticking time bomb of them taking over the country.” Such comments found a receptive audience in the country.

The underlying belief that other Africans “take” jobs away from South Africans reveals a disturbing reality in the country, which is that many South Africans are poorly educated and ill-equipped to transition into a modern economy that demands a certain level of marketable skills. No group of people can take the jobs of citizens; they are given to foreigners because the citizens are inexperienced, feel entitled, and often unmotivated to advanced their economic lot through investment in human capital. The jobs in question in South Africa are usually menial, and labour intensive; immigrants who are often illegal cannot get jobs in the corporate sector and often create jobs for themselves by trading and selling their specialized skills.

The cleaners, drivers, security men, traders, shop owners and nannies from neighbouring countries come to South Africa because they have a budding middle class that can pay better wages. A number of the unemployed South Africans are themselves internal migrants from the rural former homelands into the cities. With millions of unemployed South Africans living in dire conditions, it is clear that their want of marketable skills, and bad public policies are the primary source of their unemployment problems, not foreigners.

In other countries with such vast economic inequality, rebellion by the extremely poor is usually directed at the government or the wealthy. This is why the attacks on fellow Africans in South Africa remain puzzling to other Africans, for it seems that the attackers have misdirected their frustrations which should have been directed at President Zuma, and his ruling elites. President Zuma, at the least, should have been asked to give account of the reported lavish expenditure of tax revenues on his private residence.

These attacks also highlight the level of impunity and opportunism that are rife in the townships where public violence is highly permissible. A study by the South African Human Rights Commission found that 597 court cases were opened after the 2008 clashes. Yet a year and a half later only 16% had resulted in a guilty verdict—nearly all of these for theft and assault, and with the option to pay a fine rather than face jail time. This low level of prosecution reinforces the lack of fear in the perpetrators while simultaneously encouraging migrants’ distrust of the justice system, which leads to low levels of reporting of xenophobic crime. With about 300 people under arrest since these attacks began, it is crucial for the South African government to make a strong statement against such criminality by prosecuting them to the full extent of the laws currently in good use.

 

 


Nigeria's National Security Fallacy

Nnamdi Awa-Kalu.

On December 10, 1974, then United States Secretary of State and National Security Advisor, Henry Kissinger- a revered figure in global discussions of foreign policy- directed the completion of a paper entitled 'National Security Study Memorandum 200: Implications of Worldwide Population Growth for U.S. Security and Overseas Interests (NSSM200).' This document articulated what was later adopted as official US policy by President Gerald Ford. A significant portion of the paper asserted that the United States should consider population control in some 13 countries of ‘paramount importance’ as a matter of national security. The peoples of these countries, it seemed, could mount a ‘destabilising opposition’ against the strategic interests of the United States if allowed to flourish and, of course, the leading democracy in the world could not let that happen. The memorandum was declassified in the early 1990s and researchers revealed that of the threatening thirteen, India, Pakistan, Mexico and Brazil were on Kissinger’s List. Disconcertingly, so was Nigeria.

There is a bias in coverage of national security matters in Nigerian news media which slants toward military might and police power, that is, the rhetoric concentrates on the expression of force both in its state-sanctioned expression and its state-defying version. The continuing spate of violent crime across the country as perpetrated by fundamentalist Boko Haram fighters has been the primary focus in the years following the group’s emergence into the national conversation in 2009. Prior to that, an equally self-righteous militancy had plagued (and by some accounts, continues to be a factor in) the creeks of the Niger Delta where armed activists, claiming the dispossessions and destruction of arable land and fishing waters as cause for battle, courted publicity with guerrilla warfare. In Lagos and other metropolitan cities, violent abductions for a fee turned into the latest cottage industry. Young men in Aba were often reported to be kidnapping the unsuspecting for returns as little as recharge cards for their phones. Armed robbery remained a terror for people across the different states of Nigeria. Inevitably, national security has become a term that describes a means to combat these forces with superior aggression and to maintain sufficient protection from them by force. Any discussion about national security begins and ends with armed conflict and the victory of Nigeria over its enemies.

In fact, there are several factions who have attributed the success of General Muhammadu Buhari-the President-Elect of the Federal Republic of Nigeria following the general elections on March 28, 2015- to his campaign against insecurity and corruption. The International Business Times hailed the former military head of state as a symbol that would spearhead greater resistance to the jihad in the country’s arid north. Other foreign news outlets towed this line. At home, in informal discussions in beer parlours and mama put joints where people feel freer to talk than they do when faced with a rolling camera and a microphone, much has been made of the stern-faced septuagenarian’s battle-worn credentials. On nairaland, a social media website which is a simulacrum for public opinion, discussions have swirled on about the personal involvement of Buhari in the effort to contain a Chadian insurrection in North East Nigeria while he was General Officer Commanding of Jos Military Command in the early eighties. The word on the street is that Buhari is the finest champion for national security in these beleaguered times. There lies the rub.

The website for Mi5, the British Secret Service, acknowledges that national security refers to the ‘security and well being of the United Kingdom as a whole’ and points out that the government of that state is careful not to define the phrase to permit flexibility in its protection. This means that the prevalent concept of national security as the exclusive preserve of the military and militarised forces is not expansive enough. Adopting this viewpoint, Robert McNamara, a former US Defence Secretary and President of the World Bank (thus well-placed to judge the characteristics of systems of security and of the preservation of well-being) intoned in The Essence of Security: Reflections In Office “We have come to identify security with exclusively military phenomena and particularly with military hardware. It just isn’t so.” By this impression, any attempt to corral national security into the specific context of military might or police power is reductive. The ‘well-being’ pillar of the national security debate means that any champion who volunteers to battle the evil that lurks in wait must be prepared to construct the shield of defence of Nigerian sovereignty out of economic, social and political policies which tackle the many threads to the broken body of public life in the country.

The Harvard professor Charles Maier advances a theory of national security in which a state has the “capacity to control those domestic and foreign conditions that the public opinion of a given community believes necessary to enjoy its own self-determination or autonomy, prosperity and wellbeing.” Again, this mantra of wellbeing. His theory hints at economic security which is a matrix of food security, water security, energy security and adequate response to environmental change. The well-being of the Nigerian peoples, if national security is indeed to be the watchword of the Buhari regime, will be protected only when these virtues are upheld. At present, the lack of access to clean water, a healthy diet and electric power are defining features of the Nigerian condition. Massed millions do not enjoy the benefits that accord wellbeing and guarantee continuing welfare. On top of these ills, high illiteracy levels and the degeneration of the education system mean that the Nigerian people are largely unable to better their lot in a way that can prevent the root causes of extremism and fanatic pursuit of sectarian ideology. The Boko Haram philosophy, which decries Western education, has taken hold in parts of the country were there was severe under-exposure to modern formal education anyway. In other parts of the country where people have taken up arms and crime, the allegation levelled against the state is that severe maladministration of societal welfare has driven them to the mattresses.

Now, the question is whether Buhari has the savoir-faire to manoeuvre Nigeria away from this dangerous insecurity paradigm through vital policy decisions that can transfigure the handicaps into national well-being. In his previous incarnation as military head of state, it is said that he ran a brutal campaign against press freedoms and cracked the whip against dissent. The quest for order was approached with no attempt to install measures that protect the people’s right to self-determination and autonomy as propounded by Maier. Rather, the wilfulness and exuberance of Nigerians, so often said to be the reason for thriving enterprise and productivity, was ruthlessly subjugated to manifestations of the jackboot of justice. Granted, all this was perfectly legitimate under a military government. And, as described by ThisDay Newspaper, Buhari has had his Damascene moment following the fall of the Berlin Wall and of the dictatorial, communist governments of the East from which he drew inspiration. His has been a reversal of mentality such as to sustain him through three losing tilts at the office of President, culminating in good luck at the fourth roll of the dice. The President-Elect is a man tempered and toughened by the ballot box, a thing impervious to the strong individual will, yet conveyor of the collective autonomy of the populace. A fitting paradox.

When Kissinger unveiled his policy of population restriction and contraception and identified the mineral resources of Nigeria as potential US national interests that must be secured, he made clear that the US sees national security as an all-encompassing political and socio-economic imperative. The Buhari regime must do the same, diverting the talk amongst Nigerians from the manic chatter about killing and rescue and heroism-although the last of those is a great thing to aspire to. It is in the finer points of national security, in restoring the Nigerian people to the dignity that comes with true well-being that he will have fulfilled his national security mandate.


Sovereign Wealth Funds As Means to Effective Development Strategy For Resource-Rich African Countries

John O. Ifediora.

Botswana has Sovereign Wealth Funds, and has used them admirably to develop its economy, reduce poverty, and continues to invest heavily in human capital through higher education. Nigeria has sovereign wealth funds, but they have been depleted and misallocated. At a time when the country needs the benefits of a functional sovereign funds the most – declining oil prices, erratic and undependable power generation, and an obscene unemployment rate, its Sovereign Wealth Funds exist in name only. This has left citizens and economists both within and without the country scratching their heads and each other's head for plausible answers. While the country’s experience with its sovereign wealth funds is a sad commentary on the moral and work ethics of its extant political leadership, it must not discourage future governments, and other African countries rich in natural resources from implementing and using such funds for national development agenda. They have been shown to be extremely serviceable in Saudi Arabia, Kuwait, New Zealand, and South Africa.

In an excellent work by Alen Gelb, Silvana Tordo, Havard Halland, Noora Arfaa, and Gregory Smith on this subject entitled, “Sovereign Wealth Funds and Long-Term Development Finance: Risks and Opportunities,” the authors provide a guided tour of the risks and benefits of this useful development instrument:

Introduction

Sovereign Wealth Funds (SWF) represent a large and growing pool of savings. Many are owned by natural resource exporting countries and have long-term objectives, including inter- generational wealth transfer. Traditionally these funds have invested in external assets, especially securities traded in major markets for a number of reasons including sterilization and lack of domestic investment opportunities.

Over time, and in part reflecting low returns in developed countries after the financial crisis, their investment holdings have broadened to include real property and investments in developing economies. Potentially competitive returns in developing economies and the sharp reductions in traditional sources of long-term financing after the financial crisis have contributed to fuel a growing interest among national authorities in permitting, and even encouraging, the national SWF to invest domestically, in particular to finance long-term infrastructure investments. Such pressure is inevitable, considering the fact that many countries with substantial savings, several of them recent resource-exporters, also have urgent needs. A number of existing SWFs now invest a portion of their portfolios domestically and more are being created to play this role.

Is it appropriate to use SWFs to finance long-term development needs? Does it matter whether these investments are domestic or foreign? This paper considers these issues, in particular the controversial question of using SWFs to finance domestic projects motivated, in part, by their perceived importance for development. In particular, the paper focuses on commercial or quasi-commercial domestic market investments by SWFs in resource-driven countries and explores the conditions that affect their ability to be an efficient and prudent investor while fostering local economic diversification and the mobilization of private capital.

At first sight the fit between the long-term goals of the SWF and the long-term investment needs of developing countries appear to align. As a specialized investor, a high-capacity SWF might also be able to bring appraisal skills to the table to help improve the efficiency of the investment program. However, domestic investment by a SWF pose potential risks to the domestic economy: (1) de-stabilize macroeconomic management and (2) undermine both the quality of public investments and the wealth objectives of the fund. The source of these risks is essentially that the SWF is owned by the same entity – the government – that seeks to promote the domestic public investments. These risks may be mitigated but not eliminated.

Naturally, no investment approach is risk-free. For example, the level of fiscal spending can be benchmarked by fiscal rules that emphasize sustainability, but may not be contained; spending may also be of low quality, especially if dependence on rents weakens the incentives for taxpayers to scrutinize expenditure. Building up large external savings funds runs the risk of their being raided by future governments, either directly (funds are used for purposes other than those originally intended or planned contributions are not paid) or indirectly (through unsustainable accumulation of public debt). On the other hand, in some views the risks of using SWFs to finance domestic public investments are so serious as to recommend that SWF portfolios should be confined to foreign assets with all public investment funding being appropriated through the budget.

The first priority is to ensure that domestic investments made by the SWF are considered in the context of the public investment plan and phased to ensure a sustainable flow of investment spending rather than destructive and costly boom-bust macroeconomic cycles. The second priority is to create a clear separation between the government as promoter of investments and as owner of the SWF: domestic investment by the SWF should not be used to finance public expenditure bypassing budgetary controls. At the same time it is necessary to build capacity for the SWF to operate as an expert, professional investor that can contribute positively to the quality of the public investment program. Possible approaches include: (a) screening investments for commercial or near-commercial financial return; (b) investor partnerships, including possibly other SWFs and development lenders as well as private investors, to diversify risk, and increase implementation capacity; (c) institutional design of the governance of the SWF to credibly insulate it from political pressure, strengthen accountability, ensure oversight, and bring technical skills to bear on investment decisions; and (d) full transparency, in particular on individual domestic investments and their financial performance. Some of these elements are already included in good-practice principles for SWFs, in particular the Santiago Principles although these principles were not formulated with a particular focus on domestic investments and may need to be strengthened in that regard. Some countries may be able to mitigate the risks through such mechanisms. Others, with weaker governance, will find it an uphill struggle. Especially for such countries, the risks of using SWFs to finance development spending may outweigh the potential benefits.

Diversification of SWF Investments

Rich natural resource reserves, primarily hydrocarbons and minerals, offer great development opportunity but they also expose producing countries to difficult policy questions. How much to save for the long term and how to invest the savings? How much to set aside in precautionary reserves to cushion the potentially damaging impact of volatile resource markets? How to phase in large investment programs to avoid hasty and wasteful spending in the face of absorptive constraints? SWFs can be set up to play a number of roles but it is important to stress that they are only a mechanism to help address such issues, and their establishment is no substitute for strengthening fiscal management or improving governance (Dixon and Monk 2011). Unfortunately many countries have created funds only to undermine them or to render them irrelevant through poor or inconsistent policy.

Multiple objectives could be achieved through appropriate strategic asset allocation within one fund, or the assets could be separated into separate funds with distinct characteristics. For example, if the long-term portfolio has adequate liquidity a savings fund can do double- duty as a precautionary fund (van den Bremer and van der Ploeg 2012). The objectives of the fund impact its investment objectives and strategic asset allocation. The focus of a fund’s investment policy should not be on the performance of individual asset classes but on the performance of the portfolio as a whole comprising a balanced mix of various asset classes.

Sovereign Funds in Emerging Markets

For a number of years SWFs have been looking to investments in emerging markets to diversify their portfolios and boost returns. Examples cited by Santiso (2008) include Temasek’s holdings in India’s ICICI Bank and Tata Sky, the Kuwait Investment Authority’s profitable investments in China’s ICBC, the Abu Dhabi Investment Authority’s holdings in Egypt’s EFG Hermes and Malaysian land projects, and the Dubai Investment Corporation’s stakes in North African companies like Tunisia Telecom. Funds from the Gulf were estimated to hold 22 percent of their assets in Asia, North Africa and the Middle East. OECD’s sovereign funds were also looking to boost their exposure in emerging and frontier markets, including Africa and Latin America.

There appears to be a trend towards including domestic investment as part of the mandate of SWFs. Recent examples include the Nigerian Sovereign Investment Authority, and the Fundo Soberano de Angola; they are also being established by, or under discussion in, Colombia, Morocco, Tanzania, Uganda, Mozambique and Sierra Leone. Many have been created by governments of resource-exporting countries. In some cases their domestic investment role has emerged out of a broadening of the mandate of an existing SWF, but the emergence of public funds as active players in the development strategies of resource-rich countries, in particular to support strategic investments, represents a shift in thinking on the appropriate use of resource revenues.

Domestic Investments in Resource Exporting Countries

Countries dependent on natural resources face several policy questions on the use of their revenues. How much should be saved and invested to ensure long-term fiscal and economic sustainability rather than consumed when realized? Should part of the windfall be transferred to citizens rather than spent entirely by the state? In addition to holding shorter-run precautionary balances to help cushion volatile resource price movements, what types of longer-term investments are most appropriate?

Long-term fiscal sustainability for resource-rich countries is sometimes benchmarked against some version of Permanent Income (PI). In earlier formulations, this was used as a benchmark for the primary fiscal deficit excluding resource revenues, comparing it with the permanent income flow expected from the resource sector. This formulation has been called into question. To the extent that a part of fiscal spending is for productive investment, this should be counted as part of savings rather than as consumption. That opens up greater fiscal space for domestic investment spending, but only if the investment is effective in building up national wealth.

Following on from this argument, it has been shown that not every country will find it optimal to build up a SWF savings fund that invests abroad. If the domestic risk adjusted rate of return on investment is higher than that on foreign assets, the optimal strategy might involve boosting domestic investment rather than accumulating long-term foreign assets (Berg et al., 2012; Collier et al., 2009; van der Ploeg and Venables 2010). In principle, and for countries that are capable of effectively using funds for productive purposes, well chosen, planned and executed domestic investments, including some naturally within the scope of the public sector, can help the economy to grow and diversify away from risky dependence on a dominant resource.

In practice, even if these conditions are satisfied macroeconomic and institutional absorptive capacity constraints will require that a portion of the revenue is invested in liquid financial assets outside of the domestic economy, possibly for a number of years. There would also still be a need to hold precautionary reserves, sometimes for quite extended periods because of the nature of commodity cycles. If the sole objective of accumulating funds in a SWF is stabilization then no domestic investment within that fund is advisable.

However, the link between investment and growth is neither automatic nor guaranteed. Public investment poses significant management and governance challenges, including low capacity, weak governance and regulatory frameworks and lack of coordination among public entities. Furthermore multiple institutions can have overlapping investment mandates, leading to fragmented programs and inefficient use of public funds. Careful coordination is necessary when multiple entities carry out public investment programs.

Many resource-exporting countries have launched massive investment programs to little effect (Gelb 1988). On average, countries tend to be relatively stronger in the early stages of strategic guidance and appraisal, and weaker in the later stages of project implementation and especially in project audit and evaluation. An index of the quality of public investment management shows this to be markedly weaker in resource-exporting developing countries than in other countries (Dabla Norris et al. 2011). However, some resource-dependent countries, like Chile, offer good-practice examples (World Bank 2006).

Effective Public Investment Management

High-quality public investment is essential to growth (Gupta et al., 2011) but poor investment management may result in wasted resources and corruption. The risk is increased if investment is scaled up rapidly in the face of macroeconomic and institutional absorption constraints (Berg et al., 2012). Efficient public investment management can be divided into four consecutive phases, each with several individual components (Rajaram et al., 2010) and Dabla-Norris et al., 2011):

Strategic Guidance and Project Appraisal. Strategic guidance ensures that investment projects are selected based on synergy and growth outlook, and reflect development objectives and priorities. Projects that pass this first screening must then undergo scrutiny of financial and economic feasibility and sustainability. This requires several steps – financial and economic cost- benefit analyses, pre-feasibility and feasibility studies, environmental and social impact assessments -- all undertaken by staff trained in project evaluation skills. Furthermore, creating potential project lists strengthen accountability.

Project Selection and Budgeting. Vetting proposed projects requires a politically independent gate- keeping function. The participation of international experts, together with national technical experts, can enhance the quality and robustness of the review. Linking the process of selecting and appraising projects to the budget cycle is necessary to take account of recurrent costs and to ensure appropriate oversight and consistency with long-term fiscal and debt management objectives. This requires a medium-term fiscal framework that translates investment objectives into a multi-year forecast for fund and budget aggregates.

Project Implementation. This covers a wide range of aspects, including efficient procurement, timely budget execution, and sound internal budgetary monitoring and control. Clear organizational arrangements, sufficient managerial capacity and regular reporting and monitoring are essential to avoid under-execution of budgets, rent-seeking and corruption. Procurement needs to be competitive and transparent, including a complaints mechanism to provide checks and balances and a credible internal audit function.

Project Audit and Evaluation. Ex-post evaluation is in many developing countries a missing feature of public investment management systems, as are adequate asset registers. Registers are necessary to maintain and account for physical property, and should be subject to regular external audits.

*Sources: Berg, Portillo, Yang and Zanna (2012) and Dabla-Norris, Brumby, Kyobe, Mills and Papageorgiu (2011).

The variable performance of countries in managing their public investment programs points to the fact that not all have strong central management of the level and quality of public spending, properly integrated into the budget and subject to oversight by parliament. Off- budget flows are often substantial. Sub-national governments or line ministries may have considerable scope for independent action, with little effective oversight. In many countries state-owned enterprises, including powerful national resource companies, may take on fragmented responsibility for a wide range of development activities, again often with little effective oversight, either from the market or from the state.

In addition, few resource exporters have managed to sustain countercyclical fiscal policy in the face of large swings in resource markets. This leaves their economies vulnerable to destructive “boom-bust” cycles, which have a direct impact on investment quality and returns. On the upside of the cycle, spending outruns management capacity, raising the prospect of poor-quality spending as well as creating bottle-necks that raise costs for all investors. On the downside, sharp fiscal consolidation leaves partly-completed projects in limbo and may also cut the utilization of completed investments by constraining operational spending. Chile, again offers a good-practice example, of the use of fiscal rules to sustain countercyclical fiscal policy (De Gregorio and Labbe 2011).

Opening up a separate window for domestic investment by the country’s SWF has the potential to exacerbate these risks. It can further fragment the public investment program, and may even provide an avenue to bypass parliamentary scrutiny of spending. With its resources provided from resource rents and not from the capital market the SWF is not subject to oversight by market actors and institutions. Furthermore, even if the fund is restricted to commercial investments or investments with near-commercial returns, it could exacerbate macroeconomic and asset-price cycles by investing heavily when resource prices are booming. Therefore, it can only offer potential benefits relative to alternative approaches if, as a high-capacity expert investor, it operates in coordination with the government’s macro-fiscal policy.

Investment Rules and Institutional Models to Mitigate Risk

While it is not possible to eliminate all of the risks of a SWF investing in the domestic economy, it may be possible to mitigate some of them and at the same time ensure that the SWF’s engagement plays a constructive role in strengthening the quality of public investments by acting as a high-quality, commercially driven investor. This would require: (i) ensuring that its investments are not destabilizing to the macro-economy, (ii) limiting the scope of domestic SWF investments to those appropriate for a wealth fund; (iii) investing through partnerships with entities that bring credible standards for project quality and governance; (iv) establishing credible governance arrangements to ensure that the SWF operates with independence and professionalism, and clear accountability mechanisms; and (v) mandating full transparency, particularly on each domestic investment and its performance.

As a wealth fund, the SWF should not invest in projects that are justified primarily by their economic or social externalities. Such investments should be funded through the normal budget process, which should also make provision for the future recurrent costs necessary for operations and maintenance. By preserving the value of its assets over time through commercial or quasi commercial investments the SWF would perform an inter-generational wealth transfer function, compatible with the modified PI approach. Moreover, SWF investment not warranted on commercial grounds would greatly complicate the accountability of the fund as its management could no longer be benchmarked on financial returns. The fund may also not be accountable for the wider social and economic impacts of investments that may depend on factors outside its control. For example, a sectoral ministry may choose not to provide the recurrent inputs to operate the assets (such as schools) built by the fund. This dilution of accountability leaves the fund vulnerable to political manipulation.

Investing to Bring Down Power Costs

SWFs can use a variety of instruments to support domestic investment, including equity (ordinary or preference shares), debt (including subordinated or syndicated loans) and guarantees (commercial or political risk). Projects can also be implemented through Public- Private Partnerships (PPPs), contracts between public and private parties in which the latter provides a public service and assumes substantial financial, technical and operational risk. The SWF might co-invest on purely commercial terms, or it could modify the terms of its engagement to reflect clearly identified economic or social benefits. For example, the national market could be unable to support a market price for power that is high enough to justify the construction of a generation plant on commercial terms. A SWF could co-finance the project with a private company, accepting a positive but below-market return and a long investment horizon to enable an acceptable return for the private partner with lower power tariffs. A similar approach has been used in Mauritania, as well as other countries. PPPs can be attractive vehicles for SWFs that seek to promote developmental objectives while still generating reasonable financial returns. But experience shows that proposals need expert assessment to ensure that they will deliver their social and development objectives and that the balance between risk and profitability is not heavily tilted in favor of the private partners.

Nigeria Infrastructure Fund

The Nigeria Infrastructure Fund (NIF) is one of three pools of the recently established Nigeria Investment Authority (NSIA), and the only one that will invest domestically. The NIF holds a 32.5 percent share of the NSIA’s US$1 billion seed capital, the other shares being held by the future generations fund and the stabilization fund. The NSIA’s stated objectives are to “build a savings base for the Nigerian people, enhance the development of Nigerian infrastructure, and provide stabilization support in times of economic stress”. The NSIA, which commenced operations in October 2012 and made its first investment in September 2013, relies heavily on international partnerships, and this maiden investment consisted of a transfer of $200m to UBS, Credit Suisse and Goldman Sachs, for external management of a fixed income portfolio.

International partnerships are also a key part of the NSIA’s domestic investment policy. The Nigeria Infrastructure Fund will invest in sectors including power, transport, agriculture and health care, and has signed memorandums of understanding with the Africa Finance Corporation and the International Finance Corporation to work together on transactions. For power sector investment, there is an agreement with General Electric, and another one being discussed with Power China. At least, these were the publicly stated activities and goals.

*Sources: Financial Times, September 16th, 2013 and NSIA website

 External governance relates to the relationship between the SWF and the state as its owner. Ownership provides certain rights and obligations, including voting on matters defined by law and by the SWF’s statutes; electing, appointing, and removing board members; and obtaining information on the performance of the SWF, its board and its management. For SWFs, the Minister of Finance usually acts as owner on behalf of the state. However, dual responsibility is possible, for example where the fund is given public policy objectives in specific sectors or spending is earmarked for specific uses. This is the case for the Nation Building Funds in Australia – a group tasked with enhancing the Commonwealth’s ability to make payments in relations to public investment in transport, communication, energy, education, health and hospitals. Particularly where several representatives act as owner, competing interests may dilute accountability and weaken the incentives for performance of the board. Therefore, clarity of roles and responsibility, transparency, as well as separation between ownership and regulatory/supervisory functions are important to prevent conflict of interests, and to ensure accountability and operational independence in the management of the SWF. Having an explicit ownership policy can reinforce the authority and responsibility of the owner and provide guidance to the board (OECD, 2006). The ownership policy defines the overall objectives of state ownership, the state’s role in corporate governance and the manner in which the policy will be implemented, including the extent of government participation (priority or strategic sectors, controlling or non-controlling share), and the policy with regard to the exercise of voting rights in equity investments (active or silent owner.

Examples of ownership arrangements

The objectives and mandate of the SWF provide the framework for the definition of investment strategies by the fund’s management, and the measurement of performance of the fund. It is therefore important that objectives and mandate be clear.7 Translating objectives into performance targets is among the tasks of the shareholder representative. These should include overall financial performance targets, and operational targets to guide business practice and monitor efficiency, and clear public policy targets to measure the fund’s contribution to local economic development whenever a home bias exits. Targets should be clear and a methodology for measuring them should be made explicit in the shareholder compact or similar agreement between the owner and the board of the fund. Since policy priorities and market conditions change over time, it should be possible to review and update these targets periodically. Benchmarking with targets and results of similar institutions can facilitate performance assessment and help to define realistic targets.

Institutional Arrangements and Independence of the Board: Lessons from New Zealand

The New Zealand Superannuation Fund is governed by a separate Crown entity called the Guardians of New Zealand Superannuation with a Board of at least five and at most seven members. Each Board member is appointed for a term of up to five years and is eligible to be reappointed. Board members are appointed by the Governor General on the recommendation of the Minister of Finance. The Minister's recommendation follows nominations from an independent nominating committee. On receiving those nominations the Minister must consult with representatives of other political parties in Parliament before recommending the Governor General appoint a person to the Board. Board members are chosen for their experience, training, and expertise in the management of financial investments. The Guardians are responsible for establishing investment policies, standards and procedures for the Fund, including determining the proportion of money allocated to various types of investments and appoint external investment managers to manage different parts of the Fund. The Fund is authorized investment in a full range of asset classes, including domestic asset, and is required to invest on a prudent, commercial basis.

While accountable to Government, the Guardians operate at arm's length from Government. Under the law, the Minister of Finance may give directions to the Guardians regarding the Government's expectations as to the Fund's performance (overall risk and return), but must not give any direction that is inconsistent with the duty to invest the Fund on a prudent, commercial basis. The Guardians must have regard to any direction from the Minister. But they are free to enter into investment arrangements that best suit the Fund’s purpose with minimum agency risk. Any direction given by the Minister must be tabled in Parliament. In addition to reviews by the Office of the Auditor General, an independent review of how effectively and efficiently the Guardians are performing their function is carried out every five years. This independence was tested in 2009 when the Ministry of Finance sent a request to the Fund to increase the Fund’s domestic investments citing national interests. The request stated the Government’s expectations that the Fund should increase domestic investments to 40 percent of the total portfolio. The Government’s objective was to increase investment in New Zealand’s productive sector, and further the development in domestic capital markets. This was to be done consistently with the Fund’s duty to invest “on a prudent, commercial basis”, in accordance with the relevant legislation.

The Guardians, however, considered the request at odds with the Fund’s mandate to maximize return over a long-term horizon without undue risk and consistent with best practice portfolio management. If allocation to New Zealand assets were to substantially increase beyond the then-current 18 percent share of the total portfolio, the Fund would run the “risks associated with asset concentration, the relative illiquidity of New Zealand assets, and other relevant idiosyncratic risks associated with investing in any single location.” Consequently the Guardians did not offer “an assurance as to how much, if at all, the Fund’s New Zealand assets will increase” based on “the unpredictable nature of future commercial, prudent, investment opportunities”. It was noted that in order “to guarantee an increase to a prescribed percentage would require a modification to the Fund’s commercial objectives” in the relevant legislation. The Guardians concluded that “while local investment activities may produce positive benefits (externalities) in assisting developing New Zealand’s capital markets, we cannot take these externalities directly into account when making an investment decision under our current Act”.3 Specialized committees are often used to improve performance of the board. These include the audit committee, the remuneration committee, the risk management committee, the corporate governance committee, and the ethics committee. While most SWFs have established audit and executive committees, remuneration, risk management, and corporate governance committees are a relatively new trend.

Conclusion

Though not entirely novel, SWFs that are permitted or mandated to invest domestically are emerging on a wider scale. They have not been systematically surveyed so that much remains to be understood about their processes and activities. The emergence of SWFs with domestic investment mandates represents a shift of emphasis on the role of natural resource rents in development towards domestic investments. About 20 sovereign funds now have at least some specific mandate in this area, including some that traditionally have invested abroad. As resource markets stay strong and more countries make discoveries, more domestic investment mandates are being established.

While information on the policies and performance of domestic portfolios is incomplete, experience indicates that a SWF that is permitted or mandated to invest domestically, like a development bank, risks being influenced by the political economy of the country. The downside risks are large, and in some views prohibitive. Many resource-rich countries flush with funds have invested but seen little payoff. Sometimes this has been due to accelerating investment beyond the limits of macroeconomic or management capacity. Investment programs have also often been politically captured, used to distribute patronage and undermined by corruption. Unlike development banks that need to obtain market-based funding, SWFs are endowed by budget transfers or by direct payments from resource sectors. They are not subject to similar market discipline, increasing the downside risks. Only if a SWF is allowed to operate as a professional expert investor can it strengthen the management of the public investment program and contribute to building national wealth.

The experience of similar institutions suggests a number of considerations that a country contemplating allowing a SWF to invest domestically might consider. The overall objective is to create a system of checks and balances to help ensure that the SWF does not undermine macroeconomic management or become a vehicle for politically driven “investments” that add nothing to national wealth. The difficult environments in which some SWFs are being established suggest that these will often be major concerns. The main priorities concern the criteria for selecting investments, partnerships, external and internal governance clearly separating responsibilities for the choice of investment between the SDF and its owner. This is particularly important for a SDF that is mandated to invest in rescuing ailing SOEs, particularly when private capital is not involved in the transaction.

 


Does Development Assistance Affect Economic Freedom In The Recipient County?

 

Benjamin Powell and Matt Ryan.

For more than 50 years individual countries and international agencies have given aid to third world countries to promote economic development, yet poverty still persists in many recipient nations. In recent years development economists and agencies have increasingly recognized the importance of institutions that support property rights and economic freedom in promoting development. Nevertheless, nations continue to provide aid to less developed countries. This raises two important questions. Does the receipt of aid lead to increases or decreases in economic freedom, and are increases in economic freedom rewarded with more aid or punished with reduced aid?

The failure of aid to directly promote development in impoverished countries is well documented. Boone (1996), Vasquez (1998), Easterly and Levine (2001), and Ovaska (2003) all find that development aid fails to systematically improve growth rates. Easterly (2001) summarizes World Bank aid policies that have failed to promote development. Although aid has generally failed to promote development, Burnside and Dollar (2000) argue that aid can be effective if the correct policy environment is in place. This leads us to examine the characteristics of the correct policy environment and whether aid has been directed to countries with it.

Since the development of the indexes of economic freedom in 1995, a substantial body of literature has related economic freedom to growth rates and standards of living. The Economic Freedom of the World annual report is the most comprehensive index measuring economic freedom. It looks at 37 distinct pieces of data in five major categories: government size; legal structure and security of property rights; sound money; free international trade; and regulation of credit, labor and business. The index ranks countries back to 1970 over five-year intervals, allowing time series analyses to be conducted. Research by Dawson, Gwartney, Lawson and Holcombe (1999), de Haan and Sturm (2000, 2001), Adkins, Moomaw and Savvides (2002), Pitlik (2002), and Weede and Kampf (2002) all find that increases in economic freedom are positively correlated with increases in economic growth rates. Other research indicates that higher levels of economic freedom in a country also increase growth rates, though some research debates whether this is statistically significant. Berggren (2003) provides a comprehensive summary of the literature on economic freedom.

While much has been written on the relationship of economic freedom to growth rates and standards of living, little has been written on the relationship between aid and economic freedom. Vasquez (1998), Ovaska (2003) and Heckelman and Knack (2005) are exceptions; they examine both economic freedom and aid. Ovaska looks at whether the quality of governance (economic freedom) affects the results of aid, while we look at whether aid affects governance and if governance affects aid flows. Heckleman and Knack (2005) examine whether aid impacts freedom and the effect it had on growth over 10 and 20 year periods (1980-2000). They find aid negatively impacts overall economic freedom. Our study expands on their results by looking at a total time span of 30 years (1970-2000) and by analyzing the impact of aid flows on freedom scores in smaller five and ten year time periods. Our study also differs by examining changes in freedom scores and changes in flows aid from period to period instead of just levels of aid flows. Vasquez (1998) examines what happens to the flow of aid when economic freedom changes. He observed a limited number of both countries and years; section three of this paper expands on his work by looking at a larger set of countries over a 30 year period.

  1. Has Foreign Aid Influenced Economic Freedom?

P.T. Bauer long contended that intergovernmental aid increases the size and scope of recipient governments, contributes to the politicization of life, negatively impacts economic performance, and is, on balance, an anti-market force (1971, 1978, 1984, 1990). His long list of anti-market policies to which aid contributes includes expulsion of productive groups, suppression of private trade, restriction of the inflow of foreign capital, confiscation of property, forced collectivization, takeover of foreign enterprises, discouragement of agriculture, support of unviable projects, and import substitution (1990: 46).

In measuring the impact of aid flows on changes in freedom it is difficult to say that aid has much of a positive or negative effect on freedom. This could be because prior aid flows were similar to those in the period observed. If aid does adversely impact economic freedom, we may be observing countries where previous aid has already decreased freedom such that the current, near-constant aid levels cause freedom scores to remain poor but not change significantly. To address this, we next looked at how changes in aid flows impact changes in freedom. Any one pair of aid and economic freedom figures spans ten years. As an example, the change in the average amount of aid from the span 1970-1975 to the span 1975-1980 was paired with the change in freedom from 1975 to 1980. This model allows previous aid to be incorporated into the initial freedom score so that we can see how the change in aid flow affects economic freedom over the next five-year period.

In this study, aid had a negative sign, indicating that increases in aid flows from one period to the next decreased freedom scores over that time. However, aid failed to be statistically significant in any of the regressions. Our highest level of confidence attained in any of these regressions was 83.8 percent. The coefficient on communist countries was again positive and significant, indicating that their freedom improved more rapidly than other countries. Income per capita again failed to be significant.

Overall, our regression results are mixed but on balance tend to support Bauer’s claim that aid promotes statism. We find that countries receiving aid are less economically free than those that do not. This could be a confirmation of Bauer’s claim that aid harms economic freedom, or it could simply be an indication that countries with less freedom are more likely to get aid. Our strongest regression results find that countries that receive larger amounts of aid over a five year period, even after controlling for their level of income, have a lower freedom score at the conclusion of that period. When we compare the level of aid a country receives to how its freedom changes over five years, we find a very slight positive relationship in some cases. But this could be because the country already had a low level of economic freedom since it was receiving large amounts of aid, and that a constant, high aid flow does not cause economic freedom to continue to worsen. Examining changes in aid flows and freedom scores eliminates some of the above problem. We find that increases in aid negatively impact changes in economic freedom, but the results are not statistically significant.

This section is neither a resounding confirmation nor rejection of Bauer’s claims. The one clear result that emerges is that aid is unlikely to increase economic freedom. There is some indication that aid actively harms freedom but the result is not perfectly clear.

Is Good Policy Rewarded with Aid?

The economics literature and aid agencies have recognized that an environment of economic freedom and property rights is necessary for economic development. Research by Burnside and Dollar (2000) claims that although aid in general cannot promote growth, if given to countries with the right policy environment the aid can be effective. Their research is disputed, however. Easterly, Levine and Roodman (2003) and Brumm (2003) find that aid has a negative impact even with good policy, while other research—Hansen and Tarp (2000), Dalgaard and Hansen (2001), and Guillaumont and Chauvet (2001)—also casts doubts on the Burnside and Dollar results.

Despite debate, many in the policy world believe aid can work if the right policies are in place. The World Bank has written, “There is no value in providing large amounts of money to a country with poor policies” (1998: 13). Similarly, the millennium challenge account has been set up to direct U.S. foreign aid to countries with better policies in the hope that aid will be more effective. Thus, since good policy is necessary for economic growth, and at least some researchers believe aid can be effective if a country has good policies in place, the question that we address in this section is “Have increases in economic freedom been rewarded with increased aid?” Vasquez (1998) found the opposite, that the greater the reductions in economic freedom, the greater the increases in aid. Vasquez only looked at 20 countries from 1985 to 1990, however, and 24 countries from 1990 to 1995. Our study expands on his by including data for 96 countries over thirty years to see if his result can be generalized.

We used a regression model to determine if improvements in freedom were rewarded with increases in aid. In this case, since freedom is the independent variable and aid flows are dependent, we simply used aid flows instead of adjusting the figure to reflect aid as a percent of income or expenditure. We are only concerned with whether policy changes that increase freedom are rewarded with more aid. Since freedom scores are available at five-year intervals, aid flows were again averaged over the same five-year period. Thus, we now compare the change in freedom over a five-year period with the change in aid from that period to the subsequent five-year period. For example, the difference in freedom scores from 1980 to 1985 becomes the independent variable (Freedom), and the difference in aid from 1981-1985 to 1986-1990 becomes the dependent variable (Aid).

We found that the coefficient of freedom was negative and statistically significant. A one point rise in freedom will lower subsequent aid flows by $240 million. Increases in economic freedom—the addition of proper policies and implementation of sound institutions—were not rewarded with more foreign aid. In fact, steps in the right direction were punished by decreases in foreign aid. This occurred even though discussion of property rights and economic freedom in development agencies increased over the time period considered. When we examined the last period with complete data available in isolation, the 1990s, improvements in economic freedom continued to be punished with lower levels of aid; the results were not statistically significant, however.

The debate that has ensued since the publication of Burnside and Dollar (2000) has led to doubts that foreign aid can promote development even if it goes to countries with good policies. However, even if Burnside and Dollar are right, we find that aid agencies have not rewarded good policy with increased aid. They punish improvements in economic freedom by decreasing aid.

Conclusion

Although many articles examine whether aid promotes development and whether economic freedom promotes development, little empirical research has been written on the relationship between foreign aid and economic freedom. We examined both how aid influences economic freedom and if increasing economic freedom has been rewarded with aid. No clear cut theoretical case proves that aid either increases or decreases freedom. It could be that governments in impoverished countries receiving more aid will not need to tax their own citizens as much to obtain a given level of spending. If governments held spending constant, then aid could conceivably increase economic freedom. Alternatively, as P.T. Bauer has argued, aid could lead to the expansion of the public sector relative to the private sector and thus decrease economic freedom. Our paper examined this question, with mixed results. Our regressions give some indication that aid decreases economic freedom. Our findings clearly can cast serious doubt on the proposition that aid increases freedom in poor countries. Given the World Bank’s mission of promoting economic growth in poor countries and the strong empirical literature on the importance of economic freedom for growth, our paper indicates that since aid cannot be shown to have a positive influence on freedom, aid is unlikely to lead to development in poor countries.

The second question we addressed is whether improvements in economic freedom were rewarded with increased aid. While there has been debate as to aid’s effectiveness if a country has good policy, we find that good policy has not been rewarded. Increases in economic freedom have been punished by decreases in the amount of aid a country receives.


The New Harvest

By Calestous Juma.

Africa's clichéd image of 'basket case' could be transformed in a generation to 'bread basket', a continent capable of feeding itself despite the twin challenges of a still burgeoning population and the exigencies of climate change. That is the clear and confident message of The new harvest, whose lead author, Kenyan-born Calestous Juma of Harvard University, has produced a book of evidence-based recommendations for transforming African food production. As Professor of the Practice of International Development and Director of the Science, Technology, and Globalization Project at Harvard, he recognises the shortcomings of the past, particularly the lack of political and, consequently, financial commitment to agriculture, but he also instances the recent changes in political and investment emphasis that could provide foundation for a new and more fruitful era.

A historic lack of investment has resulted in inadequate roads connecting rural areas to markets, a mere 4 per cent of Africa's cropland irrigated compared to 39 per cent in Asia, ineffective extension services, lack of credit facilities and, overall, poor morale among those who work the land, mainly women. Together with insecure land tenure, soil nutrient loss, erosion, and huge post harvest crop losses, there has been widespread despair. Calestous Juma and his fellow contributing authors - 20 eminent agriculturists and economists from around the world - seek to dispel past gloom and hold out the realistic prospect of Africa adequately feeding all its people within a generation.

The reasons for optimism are outlined by Juma in his Perspective elsewhere in New Agriculturist, notably the recent surge in investment in agriculture in Africa, much of it by African states themselves, which has resulted in improved communications (roads and telecommunications), and new attention to facilitating farmer access to both inputs and points of sale. Malawi and Ghana are cited as two outstanding examples of where giving agriculture priority in policymaking and funding has reaped striking rewards for farmers and consumers alike. Malawi's investment in agriculture of 16 per cent of government spending resulted in the highest surplus production ever in 2006/7. While between 1991 and 2006, Ghana nearly halved its poverty rate from 51 to 28 per cent, and is the only African country to have reduced its Global Hunger Index by more than 50 per cent. (Further causes for confidence are 15 largely African innovations for producing and processing food, detailed in the 2011 State of the World report.)

Juma writes that "In sub-Saharan Africa, agriculture directly contributes to 34% of GDP and 64% of employment. Growth in agriculture is at least two to four times more effective in reducing poverty than growth in other sectors...it is no surprise that agricultural and extension services can yield a 35% rate of return in sub-Saharan Africa." And he goes on to say that a financial incentive will be the projected growth in the African food market from US$50 billion in 2010 to US$150 billion by 2030. However, turning optimism into success demands commitment and Juma acknowledges that "Improving Africa's agricultural performance will require significant political leadership, investment and deliberate policy efforts." There is much at stake but the very positive personal response to The new harvest of over 20 African Heads of State is significant in itself.

 


Exodus Of Homo Sapiens From Africa And Genetic Diversity May Explain Economic Growth Divergence Across Continents

 

Quamrul Ashraf, and Oded Galor.

Abstract.

This paper argues that deep-rooted factors, determined tens of thousands of years ago, had a significant effect on the course of economic development from the dawn of human civilization to the contemporary era. It advances and empirically establishes the hypothesis that, in the course of the exodus of Homo sapiens out of Africa, variation in migratory distance from the cradle of humankind to various settlements across the globe affected genetic diversity, and has had a long-lasting effect on the pattern of comparative economic development that is not captured by geographical, institutional, and cultural factors.

The level of genetic diversity within a society is found to have a hump-shaped effect on development outcomes in the pre-colonial era, reflecting the trade-off between the beneficial and the detrimental effects of diversity on productivity. Moreover, the level of genetic diversity in each country today (as determined by the genetic diversities and genetic distances amongst its ancestral populations), has a non-monotonic effect on income per capita in the modern world. While the intermediate level of genetic diversity prevalent among Asian and European populations has been conducive for development, the high degree of diversity among African populations and the low degree of diversity among Native American populations have been a detrimental force in the development of these regions.

Introduction

Existing theories of comparative development highlight a variety of proximate and ultimate factors underlying some of the vast inequities in living standards across the globe. The importance of geographical, cultural and institutional factors, human capital formation, ethnic, linguistic, and religious fractionalization, colonialism and globalization has been at the center of a debate regarding the origins of the differential timing of transitions from stagnation to growth and the remarkable transformation of the world income distribution in the last two centuries. While theoretical and empirical research has typically focused on the effects of such factors in giving rise to and sustaining the Great Divergence in income per capita in the pre-industrial era, attention has recently been drawn towards some deep-rooted factors that have been argued to affect the course of comparative economic development.

This paper thus highlights one of the deepest channels in comparative development, pertaining not to factors associated with the dawn of complex agricultural societies as in Diamond’s (1997) influential hypothesis, but to conditions innately related to the very dawn of mankind itself. The hypothesis rests upon two fundamental building blocks. First, migratory distance from the cradle of humankind in East Africa had an adverse effect on the degree of genetic diversity within ancient indigenous settlements across the globe. Following the prevailing hypothesis, commonly known as the serial-founder effect, it is postulated that in the course of human expansion over planet Earth, as subgroups of the populations of parental colonies left to establish new settlements further away, they carried with them only a subset of the overall genetic diversity of their parental colonies. Indeed, migratory distance from East Africa has an adverse effect on genetic diversity in the 53 ethnic groups across the globe that constitute the Human Genome Diversity Cell Line Panel.

Second, there exists an optimal level of diversity for economic development, reflecting the interplay between the conflicting effects of diversity on the development process. The adverse effect pertains to the detrimental impact of diversity on the efficiency of the aggregate production process of an economy. Heterogeneity increases the likelihood of mis-coordination and distrust, reducing cooperation and disrupting the socioeconomic order. Greater population diversity is therefore associated with the social cost of a lower total factor productivity, which inhibits the ability of society to operate efficiently with respect to its production possibility frontier.

The beneficial effect of diversity, on the other hand, concerns the positive role of diversity in the expansion of society’s production possibility frontier. A wider spectrum of traits is more likely to be complementary to the development and successful implementation of advanced technological paradigms. Greater heterogeneity therefore fosters the ability of a society to incorporate more sophisticated and efficient modes of production, expanding the economy’s production possibility frontier and conferring the benefits of increased total factor productivity.

Higher diversity in a society’s population can therefore have conflicting effects on the level of its total factor productivity. Aggregate productivity is enhanced on the one hand by an increased capacity for technological advancement, while simultaneously diminished on the other by reduced cooperation and efficiency. However, if the beneficial effects of population diversity dominate at lower levels of diversity and the detrimental effects dominate at higher levels (i.e., if there are diminishing marginal returns to both diversity and homogeneity), the theory would predict an inverted-U relationship between genetic diversity and development outcomes over the course of the development process.

In estimating the impact on economic development of migratory distance from East Africa via its effect on genetic diversity, this research overcomes limitations and potential concerns that are presented by the existing data on genetic diversity across the globe (i.e., measurement error, data limitations, and potential endogeneity). Population geneticists typically measure the extent of diversity in genetic material across individuals within a given population (such as an ethnic group) using an index called expected heterozygosity. Like most other measures of diversity, this index may be interpreted simply as the probability that two individuals, selected at random from the relevant population, are genetically different from one another. Specifically, the expected heterozygosity measure for a given population is constructed by geneticists using sample data on allelic frequencies, i.e., the frequency with which a “gene variant” or allele (e.g., the brown vs. blue variant for the eye color gene) occurs in the population sample. Given allelic frequencies for a particular gene or DNA locus, it is possible to compute a gene-specific heterozygosity statistic (i.e., the probability that two randomly selected individuals differ with respect to the gene in question), which when averaged over multiple genes or DNA loci yields the overall expected heterozygosity for the relevant population.

The most reliable and consistent data for genetic diversity among indigenous populations across the globe consists, however, of only 53 ethnic groups from the Human Genome Diversity Cell Line Panel. According to anthropologists, these groups are not only historically native to their current geographical location but have also been isolated from genetic flows from other ethnic groups. Empirical evidence provided by population geneticists (e.g., Ramachandran et al., 2005) for these 53 ethnic groups suggest that, indeed, migratory distance from East Africa has an adverse linear effect on genetic diversity. Migratory distance from East Africa for each of the 53 ethnic groups was computed using the great circle (or geodesic) distances from Addis Ababa (Ethiopia) to the contemporary geographic coordinates of these ethnic groups, subject to obligatory intermediate waypoints (i.e., Cairo (Egypt), Istanbul (Turkey), Phnom Penh (Cambodia), Anadyr (Russia) and Prince Rupert (Canada)), that capture paleontological and genetic evidence on prehistorical human migration patterns.

Nonetheless, while the existing data on genetic diversity pertain only to ethnic groups, data for examining comparative development are typically available at the country level. Moreover, many national populations today are composed of multiple ethnicities, some of which may not be indigenous to their current geographical locations. This raises two complex tasks. First, one needs to construct a measure of genetic diversity for national populations, based on genetic diversity data at the ethnic group level, accounting for diversity not only within each component group but for diversity due to differences between ethnic groups as well. Second, it is necessary to account for the potential inducement for members of distinct ethnic groups to relocate to relatively more lucrative geographical locations.

To tackle these difficulties, this study adopts two distinct strategies. The first restricts attention to development outcomes in the pre-colonial era when, arguably, regional populations were indigenous to their current geographical location and largely homogenous in terms of their ethnic compositions, with the presence of multiple indigenous ethnicities in a given region having a negligible effect on the diversity of the regional population. The second, more complex strategy involves the construction ofan index of genetic diversity for contemporary national populations that accounts for the expected heterozygosity within each sub-national group as well as the additional component of diversity at the country level that arises from the genetic distances between its pre-colonial ancestral populations. The examination of comparative development under this second strategy would have to additionally account for the potential inducement for members of distinct ethnic groups to relocate to relatively more lucrative geographical locations.

The examination of comparative development in the pre-colonial era, when societies were in their agricultural stage of development, requires the interpretation of outcomes from a Malthusian equilibrium point of view. Improvements in the technological environment during the Malthusian epoch generated only temporary gains in income per capita, eventually leading to a larger, but not richer, population (Ashraf and Galor, 2010). Thus the relevant variable gauging comparative economic development during this era is population density as opposed to income per capita. In light of this argument, this study employs cross-country historical data on population density as the outcome variable of interest in the historical analysis and examines the hypothesized effect of human genetic diversity within societies on their population densities in the year 1500 CE.

Using data on genetic diversity observed at the ethnic group level, the historical analysis reveals, consistently with the proposed hypothesis, a highly significant hump-shaped effect of genetic diversity on log population density in the year 1500 CE. In particular, accounting for the influence of the timing of the Neolithic Revolution, the natural productivity of land for agriculture, as well as other geographical characteristics that may affect population density in the pre-industrial era, the estimated linear and quadratic coefficients associated with genetic diversity imply that a 1 percentage point increase in diversity for the least diverse society in the regression sample would raise its population density by 58%, whereas a 1 percentage point decrease in diversity for the most diverse society would raise its population density by 23%. Despite the statistical significance and robustness of these effects, however, the analysis is subsequently expanded upon to lend further credence to these findings by alleviating concerns regarding sample size limitations and potential endogeneity bias.

The issue of data limitations encountered by the analysis stems from the fact that diversity data at the ethnic group level currently spans only a modest subset of the sample of countries for which historical population estimates are available. The potential endogeneity issue, on the other hand, arises from the possibility that genetic diversity within populations could partly reflect historical processes such as interregional migrations that were, in turn, determined by historical patterns of comparative development. Furthermore, the direction of the potential endogeneity bias is a priori ambiguous. For example, while historically better developed regions may have been attractive destinations to potential migrants, serving to increase genetic diversity in relatively wealthier societies, the more advanced technologies in these societies may also have conferred the necessary military prowess to prevent or minimize foreign invasions, thereby reducing the likelihood of greater genetic diversity in their populations.

In surmounting the aforementioned data limitations and potential endogeneity issues, this research appeals to the “out of Africa” theory regarding the origins of Homo sapiens. According to this well-established hypothesis, the human species, having evolved to its modern form in East Africa some 150,000 years ago, thereafter embarked on populating the entire globe in a stepwise migration process beginning about 70,000–90,000 BP. Using archeological data combined with mitochondrial and Y-chromosomal DNA analysis to identify the most recent common ancestors of contemporary human populations, geneticists are able to not only offer evidence supporting the origin of humans in East Africa but also trace the prehistorical migration routes of the subsequent human expansion into the rest of the world. In addition, population geneticists studying human genetic diversity have argued that the contemporary distribution of diversity across populations should reflect a serial- founder effect originating in East Africa. Accordingly, since the populating of the world occurred in a series of stages where subgroups left initial colonies to create new colonies further away, carrying with them only a portion of the overall genetic diversity of their parental colonies, contemporary genetic diversity in human populations should be expected to decrease with increasing distance along prehistorical migratory paths from East Africa. Indeed, several studies in population genetics (e.g., Prugnolle et al., 2005; Ramachandran et al., 2005; Wang et al., 2007) have found strong empirical evidence in support of this prediction.

The present study exploits the explanatory power of migratory distance from East Africa for genetic diversity within ethnic groups in order to overcome the data limitations and potential endogeneity issues encountered by the initial analysis discussed above. In particular, the strong ability of prehistorical migratory distance from East Africa in explaining observed genetic diversity permits the analysis to generate predicted values of genetic diversity using migratory distance for countries for which diversity data are currently unavailable. This enables a subsequent analysis to estimate the e¤ects of genetic diversity, as predicted by migratory distance from East Africa, in a much larger sample of countries. Moreover, given the obvious exogeneity of migratory distance from East Africa with respect to development outcomes in the Common Era, the use of migratory distance to project genetic diversity alleviates concerns regarding the potential endogeneity between observed genetic diversity and economic development.

The main results from the historical analysis, employing predicted genetic diversity in the extended sample of countries, indicate that, controlling for the influence of land productivity, the timing of the Neolithic Revolution, and continental fixed effects, a 1 percentage point increase in diversity for the most homogenous society in the sample would raise its population density in 1500 CE by 36%, whereas a 1 percentage point decrease in diversity for the most diverse society would raise its population density by 29%. Further, a 1 percentage point change in diversity in either direction at the predicted optimum of 0.683 would lower population density by 1.5%.7

Moving to the contemporary period, the analysis, as discussed earlier, constructs an index of genetic diversity at the country level that not only incorporates the expected heterozygosities of the pre-Columbian ancestral populations of contemporary sub-national groups, as predicted by the migratory distances of the ancestral populations from East Africa, but also incorporates the pairwise genetic distances between these ancestral populations, as predicted by their pairwise migratory distances. Indeed, the serial-founder effect studied by population geneticists not only predicts that expected heterozygosity declines with increasing distance along migratory paths from East Africa, but also that the genetic distance between any two populations will be larger the greater the migratory distance between them.

The baseline results from the contemporary analysis indicate that the genetic diversity of contemporary national populations has an economically and statistically significant hump-shaped effect on income per capita. This hump-shaped impact of diversity on income per capita is robust to continental fixed effects, and to controls for ethnic fractionalization and various measures of institutional quality, including social infrastructure, an index gauging the extent of democracy, constraints on the power of chief executives, legal origins, major religion shares, and the share of the population of European descent, as well as to controls for years of schooling, disease environments, and other geographical factors that have received attention in the literature on cross-country comparative development.

The direct effect of genetic diversity on contemporary income per capita, once institutional, cultural, and geographical factors are accounted for, indicates that: (i) increasing the diversity of the most homogenous country in the sample (Bolivia) by 1 percentage point would raise its income per capita in the year 2000 CE by 39%, (ii) decreasing the diversity of the most diverse country in the sample (Ethiopia) by 1 percentage point would raise its income per capita by 21%, (iii) a 1 percentage point change in genetic diversity (in either direction) at the optimum level of 0.721 (that most closely resembles the diversity level of the U.S.) would lower income per capita by 1.9%, (iv) increasing Bolivia’s diversity to the optimum level prevalent in the U.S. would increase Bolivia’s per capita income by a factor of 4.7, closing the income gap between the U.S. and Bolivia from 12:1 to 2.5:1, and (v) decreasing Ethiopia’s diversity to the optimum level of the U.S. would increase Ethiopia’s per capita income by a factor of 1.7 and, thus, close the income gap between the U.S. and Ethiopia from 47:1 to 27:1.

Reassuringly, the highly significant and stable hump-shaped effect of genetic diversity on income per capita in the year 2000 CE is not an artifact of post-colonial migrations towards prosperous countries and the concomitant increase in ethnic diversity in these economies. The hump-shaped effect of genetic diversity remains highly significant and the optimal diversity estimate remains virtually intact if the regression sample is restricted to (a) non-OECD economies (i.e., economies that were less attractive to migrants), (b) non Neo-European countries (i.e., excluding the U.S., Canada, New Zealand and Australia), (c) non-Latin American countries, (d) non Sub-Saharan African countries, and perhaps most importantly (e) to countries whose indigenous population is larger than 97% of the entire population (i.e., under conditions that virtually eliminate the role of migration in the creation of diversity).

Related Literature

The existing literature on comparative development has emphasized a variety of factors underlying some of the vast differences in living standards across the globe. The influence of geography, for instance, has been stressed from a historical perspective by Jones (1981), Diamond (1997), and Pomeranz (2000), and is highlighted empirically by Gallup et al. (1999) and Olsson and Hibbs (2005), amongst others. Institutions, on the other hand, are given historical precedence by North and Thomas (1973), Mokyr (1990), and Greif (1993), and are emphasized empirically by Hall and Jones (1999), La Porta et al. (1999), Rodrik et al. (2004), and Acemoglu et al. (2005). In related strands of the literature on institutions, Engerman and Sokolof (2000) and Acemoglu et al. (2005) have stressed the role of colonialism, while the e¤ects of ethno-linguistic fractionalization are examined by Easterly and Levine (1997), Alesina et al. (2003), and others. Meanwhile, the historical impact of sociocultural factors has been highlighted by Weber (1905) and Landes (1998), with empirical support coming from Barro and McCleary (2003), Tabellini (2008), as well as Guiso et al. (2009). Finally, the importance of human capital formation has been underlined in unified growth theory (e.g., Galor, 2010), and has been demonstrated empirically by Glaeser et al. (2004).

This research is the first to argue that the variation in prehistorical migratory distance from the cradle of humankind to various settlements across the globe has had a persistent effect on the process of development and on the contemporary variation in income per capita across the globe. The paper is also unique in its attempt to establish the role of genetic (rather than ethnic) diversity within a nation.

The employment of data and empirical results from the field of population genetics places this research in the neighborhood of a recent insightful paper in the economic literature by Spolaore and Wacziarg (2009) who have appealed to data on genetic distance between human populations to proxy for the effect of sociocultural differences between societies on the diffusion of economic development. Specifically, the authors argue that genetic distance between populations, which captures their divergence in biological and cultural characteristics over time, has been a barrier to the horizontal diffusion of technological innovations across populations. They show that Fst genetic distance, a measure that reflects the time elapsed since two populations shared a common ancestor, confers a statistically significant positive effect on both historical and contemporary pairwise income differences. In contrast, the genetic diversity metric within populations exploited by this paper facilitates the analysis of the effect of the variation in traits across individuals within a society on its development process.

Unlike Spolaore and Wacziarg (2009) where genetic distance between populations diminishes the rate of technological diffusion and reduces productivity, the hypothesis advanced and tested in this paper suggests that genetic diversity within a population confers both social costs, in the form of lower social capital arising from differences amongst individual members, and social benefits in the form of diversity-driven knowledge accumulation. Hence, the overall effect of genetic diversity on developmental outcomes would be hump-shaped, rather than monotonically negative. The results of the empirical analysis conducted in this study suggest that the previously unexamined beneficial effect of genetic differences is indeed a significant factor in the overall influence of the genetic channel on comparative development.

The examination of the effects of genetic diversity along with the influence of the timing of agricultural transitions also places this paper in an emerging strand of the literature that has focused on empirically testing Diamond’s (1997) assertion regarding the long-standing impact of the Neolithic Revolution.10 Diamond (1997) has stressed the role of biogeographical factors in determining the timing of the Neolithic Revolution, which conferred a developmental head-start to societies that experienced an earlier transition from primitive hunting and gathering techniques to the more technologically advanced agricultural mode of production. According to this hypothesis, the luck of being dealt a favorable hand thousands of years ago with respect to biogeographic endowments, particularly exogenous factors contributing to the emergence of agriculture and facili- tating the subsequent diffusion of agricultural techniques, is the single most important driving force behind the divergent development paths of societies throughout history that ultimately led to the contemporary global differences in standards of living. Specifically, an earlier transition to agriculture due to favorable environmental conditions gave some societies an early advantage by conferring the benefits of a production technology that generated resource surpluses and enabled the rise of a non-food-producing class whose members were crucial for the development of written language and science, and for the formation of cities, technology-based military powers and nation states. The early technological dominance of these societies subsequently persisted throughout history, being further sustained by the subjugation of less-developed societies through exploitative geopolitical and historical processes such as colonization.

While the long-standing influence of the Neolithic Revolution on comparative development remains a compelling argument, this research demonstrates that, contrary to Diamond’s (1997) uni- causal hypothesis, the composition of human populations with respect to their genetic diversity has been a significant and persistent factor that affected the course of economic development from the dawn of human civilization to the present. In estimating the economic impact of human genetic diversity while controlling for the channel emphasized by Diamond (1997), the current research additionally establishes the historical significance of the timing of agricultural transitions for pre- colonial population density, which, as already argued, is the relevant variable capturing comparative economic development during the Malthusian epoch of stagnation in income per capita.

The focus of the historical analysis on economic development in the pre-colonial Malthusian era also necessitates controls for the natural productivity of land for agriculture. Given that in a Malthusian environment resource surpluses are primarily channeled into population growth with per capita incomes largely remaining at or near subsistence, regions characterized by natural factors generating higher agricultural crop yields should, ceteris paribus, also exhibit higher population densities (Ashraf and Galor, 2010). If diversity in a society influences its development through total factor productivity (comprised of both social capital and technological know-how), then controlling for the natural productivity of land would constitute a more accurate test of the effect of diversity on the Malthusian development outcome – i.e., population density.

Concluding Remarks

This paper argues that deep-rooted factors, determined tens of thousands of years ago, had a significant effect on the course of economic development from the dawn of human civilization to the contemporary era. It advances and empirically establishes the hypothesis that, in the course of the exodus of Homo sapiens out of Africa, variation in migratory distance from the cradle of humankind to various settlements across the globe affected genetic diversity, and has had a long-lasting effect on the pattern of comparative economic development that is not captured by geographical, institutional, and cultural factors.

The level of genetic diversity within a society is found to have a hump-shaped effect on development outcomes in the pre-colonial era, reflecting the trade-off between the beneficial and the detrimental effects of diversity on productivity. Moreover, the level of genetic diversity in each country today (as determined by the genetic diversities and genetic distances amongst its ancestral populations), has a non-monotonic effect on income per capita in the modern world. While the intermediate level of genetic diversity prevalent among Asian and European populations has been conducive for development, the high degree of diversity among African populations and the low degree of diversity among Native American populations have been a detrimental force in the development of these regions.

**This paper is part of a broader research by Quamrul Ashraf Oded Galo entitled "THE "OUT OF AFRICA" HYPOTHESIS, HUMAN GENETIC DIVERSITY, AND COMPARATIVE ECONOMIC DEVELOPMENT."

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