Institutions and Democracy in Africa [RETAiL] - Nic Cheeseman

Institutions and Democracy in Africa

Historically, African political institutions such as constitutions, legislatures and judiciaries have been seen as weak and vulnerable to manipulation, leading some to claim that the continent is 'institutionless'. However, recent developments including the consolidation of presidential term limits in a number of countries demonstrate that this depiction is no longer tenable. By drawing attention to how institutions can shape the practice of politics, this book demonstrates that electoral commissions, economic regulations, and systems of land tenure are vital to our understanding of contemporary Africa.

A series of cutting-edge contributions from leading scholars explain how the rules of the game shape political developments across the continent, from Kenya to Nigeria and from Benin to South Africa. In chapters that cover bureaucracies, constitutions, elections, political parties, the police and more, the authors argue that a new research agenda is required if we are to better understand the process of democratisation.

Nic Cheeseman is Professor of Democracy at the University of Birmingham and was formerly Director of the African Studies Centre at Oxford University. He is the recipient of the GIGA award for the best article in Comparative Area Studies (2013) and the Frank Cass Award for the best article in Democratization (2015). He is also the author of Democracy in Africa: Successes, failures and the struggle for political reform (Cambridge University Press, 2015), the founding editor of the Oxford Encyclopaedia of African Politics, a former editor of the journal African Affairs, and an advisor to, and writer for, Kofi Annan's African Progress Panel.
Institutions and Democracy in Africa

How the Rules of the Game Shape Political Developments

Edited by

Nic Cheeseman

University of Birmingham

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DOI: 10.1017/9781316562888

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First published 2018

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Library of Congress Cataloging-in-Publication Data

Names: Cheeseman, Nicholas, 1979– editor.

Title: Institutions and democracy in Africa : how the rules of the game shape political developments / Edited by Nic Cheeseman.

Description: New York, NY : Cambridge University Press, 2017. | Includes bibliographical references and index.

Identifiers: LCCN 2017044887 | ISBN 9781107148246 (alk. paper)

Subjects: LCSH: Africa – Politics and government – 21st century. | Political culture – Africa. | Democracy – Africa.

Classification: LCC JQ1875 .I55 2017 | DDC 320.96–dc23

LC record available at <https://lccn.loc.gov/2017044887>

ISBN 978-1-107-14824-6 Hardback

ISBN 978-1-316-60255-3 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.
This book is dedicated to Nigel Bowles, who was one of the first people to teach me about political institutions, and what it is to be an academic, and whose lessons guide me still.

I would also like to thank Claire Elder, Senior Associate Editor for this project, whose dedication, intelligence and attention to detail were essential to both the quality and punctuality of this volume.

# Contents

List of Figures

List of Tables

List of Contributors

1Introduction: Understanding African Politics: Bringing the State Back In

Nic Cheeseman

Part IInstitutional Foundations

2Institutional Legacies: Understanding Multiparty Politics in Historical Perspective

Rachel Beatty Riedl

3Property and Land Institutions: Origins, Variations and Political Effects

Catherine Boone

4Financial Institutions: Economic Liberalisation, Credit and Opposition Party Successes

Leonardo R. Arriola

Part IILaw and Order

5Constitutions: The Politics of Constitutional Reform

Muna Ndulo

6The Police: Laws, Prosecutions and Women's Rights in Liberia

Peace A. Medie

7The Bureaucracy: Policy Implementation and Reform

M. Anne Pitcher and Manuel P. Teodoro

Part IIIElections, Parties and Political Competition

8Political Parties: Presidential Succession Crises and Internal Party Democracy

Ian Cooper

9Elections: The Power of Elections in Multiparty Africa

Carolien van Ham and Staffan I. Lindberg

10Electoral Rules: The Relationship between Political Exclusion and Conflict

Brian Klaas

11Term Limits: Leadership, Political Competition and the Transfer of Power

Daniel N. Posner and Daniel J. Young

Part IVCountervailing Institutions

12The Legislature: Institutional Strengthening in Dominant-Party States

Michaela Collord

13The Judiciary: Courts, Judges and the Rule of Law

Peter VonDoepp

14Decentralisation: Accountability in Local Government

Alex Dyzenhaus

15Conclusion: Political Institutions and Democracy in Africa: A Research Agenda

Nic Cheeseman

Index

# Figures

2.1Variation in party system institutionalisation by country in Africa

3.1Gorowa Native Authority, 'Tribal and Ethnographic Map'

3.2Paysannat de Muhero, Rwanda, 1970s

4.1The impact of founding leader type on commercial banking

4.2The impact of founding leader type on financial liberalisation

4.3Higher credit provision encourages coalition formation

7.1Selected 2014 World Bank World Governance Indicators by Region

7.2Agency independence, regime type and reform outcomes

7.3Authoritarian context, moderate agency independence: Privatisation in Uganda, 1990–2005

7.4Authoritarian context, low agency independence: Privatisation in Nigeria, 1990–2005

7.5Democratic context, high agency independence: Privatisation in Zambia, 1990–2005

7.6Democratic context, low agency independence: Privatisation in South Africa, 1990–2005

9.1Unpacking and temporalising 'democratisation-by-elections'

9.2Level of civil liberties in 2012 by total number of elections held 1986–2012

9.3aMarginal effect of successive elections on level of civil liberties

9.3bPredicted values of civil liberties by repeating elections

9.4Marginal effect of successive elections by election quality

11.1How African leaders have left power, by decade

11.2Popular support for term limits in Africa

11.3When do presidents attempt to secure third terms?

14.1Political decentralisation in Africa (2010)

15.1A typology of informal institutions

# Tables

4.1Country by founding leader type

4.2Financial system characteristics by founding leader type

4.3Estimating the effective number of presidential candidates

6.1Trust in the police

6.2Incidence of police bribery

7.1Legislative indicators of formal agency independence

9.1Number of national multiparty elections held per country (1986–2012)

9.2'Democratisation-by-elections' revisited

9.3Formal and informal institutions: The role of quality of elections

9.4Election sequencing and election quality

10.1Electoral integrity in Africa

10.2The 'Fraudster's Dilemma'

10.3Levels of electoral inclusion, by regime type (1989–2010)

10.4The impact of inclusive elections in sub-Saharan Africa

11.1Presidential term limits in Africa (1990–2015)

11.2Oil and third term attempts

11.3Precedent and third term attempts

12.1Parliamentary Powers Index (PPI) for selected African legislatures

# Contributors

Leonardo R. Arriola is Associate Professor of Political Science and Director of the Center for African Studies at the University of California, Berkeley. His research focuses on democratic politics and political violence in developing countries. He is the author of Multiethnic Coalitions in Africa: Business Financing of Opposition Election Campaigns (Cambridge University Press, 2012). His work has been published in journals such as the American Journal of Political Science, Comparative Political Studies and World Politics. He currently serves on the editorial boards of African Affairs, Comparative Politics and Comparative Political Studies.

Catherine Boone is Professor of Comparative Politics at the London School of Economics and Political Science. Her research focuses on African political economy and state-building. She is the author of Property and Political Order in Africa: Land Rights and the Structure of Politics (Cambridge University Press, 2014), Political Topographies of the African State (Cambridge University Press, 2003) and Merchant Capital and the Roots of State Power in Senegal (Cambridge University Press, 1993). She chairs the Political Economy Section of the American Political Science Association (APSA), is a long-standing member of APSA's Africa Initiative and is past-president of the West African Research Association.

Nic Cheeseman is Professor of Democracy at the University of Birmingham and was formerly Director of the African Studies Centre at Oxford University. He is the recipient of the GIGA award for the best article in Comparative Area Studies (2013) and the Frank Cass Award for the best article in Democratization (2015). He is also the author of Democracy in Africa: Successes, failures and the struggle for political reform (Cambridge University Press, 2015), the founding editor of the Oxford Encyclopaedia of African Politics, a former editor of the journal African Affairs, and an advisor to, and writer for, Kofi Annan's African Progress Panel.

Michaela Collord is a DPhil candidate at the University of Oxford. Her doctoral research examines dominant party politics and legislative institutional change with a primary focus on Uganda and Tanzania.

Ian Cooper is Teaching Associate in Comparative Politics at Cambridge University. His research focuses on democratisation and electoral politics in southern Africa, with a particular focus on party motivation, internal party democracy and ethnic mobilisation. He has published articles in Democratisation, Transformation and the Journal of Southern African Studies.

Alex Dyzenhaus is a PhD candidate in Government at Cornell University, focusing on the politics of land and decentralisation in Sub-Saharan Africa. His past research has looked into issues of gender, accountability, land politics and ethnicity in Kenya's new county governments.

Brian Klaas is a fellow in Comparative Politics at the London School of Economics, focusing on global democracy, elections and political violence. He is the author of The Despot's Accomplice: How the West Is Aiding & Abetting the Decline of Democracy (2016). Klaas has advised major international NGOs, including International Crisis Group and The Carter Center, and regularly writes for media outlets like Foreign Affairs, Foreign Policy, the New York Times, the Los Angeles Times and Newsweek. He received his DPhil in politics from the University of Oxford.

Staffan I. Lindberg is Professor of Political Science, Director of the V-Dem Institute at University of Gothenburg, and one of four principal investigators for Varieties of Democracy (V-Dem). He is also a Wallenberg Academy Fellow, awardee of an ERC Consolidator Grant, selected member Young Academy of Sweden and a member of the Board of University of Gothenburg. He is the author of Democracy and Elections in Africa ('Outstanding Academic Title', Choice 2007) and editor of Democratisation by Elections: A New Mode of Transition? He has also published many articles on egalitarian democracy, sequence analysis methods, civil society, electoral fraud, corruption, women's representation, political clientelism, voting behaviour and turnovers, party and electoral systems, accountability, democratisation, popular attitudes, the Ghanaian legislature and executive-legislative relationships. With V-Dem, he was awarded the 'Lijphart/Przeworski/ Verba Data Set Award 2016' by the American Political Science Association, Comparative Politics Section.

Peace A. Medie is a Research Fellow in the Legon Centre for International Affairs and Diplomacy at the University of Ghana. She is currently researching states' implementation of gender-based violence norms and civilian self-protection. Her work has appeared in African Affairs, International Studies Review and Politics & Gender, and she was awarded the 2012–2013 African Affairs African Author Prize.

Muna Ndulo is Professor of Law, Elizabeth and Arthur Reich Director, Leo and Arvilla Berger International Legal Studies Program Cornell Law School, and Director of the Cornell University's Institute for African Development. He is Honorary Professor of Law, universities of Cape Town, Free State and Western Cape. He was formerly Professor of Law and Dean of the School of Law, University of Zambia. He served as Legal Officer in the International Trade Law Branch of the United Nations Commission on International Trade Law (UNCITRAL) from 1986 to 1995. He was Political and Legal Adviser with the United Nations Observer Mission in South Africa (UNOMSA) from 1992 to 1994, and he served in UN Missions in Kosovo (2000), Afghanistan (2003) and East Timor (1999). Professor Ndulo served as consultant to the constitution-making processes in Kenya, Somalia and Zimbabwe. He is the author/co-editor of several books including: Growing Democracy in Africa: Elections, Accountable Governance, and Political Economy (2016) and Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern and Southern African Perspective (Cambridge University Press, 2004). He is the founder of the Southern African Institute for Policy and Research (SAIPAR).

M. Anne Pitcher is Professor of African Studies and Political Science at the University of Michigan and she is also President of the African Studies Association in the United States. She examines party competition, urban political economy, bureaucratic institutions and goods provision in Africa. Her publications include Politics in the Portuguese Empire (1993), Transforming Mozambique: The Politics of Privatization, 1975–2000 (Cambridge University Press, 2002) and many articles. Her most recent book, Party Politics and Economic Reform in Africa's Democracies (Cambridge University Press, 2012) won Honorable Mention for best book award from the African Politics Conference Group.

Daniel N. Posner is the James S. Coleman Professor of International Development in the Department of Political Science at UCLA. His research focuses on ethnic politics, research design, distributive politics and the political economy of development in Africa. He is the author/co-author of a pair of prize-winning books, Institutions and Ethnic Politics in Africa (Cambridge University Press, 2005) and Coethnicity: Diversity and the Dilemmas of Collective Action (2009), as well as many articles in leading political science journals. He co-founded the Working Group in African Political Economy (WGAPE).

Rachel Beatty Riedl is Associate Professor of Political Science at Northwestern University and faculty associate at the Institute for Policy Research. She is the author of the award-winning Authoritarian Origins of Democratic Party Systems in Africa (Cambridge University Press, 2014), and studies institutional development in new democracies, local governance and decentralisation policy, authoritarian regime legacies, and religion and politics, with a regional focus in Sub-Saharan Africa. A former Kellogg Institute Visiting Fellow, Yale Program on Democracy Fellow and Faculty Fulbright Scholar, she is a member of the Council on Foreign Relations and has conducted policy analysis internationally on governance, elections, democratic representation and identity politics.

Manuel P. Teodoro is Associate Professor of Political Science at Texas A&M University. His research stands at the nexus of bureaucratic politics, public policy and public administration. Much of his work examines the ways in which human capital, management practices and political institutions condition the adoption and implementation of public policies. Dr Teodoro is the author of Bureaucratic Ambition (2011), and his findings have appeared in the American Journal of Political Science, Journal of Public Administration Research and Theory, Public Administration Review and Journal of Public Policy, among other outlets.

Carolien van Ham is Lecturer in Comparative Politics at the University of New South Wales and an Australian Research Council DECRA award recipient (2015–2017). Her research focuses on democratisation, electoral integrity and legitimacy. She has published in the European Journal of Political Research, Government and Opposition, Democratisation, Post-Soviet Affairs, West European Politics and Electoral Studies, and book chapters in various edited volumes, and is editor of a forthcoming edited volume on democratic legitimacy in advanced industrial democracies (2017). Carolien is also a senior research fellow at the Electoral Integrity Project at Sydney University and a research associate at the Varieties of Democracy Institute at Gothenburg University, and co-edits the Elections, Democracy and Autocracy book series.

Peter VonDoepp is Associate Professor of Political Science at the University of Vermont. His research focuses on African politics, with specific attention to judicial development and state-media relations. He is the author of Judicial Politics in New Democracies: Cases from Southern Africa (2009) and co-editor of The Fate of Africa's Democratic Experiments: Elites and Institutions (2005). His other published work appears in a variety of outlets, including Comparative Political Studies, Journal of Politics and Comparative Politics. His work has been supported by the National Science Foundation, Pew Charitable Trusts, Fulbright-Hays program and Norwegian Research Council.

Daniel J. Young is Assistant Professor of Social and Behavioral Science at Miami University of Ohio-Regionals, and affiliate Assistant Professor of Political Science at Miami University of Ohio-Oxford. His research focuses on comparative politics and development in sub-Saharan Africa. He has published articles in Democratisation, Electoral Studies, the Journal of Democracy, the Journal of Conflict Resolution, the Journal of Politics and Party Politics.

# 1 Introduction

## Understanding African Politics: Bringing the State Back In1

Nic Cheeseman

The question of whether formal political institutions such as the legislature, the electoral commission and the judiciary play a significant role in everyday political life is one of the most important debates in African studies. How we answer this question shapes not only our assessment of the prospects for democratic consolidation – which appear to be healthier if one thinks that political leaders are becoming ever more constrained by the rules of the game – but also how we understand and study the continent. If legislatures and judiciaries are largely irrelevant because they are powerless to check the authority of the executive, then Africanists do not need to devote much time to learning about them.

To date, a significant proportion of the literature has depicted a continent in which formal institutions do not perform as intended; rather, official rules are described as being weak and fragile, rendered vulnerable to executive manipulation by the salience of corrupt personal networks and ethnic politics. This line of argument reached its logical conclusion in Africa Works, the bestselling treatise by Patrick Chabal and Jean-Pascal Daloz, which effectively argues that the continent is 'institutionless' (1999). In making this argument they did not mean to imply that Africa lacks shared customs and norms that regulate behaviour in predictable ways. The strength of these kinds of informal institutions has been widely recognised in work on ethnicity, patronage and traditional authority. Rather, their argument is that formal rules such as constitutions and legal systems do little to shape political life, which is instead fashioned by social customs and "traditional" forms of political behaviour. In other words, Chabal and Daloz conclude that Africa lacks effective political organisations – that, to borrow Joel Migdal's well-known phrase (1988), it is a continent of 'strong societies and weak states'.

Over the last twenty years, this position has become increasingly untenable. A number of Africanists have contributed to a body of work that documents processes of democratisation – cases in which elections and increasingly rule-bound politics lead to greater respect for civil liberties and political rights (Lindberg 2006), presidential term limits and transfers of power (Posner and Young 2007; Cheeseman 2010). At the same time, more historical work has demonstrated the way in which prior institutional factors – such as the strategies used by authoritarian leaders – have influenced the types of party systems that have emerged in Africa's new democracies (Riedl 2014). It is thus becoming increasingly clear that we need to stop thinking of the African state as a Hollywood movie set – an illusory façade with little or no content – and start taking its core institutions more seriously. The aim of this volume is to demonstrate the different ways in which formal political institutions matter in the African context.2

Following the work of Douglass North, we understand institutions to be 'humanly devised constraints that structure political, economic and social interactions' (1991: 97; see also 1990). It is important to note, in line with this understanding, that both formal organisations (legislatures and parties) and informal practices (established norms and customs) may count as institutions as long as they feature broadly understood rules that individuals cannot break without exposing themselves to some form of sanction (Helmke and Levitsky 2006: 5–6). In other words, what matters is not whether a particular rule is written down and codified, but whether it has a binding effect on group members. Both formal and informal rules can impose high economic and social costs on individuals who flout expectations. For example, the decision of a community to ostracise an individual who has transgressed communal norms by marrying an outsider (McNamara et al. 1999), or by refusing to contribute to a community development project (Ng'ethe 1977), can be every bit as effective in enforcing conformity as the decision of a judge to fine a motorist who has broken the law by failing to stop at a red light.

What is at stake, therefore, is not whether Africa features institutions or not, but whether formal institutions are important for determining 'who gets what, when and how' (Lasswell 1950). Within African studies, the perceived significance of informal and formal institutions has oscillated over time. This introduction sets the scene for the chapters that follow by charting the rise and fall of formal institutions in the literature on African politics. In the late colonial era, researchers were fascinated by nationalist movements and the political parties that they gave rise to. Legislatures, judiciaries and constitutions were also common topics of discussion. But as hopes that Africa would evolve into a democratic and stable continent faded during the authoritarian backsliding and civil conflict of the 1970 and 1980s, scholarly attention naturally shifted away from institutions as a focus of study.

From independence onwards, a number of influential scholars emphasised the weakness and fragility of formal institutions (Zolberg, 1960), and the centrality of personal networks (Lemarchand, 1972; Médard, 1982). As constitutional rule collapsed into personal rule, this theme became ever more prevalent. In the 1980s, the dominant theoretical paradigm was neo-patrimonialism, which was widely understood to imply that the 'modern' state introduced under colonial rule had not taken root in Africa, and instead had been fundamentally undermined by pre-existing social norms and 'traditional' forms of authority (Médard 1982). Thus, instead of focusing on the state and its institutions, scholarship increasingly concentrated on the role played by clientelism and ethnicity. It is out of this tradition that Chabal and Daloz's argument that Africa lacks meaningful formal political institutions emerged.

Against this backdrop, the reintroduction of multiparty elections in the early 1990s inspired fresh optimism about the prospects for democratic consolidation and a new wave of research on formal institutions (Cheeseman et al. 2013). The contributions to this volume suggest three reasons to push back against the 'institutionless' school. First, researchers have begun to revisit and challenge the neo-patrimonial conceptualisation of African states that emerged in the 1980s (Pitcher et al. 2009). Erdmann and Engel, for example, argue that in many countries the interaction of 'traditional' forms of authority with 'modern' political structures did not result in formal rules being washed away like sandcastles built too close to the sea. Instead, they show that pockets of rule-bound behaviour persisted, and that 'official' and 'patrimonial' practices can operate side-by-side (2007).

This leads to a second point: formal institutions have not just co-existed with informal institutions, but have also shaped and in some cases strengthened them. Indeed, the very personal networks and traditional forms of authority that Chabal and Daloz highlight were themselves entrenched under colonial rule through the formal codification and demarcation of ethnic identities that enhanced the authority of 'Big Men' over their communities (Ranger 1983, 1993; Posner 2005). It is therefore important to stress the significance of formal institutions not only for understanding contemporary politics, but also for appreciating the historical development of informal institutions themselves.

The third reason to question the 'institutionless' approach is the growing evidence that formal institutions shape the decisions made by leaders in contemporary Africa. As a result, we need to understand variations in the design and influence of the official rules if we are to explain divergent processes of democratisation. To be clear, the research presented here does not claim that all formal institutions matter all of the time – far from it. The rules of the democratic game have become more institutionalised in some states, and less so in others; and where progress has been made it has rarely been uniform. While some political structures have become stronger, others have remained weak and vulnerable to executive manipulation. But what the chapters in this volume do demonstrate is that certain formal institutions are becoming increasingly important in certain countries.3 It is no longer possible – if ever it was – to understand Africa without factoring in the role played by constitutions, judiciaries, electoral systems and the like. Instead, we need to bring the state (and its organisational structures) back in.

# The Rise and Fall of Formal Institutions in African Studies

Time and space do not permit a thorough discussion of the myriad different strands of research that have addressed the role of institutions in Africa. However, it is possible to briefly sketch broad trends that have emerged over the last seventy years, as the study of formal political institutions has waxed and waned with the fortunes of African democracy: prominent in the 1960s, very much in the shadows in the 1970s and 1980s, only to experience a remarkable rebirth in the 1990s.

## Independence and After

The dying days of colonial rule witnessed an intense period of constitutional draftsmanship that resulted in the evolution of political systems that consciously drew on European and North American experiences. Former British colonies emerged as parliamentary systems in the Westminster mould (de Smith 1961), with first-past-the-post elections held in single-member constituencies to decide the make-up of the legislature, and hence the government. Former French colonies tended to draw on a very different model, adopting the metropole's semi-presidential system, whereby a directly elected president shared executive power (in theory if not always in practice) with a prime minister nominated by a legislature that was itself chosen by proportional representation.

These developments were described in a series of studies by colonial administrators and commentators interested in understanding the strengths and weaknesses of different electoral and political systems, and the preparedness of African territories for independence. Many of these accounts were rather technical and focused on the workings of the colonial state and how it could be improved. For example, early issues of African Affairs included pieces on topics such as West African railways (Shelford 1902) and colonial legislation (Welsh 1903). The limitations of these works did not go unnoticed. In one of the first pieces on Africa to be published in the American Review of Political Science, James Smoot Coleman – the first Director of the African Studies Centre at the University of California at Los Angeles – bemoaned the jaundiced view of African politics in such colonial texts. More specifically, Coleman noted that the study of African political organisation 'has long been the preserve of the scientific linguist or of the social anthropologist; only recently have American sociologists, economists, and political scientists developed an active interest in its problems' and that as a result 'we have been placed in the uncomfortable position of having to formulate opinions and policy and to render judgments without sufficient knowledge' (1954: 1).

Over the next decade, analysis of African institutions proliferated at universities both inside and outside of the continent, as researchers from a range of disciplines responded to Coleman's call to arms. Early issues of the Journal of Commonwealth Political Studies – launched in 1961 – featured standard discussions of the travails of colonial administrations, but also included a careful analysis of political parties and electoral trends in Nigeria by John P. Mackintosh (1962), then working at the University of Ibadan. This kind of more nuanced and African-centric scholarship flourished after independence through pioneers such as Joel Barkan, Robert Bates, Henry Bienen, Peter Ekeh, Cherry Gertzel, Thomas Hodgkin, Goran Hyden, Colin Leys, Ali Mazrui, David Mulford and Ruth Schachter-Morgenthau. These researchers were interested in how parties, legislatures, judiciaries and militaries operated in the African context, and how they would evolve. Although they approached the subject in different ways, and came to very different conclusions about Africa's likely advancement, their work shared one thing in common: a basic assumption that in some sense formal political institutions mattered.

One of the first avenues of institutionalist research focused on the nationalist movements that had emerged in the mid-late colonial period, and the political parties that they gave rise to. In his early work, Coleman argued that African nationalism was much more than a peasant revolt, and that the 'degree of overt nationalism' could be explained, at least in part, by variations in the system of land cultivation established under colonial rule and the penetration of Christian missionaries (1954: 416). Similarly, Thomas Hodgkin – the first Lecturer in the Government of the New States at the University of Oxford – placed just as much emphasis on the organisation of the struggle for uhuru, as on its rhetorical and symbolic expression (1957). This was because Hodgkin understood that in the absence of effective formal institutions, nationalist sentiment was unlikely to unsettle colonial rule.

Hodgkin was not alone. Robert Bates also recognised that the infrastructure of nationalism had the potential to affect political outcomes on the continent (1971). In a study that owed much to European preoccupations with the role of trade unions as agents of mass mobilisation, Bates' research revealed how the rise to prominence of the United National Independence Party (UNIP), which led Zambia to independence in 1964, was built on the back of the manpower and organisational capacity of trade unions on the Copperbelt. Similar studies continued after independence. Most notably, Ruth Schachter-Morgenthau sought to describe the different types of political parties in West Africa (1964), a task that was taken up in Uganda by Colin Leys (1967) and in Nigeria by Richard Sklar (1963).

A second set of studies focused on the evolution of 'checks and balances' institutions. In the 1950s, the growing realisation that independence was inevitable rather than a possibility resulted in a greater focus on political representation and the process of policy formation. This shift in emphasis led, in turn, to renewed scholarly attention to recently established representative institutions such as Legislative Councils4 that were intended to advise – but not overrule – colonial governors (Wight 1947; Wheare 1950). Towards the end of the colonial period, pressure from African nationalists to open up the political system resulted in first, the appointment of individuals to represent African interests on these advisory bodies, and later to the direct election of these African representatives. As the balance between colonial officials, white settlers and African nationalists tilted in favour of the latter, governors began to lose control of both the debate and their territories. This generated an explosion of legislative studies including valuable work by Lee (1963), Gertzel (1966), Hakes and Helgerson (1973), Tordoff (1974, 1977) and Hopkins (1975).

Electoral processes were another area of great interest. Some early academics tended to follow their colonial predecessors by focusing strongly on the technicalities of the process. Thus, W. J. M Mackenzie and Kenneth Robson's collection of five electoral studies in Kenya, Nigeria, Senegal and Sierra Leone revealed a comedy of errors that the editors put down to the 'doubly alien' nature of the new institution – a western model managed by Europeans in an African context (1960). Their approach to studying this process was a sort of history by analogy, in which the main focus was on explaining how African elections differed from the Western experience.

Others quickly came to see that it was more revealing to study African elections for what they were rather than for what they were not. Bennett and Rosberg's remarkably thorough analysis of The Kenyatta Election (1961) tracked the campaign constituency-by-constituency and set the scene for a series of extremely detailed electoral analyses in the first decade after independence. As this literature developed, researchers became increasingly interested in the different functions that elections could fulfil, from allowing for elite rotation and the maintenance of political stability (Throup 1993) to providing for civic and political education (Saul 1970).

Perhaps the most comprehensive analysis of an African election ever published was conducted around this time by the Election Study Committee of the University of Dar es Salaam (1974). The Committee, which featured a mixture of leading African and European scholars, produced an incredibly detailed 464-page manuscript that, among other things, demonstrated the significance of electoral and party institutions for the outcome of the 1970 polls. Like Bates, Coleman and Gertzel, the authors were not operating under the illusion that formal institutions always worked according to their official rules, but nonetheless understood that it would be impossible to give a rounded understanding of the electoral process without first appreciating how political structures shaped what was, and was not, possible.

## The Retreat of Democracy

Despite this promising early literature, events on the continent quickly called into question the relevance of formal political institutions such as parties, legislatures and elections. In the first decade of independence most of the nationalist coalitions that had come together to defeat colonial rule fell apart. In some cases, disagreements arose over the direction of national policy, while in others political disputes resulted from personality clashes and a failure to agree on how power – and the resources that it brought with it – should be shared. For Ali Mazrui (1983: 279), one of the most influential African commentators on post-independence politics, these complications reflected two aspects of the continent's political development: first, the way in which strong ethnic ties and weak class cleavages had 'militated against genuine socialism', and second, the ongoing tension 'between single-party and multi-party solutions to political organisation', which so often led to the emergence of one-party states.

However, single-party rule was only one of a number of trajectories followed by African states in the 1970s. As Chris Allen (1995) argued, the continent's post-colonial political 'crisis' typically played out in one of two ways. In the first, leaders were able to maintain and consolidate their hold on power by downgrading democratic institutions, strengthening the security forces, undermining checks and balances and centralising power. This was the pattern that emerged in countries that established fairly stable civilian one-party states, such as Kenya, Senegal, Tanzania and Zambia. However, where leaders lacked the necessary support base, resources or political shrewdness to maintain control, a very different pattern emerged whereby competition for power led to political instability, widespread unrest and what Allen calls 'spoils politics'. This took different forms across the continent, but typically involved failed attempts to establish an effective government followed by periods of civil conflict and episodes of military rule. Perhaps the most notorious examples of this process were the Nigerian civil war that lasted for three tortuous years between 1967 and 1970, and the 'Congo Crisis' – in what is now known as the Democratic Republic of Congo (DRC) – which began just days after Belgium had officially granted Congolese independence in 1960. In both cases, formal political institutions proved insufficiently rooted in society to manage and contain ethno-regional tensions, inter-elite mistrust and winner-takes-all political competition (Kirk-Greene 1975). The result was a level of prolonged bloodshed that called into question whether Africa was ready for democracy (Cheeseman 2015).

Events elsewhere served to reinforce this impression. In the first decade of independence alone, coups in Benin (1963), Congo-Brazzaville (1963), Togo (1963), Central African Republic (1966) and Ghana (1966) replaced civilian regimes with governments led by the armed forces. By 1980, more than two-thirds of sub-Saharan African states had experienced some form of military rule. This generated a number of institutionalist studies of African militaries led first by Samuel Decalo (1973, 1976), and subsequently by a group of left-wing scholars who hoped that the army might turn out to be the continent's best-organised trade union and hence an agent of economic and social modernisation (Pye 1961; Lefever 1970; see also Mazrui 1976).

The tendency of coup leaders such as Mathieu Kérékou in Benin and Thomas Sankara in Burkina Faso to justify their actions on the basis that they were seeking to defend the rule of law and save democracy from itself initially gave credence to these optimistic analyses. However, as military governments became increasingly chaotic and venal, and coups were followed by counter-coups and in many cases internecine conflict within the military itself, it became increasingly clear that corruption and personal rule were just as present within the armed forces as they were in the societies in which they operated. Indeed, Decalo himself concluded that the best predictor of a military coup was not whether the ruling party had failed to deliver on its promises, but whether soldiers felt that their own personal interests were at risk, either as a result of restructuring the armed forces or reducing the terms and conditions of service (1976).

The rise of one-party states and military rule shifted the attention of Africanists, and the amount of work conducted on formal political institutions went into a steep decline. While some pockets of research on formal institutions continued, these became the exception rather than the rule. Perhaps most notably, Crawford Young produced seminal comparative work on the nature of the African state both in its colonial (1994) and post-colonial (1983) manifestations, influencing a generation of researchers in the process. At the same time, institutionalist case studies continued to be produced. In the parts of the continent in which more effective one-party states emerged, scholars continued to engage with party structures and elections. The study of Chama Cha Mapinduzi (CCM) in Tanzania, for example, endured through the decades, as did interest in the structure of the one-party states of Senegal and Zambia (Bratton 1980; Gertzel et al. 1984). Similarly, in Kenya the vibrant contestation around one-party elections meant that they continued to be important political events, and were deemed worthy of study in every decade (Barkan 1979; Throup 1993). There was also a large literature on state repression under systems of white minority rule in southern Africa. In apartheid South Africa, for example, the coercive capacity of the security forces was a frequent topic of scholarly attention (Frankel 1980; Coleman 1998).

However, even in some of these cases scholars began to study institutions in a way that implied their value was predominantly unintended or symbolic. Goran Hyden and Colin Leys, for example, distinguished their study of one-party elections in Kenya and Tanzania from those carried out by the likes of John Saul on the basis that it attached 'less significance, in the end, to elections' in relation to the prospects for socialism, or 'any other issue in contemporary African politics' (Hyden and Leys 1972: 419). Instead, they suggested that what was significant about elections was the way in which they conferred legitimacy and enabled the regime to foster new links to the constituency level. Moreover, in those countries where political stability remained a distant ambition, the focus of analysis shifted to corruption and the prevalence of highly personalised and informal political practices.

## The Emergence of the 'Institutionless' School

In many ways, the strong focus on informal politics was not a new development, but rather a crystallisation of trends that had been present since the colonial era. One consequence of the absence of political science work on Africa, so lamented by Coleman, was a strong anthropological influence on the study of African politics. After independence, some Africanists came to see this as a good thing on the basis that the continent's institutions could not be profitably compared to their western counterparts. For example, in the introduction to his revised monograph on one-party government in Côte d'Ivoire, Aristide Zolberg argued that 'the major problem [of the African state] was not too much authority but too little... Although there are variations in the degree of political institutionalization achieved by African regimes the total range of variation is narrow and this group of countries as a whole must be placed very low on a universal scale' (Zolberg 1969; x). On this basis, Zolberg concluded that 'African regimes are much more like one another than any of them is like the relatively modernized countries from which available qualitative labels [democracy, totalitarianism] derived their contemporary meaning'.

One implication of this argument was that Africa could not be studied or understood on the basis of terms and frameworks derived from the western experience. Rather, 'we must derive appropriate criteria and labels in order to avoid utter confusion' (Zolberg 1969: x). This argument proved to be remarkably influential. Indeed, the central logic of Chabal and Daloz's Africa Works, published in 1999, is essentially the same. Comparing the African state against the Weberian ideal-type, they find it to be wanting on almost every front. Like Zolberg, they suggest that since all African states are at root the same, and no African state features formal political institutions of any note, we need to study them in a different way to states elsewhere in the world. Thus, like Zolberg, they propose that we can only understand African politics and political outcomes if we turn our attention to the informal realm.

In between these two manuscripts, which were written some thirty years apart, the argument that African politics is effectively institutionless went through a number of different phases, elements of which can still be found in the 'institutionless' school today. The first of these stages of evolution also derives from the research of Zolberg, in particular his influential book Creating Political Order (1966). In that work, he argued that political scientists working on Africa exaggerated the effectiveness of political institutions by imagining them to be geographically coterminous with the boundaries of the nation-state, when in fact their strength is unevenly geographically distributed. More specifically, Zolberg suggested that in most African territories state power was not manifest outside the capital city and major towns. In other words, African states featured large areas that are governed not by the state, but by traditional leaders or local big men – or, in some cases, by no one. The idea of a centre–periphery divide has shaped African studies ever since. Most notably, it was one of the puzzles that animated Jeffrey Herbt's excellent States and Power in Africa (2000), which documents the difficulty African governments have had in broadcasting authority over their territories from the pre-colonial period to the present.

Zolberg also made a second, related argument that where political order existed it was not the product of formal political institutions, but of personal power exercised through traditional authority over ethnic groups. Without this, Africa would descend into chaos. In the early 1980s, Robert Jackson and Carl Rosberg made a similar 'institutionless' argument, providing evidence that 'Black Africa's forty-odd states are among the weakest in the world' (1982a: 2). However, in their version, Jackson and Rosberg went a step further than Zolberg, suggesting not only that African states were extremely fragile, but also that they did not really deserve to be considered states at all. Rather, they argued that almost all African countries failed to meet the criteria for 'empirical statehood' because they did not comprise stable communities, provide effective government or exercise effective control (1982a: 5–7). This left the tricky issue of how to explain the durability of African borders and territories. According to Jackson and Rosberg, the answer lay not in the effectiveness of any domestic political institutions, but in the way in which the international system had conferred 'juridical' statehood on African states. Thus, 'the survival of Africa's existing states is largely an international achievement' (1982a: 22).

This view became common within the discipline of international relations, leading researchers away from empirical studies of African states. For example, Carl Death begins his summary of the literature on African international relations by noting Han J. Morgenthau's claim that one of the reasons the great powers could expand their influence without risking war in the late nineteenth and early twentieth centuries was because they could move 'into the political empty spaces of Africa and Asia' (Death 2015: 1).5 As Death notes, 'This striking image of political emptiness has continued to haunt some International Relations theorists who assume that international regimes, institutions, laws, norms and values originate in "the West" and thenceforth spread out to the periphery: the place of African politics is accordingly a marginal sideshow to the central business of international affairs' (Death 2015: 1). As a result, 'Africa is generally under-represented in the mainstream IR scholarship emanating from the North Atlantic world and is mostly left out of the theoretical debates that have animated this scholarship' (Cornelissen et al. 2012).6

The understanding that African states were effectively institutionless also shaped research on domestic politics, leading Jackson and Rosberg to embark on the systematic study of personal rule. This resulted in an influential monograph, Personal Rule in Black Africa (1982b), which argued that variations between African states are best explained by the personal governance style of the president, rather than by any institutional factor. On this basis, they proposed a four-part typology, classifying leaders as princes, autocrats, prophets or tyrants. Towards the end of the book, Jackson and Rosberg reflect on the prospects for a more institutionalised form of politics to emerge, and suggest that 'In most African countries there is little sign that the drama of personal rule will soon give way to more settled institutional forms of conducting the affairs of state' (1982b: 266). While they acknowledged that 'regimes of personal rule may become more organisationally and legally authoritarian as the ruler and his collaborators search for political security', they ultimately concluded that 'such a process of state building is not in itself sufficient to institutionalize a state' (1982b: 270).

The next forty years saw the evolution of two different literatures that both shared Jackson and Rosberg's preoccupation with the weakness of African formal institutions. The first was led by a group of scholars working within the neo-patrimonial theoretical framework. Taken literally, patrimonialism simply means 'of or from one's ancestors'. As Weber used the term, patrimonialism refers to a 'traditional system of domination' (1947: 341). In the African context, however, patrimonialism has taken on a different meaning, as a form of leadership or authority based on the customs of a specific ethnic or religious community, rather than merit or ability (Pitcher et al. 2009).

As Chabal and Daloz have written (1999: 9), the use of the term neo-patrimonial was intended to signify that 'the operation of [the African] political system is no longer entirely "traditional", because it had been changed by the imposition of the colonial "modern" state'. Thus, 'In the post-colonial context, political legitimacy derives from the creatively imprecise interaction between what might be termed "ancestral" norms and the logic of the "modern" state'. The upshot of this symbiotic reshaping of the old and the new was a set of political systems that had the outward appearance of modern states – legislature, judiciaries, a bureaucracy – but the internal dynamics of personal rule.

One of the earliest and most influential statements on neo-patrimonialism was made in 1982 by Jean-François Médard, who set out to investigate whether clientelism or neo-patrimonialism represented the best way to understand African politics. Although Médard accepted that 'clientelism' in the form of patron–client relationships and political patronage could be found almost everywhere on the continent (1982: 165), he went on to suggest that that the term was inadequate in describing the particular form of politics that was emerging in Africa. Instead, Médard advanced the framework of neo-patrimonialism, not to replace the focus on clientelism, but to subsume it, arguing that neo-patrimonialism 'has the advantage of including political clientelism, while placing it in its general context' (1982: 185). For Médard, the 'general context' was a highly personalised system of rule with no separation between the public resources of the state and the private resources of the leader, whereby ethno-regional affiliations determine the structure of political competition. One consequence of this general context was that formal rules and procedures were often undermined by the ability of leaders to wield power through informal means; checks and balances institutions might exist, but in practice they had no capacity to constrain presidents and prime ministers.

The concept of neo-patrimonialism set out by Médard has exerted a remarkable hold over the imaginations of Africanist scholars over the last thirty-five years. Between 1982 and 2015 almost 10,000 books, articles and working papers written have included the words neo-patrimonialism and Africa, which works out at just under one a day.7 Not only is neo-patrimonialism now taught as part of core courses on African politics, but the term has also made its way into the everyday lexicon of donors, commentators and journalists. It has almost become a cliché to say that the 'problem in Africa' is neo-patrimonialism, whether one is talking about democracy, conflict or development. As a result, the neo-patrimonial framework has had a profound impact on the way in which Africanists have understood the balance of power on the continent between formal and informal institutions. Although in Médard's formulation both informal institutions (patrimonialism) and formal institutions (legislatures, constitutions) were important to political outcomes, as more researchers began to use the term his initial caution was quickly lost. Instead, neo-patrimonialism came to be a by-word for corrupt and weak states with little or no institutional capacity. Thus, during the 1980s and 1990s the dominant intellectual paradigm in African studies tended to take it for granted that where informal and formal institutions came into conflict, the latter would come off worse.

This is not to imply that there was consensus on the usefulness of the term, or continuity in its application over time. As I explain below, there is a growing critique of the tendency to overgeneralise the extent of neo-patrimonialism on the continent. However, efforts to improve on the concept tended to reach a wider audience when they made the case that neo-patrimonialism had not given too little weight to the influence of the "modern" colonial state, but too much. One of the most famous examples of such an argument appears in The State in Africa, published by Jean-Francois Bayart in 1993. Writing against the significance of colonial rule, Bayart focused on demonstrating the many continuities that connect African politics across the pre-colonial, colonial and post-colonial periods.

One of the central claims motivating Bayart's analysis was that the European state had been 'grafted on' to African societies without gaining significant purchase. Colonialism was simply a 'shuffling of cards' (Bayart 1993: 154), and the notion of dividing history neatly into pre-colonial, colonial and post-colonial eras was therefore fundamentally flawed. Bayart instead advocates following the example of Fernand Braude and tracing the historical evolution of African politics in the longue durée. This involves eschewing a focus on the state itself, as 'a pure waste of time' (1993: 211), not because state institutions disappeared after independence, but because the state itself is best understood as the expression of a set of attitudes towards power and politics that are deeply rooted in Africa's own historical experience. Thus, for Bayart, the state is not a formal actor capable of shaping society in its own image, and is instead reduced to being little more than the product of a historically rooted set of informal institutions.

The implications of Bayart's argument for how we should study Africa are profound. On his account, a classic political science approach has little to offer. Rather, what is required is a combination of sociology and history. This is clear from his use of the term 'rhizome state' to characterise African political systems, chosen because of the supposed metaphorical similarity between African states and a plant's subterranean root system. Applying this methodological focus to his own work took Bayart so far away from an analysis of formal political institutions that some reviewers commented that, despite its title, his book 'tells us almost nothing about the state' (Young 1999: 151).

Chabal and Daloz's Africa Works can be read as a continuation of this school of thought, which draws on Bayart's analysis but seeks to push the critique of the African state to its logical conclusion. As noted above, despite the reintroduction of multiparty politics in the early 1990s, they pursue an argument very similar to that made by Zolberg in the 1960s, suggesting that the state is 'weak and ineffectual' (1999: 14) and that 'the much trumpeted public sector is in reality appropriated by private interests. The consequence is double: on the one hand, public service remains personalised by way of clientelism and nepotism; on the other, access to the public institutions of the state is seen as the main means of personal enrichment' (1999: 9). This understanding informs the basis of their suggestion for how Africa should be studied. First, in line with Bayart's notion of the 'rhizome state', the compromised nature of the continent's formal institutions means that 'the visible institutional branches are less significant than the subterranean roots issued from the complex world of factional struggles and local rivalries' (1999: 10). Second, they imply that because no African states feature formal political institutions of any note, they can all be understood through the same analytical lens.

Combining these two arguments, Chabal and Daloz propose that we approach Africa through a new paradigm that they term 'the political instrumentalization of disorder' (1999). The most productive way to study Africa, they suggest, is not to waste time on the legislatures and judiciaries that lack the capacity to regulate political activity, but instead to focus on 'the ways in which individuals, groups, and communities seek to instrumentalise the resources which they command within this general political economy of disorder' (1999: xix). A more thoroughgoing dismissal of the value of formal political institutions, and of political science methodology more broadly, it is hard to imagine.

## The Legacy of the 'Institutionless' School

Although the 'institutionless' approach has exerted a powerful hold over African studies, it has not gone uncontested. Many of the reviews of Bayart's The Politics of the Belly and Chabal and Daloz's Africa Works were critical of both their methodology and their conclusions. At the same time, research on formal political institutions continued in the 1980s and, as we shall see in the next section of this chapter, blossomed following the reintroduction of multipartyism in the early 1990s. Moreover, while the 'institutionless' school and the ideas that Bayart and Chabal and Daloz championed exerted a strong hold over research within the Francophone world – emerging out of a long tradition in French historiography, with French scholars playing a prominent role in its conceptualisation – the notion that the African state is empty and vacuous gained less traction in the UK, United States and Anglophone Africa.

However, it is nevertheless important to critically engage with the 'institutionless' school because the works of Bayart and Chabal and Daloz have been widely read and disseminated even within more sceptical epistemic communities. The Politics of the Belly and Africa Works were academic best sellers and have been cited roughly 2,700 times each, making them two of the most widely referenced texts in the history of African studies.8 Moreover, the ideas that they have promoted have permeated much wider than this core readership: whether marking student essays or reviewing articles when I was the editor of African Affairs, I have regularly come across the claim that Africa is 'institutionless' in papers that do not directly cite any of the authors discussed above. The application of this concept has become so commonplace that it is perhaps unnecessary to document it, but it may be worth offering an example to demonstrate the way in which these ideas have spread.

Consider Letitia Lawson's article on 'External democracy promotion in Africa', which was published in the Journal of Commonwealth and Comparative Politics in 1999. In this piece, which makes many good points, Lawson does not cite any of the authors mentioned here but echoes their language to a tee. Arguing that all African states are prone to democratic failure and that those that have yet to experience backsliding 'may simply be lucky', Lawson suggests that the impact of leadership on democratisation is shaped 'by the institutional (or, perhaps more precisely, institutionless), environment' (1999: 21). Operating with this set of assumptions, Lawson reaches some particularly bleak predictions about the likely impact of external democracy promotion, most notably that it 'will put African countries back to where they started at independence, without improving their long-term prospects' in 'the best-case scenario' (1999: 24).

Such cynicism was understandable in the late 1990s, when the fate of democracy in much of the continent looked uncertain, but has since proved to be misplaced. One of the core examples that Lawson draws on in her paper is Frederick Chiluba, the highly corrupt leader of multiparty Zambia. However, despite his disdain for the rules of the democratic game, Chiluba failed to overturn constitutional term limits and was forced to relinquish power just two years later. A decade after that, Zambia experienced its second transfer of power, after the electoral commission declared that Michael Sata of the Patriotic Front had defeated Rupiah Banda of the ruling party in a close race. It turned out that Zambia was not so institutionless after all.

I have singled out Lawson's article not because it is better or worse than others, but rather because it provides a useful demonstration of the way in which 'institutionless' assumptions have permeated the discipline and can lead us astray. Ignoring the role of formal political institutions can blind researchers to the potential for political stability to emerge out of disorder, and for periods of continuity to be disrupted by political change. It is therefore important to critically evaluate neo-patrimonialism, and the more radical interpretations of African politics that accompanied it, against the empirical evidence of the last twenty years.

# Reconsidering the Importance of Formal Institutions

There can be no doubt that democracy and its associated institutions went into a period of rapid decline during the 1970s and 1980s. It is also clear that many African leaders have relied more on personal networks and their 'traditional' authority than on the formal structures of the state to retain control. Similarly, few would contest that African states – when compared on the basis of the number of roads or legislative strength – are less capable than those found in Europe. The weakness of the 'institutionless' school is therefore not that it misdiagnoses some of the most important challenges facing African governments. Indeed, the texts discussed here have added greatly to our knowledge of the continent, and have provided myriad important insights that have enriched our understanding of African politics. Rather, the problem lies in the conclusions that authors such as Chabal and Daloz reach regarding the extent to which formal institutions have been rendered impotent, and the implications they draw from this conceptualisation regarding the future direction of the continent.

More specifically, there are three main limitations to the understanding of Africa that started with Zolberg and culminated in Africa Works. The first is that such analyses overestimate and overgeneralise the prevalence of neo-patrimonial politics. In reality, there is considerable variation when it comes to patrimonial practices in Africa, both between different states and within individual countries over time. Second, treating the continent as if it is 'institutionless' ignores the important ways in which formal institutions have shaped their informal counterparts over the last hundred years, under governments both democratic and authoritarian, and in states that are both strong and weak. Third, a new tranche of research – a sample of which is included in this volume – has demonstrated how formal institutions shape the choices made by African leaders. It is not possible to explain some of the most interesting trends on the continent – such as the growing number of countries that have experienced a transfer of power – without taking into account constitutional provisions such as presidential term limits.

## The Uses and Abuses of Neo-patrimonialism

In its initial formulation, neo-patrimonialism was a framework that implied that both formal and informal institutions played an important role in Africa. It is true that Médard's classic article set out the ways in which pre-colonial forms of authority undermined the performance of the formal institutions of the colonial state. But there was also a clear recognition that the new political structures – whether they were state borders, national bureaucracies or legislative bodies – had the capacity to shape existing political norms and behaviours. Thus, neo-patrimonialism began life as a framework for understanding the impact of formal and informal structures on each other.

In other words, it is implicit in many of the early discussions of neo-patrimonialism that the kinds of states that emerged from this process would depend on the relative strength of formal and informal institutions, and that this could only be understood on a case-by-case basis. One obvious implication of this approach was that African states were not all equally patrimonial. As Médard wrote, 'there is more than neo-patrimonialism to Africa. This concept should be used as an ideal type: in systematically checking, for each particular political system, the reality of the model, we can measure the distortions' (1982: 51). Over the next thirty years, Médard's warning that there was more to Africa than patrimonialism was largely forgotten. On the one hand, the term 'neo-patrimonialism' has increasingly been used to refer to political systems in which formal rules are fatally undermined by informal practices. On the other, the claim that different African states can be more or less neo-patrimonial has given way to a more general claim that neo-patrimonialism, or a variant of it, is the default mode of all African politics. In Chabal and Daloz's work, for example, the only exception they allow to their conceptualisation of the African state is South Africa, which at the time they saw as being exceptional.

Taken together, these two trends have served to generate a misleading model of African politics that has been applied across the continent. As Gero Erdmann and Ulf Engel have argued, the uncritical use of the term, and the tendency to ignore the role of institutions, has meant that 'neo-patrimonialism really is in danger of becoming a catch-all concept' (2007: 114). There are two obvious problems with this state of affairs. The first is conceptual. If all African countries are depicted as being equally neo-patrimonial, it is not possible to use the presence or absence of patrimonialism to explain political variations between countries. In other words, understood in this way, we can no more use the concept of neo-patrimonialism to explain the contrasting fates of democracy in Benin and Chad than we can use the concept of the European state to explain the different trajectories of Germany and France.

What we are left with is an unhelpful image of a static and uniform continent, which fails to account for the very real differences in the ability of African states to maintain their borders, protect their populations, collect taxes and regulate political behaviour. This is the second main problem with the conceptual frameworks developed by the 'institutionless' school. While there are some countries that more obviously conform to Bayart's 'rhizome state' model, there is little value in subsuming the continent's stronger states into this category. In fact, African states exist on a broad spectrum, and formal political institutions are far from being 'vacuous and ineffective' in a number of countries. As Jean-Pierre Olivier de Sardan has put it, 'the suggestion that African countries exhibit a single type of real governance does not make good sense' (2008: 1).

The case of Kenya demonstrates this point well. The introduction of the Provincial Administration during the colonial era created an effective bureaucracy that allowed the Governor to shape developments across the country through a network of Provincial Commissioners, District Commissioners, District Officers and tightly managed chiefs. This system was both preserved and strengthened by Kenya's first president, Jomo Kenyatta, who recognised that a strong Provincial Administration could compensate for the weakness of the ruling party (Gertzel 1966; Cheeseman 2006). Over the next forty years, this Administration played an instrumental role in shaping political developments. During the short life of the opposition Kenya People's Union, Kenyatta relied on the Administration to limit its sphere of activity (Mueller 1984). The country's second president, Daniel arap Moi, adopted a very different political style, but came to rely on the Administration just as heavily, especially once his own popularity began to decline. Combined with the coercive control provided by the security forces (Tamarkin 1978), the efficiency of the Administration laid the foundations for a relatively robust one-party state that lasted from independence until the reintroduction of multiparty politics in the early 1990s. As a result, while the Kenyan state may be stronger in some areas than others, it has not experienced the same kind of centre–periphery divide described by Zolberg and Herbst (Branch and Cheeseman 2006).

Although most states did not enjoy such coercive capacity, some exhibited considerable variation along other dimensions of patrimonialism and statehood. The one-party states of Senegal and Tanzania, for example, exhibited many aspects of patrimonial rule, including the personalisation of power under the president. However, such political processes never became as personalised or as patrimonial as they did, say, during the reign of Mobutu Sese Seko in what is now known as the Democratic Republic of Congo. There are a number of indications of this. One is the willingness of both the Tanzanian President Julius Nyerere (1985) and the Senegalese President Leopold Senghor (1981) to resign their positions, resisting the urge to become 'presidents for life'. Another is the survival of their parties – which continued to govern for decades – after the departure of the 'founding fathers'. The subsequent decision of both parties to allow for the gradual political liberalisation of the political system in the relative absence of international pressure – Senegal in 1978 and Tanzania in 1992 – is a third.

To be clear, I am not arguing that Kenya was a 'modern' state, or that Senegal and Tanzania were rule-bound democracies. In Kenya, the infrastructural capacity provided by the Provincial Administration had its limitations, and was buttressed by widespread clientelism under both Kenyatta and Moi. In Senegal and Tanzania, the willingness of ruling parties to support political liberalisation was in part premised on their belief that they could manipulate the advantages of incumbency to control the pace of change. Rather, the point is that while these countries – and others like them – may not have fulfilled the criteria of an ideal-type Weberian state, they also differed in important respects from the 'institutionless' model of the African state. Documenting this variation is essential because, as we shall see, it has much to tell us about African politics and prospects for democratic consolidation.

## The Impact of the Formal on the Informal

While rejecting the homogenisation of the African experience, there is much to be gained from resurrecting the more sophisticated early discussions of neo-patrimonialism that gave greater weight to the transformative role of formal institutions. Contrary to the arguments of both Bayart and Chabal and Daloz that colonial rule had a negligible impact on the continent, the 'modern' state introduced in the first half of the twentieth century played a central role in shaping the evolution of informal authority structures. As J. P. Olivier de Sardan has written, 'Every time we have carried out empirical work on apparent survivals from pre-colonial times (such as the family, ethnicity or magico-religious practices) we have found them to be profoundly ambivalent, and out of line with the usual clichés, having been significantly altered and transformed over more than a century, and sometimes even in part invented' (2008: 3).

The social transformations effected by colonial rule are widely recognised in African studies, but are rarely expressed in terms of the relationship between formal and informal institutions. For example, much of the literature in the first half of the twentieth century has focused on the ways in which colonial practices contributed to the politicisation of ethnicity and empowered chiefs to act as 'Big Men'. On the one hand, processes of mapping, counting and codifying ethnic groups tended to foster stronger communal identities. On the other hand, the power that colonial governments vested in chiefs, backed up through the use of force, enabled them to wield greater control over their people than was typically the case in the pre-colonial era. The combined impact of these two trends was to consolidate group identities and centralise and institutionalise existing patterns of traditional authority.

This argument was made most strongly and famously in Terence Ranger's 'The Invention of Tradition in Africa', which revealed the potential for new rules and ceremonies to quickly take on the form of long held traditions (1983). Although few of his contemporaries disputed the capacity of formal structures to shape social and cultural norms, Ranger's argument was controversial because it tended to identify colonial officials as the agents of change. Others preferred to place greater emphasis on the role of African 'cultural entrepreneurs' (Vail 1989). Over time, a synthesis of sorts emerged. Ranger revisited his original argument, conceding that he needed to make greater space for African agency and recognising that ethnic identities were created as much from below as they were from above (1993). As John Iliffe eloquently put it (1979: 323–324), colonial officials may have assumed that Africans operated within a clearly defined 'tribal' identity, but it was Africans who breathed life into this assumption by forging stronger ethnic organisations in order to better take advantage of the opportunities that colonial rule had to offer.

The social transformations that resulted from the interactions of colonial structure and African agency have been the subject of a number of important studies over the last fifty years. Daniel Posner, for example, has documented the ways in which colonial institutions and policies shaped the evolution of ethno-linguistic groups in Zambia (2005). To take just one of these processes, the decision to translate school texts into only the four most popular languages – Bemba, Nyanja, Lozi and Tonga – encouraged Zambians to 'opt in' to these linguistic identities in order to access education. Over time, this promoted a remarkable process of cultural centralisation through which an extremely linguistically fragmented society gradually consolidated around four main language groups that have played an important role in structuring political competition ever since.

The historiography of most African states contains similar narratives regarding the hardening of ethnic identities during the colonial era. No credible account of the evolution of ethnic identity in Rwanda would leave out the impact of the introduction of identity cards under Belgian colonial rule, which recorded and hence codified ethnic identities that had previously been more fluid. Similarly, no discussion of the polarisation of communal identities in Nigeria would fail to mention the colonial regime's deployment of 'warrant chiefs' and institutionalisation of indirect rule in the eastern part of the country, in communities that had no history of centralising power under a 'Big Man'. Thus, the very informal institutions that tend to be reified by the 'institutionless' school were themselves shaped, and in many cases strengthened, by their engagement with formal political institutions.

Recent research has also demonstrated the central role played by states in shaping a number of other factors that are often assumed to be exogenous to formal politics. Daron Acemoglu, Simon Johnson and James Robinson (2003) argue that low levels of ethnic diversity in Botswana – often said to have facilitated its democratic consolidation (Good 1992) – were in fact the product, not the cause, of state policies. The example of Botswana is an important one, because it reminds us that these issues are not only relevant for the continent's history, and that formal institutions continue to shape religious and political identities on the continent today.

One common feature of much of the work described in this section is that it demonstrates the symbiotic nature of the relationship between formal and informal institutions, which are engaged in an ongoing conversation that runs in both directions. There is no contradiction in the state structuring and restructuring political processes, which in turn influence the workings of the state itself. Indeed, this is the same dialectical relationship between culture and structure that characterises the development of many institutions, as demonstrated by classic work on organisational theory by the likes of Mary Douglas (1986) and Christopher Hood (1998). Yet despite the weight of evidence outlined above, the enduring capacity of formal institutions to shape cultural identities and personal networks has been consistently overlooked by the 'institutionless' school.

## Institutional Impacts and Democracy in Africa

One of the most common critiques of Africa's formal political institutions over the last seventy years has been that because they are not deeply rooted within society they are powerless to constrain African leaders. This claim may ring true for authoritarian Africa, where some leaders appeared to be able to carry through their every whim. But in the era of multiparty elections this depiction of African politics is less persuasive. Over the last twenty years, important literatures have emerged which demonstrate that a number of formal institutions have a significant impact on everyday political attitudes and behaviour, from tax systems (Bodea and LeBas 2014) to the structure of decentralisation (Suberu 2009) and legislative quotas (Tripp and Kang 2008). For example, Aili Mari Tripp has shown how the introduction of rules requiring that a certain proportion of the parliament be women has boosted female political representation in a number of states (2017). As a result, the share of women in African legislatures has increased remarkably, from just 1.2 per cent in the 1960s to 21.3 per cent today, and has hit world-leading levels (63.8 per cent) in Rwanda (Tripp 2017).

When it comes to explaining the patterns of democracy that we see today, this literature can be loosely grouped into three main categories. The first group features researchers who trace the impact of formal institutions over time, describing how previous political structures shape contemporary developments. By and large, these historical-institutionalist studies are less concerned with explaining the extent of democratic consolidation than with accounting for variation in party systems, constitutions and civil societies. A classic example is the work of Adrienne LeBas, who demonstrates how the fate of the political parties that emerged after multiparty politics was reintroduced in the early 1990s was 'a result of both context and choice' (2013: 245). More specifically, LeBas argues that authoritarian regimes which relied on alliances with corporate bodies such as trade unions inadvertently provided opposition groups with political structures that could later be used to mobilise cross-ethnic constituencies against the state. In this way, the formal institutions that came to the fore under the period of authoritarian rule played a critical role in shaping the unity and effectiveness of opposition parties, and hence the way in which democratic politics has evolved. In a similar vein, research by the likes of Anne Pitcher (2012) and Rachel Riedl (2014) – both contributors to this volume – has revealed strong institutional continuities in very different political systems, demonstrating the role that the past plays in shaping the present.9

A second set of scholarship has stressed the importance of formal institutions in a different way, by documenting the impact of official rules on political, social and economic developments. These more sociological or rational-choice approaches highlight how institutional changes can re-shape the behaviour of political leaders and the way in which societies behave.10 For example, Benn Eifert, Edward Miguel and Daniel Posner have shown that by exposing citizens to political competition, multiparty elections increase the salience of ethnic identities, consistently re-energising social cleavages (2010). It is therefore unsurprising that a number of researchers have argued that the reintroduction of elections has led to heightened ethnic competition, and in some cases political violence, across the continent (Cheeseman 2015).

Other scholars using a similar lens have identified different, more positive, impacts of elections. Staffan Lindberg (2006), in a much earlier version of an argument that appears in these pages, suggested that elections have a range of democratising effects including training voters in democratic arts, and that as a result the repeated holding of elections can drive the process of democratisation. In my own contribution to this debate I have suggested that although Lindberg's conclusion may initially appear to contradict that of Eifert et al., both may turn out to be correct because competitive polls have the potential to set in motion a number of different processes simultaneously (Cheeseman 2017). In other words, multi-party elections in Africa are 'contributing to both the emergence of stronger democratic norms and greater social tensions at one and the same time'. Thus, while the importance of formal institutions is clear, their impact is often complex and needs to be considered from a variety of perspectives.

Finally, a third literature has focussed less on tracing institutional legacies and impacts, and more on assessing the extent of democratic consolidation by looking at the capacity of formal institutions to constrain the behaviour of political actors. These kinds of political-economy studies represent a natural response to the 1980s, when Africa was said to be authoritarian precisely because leaders could do as they wished. At the same time, they reflect classic political science and popular thinking about democracy, namely that it is most likely to endure when the power of individual leaders is kept within limits by a robust system of checks and balances as set out, say, in the constitution of the United States. Given the intellectual purchase of these ideas, it is unsurprising that much of the institutionalist literature on democratisation addresses the question of whether key political institutions can enforce the rule of law.

One of the most interesting debates on this topic occurred in the pages of the Journal of Democracy, where Daniel Posner and Daniel Young published an article in 2007 – a new version of which appears in this book – that found that formal institutions such as term limits were becoming increasingly important on the continent. However, although Posner and Young's analysis was extremely influential, it did not persuade everyone, and H. Kwasi Prempeh responded the following year with an article that stressed the capacity of presidents to manipulate the rules of the game for their own purposes. While the two papers offered very different visions of the state of African politics, it was telling that they approached the debate on the basis of a shared assumption: that democratic consolidation on the continent depends on the institutionalisation of the rule of law.

The range of different ideas and approaches that have motivated institutionalist research over the past two decades provide a good indication of the impressive breadth of work currently being undertaken. However, it is important to keep in mind that the boundaries between these groups are fluid and some work cuts across all three. Indeed, in one of the seminal texts written on 'Africa's democratic experiments', Michael Bratton and Nicolas van de Walle (1997) provided a sophisticated account of the different political trajectories on the continent that drew on and tested a wide range of different institutional theories, including both path dependency and the significance of legal frameworks.

The different contributions to this volume reflect this catholic spirit, and represent a diverse set of institutionalist approaches authored by some of the leading figures in the field. Carolien van Ham and Staffan Lindberg (Chapter 9) investigate the impact of elections in multiparty Africa, revisiting Lindberg's thesis that repeatedly holding elections increases the quality of civil liberties no matter how free and fair they are. Using new data, van Ham and Lindberg conclude that in actual fact the quality of elections does matter for democratic gains. However, they also find that once a fairly low minimum threshold has been met, holding elections continues to have a significant and positive impact on the overall quality of democracy. Thus, they argue that even in some less democratic contexts formal institutions have the capacity to promote political reform.

In a similar vein, Daniel Posner and Daniel Young (Chapter 11) update and extend their earlier analysis and find that on average presidential term limits are increasingly being respected on the continent despite the ability of leaders to remain in power indefinitely in countries such as Rwanda and Uganda. Moreover, they reveal that a strong precedent in favour of respecting presidential term limits has emerged in a number of countries, including some states with strong neo-patrimonial tendencies, such as Kenya and Nigeria. This is particularly significant, because the capacity of the official rules to remove incumbent leaders from power represents one of the sternest tests of the strength of formal institutions; the triumph of term limits in these cases is therefore the strongest evidence one could hope to find of the need to place greater emphasis on the state in the study of African politics.

The growing significance of the rules of the game is also a current that runs through Muna Ndulo's (Chapter 5) discussion of constitutional reform, and the resulting adoption of increasingly progressive legal frameworks in countries such as Kenya and South Africa that protect a wider array of human and socio-economic rights than ever before. While Ndulo recognises that constitutional provisions do not always protect citizen rights or provide a good guide for understanding how politics actually work in practice, it is nonetheless striking that many of the most significant reforms, such as the introduction of political decentralisation in Kenya in 2010, are fast becoming entrenched (Cheeseman et al. 2016). Indeed, as Alex Dyzenhaus demonstrates (Chapter 14), devolution has not only created an important new arena for political contestation, but has also generated new forms of vertical and horizontal accountability with the potential to check abuses of power.

This is not to say that 'checks and balances' institutions such as regional governments, judiciaries and legislatures are working effectively across the continent. The picture is decidedly patchy and one of the questions that the authors collected together in this volume seek to answer is when formal institutions come to the fore and when they do not. For example, Peter VonDoepp (Chapter 13) argues that judiciaries increasingly matter in Africa's democratic and semi-democratic regimes, but also that the courts are unlikely to play a more significant role unless senior judges are willing to take on the role of promoting institutionalisation. Similarly, Michaela Collord (Chapter 12) concludes that there is growing evidence that Africa's legislatures are not simply 'rubber stamp' bodies, but that the degree to which parliaments can hold the executive to account varies dramatically. More effective independent legislatures have emerged in places like Kenya and Uganda, but only when MPs' formal responsibility for holding the executive to account is buttressed by their ability to operate independently of party leaders. In turn, MPs are more likely to be able to go against the party line when they have their own powerbase, i.e. when they preside over informal ethnic and clientelist networks that empower them to operate as political patrons in their own right.

In this way, the analysis of political institutionalisation presented by Collord and VonDoepp makes an important point about the relationship between formal and informal institutions that is worth highlighting. One of the main limitations of the 'institutionless' school is that it tends to assume that formal and informal institutions are always in competition. This is not the case. As Collord's analysis of legislative strengthening demonstrates, under certain conditions informal norms can help to strengthen organisations such as legislatures and judiciaries. This point applies more generally: as Douglass North has argued (1991), no formal institution is truly consolidated until it is underpinned by a set of supportive informal norms and practices.

A related theme emerges from Anne Pitcher and Manuel Teodoro's work on the bureaucracy (Chapter 7), an institution that is often said to be wholly undermined by corruption and patrimonial norms. While the continent's most notorious scandals are often perpetrated by politicians, they are typically coordinated by civil servants. Against this unpromising backdrop, Pitcher and Teodoro investigate whether it is possible to overcome these limitations by creating more independent and professional bureaucratic agencies in the hope that they will become 'islands of efficiency'. Focusing on the example of the bodies established to manage the process of privatisation in the 1990s, they find compelling evidence that where formally independent bureaucratic agencies were established they boosted investor confidence with positive economic consequences. However, they also find that the process is most successful when backed by broad public and political support, once again demonstrating the significance of informal factors to the development of more viable formal institutions.

Lest the discussion thus far sounds overly positive, it is salutary to read the chapters by Peace Medie (), Ian Cooper () and Brian Klaas (), who focus on the police, political parties and election rigging, respectively. All three authors highlight histories of weak capacity and poor professionalism. Klaas begins his analysis by reviewing the low quality of many African elections, which are among the worst in the world. Reflecting on the impact of constitutional and electoral reforms, he makes the important argument that effective rules do not always prevent illicit and repressive behaviours; instead, they may generate incentives for leaders to look for new ways to subvert democracy. For example, rulers who feel they can no longer stuff ballot boxes in full view of the media and the international community may switch to other forms of manipulation, such as gerrymandering and using legal rules to block rival candidates from standing. This is an important point, because it serves as a powerful reminder that while formal institutions matter, they often have unintended consequences that may re-shape politics in important ways.

Turning our attention to the police force, Peace Medie's chapter also highlights a track record of institutional weakness, including widespread corruption, poor training and limited capacity. The low level of popular support for the police across the continent makes for depressing reading. However, like Collord and VonDoepp, Medie is nonetheless able to identify examples in which the police have begun to enforce the rule of law more effectively. This is especially significant given that she focuses on gender-based violence, an area where the police have historically performed particularly poorly. Although public confidence in the police remains low across the continent, Medie finds that in the case of Liberia a series of post-conflict initiatives including the strengthening of the rape law, the formulation of new gender policies and police reforms have transformed the way that law and order organisations respond to reports of rape. This is particularly significant, because it demonstrates the potential for predominantly institutional responses to improve the services received by millions of people.

For his part, Ian Cooper highlights political parties as one of the formal institutions making the least progress since the early 1990s. As Thomas Carothers (2006) has argued, all too often parties represent the 'weakest link' in the democratisation process. Across Africa, Cooper finds that parties lack effective internal party structures and participate in activities such as vote buying and organising electoral violence. These are worrying conclusions, because Cooper persuasively links parties' internal structures to their failure to manage the transition from one leader to another, which is a major source of political instability across the continent. However, even in such difficult contexts, it is misleading to speak of an 'institutionless' environment, and Cooper is able to identify the circumstances under which episodes of party strengthening are more likely to take place, as has occurred in Namibia.

In addition to the more short-term institutional effects discussed so far, there is considerable evidence that the constitutional and legal frameworks adopted by African countries have shaped broader political developments in the longue durée. For example, Catherine Boone (Chapter 3) demonstrates how land tenure institutions, i.e. the rules and regulations governing who owns land and how land can be transferred, have had a profound impact on areas of central concern to political scientists. Most notably, Boone argues that whether or not a country operates a 'neo-customary' land system (wherein each 'ethnic group' is expected to manage its own land under its own rules), or a 'statist' system (wherein access to land is centrally controlled), shapes both the dynamics of state building and the prospects for political violence. In making this case, Boone demonstrates the centrality of legal structures to everyday life, even in areas where the state has a less visible presence – such as rural locales far removed from the capital city.

Leonardo Arriola's work (Chapter 4) also documents the powerful impact of formal economic institutions, but in relation to party politics. Starting from the insight that campaign finance is critical to prospects for effective political mobilisation, Arriola considers the relationship between the structure and regulation of the banking sector and the likelihood that opposition leaders will be able to form effective coalitions. Using an original continent-wide dataset, he is able to establish that when banking is liberalised, such that opposition leaders can secure loans to fund their campaigns, they are better placed to co-opt other leaders and parties, and hence to maintain stable alliances. Thus, the structure of the banking system shapes the structure of the party system. This is a particularly significant finding, as coalition building is often an essential first step to the formation of more effective and electorally competitive opposition parties.

If the existing literature has tended to underestimate the political significance of economic institutions, the same can be said about the historicity of formal political intuitions. This is problematic, because as Rachel Riedl (Chapter 2; see also 2014) points out, the formal institutions that emerged in the 1990s were not created in a vacuum. Rather, they are the product of previous formal and informal institutional arrangements. More specifically, Riedl highlights the extent to which the types of parties that emerged in the post-colonial era continue to shape the political landscape in contemporary Africa. Drawing on the cases of Ghana, Senegal and Uganda, she demonstrates how ruling parties that more effectively incorporated local elites were better placed to set democratic rules in their favour and retain power. By contrast, parties that failed to establish effective rural networks found it far more difficult to contain pressure to reform and so tended to be forced into making greater concessions during the transition to multi-party rule. In this way, historical institutional legacies shape the prospects for the defeat of old authoritarian regimes and hence the transformative potential of multiparty politics.

In addition to the evidence provided in the book's other chapters, the arguments of Boone, Arriola and Riedl represent a particularly strong evocation of the importance of formal political institutions in contemporary Africa, demonstrating that such structures do not just impact contemporary politics, but have long shaped the political, social and economic landscape.

# Conclusion

The foregoing account of the state of African politics and of African studies should not be mistaken as a dismissal of all of the insights of the 'institutionless' school, or be taken to imply that formal institutions are now more important than their informal counterparts. There is no need to throw the baby out with the bathwater. I have argued that a tendency to underestimate the significance of formal political institutions in Africa has had negative consequences for our ability to explain political continuity and change. Contrary to much received wisdom, particularly that which makes it into policy circles and the media, formal institutions have shaped the evolution of informal norms and authority structures and are increasingly constraining the behaviour of African political leaders in a number of countries. However, this does not mean that the formal rules of the game always triumph, or that formal institutions matter equally across the continent. In many countries, the process of political institutionalisation is in its early stages, and it remains unclear how far it will proceed. In others, the process has not yet commenced, and leaders face relatively few constraints.

It is also important to recognise that even in those contexts where formal institutions are starting to take hold some institutions have proven more effective than others. For example, term limits have so far had a more pronounced impact on the continent than anti-corruption reforms. Our task is therefore not to simply document the way in which some formal institutions matter, but to explain which rules have begun to take root and why. In the case of term limits and corruption, the difference is largely explained by the fact that more political actors now benefit from corruption, and hence anti-corruption reforms face a greater number of opponents. Conversely, term limits have a higher profile, represent a more contained and specific issue around which people can mobilise, and are typically supported by broader domestic and international coalitions. Further research is required to fully understand this kind of institutional variation and the impact that it has on everyday politics. Such a research agenda will require moving beyond studying formal institutions in isolation in order to consider the ways in which formal and informal institutions interact.

It would therefore be unwise to turn our backs on the lessons of the 'institutionless' school and the many key insights generated through the analysis of personal networks, traditional authority and group identities. These literatures have much to teach us about the challenges faced by formal political institutions and how they may be overcome. As the chapters that follow demonstrate, norms may complement formal institutions, accommodate them or continue to compete with them, with profound consequences for the consolidation of democracy. Many of the important insights provided by Bayart and Chabal and Daloz will thus remain relevant well into the next decade and beyond. Indeed, the neo-patrimonial framework can still provide a useful lens through which to understand the symbiotic relationship between different forms of authority if it is understood as it was originally conceptualised by Médard.

To move the debate forwards, we need to draw on existing scholarship to build new and improved theoretical frameworks through which to understand the relationship between formal and informal institutions and how this affects continuity and change in Africa. It is to this challenge that I turn in the conclusion to this volume. Drawing on the work of Helmke and Levitsky (2006), I argue that we need to develop a stronger conceptualisation of the diverse ways in which formal and informal institutions impact on one another. Given that the consolidation of formal institutions requires the evolution of a set of complementary norms and values that reinforce official rules and entrench them, such a conceptualisation will need to allow for the fact that informal institutions may both compete with and complement their formal counterparts. In turn, this suggests the need for a new research agenda dedicated to explaining the conditions under which informal and formal institutions do and do not cohere. Important work in this regard is already being done by the likes of Tom de Herdt and Jean-Pierre Olivier de Sardan (2015), but I argue that much more is required if we are to truly understand processes of democratic consolidation on the continent. Readers interested in these theoretical and methodological issues may therefore wish to read the conclusion before turning to the empirical analysis that follows.

The thirteen chapters that make up the main body of this volume are each designed to address a different institution, so that this book can be read both for its novel theoretical arguments and as a primer for the study of the contemporary African state. Where reliable data exist, quantitative analysis and cross-national comparisons are employed to give readers a broad understanding of developments on the continent; where they do not, authors rely on in-depth case studies and focused comparisons to test their ideas and substantiate their arguments. The chapters are grouped under four main themes. The first section considers how underlying institutional foundations such as the system of land tenure and the structure of the economy shape contemporary struggles over power and resources. In line with this introduction, the authors demonstrate the great significance of formal institutions across both time and space.

The three sections that come next highlight the different roles that formal institutions are typically designed to play (whether or not they are able to live up to such expectations). Thus, the second set of chapters addresses the capacity of formal institutions – constitutions, the bureaucracy and the police – to enforce the law and, in the case of the article by Pitcher and Teodoro, to promote technocratic efficiency over neo-patrimonial politics. Following on from this, the third section turns our attention to how institutions regulate political competition – the growing significance of elections, term limits and internal party structures to everyday power struggles. As the four chapters show, leaders increasingly have to take formal rules into account, even if they are intent on breaking them. Finally, the last part of the book looks at the capacity of institutional reform to constrain the behaviour of political leaders by investigating three classic countervailing institutions: the legislature, the judiciary and the devolution of power. Although the track record of some of these bodies is patchy, all three chapters highlight examples of institutional strengthening. What is particularly noteworthy about these contributions is that the authors identify gains that have occurred not only in the continent's democracies, but also in a number of semi-authoritarian political systems with neo-patrimonial tendencies. These developments are especially significant, because they highlight the need for those working on a wide range of African countries to place formal political institutions at the heart of their analysis.

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1 This title reflects two intellectual debts. The first clause comes from Chris Allen (1995); the second from Evans et al. (1985).

2 Following Weber, the state is here understood to refer to a compulsory political organisation with a centralised government that 'lays claim to the monopoly on the legitimate use of physical force' (2015: 136).

3 Institutional strengthening, or political 'institutionalisation', is a complex process. When referring to democratic institutions, I understand it to have two core dimensions. The first is basic organisational capacity, in terms of the level of funding, manpower, expertise and so on. The second is the degree of independence from the executive. It is important to note that an institution might score high on one of these dimensions and low on the other, and that institutional strengthening may refer to progress on one or both of these scales.

4 Or its equivalent in Francophone or Lusophone Africa.

5 For the original quote see Morgenthau (1964): 356.

6 As quoted in Death (2015): 1.

7 Google Scholar search, 15 May 2015. The exact number per day is 0.83. It is important to note that Google Scholar counts citations in work that has not appeared in peer reviewed publications. A search of all articles on JSTOR for the terms 'neo-patrimonialism' and 'Africa' identified 1,400 journal articles.

8 Based on a Google Scholar search conducted on 15 May 2015.

9 For more an in depth discussion of this, see the Conclusion to this volume.

10 For a full discussion of these terms, see the Conclusion.

# Part I Institutional Foundations
# 2 Institutional Legacies

## Understanding Multiparty Politics in Historical Perspective

Rachel Beatty Riedl

The institutions of multiparty politics in Africa today have important causal implications for a variety of critical outcomes, such as the ability to build cross-ethnic coalitions; the stability or volatility, accountability and representativeness of elections; the extent and distribution of public services; the likelihood of authoritarian successor parties' return to power; the durability of democracy itself; and even the very existence and salience of particular social cleavages. These contemporary formal institutions have, in some cases, been crafted de nouveau from upheaval and transition moments, but in other cases have evolved gradually out of pre-existing authoritarian-era institutions. However, even where new institutions have been crafted in the recent past from scratch, this has not occurred in a vacuum. The legacies of past struggles – modes of organisation and distribution of power and resources – have a significant influence on the possibilities for the future.

This chapter demonstrates the significance of past institutional configurations – harking back to the era of supposed 'institutionless' politics in Africa, or the reign of the informal – in shaping contemporary multiparty politics. In doing so, it makes two corrections to existing interpretations of the political landscape. First, it is common to assert that African political parties are weak, with the assumption that parties do not structure the electoral playing field.1 This is an error that has serious consequences for understanding contemporary politics. Political parties across the continent vary dramatically not only in their strength, but also in the forms of territorial organisation, resources and strategies of mobilisation, internal rotation mechanisms and abilities to thrive beyond a single candidate or term in power. This variation is a global phenomenon, and understanding how parties structure the political playing field (and to what extent) is an empirical question relevant in Africa just as it is in Europe, Latin America, Asia and beyond.

First, it is important to highlight the many robust political parties in Africa – including the Chama Cha Mapinduzi (CCM) in Tanzania, the African National Congress (ANC) in South Africa, the National Democratic Congress (NDC) and New Patriotic Party (NPP) in Ghana, and the Mozambique Liberation Front (Frelimo) in Mozambique. They have historically distinct roots – from nationalist parties fighting for independence to revolutionary, military or multiparty opposition parties. These divergent origins offer particular opportunities for citizen-linkage strategies and power contestation, and also constrain other opportunities for adaptation and regeneration in a changing environment.

Second, a historical approach to institutions corrects the perceived dichotomy between an era of weak formal institutions – ruled by the informal throughout the 1970s and 1980s – and an era of multiparty politics that has seen a 'resurgence' of formal politics. As Cheeseman (Chapter 15, this volume) usefully reviews, the interaction between formal and informal institutions is critical across historical periods. For example, while authoritarian leaders may not have been constrained by constitutions, they felt compelled to use their control over legislatures to make formal constitutional amendments; often they could neither ignore it nor completely control the reform process. This institutional process was built upon the primacy of neo-patrimonialism, but the channels of formal institutional change nonetheless created new opportunities for contestation and the further adaptation of both the formal and informal spheres. For example, by changing the constitution in Uganda to dissolve term limits, President Museveni was forced to make concessions and initiate multiparty competition in the process. As a consequence, opposition parties now engage in new electoral tactics that were previously not possible, and reformists and disgruntled politicians within the ruling party can break off and create new challenges for the status quo. In the run-up to the 2016 presidential elections, a key National Resistance Movement (NRM) ruling party insider opted to challenge Museveni's domination first within the party and then as an independent candidate.

This type of challenge is perhaps the most common route to dominant party defeat in sub-Saharan Africa because it simultaneously weakens the ruling party's support base, sparks renewed interest in the possibility for alternation among civil society and other political groups, motivates additional defections and highlights failures in the ruling party's reign (Cheeseman et al. 2015). Moreover, the Ugandan example demonstrates that even efforts to subvert institutional constraints – such as term limits – engage with the formal institutional landscape to create new focal points, opportunities and limits to political agency in the next phase. Authoritarian leaders' manipulation of the formal institutional realm to maintain power can have unintended consequences for their political futures, precisely because elites and masses alike respond to the altered institutional incentives with new possibilities for challenging the status quo.

This chapter examines the points of informal and formal institutional congruence and divergence. Whereas congruence generates lock-in and self-reinforcing dynamics for institutional stability, informal and formal institutional divergence generates opportunity for institutional transformation such as displacement, layering, drift and conversion (Mahoney and Thelen 2010). Only by considering both realms is it possible to understand how past institutional configurations are linked to contemporary outcomes. I draw upon a range of empirical examples from across the continent – including Ghana, Senegal and Uganda – to demonstrate how informal institutions of reciprocal exchange, traditional authority and local brokers, as well as indigenous notions of citizenship and political participation shape the construction and practice of formal institutions. Additionally, I discuss evidence of how formal institutions – such as the colonial state or the multiparty electoral system – transform informal institutions (Laitin 1986; MacClean 2010), which suggests the continually evolving nature of nominally stable institutions.

# The Roots of Institutional Strength in Africa

Contrary to the many simplistic claims of weak parties in Africa, much recent work has demonstrated variation in party strength, institutionalisation and types of parties that exist across the continent (LeBas 2011; Arriola 2012; Pitcher 2012; Resnick 2012; Elischer 2013; Koter 2013; Riedl 2014; Weghorst and Bernhard 2014; Wahman 2015). Deploying Mainwaring and Scully's (1995) measure of party system institutionalisation across semi-established and full democracies in Africa demonstrates one dimension of this variation (Figure 2.1).

Figure 2.1

Variation in party system institutionalisation by country in Africa

*Party System Institutionalisation (PSI) has a possible range of 0–6, with 0 indicating the lowest level of institutionalisation and 6 being the highest. The mean PSI of all African democracies is 3.3. These data form a composite measure of the period from the founding elections through 2011 in each country.

Source: Riedl 2014.

These differences in contemporary party systems are fundamentally shaped by the origins of nationalist and authoritarian-era parties themselves. Prior consolidation through revolutionary struggles (Huntington 1968), past modes of incorporating support through local brokers (Riedl 2014) and leveraging the existing social structure to use local brokers and build multi-ethnic, nationalist parties (Koter 2013) have long-enduring consequences for the nature of the present multiparty institutional landscape. That nationalist and authoritarian-era parties were often built by mobilising traditional authority structures is readily apparent, but without a focus on both realms of formal and informal institutions during this period, their interaction and their long-term consequences for the contemporary multiparty system are obstructed.

One demonstration of the enduring effects of historic struggles and past institutional organisation for contemporary multiparty politics is evident in the specific legacy of revolutionary parties across sub-Saharan Africa. Levitsky and Way (2012) argue that the organisational structures, as well as the identities and norms forged during revolutionary struggles for liberation, created critical and durable sources of cohesion for the resulting nationalist parties. The violent and ideologically driven conflicts over national liberation created a uniquely durable reservoir of unity and discipline that maintains over time to forge stronger, more resilient – and indeed, more institutionalised – parties. These parties are not only less prone to defection due to their solidarity and ideological core, but they are also less reliant on material sources of loyalty production for elites and followers alike. FRELIMO in Mozambique, the ANC in South Africa and the Zimbabwe African National Union-Patriotic Front (ZANU-PF) in Zimbabwe are all examples that highlight the importance of formative processes, and the cohesion and durability of the ideationally driven parties formed through conflict.

In particular, Levitsky and Way (2012) highlight how the party's origins enhance later intra-institutional cohesion and durability in several ways: (1) by creating enduring partisan identities; (2) by hardening partisan boundaries between competing groups; (3) by forcing parties to create militarised structures and establish high levels of internal discipline; and (4) by producing a generation of leaders with high legitimacy and authority, which can be used to unify the party and impose discipline. While these characteristics may well contribute to enduring competitive authoritarianism, they are not inherently anti-democratic elements. Instead, they contribute overall to the party's institutionalisation and durability, which can exist in a range of regime types over time.2

The cohesion and durability these parties sustain is likely to degrade over time in some dimensions and less so in others, as founding legacies are reproduced and adjusted to new contexts (Levitsky and Way 2015; Mahoney and Thelen 2015). Some founding legacies are bounded and will certainly diminish with time, such as the generation of leaders forged by conflict who enjoy high legitimacy and authority. The leaders, cadres and soldiers who participated in the revolutionary struggle and the seizure of power will eventually pass from the scene, and as they do, the cohesion that characterises these revolutionary regimes will tend to dissipate (Mahoney and Thelen 2015; see also Slater 2010). To take but one clear example, a future ZANU-PF without Robert Mugabe must adapt, and these points of transition are key tests for other dimensions of the party's institutionalisation. Presidents now elected in Senegal and Ghana, and elsewhere across the continent, were born after independence and are fundamentally driven by concerns well beyond the nationalist-era rallying cries. Other types of legacies are considered to be more static, such as the party organisation itself. Once constructed, politicians and party officials are recruited and have an interest in sustaining the institution. Therefore, investments in the party organisation become self-perpetuating (see also Brownlee 2007).

In addition to origins of ideological and violent conflict, historical patterns of power consolidation can also have enduring effects on multiparty politics in the contemporary period. Elsewhere, I have demonstrated how strategies of authoritarian rule throughout the 1970s and 1980s to build support and maintain power provided these authoritarian ruling parties with very different capabilities to manage the transition to multiparty competition that swept the continent in the early 1990s (Riedl 2014).

In most African authoritarian regimes, incumbents consolidated their power in one of two ways: either through broad-based incorporation of social and economic authorities at the local level, or through state substitution – attempting to neutralise local power brokers and replace them with state-sponsored organisations. Both strategies were useful for authoritarian control and its maintenance, but they provided unequal transferrable assets when unforeseen transitions to multiparty competition required that these incumbent parties win majorities in founding elections in order to stay in power. Incumbents shared a common goal – they wanted to win these founding elections, and in order to do so they attempted to control the terms of the transition, to determine which opposition parties would be allowed to compete and under which electoral rules.

But only those authoritarian incumbents who had previously practised broad-based incorporation had the capacity to carry out their agenda. Incumbents who had incorporated local elites were able to maintain their support, set the rules of democratic competition in their favour and retain power despite new multiparty competition. By contrast, those who had previously substituted state or party agents in an attempt to replace local power brokers found themselves lacking cooperation across the rural areas and unable to mobilise mass support for their new rules and transition agenda. Local brokers were suddenly presented with new options for affiliation in the multiparty era and defected rapidly to the opposition. In these cases, new opposition forces then pushed for more permissive electoral rules and weakened incumbent control.

These strategies of power accumulation – either through incorporation or state substitution – had long-lasting implications, shaping the nature of the transition to multiparty competition, the rules for party competition and organisational imperatives for interparty competition. Successful incorporation strategies required a significant investment in the rural hinterlands. As Waldner argues, rural incorporation facilitates the construction of robust cross-class (or in Africa, multi-ethnic) coalitions, which in turn facilitates the construction of mass integrative parties (Waldner 2004). In Africa, what we might call the 'rural incorporation strategy' creates multi-ethnic parties; once constructed, they shape the very structure of the politically relevant social cleavages (Riedl 2014, 2016). Parties not only capsulate social cleavages at a given point in time and project them into the future, but also potentially reshape relevant cleavages through the process of formation and contestation. For example, authoritarian parties that successfully navigate the transition to multipartyism and compete strongly in founding elections establish a regime/outsider cleavage. The prior authoritarian single party – such as the NDC in Ghana, the Parti Socialist in Senegal, FRELIMO in Mozambique, the CCM in Tanzania, among others – shape one pole of the electoral competition, which is often centered on voting for the party of stability (the incumbent).

The other side of the new electoral pole is a vote for democracy and change (the opposition). This new cleavage achieves saliency because of the formal institutional change to multiparty elections; in this new regime cleavage, existing social divides, such as class, religion or ethnicity, may be subsumed within elite coalitions and represented on both sides. Such regime cleavages are often based upon the ways in which informal institutions of traditional authority were, or were not, incorporated into the support base of the prior single party over the previous decades. Relatedly, when authoritarian parties relied on strategies of alliance with corporate actors, and organised urban labour in particular, they created an unstable base of support that unintentionally created the organisational, institutional foundations for a strong opposition party (LeBas 2011). LeBas demonstrates how these authoritarian-established and -supported labour unions provided structures and resources that could be transformed into oppositional challenges to the ruling party, and have long-term consequences for partisan alignment and multiparty organisation.

Furthermore, once specific patterns of competition and electoral mobilisation are established, these patterns often persist over time. Early elections drive strategic adaptations; and effective approaches in an initial contest become dominant. For example, Koter (2013) demonstrates how independence-era politicians seeking to mobilise the electorate had to work within the parameters of the existing social structure. Where local brokers existed, such as the marabout leaders in Senegal, politicians could harness them as intermediaries and build cross-ethnic parties, and ultimately downplay the salience of ethnicity as a political cleavage in the entire political landscape. These forms of party organisation and electoral mobilisation persisted over time due to the congruence between informal institutions of authority – the local brokers – and the formal institutions of political party organisation and systemic competition. Thus, historical strategies can create a dominant narrative and an understanding of how politics works, how voters and politicians alike engage in the system, generating self-reinforcing mechanisms of further party investments in these strategies.

# Congruence and Divergence: Institutional Continuity and Change

Given the overlapping importance of informal and formal institutions in the contemporary multiparty landscape (Chapter 15, this volume), analysing the interaction between these forces can contribute to our understanding of institutional stability and change. Where formal and informal institutions are symbiotic, or act in congruence, this contributes to stability through self-reinforcing mechanisms or lock-in.

Institutional stability occurs in many new multiparty systems across sub-Saharan Africa because the conditions of the transition to such systems established congruence between the informal institutions of power management (such as local broker interlocutors) and the formal rules established by the ruling party overseeing the transition itself. This congruence contributes to preserving the characteristics of previous systems through institutional isomorphism – a similarity of the processes and structures of one organisation to those of another through imitation or independent development under similar constraints (DiMaggio and Powell 1983). A simple example is how new political parties form in the shadow of well-established parties, and in their effort to be competitive in the same playing field, try to copy and imitate the strongest parties in the system. Formed by their own prior experiences within the dominant parties, and because the rules in place often reinforce the utility of the dominant parties' organisation and practices, new party elites try to reassure potential followers that they can go toe-to-toe with the existing parties. In new African democracies, party competition replicates the distribution of power in place at the system's founding, embedding institutional logics that continue to drive the degree of party system institutionalisation over repeated contests (Riedl 2014).

Whereas previous work has suggested that volatile competition and incoherent party relations would increasingly institutionalise with the passage of time following the democratic transition (Converse 1969), party systems in Africa demonstrate that initial divergences across national party systems from the critical moment of democratic transition have exhibited 'lock-in'. Numerous rounds of competition certainly provide opportunities for increased coordination and learning, yet the party systems at both ends of the institutionalisation spectrum continue to operate in the same fashion as in the founding elections.3 This stasis suggests that the legacies of the distribution of power in the critical juncture of democratisation have far-reaching impact on democratic party systems. Certainly, future change can occur, and in sub-Saharan Africa it is often the potential for extra-institutional change (through conflict) that leads to new institutional outcomes. Witness Côte d'Ivoire, wherein the authoritarian single party successfully manoeuvred through the transition to multiparty competition, and the opposition formed according to a regime cleavage model. Yet, the death of founding President Houphouet-Boigny led to a series of institutional ruptures that were meant to reshape relevant social cleavages (and their anchoring in traditional authority structures) and rewrite the requirements of citizenship. This raw struggle for power was first implemented through changing formal institutions (namely through ethno-national laws to bar candidates and voters from electoral participation), which ultimately escalated into civil war. In the process, the conflict destroyed the institutional stability and organisational model the Parti Démocratique de Côte d'Ivoire had provided as the former single party.

Yet, institutional continuities from the authoritarian period into the new multiparty system are frequently enduring. This relationship occurs through three mechanisms whereby continued dominance of authoritarian incumbents (or the lack thereof) shapes the emergent competitive party system: (1) eligibility rules; (2) organisational modelling; and (3) regime cleavages. Eligibility rules refer to laws and legislation surrounding candidate and party registration. Organisational modelling refers to the forms of imitation that new parties pursue to attempt to compete with the dominant, established players. And regime cleavages refers to the division of party competition and the electorate into pro-(prior authoritarian) incumbent versus pro-(nominally democratic) opposition. As explained below, these mechanisms of production and reproduction explain the persistence of varied party systems in the face of many forces that might have been expected to disrupt the patterns established in the transition period. Which rules are debated and contested versus maintained from previous periods, how identities are politicised and aggregated into party blocs and how resources from the state and private interests are distributed are all conditioned by the degree of power the incumbent retains over the transition.

These mechanisms of production enable authoritarian incumbents to sustain their authority into the new party system and to reproduce it over time through three mutually-reinforcing dynamics. First, rules of party registration established in the transition transmit existing power structures into the founding party system. Eligibility rules act as barriers to entry: difficult requirements limit party formation, and easy requirements facilitate party formation and proliferation. Authoritarian control over the transition provides the incumbent party with the opportunity to set the rules to reflect their initial preferences – often creating high barriers to entry for potential challengers in order to keep out popular competitors and limit threats to their continued dominance in the new system.4 The lack of a dominant party in the transition allows potential electoral contenders to prioritise low barriers to entry to ensure their own ability to compete. These rules impinge upon all competing parties and make future transformations more difficult, even while the rules may be subsequently changed. Electoral rules are also shaped by the victors in the transition process; those that have sufficient power craft the rules that they believe will benefit them with the intention of solidifying their grip (see also Magaloni 2006).

Second, parties face strategic decisions about optimal organisation for new democratic competition. The political uncertainty that is inherent in new multiparty competition creates incentives to either emulate the organisation of a nationally powerful incumbent party or offer an alternative where the incumbent was ousted. Thus, new parties attempt to either mimic the previously authoritarian incumbent party (where it remains powerful) or to differentiate themselves from it (where the authoritarian incumbent model is discredited by its own implosion or failure to mobilise support). Voters' expectations reinforce these competitive pressures for emulation or differentiation, determining which party models survive and thrive. For example, the rising opposition Parti Démocratique Sénégalais (PDS) in Senegal throughout the 1980s and 1990s attempted to directly mirror the ruling party's organisational structures, to create an infrastructure in each constituency that could recruit followers at the grassroots level away from the incumbent.

Third, as the party system forms during the democratisation process, the presence of a strong authoritarian incumbent creates a significant anti-incumbent regime cleavage. Even where opposition is weak, disorganised and lacking resources, the presence of a dominant incumbent encourages opposition coherence in a united campaign against the ruling party. This is generally the key political cleavage in the founding elections, and has enduring influence in structuring a consistent incumbent versus opposition rivalry. In contrast, where the authoritarian government is displaced or largely discredited prior to the founding elections, new parties form without a pre-determined regime cleavage and lack the incentive to aggregate to defeat the incumbent. In this environment, the structure of competition remains amorphous, with a plethora of nascent parties forming with no pre-determined relation to one another.5 The new parties all seek access to the state (via electoral victory), and are open to a range of shifting coalitions and alliances.

Once established, the structure of party competition persists, with the same mechanisms serving to reproduce the initial form of the party system, although often with unintended consequences for those who initially controlled the transition. Parties, candidates and voters alike continue to operate according to knowledge generated from past behaviour. For example, parties often conform to shared perceptions of 'successful' competitive electoral strategies in order to maximise their chances of victory and post-election benefits. Where the founding elections were structured around an anti-incumbent regime cleavage, this conception of strategic rivalry continues to shape the positions that new or existing parties can adopt. Where there is no such cleavage, parties may identify with a broader range of potential collaborators in an attempt to form a new government. Thus, the structure of party competition reflects the nature of the regime cleavage (the degree of competitive opposition or potential for alliance and partnership) and coherence (the degree to which all parties understand the competitive position of one party vis-à-vis any other given party in that system).

Party organisations, once built according to a certain model, are likely to maintain either their national or particularistic form to reap the rewards of their strategic investment, and party leaders will have incentive to maintain their positions (Kitschelt and Kselman 2013). Electoral rules also have the possibility of contributing to party system endurance, as the winners of the past game will likely maintain the existing rules that advantaged them for the forthcoming elections. However, eligibility rules may well be changed by the ruling party in later contests, often in an attempt to splinter the opposition. While formal rules are constraints in any given election, and will likely contribute to the stability of the party system over the long term, they also contain the greatest possibility for change. The fact that electoral rules stay relatively stable over time (Nohlen 1984; Boix 2007) is evidence that coercive forces are at play in the system, ensuring institutional continuity.

In contrast to this congruence between informal and formal institutions, there are also significant instances of divergence in the multiparty landscape, wherein informal institutions governing political processes and the distribution of power are challenged by the ascension of new formal institutions pertaining to multiparty competition. A critical example is the emergence of increasingly independent and formalised electoral commissions across a range of countries. Where this occurs, it generates the potential for the growing autonomy of electoral commissions to replace the power that high-level patronage politics previously held in determining the conduct of elections. This divergence reflects an alternative pathway of gradual institutional change, or 'displacement' (Mahoney and Thelen 2010).

For example, displacement occurred in Ghana's management of elections as President Rawlings and his political party the NDC organised non-partisan local elections as a part of a decentralisation agenda in the 1980s. Under single party, authoritarian control, these elections were orchestrated through local brokers (district agents) that the party coordinated with, using the informal institutions of social authority to mobilise the population in support of the regime's maintenance. During this period, formal institutions of district elections – and the informal social authority structures that underpinned the system – were fully convergent. The formal realm was constructed specifically to conform to the social realities of the local powerbase of the ruling party. By 1992, the regime initiated a transition to multiparty politics in compliance with international and domestic calls. The 1992 elections were overseen by an electoral commissioner, although the independent and autonomous Electoral Commission of Ghana stipulated by the 1992 Constitution had not yet been established. Thus, the 1992 elections were carried out under conditions of extreme partisan control, with limitations on opposition party activities (NPP Report 1993), which led to a boycott of legislative elections following claims of fraud and malfeasance in the presidential contest. Since 1993, and the formation of the electoral commission, this independent institution has increasingly played a critical role in regulating election procedures, and in adjudicating the results (Gyimah Boadi 2008). In this way, authoritarian controls over election processes have been displaced, as informal institutions of local broker management have given way to the formal power of the Electoral Commission. This evolution has contributed to a larger institutional transformation from single party regime to competitive authoritarian regime, and finally to democracy in Ghana.

Another form of divergence between informal and formal institutions that contributes to gradual institutional change can occur through 'layering', when new rules are attached to existing ones, thereby changing the ways in which the original rules structure behaviour (Schickler 2001; Thelen 2003). Defenders of the status quo may be able to preserve the original rules and forms of informal and formal convergence, but be unable to prevent the introduction of new layers, or amendments. Indeed, often, they may actually promote new amendments with the belief that they will further embed the current system, but find that the reforms can be used by actors in unanticipated ways that create opportunities for change.

This was the case in Senegal, where the ruling Parti Socialiste's (PS) dominance was founded on formal institutional and informal convergence that was designed by the ruling party and long upheld the status quo. More specifically, the party had developed well-established brokers throughout the rural countryside (Villalon 2006; Beck 2008) and had created a multiparty system (with various limitations) that returned the dominant party to power from 1976 until 2000. However, 'layering' changes to the electoral system in 1992 created an opportunity for new divergences that ultimately led to the PS defeat. The PS – seeking short-term electoral advantages and responding to social pressures for reform and further political liberalisation – initiated an electoral code reform that authorised coalitions of parties to compete in elections, allowed independent candidates and also ushered in a host of reforms to increase the transparency and autonomy of the election process. This was a major 'layering' change to the existing electoral code, as it facilitated a vast proliferation of parties over the long term. The mixed electoral system required a unified front to defeat the ruling PS; therefore, legislating the possibility of electoral coalitions significantly changed the strategic value of creating a minority party. As a result, it encouraged opposition parties to maintain their individual leadership but coalesce temporarily to defeat the ruling party. Perhaps most significantly, it offered a new channel for disgruntled members of the ruling party to strike out on their own, bringing their own networks of followers with them. The realm of informal institutions and linkages between politician and brokers remained intact, but it now offered new possibilities in the shape of formal institutional party formation.

These reforms played out in 2000 as the PS was defeated by a coalition whose minority partners were key PS party elites who had splintered off in prior years to form rival parties. The PS ultimately lost out to an alliance between the main opposition party (the PDS) and two former members of the PS (who formed the Alliance des Forces pour le Progrès and the Union pour le Renouveau Démocratique). These two parties placed third and forth in the 2000 presidential elections, but by throwing their support behind the PDS in the second round they helped to determine the outcome of the polls. The alliance then presented a coalition list (Sopi, the Wolof word for 'Change') for the 2000 legislative elections, because the PDS was not able to win a majority of seats on its own. The PS had scheduled for the legislative election to follow the presidential election in order to increase the possibility for coattail voting for the newly elected coalition. Instead, the 1992 electoral reforms that allowed coalition lists facilitated the transfer of power and the transition of the PS from an authoritarian ruling party to an authoritarian successor party. The system thus transitioned from a competitive authoritarian regime under dominant PS rule to a newly democratic regime undergoing transition.

To this day, the political party system reflects this 'layering' reform, with the proliferation of parties and the gradual decreasing institutionalisation of the system as a whole. In the longer term, the 1992 electoral reform set the stage for increased party system volatility and decreased internal party coherence. Political leaders across the spectrum have less incentive to invest in territorial organisation, as they readily make temporary coalitions to cover all constituencies. The mixed electoral system's over-representation for the ruling party encourages coattail voting and damages opposition viability. For both the ruling party and the authoritarian successor party, it is now difficult to maintain the internal coherence of the elite core and preserve their affiliated clientelist networks.6 For the PS, the changes to electoral institutions decreased the utility of their authoritarian inheritance over time, as loyal local brokers have been torn between the party (as an organisation) and their particular party patron (in the event that one splits off to form a new grouping in the pursuit of power).

Another form of increasing divergence between informal and formal institutions is occurring as a result of the enormous structural changes occurring through urbanisation across sub-Saharan Africa.7 The now evident demographic shifts are creating an opportunity for institutional change through 'drift', which occurs when the 'rules remain formally the same but their impact changes as a result of important shifts in external conditions' (Mahoney and Thelen 2010). In this way, formal institutions such as electoral politics and informal institutions such as neo-patrimonialism may continue to combine, but such institutional convergence is likely to start to diverge in significant and poorly understood ways, as citizens are increasingly uprooted and disconnected from their rural, traditional authorities and social networks. For some, new allegiances are being formed in urban areas, particularly through evangelical or charismatic religious leaders that urge allegiance to God and dismiss traditional linkages (McCauley 2013; McClendon and Riedl 2015). For others, new social networks are formed in urban constituencies that make attachments to traditional Big Men less important overall, and render citizens more open to mobilisation through other forms of organisation and identity. This kind of drift has potentially massive ramifications for the nature of formal politics and mobilisation in sub-Saharan Africa as scholars have come to know it, but the demographic tide itself swells gradually and may also reshape informal institutions in its wake.8

A final type of institutional change described as 'conversion' may also occur, as in the shift from patrimonialism to neo-patrimonialism in Africa, whereby traditional systems of authority – based on ethnic or religious hierarchy – have been transformed into a specific form of neo-patrimonialism shaped by the very practice of multiparty competition. That is, neo-patrimonialism – as it exists today across competitive authoritarian and democratic regimes alike – is infused by the necessity of mobilising voters. Therefore, the creation of clientelist linkages, the use of local brokers as authorities capable of generating a bloc vote among their followers and the deployment of the state resources to distribute patronage to loyalists, is fuelled by the dovetailing of patrimonial structures with multiparty politics in the contemporary era. At the same time, ethnic cleavages have been re-identified and re-formed by political entrepreneurs seeking to take advantage of specific institutional parameters of multiparty competition, generating new informal networks (Posner 2005).

In both cases, processes of formal and informal institutional adaptation have remained congruent with the informal institutional realm adapting to – and supporting – changes in the formal institutional realm. A compelling example of the formal realm generating this type of change, which is then reverberated throughout the informal realm, comes from comparing the evolution of matching villages across the border between Ghana and Côte d'Ivoire. Lauren MacLean (2010) explains how divergent histories of state formation and colonial practice, over time, shaped villager practices of reciprocity and definitions of citizenship. Before colonial rule, these Akan villages had very similar institutions, but the different construction of the state in each case fostered distinctive practices in terms of how communities work with each other, define citizenship and engage with the government. In this way, formal institutional change in Ghana and Côte d'Ivoire led, in some cases decades later, to informal institutional adaptation. Moreover, as informal institutions converged on the reformed formal landscape in each country, the two villages came to demonstrate significant variations in the way in which citizens engaged with the transition to multiparty competition.

# Conclusion

In conclusion, this chapter demonstrates multiple channels of institutional transmission, and hence the importance of the relationship between informal and formal institutions to the development of modern African multiparty politics. Historical foundations condition what is possible today. Formal institutions are not built from a blank slate, and neither do they work in isolation. Multiparty politics are not 'institutionless', nor do they occur in an institutional void. Moreover, formal political institutions continue to matter today, and how they function is shaped by the interaction between historical institutional legacies and informal institutions. Their congruence and divergence create opportunities for various forms of institutional adaptation, with implications for the ascendancy of the formal or the informal in particular domains.

While the reigning assumption of state and party weakness in Africa has often been used to dismiss the formal zone, state and party competition remain the locus of contestation, and the interaction between informal and formal is critical for understanding contemporary multiparty politics. Variation over space (by country and by party) and time (across regime periods and decades) is critical to our understanding of how past legacies of power contestation, social mobilisation and identity representation shape the possibility for future politics. The types of congruence between informal and formal institutions in one period (such as single party rule) transfer in different ways to new institutional contexts (such as competitive authoritarian or democratic regimes). What makes parties 'weak' or 'strong' in these contexts varies, as the party organisation may be undergirded by mobilisation capacity, state resources, coercive authority or ideological coherence. These traits have different resonance and will contribute to multiparty politics in diverse ways. The critical task for scholars is to identify the causal implications of each characteristic of the formal and informal institution at hand, and to understand its possible effects across different periods and contexts.

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1 Scholars have previously characterised political parties in Africa in undifferentiated terms, as extremely weak, non-ideological or reflective of ethnic cleavages (Mozaffar, Scarritt and Galaich 2003). They are presumed to remain weakly institutionalised and volatile given obstacles to party building (Randall and Svåsand 2002).

2 Levitsky and Way (2015) also suggest other causal mechanisms that contribute to enduring authoritarianism, such as the ruling party's capacity to repress and to control the state's coercive apparatus with loyalists. Furthermore, how this conflict defines the opposition and hardens the boundaries between competitors for power could mean that the ruling party sees the opposition as a threat to the nation itself, and therefore could never accept their electoral victory, as in Ethiopia (Mengisteab 2001; Abbink 2010).

3 Studies of electoral volatility in African democracies have shown no decrease in volatility over time (Lindberg and Morrison 2005; Bogaards 2008).

4 While competitive authoritarian regimes can use alternative forms of restriction and coercion to limit potentially threatening opposition challengers, democratising incumbents are more reliant on legal eligibility rules to limit potential electoral threats, and particularly in the first round of highly uncertain multiparty competition. Following founding elections, incumbents of all types often relax stringent eligibility rules in an attempt to fragment the opposition. Furthermore, many weak authoritarian incumbents attempted to establish highly restrictive eligibility rules to limit particular challengers, but unable to control the rule-making process and opposition, pushed for the bar to be placed lower in order to ensure their own participation. This mechanism also highlights why it is essential to analyse authoritarian regimes separately, given their alternative means of restriction.

5 This is particularly important given the non-ideological nature of competition in Africa, where winning access to the state is the driving force behind strategies for electoral victory (van de Walle 2003; Salih 2003; Hyden 2006; Carbone 2007; Chege, Nordlund and Rukambe 2007). Where policy cleavages are central, these could potentially trump the regime cleavage, with important impact on the nature of the party system.

6 This has been evident in key splits from the new PDS ruling party (such as Idrissa Seck's Rewmi party and Macky Sall's Yaakaar), which increase the likelihood of future alternation, such as occurred in 2012 with the ascent of Macky Sall to the presidency and his coalition Benno Bokk Yaakaar victorious in the legislative elections.

7 But note that the urbanisation trends are not unidirectional: weak urban economies and HIV/AIDS mortality rates significantly limit the demographic shift (Chatham House Report 2012).

8 Certainly, competition for jobs and services in some urban areas has also increased ethnic tensions, heightening ethnic voting patterns, so the direction and forms of institutional adaptation is by no means predetermined. It is enough to suggest that the processes and strategies of constructing and living 'groupness' will be continually adjusted as demographic changes unfold (see also Brubaker 2004).

# 3 Property and Land Institutions

## Origins, Variations and Political Effects

Catherine Boone

The idea of the state in sub-Saharan Africa as 'institutionless' underlies much contemporary theorising about African politics (Chapter 1, this volume). The term 'neo-patrimonialism' – widely employed in the comparative politics literature to describe African political systems – implies a lack of institutionalisation, and the centralisation of power in the hands of a supreme ruler and government through personalised, shifting networks. The counterpart of this idea is an 'institutionless' conceptualisation of society, and most importantly perhaps, of rural society, which accounts for 50–90 per cent of the total population of almost all African states. Once 'institutionless Africa' is accepted as descriptive of both state and society, both state and social structure fall out of the explanatory equation. Almost by definition, politics revolve around networks, identities, informalism, and trust and distrust.

This chapter reverses this image of structureless states and societies. It focuses on rural land tenure institutions and argues that they are the product of institution-building strategies of Africa's modern rulers, both colonial and postcolonial, extending the argument laid out in Boone (2014). Africa's rulers are seen here as strategic actors who have sought to impose political order in the countryside in order to govern, and to remain in power. As strategic actors, they have been subject to the disciplines of rule and revenue, power and resistance, and cost and benefit – both political and economic. Like all rulers, rulers in Africa have been constrained and incentivised to seek compliance from subjects and citizens, to build institutions to lower the costs of securing acquiescence, and to enhance the predictability of rule. They have pursued institution-building and state-building strategies that are shaped by the societies they seek to govern. Contemporary land tenure institutions are one outcome of this process.

The analysis of land institutions builds on strands of the New Institutional Economics (NIE) that have been influential in comparative politics since the 1990s.1 The first part of the chapter defines land tenure institutions as property institutions, arguing that they can be viewed in the abstract as outcomes of strategic interaction (asymmetrical bargaining) between rulers and rural societies. The second part uses this model to theorise about institutional origins, variations, and change in land tenure institutions in sub-Saharan Africa. The line of argument is consistent with revisionist colonial and postcolonial historiographies that see law and institutions as the products of conflict, negotiation and contract between central rulers, local elites and leaders, and ordinary people.2 The final part of the chapter turns to the question of institutional effects. It argues that land institutions shape state structure and process, patterns of political group formation and mobilisation, and land conflict in ways that bear directly on central concerns of political science.

# Institutions, Land Institutions and Political Endogeneity

Institutions (or simply rules) can be understood as humanly designed constraints that shape interaction and behaviour (North 1990: 3), and thus as endogenous to politics – that is, they are products of social choice and competition. Because institutions structure repeated action among actors engaged in competitive and complementary interdependencies (i.e. social interaction), they can be modelled as strategic equilibria. They are stabilised not necessarily by the 'collective benefits' they produce, but rather by the balance of power among contending parties that seek to constrain the actions of others, and to gain advantage. Even in situations of great power asymmetry, weaker parties have some bargaining leverage: they can inflict costs on more powerful social actors by withholding acquiescence to a given norm or rule. By this definition, institutions persist in equilibrium – i.e. so long as social actors judge that abiding by the prevailing rule is their best choice, given prevailing power relations, resources and options. Questions of institutional origins, persistence and evolution (development) can all be treated as variants of the same analytic problem: why and when do certain institutions emerge (or not), persist, evolve and/or decay?

This chapter leverages this conceptualisation of institutions to analyse land tenure institutions in Africa. Land tenure institutions are property institutions that define the manner and terms by which rights in land are granted, held, enforced, contested and transferred. A land tenure regime is a system of intertwined institutions surrounding the classes of individuals or groups who have access to land rights – who can assign, transfer, enforce or adjudicate land rights – and the substance of the rights themselves.3 Land tenure institutions go far in defining both the evolution and character of states and societies, not only in Africa but everywhere, because of the nature of property itself.

Property as a concept and a political phenomenon lies at the confluence of political-legal and economic order. It is first and foremost a political relation: unlike possession per se, it cannot exist in a state of nature. Property is a recognised claim or entitlement that establishes a political relationship between the claimers of a property right, a third-party enforcer of that right and other members of an organised society who are (potential) users or claimants. It is also an economic institution and the cornerstone of relations of production: property rules govern access to and use of productive assets, and the distribution of the wealth so generated. This means that property is also a social relation: property structures relations among persons and groups concerning the access and use of things, the organisation of work and use of labour, and the appropriation of the fruits of human labour.

In African societies past and present, land tenure institutions are integrally linked to both state and social structure. They are endogenous not only to the extent of state capacity (high/low), but also to the character of 'stateness' in a given setting (bureaucratic, theocratic, monarchical, patrimonial or other). Intrinsic to land institutions are mechanisms of taxation, dispute adjudication, regulation of holdings and transactions, and recognition of users and user groups. In an organised state, these are necessarily embedded in larger legal, citizenship, regulatory regimes, and in larger structures of territorial administration, modes of labour mobilisation and surplus extraction (Boone 2007). At the same time, land and other property institutions obviously shape the distribution of power and resources in society, and thus affect both the forms of competition and their outcomes.

Property rights in land may be held under institution of private property in land (or, a private property land tenure regime, or system of 'freehold'), wherein rights are private, individual and freely transactable on legal and state-regulated markets. In most of the world and most of Africa, however, these institutions do not govern property rights in land. In 2014, USAID claimed that 70 per cent of the land in developing countries is unregistered – this means that it is neither titled nor taxed directly (USAID 2014). The figure for farmland and pastureland in sub-Saharan Africa is about 80–90 per cent. Absence of freehold does not imply the non-existence of state-recognised rights to occupy and use land, or the absence of structured relations around surplus production and appropriation, however. Property rights in land can come from a political grant or state-enforced entitlement that is not exclusive to an individual, and not legally transactable on the open market (as in Indian reservations in the United States and Canada). Government can grant and enforce collective rights/entitlements to land, give certain classes of users conditional rights to government land or recognise users' rights to permanently live upon and use land held under state trusteeship.

Many scholars (Moore Jr. 1966; Anderson 1974; North 1981; Levi 1988; Ostrom 1990) have asked how land and property institutions emerge, evolve, vary and decay in different geographical-historical contexts, and this is our concern here. An endogenous theory of property institutions proposes that a ruler with the coercive power to claim sovereignty over territory may have good reason to concede, grant or offer property rights in land to subjects (or acknowledge and continue to enforce prior rights) if this will generate some benefit for rulers. Such a 'concession' or deal could reduce the costs (economic and political) of holding the land or territory directly, or exclude others from it. North (1981) and Levi (1988) conceptualised 'benefits to rulers' in the form of taxes that could be drawn from profits generated through productive land use (such as farming). Anderson linked the granting of feudal property rights to European monarchs' interest in securing the acquiescence of powerful rural warlords, the rural nobility's agreement to govern the peasantry, and their help in raising armies at the behest of the central rulers. The work of these scholars suggests that if institutions are political or 'bargained' outcomes in an abstract sense, then the content of these bargains or 'contacts' – including the specific character of land tenure and land institutions – would (1) reflect the relative bargaining power of the parties, and (2) be sensitive to change over time in bargaining power, interests or payoffs of the contracting parties. This logic offers an intuitive and powerful heuristic for generating hypotheses about origins, stability, variation and change in land institutions in Africa.

Connections between property in land, state structure and social structure are the hinge-points of the macrosociological work of Moore (1966), North (1981, 1990), Engerman and Sokoloff (2003), and Acemoglu and Robinson (2006). Many in the NIE tradition have placed land institutions at the centre of work on the politics of economic change and the economics of political change. Within African studies, these lines of analysis are extended and deepened in the work of many scholars who have modelled state institutions in rural Africa, including land institutions, as cause and consequence of competition (or entente) between rulers and subjects with the capacity to constrain rulers' options. An 'entente' – that is, an equilibrium that emerges when parties realise the prevailing distribution of forces and interests – is modelled in the NIE literature as a contract, and this notion can be expanded to 'social contract' when we are talking about basic rules that structure relations between rulers and ruled in ways that help produce political order. A partial list of work on African land tenure institutions that employs such reasoning, coming from both NIE and macrosociological traditions embracing complementary logics, would include Bates (1983), Berman and Lonsdale (1992), Ensminger (1992), Munro (1998), Colin et al. (2007), Poteete (2009), Onoma (2010), Joireman (2000, 2011) and Boone (2014).

# Contemporary Land Institutions: Origins and Variations

In the early 2000s, 60–70 per cent of sub-Saharan Africa's total population lived and worked in the rural areas, mostly as farmers, pastoralists and agro-pastoralists. Yet, only 2–10 per cent of all land in Africa was surveyed, registered and held under private title.4 If so much of the land is not held as private property, then how is access and use regulated and organised? What governs the organisation of work, the division of the social surplus and the use of coercion in these relationships?

Absence of familiar property institutions in rural Africa does not mean absence of institutions. By constitutional authority, states themselves are sovereign controllers of 90–98 per cent of the land in sub-Saharan Africa, and most constitutions also give governments direct powers to allocate and reallocate land to users. The lands worked by most African farmers (and pastoralists) are parts of 'national domains' that are legally controlled by political authorities who act in the name of the state. Coercive and legal power to give and take state land lies in the hands of African governments. Constitutions of several African countries literally vest the power to allocate land in the president. Land rights lawyers Liz Alden Wily and Patrick McAuslan wrote that from a legal standpoint, most peasant farmers are 'tenants at will' of the state.5 The state itself is their landlord, or more precisely, their overlord, in the sense that most smallholder farmers and pastoralists hold permissive occupancy rights granted by the state. These are generically referred to in the literature as 'customary rights,' but as the present analysis shows, the term 'customary' can be misleading. I propose instead a conceptualisation that draws a distinction between neo-customary and statist land tenure institutions, or land tenure regimes. Their origins, how they vary and the institutional apparatuses by and through which they are enforced and maintained are the subjects of this section.

An endogenous theory of the origins of contemporary land tenure institutions in Africa is one that seeks to examine the political, economic and social forces that structure the emergence and evolution of the institutions themselves. It can start with modern state formation, since property and the state are mutually constitutive.

With colonial conquest (incomplete in many parts of sub-Saharan Africa until the 1920s), colonial rulers in Africa confronted the challenge of creating governed space and eliciting compliance to foreign domination and exploitation. They had to demobilise and subordinate African populations, impose legibility on colonial subjects and find ways to draw resources and wealth out of colonies in ways that would not provoke insurrection, uprisings, anti-colonial mobilisation or far-reaching passive resistance. They were aware of African populations' capacity to raise the costs of governing above the colonisers' capacity to mobilise resources for repression.6 Rulers worried about tax revolts, tax boycotts, crop burnings and the destruction of transport infrastructure; the assassinations of chiefs, European colonial officials and policemen; and rural exodus and flight across borders to neighbouring colonies or to the cities. Cities presented a new set of challenges; they were (and have remained) even harder and costlier to govern. Colonial rulers were very strongly motivated to keep the vast majority of their African subjects not only 'in the countryside' but also fixed within legible territorial jurisdictions and under the authority of more-or-less reliable African agents of the colonial state.

With a historical sensibility that is even vaguely attuned to the dynamics of conquest, resistance and the insecurities of rule, one can see that once colonial conquest was achieved, pure coercion and extreme predation would have been too costly for European rulers to impose over most of the population most of the time. A NIE perspective suggests that the institution-building under colonial rule can be modelled as a kind of contracting in the shadow of violence between rulers and ruled, with both sides capable of inflicting costs upon (and making concessions to) the other. Obviously, there was heterogeneity of interests and capability, and cooperation and competition, on both sides. There were costly break-downs into pure predation, open resistance, extensive violence and disorder. There would be no theoretical justification for supposing that colonial institutions, including land institutions, were ever uncontested or stable in any absolute sense.

African societies' productive capacity – combined with their capacity to disrupt colonial administration and inflict heavy costs on rulers – gave colonial subjects their leverage or 'bargaining power' in strategic interaction with colonisers. In most parts of most colonies, rulers elicited African subjects' cooperation and acquiescence to colonial administration and taxation 'in exchange' for the Europeans' own commitment to restrain their demands and extractions. Colonisers delegated prerogative and privileges to local African intermediaries and agents, and recognised some land rights for most colonial subjects. These were the pillars of colonial indirect rule. Colonisers also organised the provision of some palpable goods and services, such as protection from armed raiding, roads and some Western education.

Ententes that stabilised around rules and procedures can be modelled as 'social contracts'.7 Colonial subjects' acquiescence was tentatively exchanged in return for the colonisers' commitment to act with some predictability and some restraint. Institutions that emerged from this contracting were intentionally designed by European colonisers to impede African subjects' capacity for collective action and to blunt the rise of anti-colonial consciousness, and were only partially successful in these regards, even in rural areas. They also allowed Europeans to extract labour, agricultural commodities and forest products from the countryside, although success here was also limited.8

Land tenure institutions – the subject of this chapter – are one of the important and decisive outcomes of this process. Across most of sub-Saharan Africa, the land institutions that govern most ordinary farmers' access to land take one of two generic forms, varying by district or region within each African colony or country. First are the neo-customary9 land tenure institutions, created under colonial indirect rule. They are less costly to impose and enforce, but give rulers less control over land use and are beset by principle-agent problems (giving African subjects relatively more autonomy). Second are the statist land institutions, which can be very costly to impose and enforce but give central rulers more (direct) control over land allocation and use. Under statist land institutions, land users are subject to the unmediated surveillance and repressive powers of the state. Postcolonial African governments largely maintained and reproduced the types of land institutions they inherited from the colonial states, modifying, extending and reproducing them in new ways.

# Neo-customary Land Institutions

Across most of sub-Saharan Africa, European rulers recognised some of the ancestral or prior occupancy rights of their colonial subjects, and conceded new permissive occupancy and use rights to some. Colonial rulers recognised these as neo-customary land rights if and when their African subjects belonged to state-recognised rural collectivities (officially recognised 'tribes'), and agreed to live under the authority of state-recognised local authorities ('chiefs') within territories designated by the state as 'tribal homelands'. The land rights so granted or recognised were rights to occupy and use land, to pass it on to heirs, to not be subject to land tax and to claim some compensation (usually in kind) for land within the homelands that was expropriated by the state. They worked to fix rural populations on the land, and to organise them into governable collectivities within administrative-cum-territorial units. They also promoted peasantisation and the cultivation of food crops and taxable crops within the framework of colonial economies. For ordinary colonial subjects in the countryside, these arrangements produced a form of local political and economic order that induced most people to acquiesce to the status quo most of the time.

Neo-customary tenure in colonial and postcolonial Africa often bears very tenuous connections to precolonial (e.g. pre-1885) customs, institutions and practices. Sara Berry's hedged statement on the matter provides a good way to think about precolonial legacies: 'Some of the organizing concepts of precolonial land tenure systems continued to influence evolving patterns of land control' (1988: 58). The extent of continuity needs to be taken as a variable, both across space (including subnationally) and time. Sometimes, continuity is hard to find. Michael Watts (1983: 75) wrote that the British 'literally invented communal land tenure' in northern Nigeria.

The ideological underpinning of neo-customary land institutions is the idea that 'each tribe' manages 'its land' (within its 'homeland') through its 'own rules' and under its 'own traditional authorities'. These arrangements consist of four interlocking sets of rules defining group membership, territorial jurisdiction, property and authority relations. Each is discussed in a separate sub-section below. In varying degrees and ways, contemporary African states have incorporated the four defining elements of neo-customary land tenure into their legal-administrative structures and practices.10 Although the term 'indirect rule' is not used in Africa today, the colonial terms 'homeland', 'chief', 'tribe' and 'customary' are. The isomorphism of neo-customary institutions across extremely heterogeneous socio-political, demographic, ecological and economic contexts is itself a tell-tale sign of the colonial template and its intrinsically modern, state-crafted character.

## Neo-customary Territorial Jurisdictions

Indirect rule transformed the vast and politically fluid or potentially oppositional spaces of conquered Africa into the governed spaces of colonial Africa (Watts 2004). Working from treaties, routes followed by colonial military columns, maps distinguishing pacified areas from hostile territory and new agreements with local African authorities, colonial authorities worked in the 1900s through the 1930s to zone each colony into ethnic homelands and state-controlled forests, reserves, municipal circumscriptions and territories assigned to European settlers and investors. Territorial jurisdictions under neo-customary authority were conceived of as ancestral homelands of the 'tribes' that colonial officials had reconfigured and formalised as state-recognised collectivities.

Bargaining in the shadow of violence, colonial rulers delimited jurisdictions that confirmed or expanded the geographic sphere of influence of some (trusted) customary authorities and reduced or eliminated the domains of distrusted local leaders or groups.11 These tribal homelands were the territorial containers for building neo-customary land institutions and colonial citizenship regimes.12 Their boundaries mapped onto sub-district and district (or circumscription or cercle) divisions in colonial administrative grids. Figure 3.1 offers a redrawn version of a 1956 map of tribal jurisdictions in northern Tanganyika as an example. Colonial territorial administration – constituted of a hierarchy of district officers, commandants de cercle, their lieutenants and chiefs – was organised within this template. Postcolonial states absorbed these administrative grids, as well as the ethnic homelands and land rights they institutionalised. Indeed, postcolonial governments have reproduced and elaborated the logic of segmenting territory (land) among different state-recognised ethnic groups. It is a dynamic propelled forward by the actions of both rulers and ruled, with units subdivided as the administrative grid tightens – 'forgotten minorities', press rulers and their political patrons in the state for their own jurisdictions and land entitlements.

Figure 3.1

Gorowa Native Authority, 'Tribal and Ethnographic Map', from Atlas of Tanganyika, 1956

There is nothing informal about the institutions that carve national space into political and administrative sub-divisions in African countries. They are as formal as the départements of France or state borders in the United States. Subnational boundaries in African countries are often not exactly the same as their counterparts in the countries just mentioned, however. They often define and divide the political collectivities that rulers are willing to recognise, impose indigene–stranger hierarchies within ethnic territories and create hierarchy among groups (privileging settled agriculturalists over pastoralists, for example). These same rules restrain labour and class mobility, the functioning of markets, and national integration.

## Neo-customary citizenship rules

If ethnic jurisdictions were territorial templates for indirect rule and neo-customary land institutions, then 'tribes' were the social groups that fit within these containers. Through aggregations or division of existing social and political groupings, colonial administrators endeavoured to forge the supposedly natural tribal communities that were ideologically framed as the authentic African social form. Chanock (1998:238) uses the term 'new tribes' to distinguish these groupings from territorial, social and political collectivities that existed in precolonial times.

By definition, neo-customary law varied across the ethnic groups within one colony. It governed land and civil affairs, and some criminal law. As a matter of routine government and administration, therefore, it was necessary to assign a state-recognised tribal identity to each person in order to know which customary court and which customary law would apply in the case of a land dispute or claim, inheritance matter, civil infraction or ordinary crime. Mobility restrictions – a fundamental monitoring and control technology of the colonial state – also required that individuals be assigned an ethnicity and a homeland.13 Judicial systems, territorial administration and property regimes literally could not function unless individuals were assigned a state-recognised ethnic status (TNA 1925:1).14

For colonial and postcolonial subjects, using a state-recognised ethnic status has conferred a right of residency in a homeland, a right to claim a neo-customary land entitlement, and diminution of the risk of land dispossession or displacement by ethnic outsiders (including Europeans). This means that many colonial subjects had good reason to accept such legal identities. Strategic interactions between state and subjects shaped the incorporation of subject populations into a new political order (Chauveau and Dozon 1987). Murdock's 'ethnic mappings' (1959, 1967) – used to construct the ethno-linguistic fractionalisation indices that are popular among today's social scientists – are actually products of the modern state-making process, rather than exogenous to politics and the modern state. Such rules institutionalised the political status of 'internal foreigner' – a subject of the colony (or now, citizen of a country) living outside her or his ethnic homeland. In Kenya, this would be a Kikuyu working in Kisii, or in Nigeria, a Yoruba living in the North. The salience of this distinction is high in agrarian settings, where the internal foreigner (or stranger, guest or 'in-migrant') would be excluded from claiming a land entitlement, land ownership and having full political voice in the local community.

These institutions are unfamiliar in Western countries where most national governments do not differentiate between different classes of citizens based on (non)membership in subnational political communities. Indeed, the existence of such distinctions conflicts with the idea of the unitary state and unified citizenship regime. Significantly, state-recognised ethnic status is not an informal institution (although other kinds of social and kinship-based communities may well be considered as institutions). Under colonialism it was officialised in census categories, ID cards, entitlements to claim land in ethnic homelands, and differentiated civil codes and courts. In much of contemporary Africa, these distinctions remain integral to the functioning of land institutions, and in structuring access to the political arena at the local level. In Soubré in western Côte d'Ivoire in 2006, the national government carefully registered each farmer as either an 'autochthonous owner' of land or as an ethnic stranger who, by writ of the state, could only enjoy permissive occupancy rights at the pleasure of an autochthonous host. In Vavoua in the same region, ethnic strangers (allogênes and allochtones, or foreigners and 'internal foreigners') were warned in August 2014 that choosing the sous-préfet's local interlocateur and the local land-rights adjudicator, the chef de village, was the privilege of the heads of indigenous lineages. 'Ethnic outsiders should stay out of it'.15

Many political scientists have studied ethnic identity in Africa as an individual cognitive attribute or preference (or behaviour). They might reject the argument that ethnicity is a legal status or official institution. To sort out this debate, it is important to underscore that we are talking about two conceptually distinct phenomena. Those pinned with a yellow star in Nazi Germany (a state-imposed legal status) may or may not have self-identified as Jews, or seen themselves as all members of 'the same community'. This does not change the reality of the state's action or intention, and surely leaves open the possibility that state policy has a direct impact on individual identity, cognition, groupness and collective action. As this example suggests, these two kinds of ethnic identity may coincide, overlap, be nested or evolve together (or apart), and may do so in dynamic interaction over time. My key point is that state-created and state-imposed ethnic designations have a far greater impact on ethnic identities in Africa than most political science acknowledges, and a far more direct and on-going impact than models that take ethnicity as an 'independent variable' in political explanation can accommodate.

## Neo-customary Authority Rules

The imperial powers did not have the means or the motive to govern colonial Africa directly, by obliterating local authority and social structures and building bureaucratic-authoritarian institutions from scratch. Indirect rule was the cost-effective solution in most places: it institutionalised a colonial form of power in the hands of chiefs who were appointed or confirmed in power by the European rulers. The ideological and indeed, the practical, justification for this was the colonisers' interest in taking advantage of and accentuating mechanisms of social cohesion and control that they either observed or imagined to be inherent in 'tribal society'. They hoped to harness the authority and legitimacy of Africans who already possessed these assets in the eyes of subject populations. The inherent fallacy and contradiction was, of course, that not only did such authority exist everywhere, but also such collaboration – with disruptive, sometimes violent and predatory colonial overlords – diminished legitimacy (or prevented it from developing). This is the root of the fundamental agency problems built into indirect rule: the more faithful and reliable the chief as an agent of his European over-rulers, the less authority he would have in the eyes of subjects, and the more he would have to rely on coercion (more costly and often counterproductive for the colonial state) to execute directives from above (Hechter 2008). Colonial rulers, recognising this and seeking to economise on monitoring, created wide gaps between principal and agent in land affairs, local civil matters and in allocating the local tax burden.

It is, therefore, an error to define chieftaincy as an informal institution. Official chiefly hierarchies were an explicit part of colonial administrative hierarchies, with chiefs appointed by ranked classes (chief class A, B, C) and placed on the government payroll. In Côte d'Ivoire in the 1930s and 1940s, the colonial administration kept a portfolio on each appointment chief that was much like a personnel file in the Human Resource department of a business or university. These documents were routinely updated and consulted when promotions, demotions, replacements and pay-rises were under consideration. Appointment and removal procedures were regulated by administrative decree. With the end of colonial rule, African leaders revised these systems but did not eliminate them. Paramount chieftaincy (regional-level) was done away with almost everywhere, as was the power of chiefs to requisition the labour of their subjects for agricultural work. Yet chieftaincy is built into the territorial administration and land administration institutions in most African countries today. Where chiefs are on the government payroll, this is unambiguous. In Côte d'Ivoire, for example, sous-préfets select village chiefs (based partly on assessments about who will be effective). Each appointment is officialised by decree of the Minister of the Interior.

Much of the power chiefs wielded over subjects on a day-to-day basis was and is derived from their land-related powers. Colonial indirect rule gave chiefs control over the allocation of unused land and the power to adjudicate land disputes within their jurisdictions – these were their primary instruments for gathering power and exercising social control. Chiefs also judged and ruled on civil matters (marriage, divorce, inheritance, all closely related to land matters) and distributed the burden of taxation (including forced labour) among villages and households in their jurisdictions.

Among others, Mamdani (1996) has stressed the paradox of chieftaincy under indirect rule: it institutionalised a form of authority over local subjects that was, in essence, arbitrary. If we regard colonial rulers as strategic institution builders, we can say that they did so for four reasons: to subsidise the costs of colonial rule through the legitimacy of their local agents; to grant discretion to their agents; to customise local authority to fit local situations; and to build in flexibility (for change over time).16 Personal rule, largely unrestrained by written code or law, was thus an intentional feature of institutional design. Postcolonial rules transferred some of the powers and prerogatives of the colonial chiefs to state agents and secular politicians. However, the grounding of chiefly power in land tenure institutions, and much of the inherently arbitrary character of local governance, has been actively reproduced across much of postcolonial Africa. As a result, authority relations rooted in neo-customary land institutions are highly salient in shaping local political economies. As Clark Gibson (1999: 127) wrote in a study of wildlife policy in Kenya, Zimbabwe and Zambia in the 1990s: 'Chiefs still possess considerable influence over social and economic institutions in the rural areas... Most of this authority results from the chiefs' control over access to land... Chiefs retain the right to allocate land... This prerogative is decisive... Control over access to land also allows chiefs to regulate access to employment opportunities... [and] to secure positions for themselves and their family, friends, and supporters'.

## Neo-customary Property Rules

Neo-customary land tenure institutionalised subjects' rights to untaxed, unregistered land in their 'ethnic homelands' via the authority of chiefs. These property rules, enforced by postcolonial states, have worked to bar legal transfer of land rights to women and non-members of the state-recognised community of land holders (i.e. the ethnic community). Colonial and postcolonial rulers capitalised on this as a mechanism for reproducing the cohesion of state-recognised ethnic communities. Neo-customary authorities had incentives to implement and enforce these rules because they sustain chiefly land powers and their own local authority (Ribot 1999, 2003). Those who benefit from these rules are also strongly incentivised to uphold them.

Under neo-customary property rules, the status of 'internal foreigner' or 'ethnic stranger' is highly salient. Ethnic outsiders or strangers are unable to access land directly (through purchase or otherwise) in their jurisdictions of residence; they do so as the guests or tenants of ethnic-insider hosts. As Stephano Boni (2005: 82) explained in an analysis of neo-customary land tenure institutions in western Ghana in the early 2000s, classifying each farmer's ethnic membership is necessary for the implementation of the tenurial and taxation regime. Neo-customary property rules thus define socio-economic hierarchy and social cleavage in many, probably most, farming regions. These territories, subject populations and chiefly hierarchies constituted the basic political-administrative units of the colonial states in Africa. Mamdani and Lentz call them the 'local states' or 'native states' of colonial Africa (Mamdani 1996: 20–21; Lentz 2005).

Neo-customary land tenure exists in a wide variety of forms as a 'chosen institution' of postcolonial rulers. The fact that land institutions continue to evolve through the strategic interaction between governments and different (sometimes competing) classes of users drives home this point. Decapitation of many chieftaincy hierarchies (e.g. paramount chieftaincies) and the reining-in of the arbitrary powers of chiefs by a number of African states in the 1950s and 1970s (especially chiefs' ability to requisition labour to work their own fields) reflected governments' responses to grassroots resistance to neo-customary authority in its most predatory and opportunistic forms. Whether by constitutions, law, executive decree, administrative order or practice, most governments have confirmed the role of chiefs or other autorités traditionneles in allocating access to farmland and pasture and in adjudicating land-related disputes arising over land boundaries, inheritance and transactions (even if other chiefly prerogatives have been reduced). Postcolonial governments have not only reproduced old ethnicity-based land entitlements in ethnic homelands; they have also created new ones: new homelands give new entitlements to newly recognised ethnic groups.17 Herbst (2000) and others are thus incorrect in seeing neo-customary land regimes as informal, archaic or anti-state. They are not vestiges of precolonial Africa that subvert attempts by modern leaders to rule the countryside. The opposite is closer to the truth.

Most African governments have sought to tap into the political potential inherent in neo-customary land tenure. They have relied on chiefs as vote brokers and reminded rural communities that central authorities are the ultimate arbiters and guarantors of neo-customary land entitlements. At the same time, members of state-recognised ethnic groups have maintained powerful stakes in neo-customary land tenure. We saw this in Kenya, for example, in the midst of raging debate over elite land grabbing in 2005. The populist Kenya Land Alliance (KLA) declared that the Kenyan customary concept of ownership of land still prevails: 'Since customarily no individual in a community owns land, land is owned by all collectively for the benefit of each and every member of the community... [C]ustomary lands are managed and controlled by the County Councils, which [are supposed to] hold them in trust for communities' (KLA 2005: 4).

As this example suggests, institutions that entitle community members to claim access to unsurveyed and untaxed rural land can also serve to restrain the state, land-hungry elites and the market. The fact that these constraints are not absolute and that their bindingness changes over time does not invalidate this point. Rights in the old democracies can also be trampled upon or eroded, but we do not consider them to be non-existent or politically irrelevant. In the Kenyan example, the existence of such a social contract around land is what ensures that the KLA claims are viewed as legitimate and potent within the Kenyan political arena.

# The Statist Land Institutions

Colonial administrators' dominant strategy was the pursuit of rural governability, but in the context of the larger imperial projects, this goal was alloyed with others. Colonisers risked the wrath and backlash of subject populations when they asserted direct control over land and land-based resources to generate revenue, settle new populations on the land or create cities, mines, dams and industrial zones. Postcolonial rulers have been motivated by the same types of goals: to make land grants to the postcolonial elites (as in the case of Kenya's Rift Valley), to promote agribusiness in attempts to bolster agricultural production and productivity, to exploit mineral and forest resources, to create national parks, game preserves, gazetted forests, military camps and training zones, and demonstration farms that would be off limits to smallholders and pastoralists, and to construct cities, dams and reservoirs.

We can model this calculus by saying that rulers asserted direct control over land when the expected costs (in economic and political terms) were outweighed by the expected payoffs.18 The argument that this calculus reflects strategic interaction between rulers and ruled remains valid in these contexts. In many colonies and postcolonial settings (Côte d'Ivoire in the 1940s and 1950s, Tanganyika in the 1940s and 1950s, Kenya in the 1930s to 1960s, Senegal in the 1990s, Tanzania in the 2000s), ambitious colonial or postcolonial plans for land expropriation from rural smallholders have been shelved or scaled back by the spectre of rural political mobilisation against the state. Such constraints help to explain why rulers have asserted direct control over land allocation on a limited scale within carefully demarcated territorial jurisdictions. In these zones, rulers have expropriated established occupants and rights-holders, pushed them aside or expelled them, and proceeded to allocate land access directly, either arbitrarily or under statute. This is the process of institutionalising the statist land regimes. It has generally required the on-going application of considerable state violence and repression.

Every student of African history knows that in Kenya, Zimbabwe, South Africa, Namibia and Mozambique, colonial states alienated vast domains from African land users and allocated these lands to white settlers. Less recognised is the fact that many colonial and postcolonial governments created schemes for Africans to encourage migration and settle new peasantries on lands outside their ethnic homelands.19 Some of the best-known examples of postcolonial settlement schemes are found in Kenya, where the government resettled over 500,000 Kenyan families on Rift Valley farmland in the 1960s and 1970s. In Côte d'Ivoire, 75,000 Baoulé displaced by construction of the Kossou Dam in 1970 were resettled by the government in the western forest zone of the country. In postcolonial Rwanda, settlement schemes placed tens of thousands of families on reclaimed marshlands, or pasturelands expropriated from the Tutsi in the Hutu Revolution. In Tanzania in the 1950s and 1960s, governments organised the settlement of migrants on 'new lands' opened up to smallholder farming tsetse eradication. Cases in point can be found in colonial and postcolonial South Africa, Rhodesia, Namibia, Kenya, Rwanda, Uganda, Tanzania, Nigeria, Ghana, Mali, Sudan, Ethiopia, Senegal, Belgian Congo/Zaire/DRC and others (Boone 2014).

In such areas, land authority is not devolved to state-recognised customary authorities. The central state itself is a direct allocator and manager of land access and use. We refer to this type of land control regime as 'statist' to underscore the directness of the state's role in allocating land – and, thus, to distinguish this mode of land governance from the indirect rule arrangements that define the so-called customary land tenure regimes in Africa.20

## Statist Authority Rules

Statist land institutions create authority structures that differ greatly from those prevailing under the neo-customary land tenure regimes. The in-migrants are beholden to the central state for land access. They do not seek or obtain land access from a neo-customary chief, local landlord or other indigenous host. Writing of settlers on Mali's Office du Niger irrigation scheme, for example, Robert Pringle (2006: 49) describes the position of the settlers vis-à-vis the state: 'Because the colons [peasant settlers] from what is now Burkina Faso had no traditional rights to the authority's [i.e. Office's] previously vacant lands, they – and their dependents – remained uniquely vulnerable to central control'. This dependency finds legal expression in the fact that farmers on peasant settlement schemes have rarely received private title to their land. Kenya's Rift Valley settlement schemes in the 1960s represent a (temporary) exception that proved this rule. Titles assigned in the mid-1960s were often not kept up to date as land passed from one generation to the next. Often, titles remained in the hands of the state agencies that partially financed the original land allotments. Rates of titling are very low on Rift Valley settlement schemes created in the 1980s and 1990s.

## Statist Territorial Jurisdictions

If a boundary is an institution, then a state-imposed and -enforced territorial boundary that is the dividing-line between two different legal regimes is a formal institution par excellence. The municipal boundaries, forest reserves, game parks and settlement schemes are the delimited jurisdictions in which statist rules of land allocation and administration apply. Within their boundaries, ancestral and neo-customary rights are extinguished (or perhaps downgraded to residual status). In forests and reserves, such boundaries are often emphatically enforced through the action of armed officers, police, guards, wardens, scouts and patrols.

The political bite of these rules is evident in contemporary Africa's chronic struggles over the legal boundaries of game parks, gazetted forests, state-owned farms, foreign-leased plantations and cities. Over the last 100 years, rules delimiting zones of purely statist land tenure have provided legal and political justification for dispossession, expulsions and displacements (see Odgaard 2005; Hodgson 2011). They have turned farmers and pastoralists (claiming ancestral or neo-customary rights) into squatters, trespassers, poachers and common criminals in lands they have used for decades or more. Reciprocally, in places like much of southern Côte d'Ivoire, national rulers' ability to 'release' state forest land to loggers and, in their wake, small-scale farmers, has been a prime mechanism of both wealth accumulation (for the state, foreign interests and national elites) and political regulation of rural populations (by opening up new lands for settlement) since the 1960s.

Legal, political, economic and guerrilla struggles between state and citizens over drawing boundaries, modifying them, enforcing them and legitimising state allocations within the borders of territorial jurisdictions under statist land institutions have often taken centre stage in postcolonial African politics. The release of the Ndungu Commission Report in Kenya in December 2004, for example, which documented pervasive corruption in the allocation of state lands to high-ranking members of the Kenya elite, contributed to the momentum for a new national constitution (including new national land policy), which was finally introduced in 2010.

## Statist Citizenship Rules

Under statist land institutions, neither neo-customary nor ancestral rights are recognised by the state. This is clear in the major urban areas. Cities like Nairobi, Abidjan and Dakar are 'cosmopolitan zones' not only because of their large non-African or international populations, but also because national citizens of different ethnicities rub shoulders in a national space that is not recognised as a homeland to any one particular group.21 It is also true in rural zones under statist land institutions. Settlement schemes are home to African settlers who have no ancestral or neo-customary rights to the land they occupy; they are ethnic strangers, often receiving land allocations in ethnically mixed communities without regard to homeland of origin. Those claiming to be autochthonous to the area may well feel that they have been pushed aside or invaded – like 'involuntary hosts of uninvited guests'.22 Autochthons may believe that they have been expropriated outright by the state and the rulers' clients (i.e. settlers).

## Statist Property Rules

The distinctive feature of statist property rules is that land is allocated directly by the state and its direct agents (such as uniformed sous-préfets or settlement scheme agents). Ancestral and ethnicity-based entitlements are not recognised. Figure 3.2 captures the bureaucratic rationality and high modernism of official settlement schemes in Rwanda in the 1970s and 1980s. Ancestral and neo-customary rights are not recognised. Private property (registered and titled freehold) is one kind of statist land tenure, since the state is the direct regulator, adjudicator and enforcer of private property, even if the transactions are negotiated on the market. However, in most territorial jurisdictions under statist land institutions in sub-Saharan Africa, users enjoy rights of permissive occupancy, rather than freehold, and governments have not promoted land markets. Titling and market-based property transactions entail high costs to government, both in terms of the costs of bureaucratisation and in terms of loss of political leverage over settlement schemes and settlers. Rulers have also been sensitive to the risks of accelerating rural class formation and the rise of landlessness. In Kenya in the 1980s, Moi pulled land mortgage bankruptcy cases out of the courts and empowered the provincial administration to manage this politically charged problem, thus holding back the development of land markets. This can be described as a kind of equilibrium-induced outcome in the sense that it was almost certainly supported by most of those who were in default. As history tells us, the rise of private property may be resisted by those trying to preserve their existing land rights.

Figure 3.2

Paysannat de Muhero, Rwanda, 1970s

Source: Drawn by John V. Cotter from Prioul and Sirvin, 1981.

Just as the customary land regimes are partly self-enforcing, so too are the statist land regimes. Rulers have sunk costs and a vested stake in the projects they have authored and the clients that they are defending. Migrant farmers (settlers) whose land rights have been granted directly by state authorities have not only a vested stake in the statist land institutions that govern the land that they occupy and use, but also a stake in the longevity of the rulers who guarantee and enforce their land rights. Preferences around national integration issues are also shaped by statist land institutions. Migrant farmers occupy and use land outside their ethnic homeland; they have a vested stake in the national principle that 'citizens have a right to live and hold land anywhere'. This represents a frontal challenge to neo-customary land tenure.

In general, the statist tenure regimes have been much more deeply contested, and thus more politically and economically costly for rulers to create and enforce over time, than the neo-customary property institutions. If the statist land institutions are modelled as equilibria, then these equilibria are highly vulnerable to upset. The political bond that holds together the parties to this 'social contract' may not outlive an incumbent ruler: especially (1) if it is contested openly by a rival constituency claiming prior claims to the land; and (2) if much of the rest of the national population is vested in, and wants to reaffirm, the validity of neo-customary land tenure.

# Institutional Effects

These land tenure regimes represent the institutional frameworks within which colonial and postcolonial governments have promoted peasantisation of farmers, sedentarisation and incorporation of rural populations into the administrative-economic structures of the twentieth-century state. They have secured the acquiescence of agrarian societies in Africa in most places for most of the last fifty or sixty years. Where government has accommodated rural interests, rulers' legitimacy and electoral strength has derived largely from political bases in agrarian society, and from governing networks that run through neo-customary elites and local-level state agents whose power is rooted in part in authority over land.23

The prevailing land institutions have served as a check to more rapid and wholesale commodification of land rights and rural labour, enclosure and large-scale expropriation. They have constrained and slowed the rise of landlessness and full commodification of agricultural output. These effects have been fundamental in defining the character of rural societies, African agriculture, national class structure and national economies. Land tenure regimes of both neo-customary and statist character have also structured African states, societies and forms of political competition and conflict. The following discussion identifies what NIE theories could model as 'equilibrium effects' of the rural land tenure institutions that have prevailed throughout most of rural sub-Saharan Africa since political independence. Yet, NIE proposes that as political equilibria, institutions are only as stable as the underlying power balances, resource constraints and interests that gave rise to them in the first place. The chapter's conclusion shifts attention to forces of disequilibrium and change.

## State-Building

Land institutions tie rural populations to national governments, and into national political economies. Rulers have had an interest in sustaining the authority-based controls over land because these help them stay in power: the prevailing property regimes in land reduce the political autonomy of land users and rural communities, give rulers leverage over resources that can be used as patronage and underpin bargains with local strongmen who are tied to national rulers. Across much of the national territory of most countries, 'the rural masses' are tied to micro-territories, land entitlements and, to varying extents, neo-customary authorities as well.

Nested within larger ethnic territories or 'homelands', ethno-regional groupings bargain and compete for benefits that national rulers may provide. In jurisdictions under statist land tenure regimes, land users are tied to the state agents who grant them access to land controlled directly by the state (in settlement schemes or in degazetted forests, parks and so on).

The politics of subnational unit creation is driven mightily, on both the supply and demand side, by the drive to grant new land entitlements. There are highly charged redistributive implications both within the new units and across new and old units.

## Defining Political Identities and Collectivities

Neo-customary land tenure institutions impose and reproduce state-recognised ethnic identities and reproduce them through the workings of land relationships.24 They also incentivise individuals and families to claim and maintain ethnic identities that confer land rights in state-recognised homelands. By the same token, exit from these ethnic identities is costly if it involves forfeiture of the right to claim land. These same institutions also create incentives and political opportunity structures (ideologies, leadership, political channels for being heard by rulers and legitimate claims on the state) for groups to act collectively (i.e. as ethnic collectivities) to defend collective land entitlements, and to assert claims to other benefits and dispensations that state recognition entails. These effects are heightened where other forms of collective action and mobilisation are ignored or repressed.

Those who access land via statist land institutions, by contrast, are incentivised to embrace national rather than ethnic identities (Boone and Nyeme 2015). The presence of this tension highlights the possibility that what political science codes as 'ethnic politics' in many African countries may in fact conceal an underlying tension between preferences for ethnic versus non-ethnic (or national integration) politics, and that these preferences many be unevenly distributed across ethnic groups. These tensions appear more or less clearly in politics around land in Kenya, Côte d'Ivoire, Rwanda and South Africa, for example.

Hechter (2004) argued that under indirect rule, many critical political issues are embedded in highly localised social relations and forms of power. The adjudication fora and venues are capped at the local level, and the responsible authorities are local. Indirect rule thus shapes political process – in terms of political scale, substantive content of issues, procedural rules and forms of collective action. Direct rule produces different outcomes, according to Hechter. It changes the scale of politics, the target of political claims and grievances, and forms of collective action. It promotes the growth of translocal social movements and forms of political mobilisation. Hechter's general arguments are directly applicable to the substantive issues analysed here.

## Shaping Forms of Land-Related Conflict

Land institutions shape politics, producing effects that vary across space in predictable ways. Both neo-customary and statist land tenure institutions play a strong role in defining lines of socio-political cleavage (and alliance) in rural society, creating economic and political hierarchy, and distributing rights in the local political area. Tensions fuelled by rising competition for land are refracted through the different land regimes (Boone 2014, 2017). Under neo-customary land institutions, ethnic insiders almost always have a clear upper-hand, backed by national governments which 'choose' neo-customary institutions, have a stake in them and enforce them. Ethnic strangers are highly likely to be disadvantaged and discriminated against. The tables are turned under statist land tenure regimes when national rulers have vested interests in defending the migrants that they have encouraged to settle in zones outside of their ethnic homelands. As suggested above, these arrangements can be destabilised by regime change or a shift in the ruling coalition.

# Conclusion

One of the main goals of this chapter has been to depict structure and variation in these institutional configurations in rural Africa. This has made it possible to connect the study of land institutions to broader, more institutionalist, understandings of regime type and political order, and also expose political dynamics in Africa that have so far escaped comparative and scaled-up analysis.

Making visible this part of the architecture underlying state-society relations (in these mostly agrarian societies) undercuts the following stereotypes or assumptions, all prevalent in the political science literature on Africa: (1) the notion that modern African states are disconnected from their rural hinterlands – such as Hyden's image of the state as 'suspended in mid-air' (1980); (2) the idea that the countryside and rural societies are both institutionless and beyond the 'reach of the state', composed of face-to-face self-governing communities (Herbst 2000); (3) the belief that rural property institutions are absent, constituted by pre-colonial African customs, uniform continent-wide (or always unique or varying randomly) or 'informal' as connoted by the common use of 'customary' or 'traditional' to describe land tenure arrangements in all of rural Africa; and (4) the latent idea, often present but unexamined, that impersonal markets govern access to rural farmland and pasture.

National political order anchored in the social contracts described above – wherein acquiescence is exchanged for the right to claim land in one's homeland – may be self-limiting, especially where populations grow, land is finite, agricultural technology is very slow-changing and off-farm livelihoods are hard to come by. In much of sub-Saharan Africa, land frontiers have closed or are closing. Pressure on the land widens cleavages in society that run along the lines of power relations, economic inequalities, ethnicity, generation and gender. Neoliberalism and fiscal austerity have done away with many of the old ways of targeting government spending on rural localities. At the same time, economic liberalisation also quickens markets and the incentives that motivate rulers to sell or lease land to investors. The return to multiparty elections has heightened competition over rural votes and thus increased some rural voters' bargaining power, but this comes at a time when many small-scale farmers are poorer and more economically insecure than they were a few decades ago, and when rulers may be devaluing smallholders' contribution, as food and export-crop producers, to the national economy.

This analysis brings some of the larger political stakes and strains of the transformation of rural property rights in Africa into focus. For governments, the stakes in agrarian transformation are double-edged. Governments are ambivalent or hesitant in the face of pressures to enforce and accelerate the full commodification of land. The prevailing land regimes anchor their power in the rural areas, structure rural constituencies and state control over them, and give rulers expansive powers over land management and land allocation. For farmers and populations in the rural areas, growing exclusivity and transactability of land rights is also double-edged. Full commodification of land erodes the communal solidarities, and exposes individuals and collectivities even more fully to the compulsions and risks of the market. Because of the redistributive implications of these changes, they divide communities and families.

High visibility political debates over land institutions are now unfolding in many African countries, pitting defenders of neo-customary entitlements against those pushing for alternatives. In Kenya, there is a struggle over land institutions. Defenders of neo-customary land entitlements (such as the Kenya Land Alliance in 2005, mentioned in this chapter) are pitted against those who want to reinforce the state's direct powers over land without reference to neo-customary or ancestral entitlements (to allocate it to new users or to expand the scope of the market). Similarly, Côte d'Ivoire was torn by a decade of civil conflict. One social coalition defended autochthonous land rights and neo-customary entitlements; the other wanted government to back the rise of land markets that operate without regard to ethnic citizenship. In other countries, politics revolves around the restitution or reallocation of lands under statist land tenure regimes (Zimbabwe and Rwanda), the hardening of neo-customary entitlements (Nigeria) or creation of new 'ethnic homelands' to appease new demands (Uganda). In these countries as in many others in Africa, political struggle around land institutions frames stark questions about the terms of social contract – past, present and future – between African governments and rural populations.

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1 Following Ostrom 1990, for example, this tradition focuses squarely on power asymmetries, social conflict, and distributional effects. Its social conflict approach is situated within macro-structural contexts, in contrast to earlier, more economistic, rational choice work that assumed the absence of structured contexts. As Ostrom argues, the framework does not yield precise predictions but can be used to generate hypotheses and organise further research.

2 See, for example, the 'invention of tradition' work on indirect rule (Ranger 2012) and the vast literature in African legal and social history that it inspired.

3 See also Hall and Soskice (2001: 46) on regimes as interlocking systems of complementary institutions – social, economic, political – that can structure interactions at macro, regional and perhaps sectoral levels. This use of the term 'regime' is consistent with Ostrom's (1990: 50–51) notion of institutional order.

4 In two of every three sub-Saharan African countries, over 60 per cent of the total population lives and works in the countryside (World Bank 2008). On land under private title, see Chimhowu and Woodhouse (2006: 346, citing Deininger 2003) and Boone (2014: 23).

5 See Alden Wily 2001; McAuslan 2013.

6 Obviously rural populations have not always succeeded in resisting dispossession. On rural protest, see Ken Post (1972: 272–280) who inventories six forms. Herbert Weiss (1967) argues that rural radicalism and political mobilisation was a much larger part of the independence struggles than most scholars believe, focused as they have been on urbanisation and urban-based movements.

7 See Nugent 2010.

8 See Issacman and Roberts (1995), for example.

9 The 'neo' in the term neo-customary underscores the extent to which contemporary land institutions have been shaped, formalised and codified by twentieth and twenty-first century governments.

10 See Boone and Nyeme (2015) for the Tanzania exception.

11 Jurisdiction size and shape were tailored in pursuit of political and bureaucratic expediency. The Gogo of Tanganyika, for example, were amalgamated into a new, hierarchical chiefdom in the 1920s because the British deemed existing political collectivities to be too small and too decentralised (Rigby 1977: 84).

12 Those not certified as official ethnic groups or tribes thus did not get their own homeland, and thus, no neo-customary land entitlement, and were pressured to 'join recognized tribes'.

13 These were relaxed after the Second World War.

14 The urgency of these assignments for state-building is evident in the example of the Masai in Tanganyika. The British in Tanganyika created a 'Masailand', and in 1925 commanded, 'all Masai are to be moved into the Masai Reserve'. Those who refused to move were to 'give up their claims to be Masai'.

15 La Rédaction. 20 August 2014. 'Côte d'Ivoire – A Vavoua allogènes et allochtones exhortés à ne plus se mêler des choix des chefs de village'. Posted by AIP, www.connectionivoirienne.net/102345/cotedivoire-vavoua-allogenes-allochtones-exhortes-se-meler-choix-chefs-village.

16 Colonial administrative theory held that the neo-customary as they crafted it was authentically African, unique to each 'tribe', and that it was flexible and evolving over time. Chanock explains that until late in the colonial period, the European authorities resisted formal codifications of customary law for fear that this would freeze its 'natural development' (Chanock 1998).

17 Ghana's 1992 constitution makes chiefs owners and managers of stool and skin lands, which are supposed to be held in trust for the members of the collectivity (Kassanga and Kotey 2001: 1). In Benin, 'customary laws were codified (accurately or not) in Le Coutumier du Dahomey of 1931... which was still used in the courts until 1996' (Wing 2012). Forrest (2003: 213) writes of the 'reestablishment of Mandjack kingships' in Guinée-Bissau after 1987.

18 The calculus often involves bargains or deals with displaced populations (i.e. the promise that displaces would be allocated 'new land' somewhere else). Imposition of statist land regimes is more likely where the aggrieved rural populations are politically weak (e.g. pastoralists).

19 Amselle (1976: 24) refers to these as movements of rural African populations that were directed, oriented or planned by the state. See Silberfein (1988: 51).

20 The analytic distinction between customary and statist land regimes can blur as, for example, when governments appoint new chiefs to rule over populations in government-created settlement schemes, or when state-recognised customary authorities are pressured by government to settle strangers on customary land. Joireman (2011) notes that in the urban slums of Nairobi (on state land), the government appoints chiefs as local political authorities.

21 Groups claiming indigeneity to these jurisdictions – for example, Lebou in Dakar, Ga in Accra, Lagunaires in Abidjan – contest this and use their loss to extract concessions from rulers.

22 Shack and Skinner (1979: 5).

23 See Badiey (2013). Africa's newest country, South Sudan, provides fresh support for this claim: the new SPLM government, in the wake of its victory, sought the allegiance of local communities by promising formal state-recognition (institutionalisation) of their territory and land rights. This argument is developed in Boone (2014).

24 Rogers Smith (2006: 93–94) makes a similar argument about US racial identities.

# 4 Financial Institutions

## Economic Liberalisation, Credit and Opposition Party Successes

Leonardo R. Arriola

The paradigm of informal politics has fundamentally shaped the study of political power in sub-Saharan Africa over several decades. Writing in the early 1980s, as many countries were falling into crisis, Robert Jackson and Carl Rosberg argued that African countries were best understood by focusing on the personal rule of their leaders rather than on the functioning of their institutions. African leaders, in their view, were unconstrained by 'the assured mediation and regulation of effective political institutions' (Jackson and Rosberg 1982: 12). On the eve of the twenty-first century, Patrick Chabal and Jean-Pascal Daloz (1999: 16), reaffirming this view, contended that institutions across Africa remained 'a pseudo-Western façade masking the realities of deeply personalised political relations', despite the political and economic transformations that followed the end of the Cold War. Countless studies have followed these foundational works in repeating their argument without amendment: the formal institutions of African countries, whether described as dysfunctional, incoherent or weak, have little to no impact on politics in the region (for a comprehensive discussion see Chapter 1).

This chapter challenges the conventional wisdom associated with the paradigm of informal politics by focusing on the role of financial institutions in systematically coordinating the political behaviour of African elites. Although the analysis of formal institutions often focuses explicitly on political organisations, such as parties or governmental administrative structures like bureaucracies, I examine the relationship between economic institutions and the political behaviour of entrepreneurs (e.g. businesspeople, merchants and traders). African leaders have long perceived entrepreneurs as a political threat, fearing that their financial capital could be transformed into political influence. My argument is that leaders have sought to contend with this threat by relying on the commercial banking sector – banks are the principal institutions of finance in African countries – to regulate capital accumulation among entrepreneurs and thereby constrain their potential support for regime opponents.1 I advance two specific claims in this regard.

My first claim is that Africa's first post-independence leaders created financial reprisal regimes to control the business community in their countries. Financial reprisal regimes comprise a set of institutions and regulations – such as maintaining state ownership of banking, channelling credit to privileged sectors and restricting access to foreign exchange – that enables leaders to exercise political discretion in determining who can access capital. In structuring financial systems to maximise political control rather than economic development, founding leaders employed distinct strategies in relation to the perceived threat posed by a country's incipient business class. Those founding leaders from exporter, mainly cash crop-growing, constituencies perceived little threat in accumulating capital.2 Since they expected to derive political benefits from the accumulation of capital among their own co-ethnics, these founding leaders had an incentive to establish relatively open financial systems that would serve their constituents. By contrast, founding leaders who were not from ethnic groups associated with cash crop-exporting sought to restrict the extension of financial services. These leaders feared that entrepreneurs from exporter constituencies could use their wealth to support their rivals, and sought to restrict their access to capital accordingly. The development of such distinct financial system trajectories among African countries has had important long-term consequences for both economics and politics.

My second claim is that electoral coordination in African countries is constrained by the extent to which finance remains politically mediated. Entrepreneurs who must confront political controls in accessing finance are unlikely to take actions that might trigger punishment by the incumbent leader, namely, having their credit lines cut off or loans called in. This is the genius of the financial reprisal regime: it enables African leaders to induce the allegiance of the business community without having to target any particular individual. Instead, leaders can employ formal mechanisms such as credit controls, capital account restrictions and foreign exchange quotas to reinforce the dependence of entrepreneurs on government for their business survival. Entrepreneurs are thus induced into remaining politically aligned to the regime without having to be explicitly told to be loyal; their economic self-interest silently guides their political behaviour. Under such conditions, entrepreneurs are only likely to support the formation of mass opposition parties when liberalising financial reforms remove an incumbent's ability to regulate access to capital.

I proceed in this chapter by first discussing how the logic of financial reprisal regimes structures the relationship between leaders and entrepreneurs. I then examine how the political incentives of Africa's founding leaders shaped the historical development of financial systems and commercial banking in particular. I specifically show how access to capital has remained consistently more open in countries with founding leaders from cash crop-growing communities. I then extend the analysis to demonstrate how financial liberalisation affects electoral coordination among opposition politicians.

# Financial Reprisal Regimes

The scholarship on democracy and parties has long shown that economic resources are vital for meaningful political competition across a broad range of national contexts and time periods (Moore 1966; Dahl 1971; Riker 1982). Securing access to resources is a first-order problem for politicians seeking office, particularly in countries with no tradition of public financing of elections. Without sufficient funding, politicians cannot afford to pay for basic campaign costs, like advertising and staff, or cover more demanding electoral expenses associated with turning out voters on election day (Banégas 1998) or securing the endorsements from other politicians (Arriola 2012). In this context, I present a framework for understanding why and how African leaders have used financial institutions to assert their control over entrepreneurs – the actors most likely to fund the campaigns of individual candidates, as well as the formation of mass parties.

Financial reprisal regimes emerged in African countries because entrepreneurs became pivotal political actors even before independence. Under colonialism, they were subjected to a broad array of discriminatory economic controls in finance, labour, licensing and taxation that usually exempted European trading firms and settlers (Nwabughuogu 1982; Iliffe 1983; Kennedy 1988). In finance, in particular, colonial regulations were not only used to limit African access to formal credit through European-owned banks, but they also served to prevent entrepreneurs from establishing their own banking facilities (Fry 1976; Stockwell 2000; Austin and Uche 2007). It was under such conditions that entrepreneurs began to seek a political alternative to colonial governments that were unwilling to accommodate their demands for equal treatment in finance and other economic domains. After the Second World War, indigenous entrepreneurs allied with nationalist politicians who took up their economic grievances and turned them into the policy positions of their nascent parties (Kilson 1958; Wallerstein 1970). For example, in the Gold Coast, today's Ghana, both the United Gold Coast Convention (UGCC) and their more radical counterpart, Kwame Nkrumah's Convention People's Party (CPP), promised to create banking and credit facilities for the indigenous business community once they took power (Austin 1964; Rathbone 1973). As a result, entrepreneurs became a core constituency of the nationalist parties that eventually took power across the continent (Coleman 1954; Hodgkin 1961; Sklar 1963).

Through the transition from colonialism to independence, African entrepreneurs proved to be critical institution builders. Uniquely among socioeconomic actors, they could leverage their commercial networks across vast territories to enable nationalist politicians to extend their movements beyond urban centres where most nationalist parties were based. In Côte d'Ivoire, Félix Houphouët-Boigny had to rely on Dioula traders as intermediaries who could build support for the Parti Démocratique de Côte d'Ivoire in rural areas beyond his ethnic constituency (Zolberg 1966). Moreover, once colonial officials began to organise elections in the move towards self-government, entrepreneurs provided the money politicians needed to compete for office. To fund their electoral campaigns, nationalist politicians from Mali (Morgenthau 1964) to Tanganyika (Bienen 1970) depended on funding from merchants and traders rather than on party membership subscriptions from workers.

But once independence had been achieved, the relationship between politicians and entrepreneurs fundamentally changed. The leaders of Africa's newly independent countries increasingly viewed the capacity of entrepreneurs to deploy organisational and financial resources in support of political movements as a threat. Fearing that those same entrepreneurial resources would now be turned against them, independent governments adapted financial institutions to shore up their nascent regimes. The establishment of financial institutions such as state-owned banks, capital controls, foreign exchange quotas and subsidised credit programmes were justified by governments on an economic basis – that is, to accelerate development – but these same mechanisms also helped to politicise financial capital. Taken together, these mechanisms constituted a financial reprisal regime: access to capital became a privilege that could be extended or withdrawn at a leader's discretion.

African leaders have turned to financial reprisal regimes to neutralise business politically, as institutions like commercial banks afford distinct advantages as executive instruments of control. In contrast to fiscal policies that often require action from, or bargaining with, other political actors (such as the legislature), banking policies are often dealt with as technical matters under the authority of the ministry of finance (Zysman 1983; Mehran et al. 1998). A leader's preferences are thus more likely to be implemented without amendment or negotiation. Furthermore, in contrast to taxation, which can require an elaborate administrative infrastructure to be effective, the control afforded by financial institutions is more effective because it is exacted ex ante (e.g. denying access to credit) rather than ex post (e.g. collecting on a tax bill).

While nearly all African founding leaders established financial reprisal regimes to constrain the economic, and therefore political, autonomy of business, the severity of those regimes varied depending on which constituencies were expected to benefit from capital accumulation. Founding leaders from constituencies expected to profit from increased access to capital – i.e. ethnic groups engaged in cultivating cash crops for export – were more likely to adopt policies permitting relatively open access to banking and credit.3 Cash crop farmers and associated traders could use their surplus from the export of lucrative commodities to secure the credit needed to enter other sectors of the economy. By contrast, founding leaders whose own ethnic groups could not expect to directly benefit from increased access to capital – i.e. ethnic groups engaged in subsistence agriculture or pastoralism – had a greater incentive to impose tighter controls on commercial banking as well as stricter limits on credit provision to the private sector. Thus, founding leaders from non-exporter constituencies, anticipating that entrepreneurs from other groups might use their wealth to support their political rivals, actively sought to use financial constraints to determine who could access capital and on what terms.

Table 4.1 lists African countries that achieved independence before 1970 based on the constituency of their founding leaders. The constituencies of founding leaders are classified as exporters or non-exporters based on whether their ethnic groups produced one of the largest commodity exports in a country at independence.4 Leaders whose groups produced such commodities are coded as having an exporter constituency.5 For example, Côte d'Ivoire is classified as having an exporter founding leader because Félix Houphouët-Boigny's co-ethnic Baule constituted the country's main coffee growers (Woods 2003). Leaders whose co-ethnics did not participate in the production of such crops are coded as having a non-exporter constituency.

Table 4.1 Country by founding leader type

Exporter | Non-Exporter
---|---
Botswana| Benin
Burundi| Burkina Faso
Chad| Cameroon
Côte d'Ivoire| Central African Republic
Gabon| Congo, Republic
Gambia| Ghana
Kenya| Guinea
Mauritius| Madagascar
Nigeria| Malawi
Rwanda| Mali
Senegal| Niger
Togo| Sierra Leone
| Tanzania
| Uganda
| Zambia

Entrepreneurs, for their part, responded with political acquiescence to the incentives created by financial reprisal regimes. With limited options for securing finance capital outside of commercial banking – only a handful of African countries have had stock markets – entrepreneurs had to rely on state-owned banks or other forms of politically mediated finance. As a result, they perfectly understood that their economic survival depended on cooperating with, rather than challenging, whoever has been in power. The ethnic Bamileke business community in Cameroon exemplifies this dynamic. Once Cameroon became independent in 1960, President Ahmadou Ahidjo, an ethnic Fulbe, sought to contain the influence of Bamileke entrepreneurs, several of whom had become rich cocoa and coffee planters and had later expanded to dominate the country's construction, retail and transport sectors (Warnier 1993). To prevent the Bamileke from using their wealth to challenge his regime, Ahidjo adopted a range of financial measures, including limiting the private ownership of banks. The governments of Ahijdo and his successor, Paul Biya, an ethnic Beti, rejected Bamileke efforts to establish their own privately owned commercial banks in order to address growing credit constraints (Dongmo 1981). Such a bank was not chartered until the mid-1990s, over 25 years after independence. Nevertheless, the country's most prominent Bamileke businesspeople remained allied to the country's ruling party throughout the one-party era and well after transitioning to multiparty politics. This was precisely the outcome that Cameroon's financial reprisal regime was intended to produce.

# Politicised Financial Development

Beginning in the 1960s, African governments sought to build financial systems according to the statist policy prescriptions associated with import substitution industrialisation, the then-dominant development model. During this period, African governments were encouraged to take a leading role in finance to accelerate the modernisation process (Sender and Smith 1986; Kennedy 1988). As a result, by the end of the 1970s, African governments had become the principal owners and investors of financial capital with a majority interest in over half of the banking sector (Popiel 1994). Yet, despite drawing their policies from a common development model, African financial systems have followed distinct trajectories that cannot be explained away by their legal traditions (La Porta et al. 1998) or their colonial experience (Acemoglu et al. 2001).

I argue that the financial reprisal regimes implanted by Africa's founding leaders set their countries on distinct trajectories of financial system development. Leaders specifically transformed commercial banks into political instruments of regime maintenance. In this respect, as noted in the previous section, the extent to which leaders sought to control capital accumulation among entrepreneurs depended on whether their own constituencies, exporting or non-exporting, would profit from the expansion of banking. Once in place, the nature of the banking system produced considerable path dependence; successive leaders found that regulating finance according to the terms set by their predecessors provided a ready-made mechanism for ensuring the political acquiescence of entrepreneurs. In countries with founding leaders from exporting constituencies, successive leaders tended to retain the liberal stance towards banking of their predecessors. They typically sought to maintain levels of credit provision that underpinned the support of a business community already accustomed to relatively easy access to capital. Similarly, the successors in countries with founding leaders from non-exporting constituencies had little need to change the restrictive policies of their predecessors. Limiting entry into, and access to, the banking sector enabled them to determine which entrepreneurs could accumulate capital and under what conditions; that was a power too great to relinquish.

The political incentives of African leaders have had a profound impact on the development of the commercial banking sector over time. The expectations associated with exporter versus non-exporter founding leaders are clearly evident in Figure 4.1, which shows the average number of commercial banks across African countries over time by type of founding leader.6 The trend lines demonstrate that there is virtually no difference in the average between the two types of systems prior to independence in 1960. From the end of the Second World War in 1945 up to 1960, banking decisions were largely shaped by the economic interests of European firms and the political needs of European governments.

Figure 4.1

The impact of founding leader type on commercial banking

The divergence in the trend lines begins only after independence in the 1960s, as banking decisions are increasingly shaped by the political demands of African founding leaders. Figure 4.1 shows the average number of commercial banks increasing progressively from 1960 to 2000, but only in countries where the original founding leaders had little to fear from their exporter constituencies accumulating capital. By contrast, in countries with founding leaders from non-exporter constituencies, the average number of commercial banks remained unchanged during the first two decades after independence: they had 3.8 banks in 1960 and 3.7 banks in 1980. Yet, by 2000, the difference in averages between the two types of countries was sizable: countries with exporter founders had an average of 11.9 banks, while countries with non-exporter founders had only an average of 7.4 banks.

Beyond restricting the size of the commercial banking sector, African countries with non-exporter founding leaders moved aggressively to take control of banking through direct ownership. Since founding leaders from non-exporter constituencies were threatened by the accumulation of wealth among other groups, they also sought to have the state acquire a sufficiently large share of bank ownership to influence, if not dictate, lending practices. This expectation is borne out in the disparate rates of state ownership associated with countries with exporter and non-exporter founders. By 1985, the governments of countries founded by non-exporter leaders had acquired shares in over two-thirds of banks, while countries with exporter founders accepted a smaller state presence in banking, taking up shares only in about one-quarter of banks.

The politically driven differences among African financial systems persisted as governments began, in the 1980s, to negotiate with the International Monetary Fund (IMF) and World Bank over the disbursement of aid in exchange for the implementation of liberalising reforms (van de Walle 2001). Reforming the financial sector became a priority for international financial institutions convinced that the elimination of administrative credit mechanisms, the privatisation of commercial banks and the liberalisation of capital controls would reinvigorate the region's anaemic economic development. The emphasis on financial liberalisation is evident in the fact that nearly two-thirds of World Bank structural adjustment loans issued to African governments between 1980 and 1995 included conditions related to financial policy.7 Although some thirty African countries agreed to implement such reforms, the extent of such implementation varied widely across the region (Mehran et al. 1998; Gulde et al. 2006; Honohan and Beck 2007).

The introduction of liberalising reforms – allowing the market to determine interest rates, lending rates and exchange rates – was shaped by financial reprisal regimes. Countries with exporter founding leaders were more likely to comply with donor-driven demands for reform. For them, relinquishing financial controls entailed relatively low costs because they already exerted minimal effort in policing capital accumulation among entrepreneurs. But countries with non-exporter founding leaders were less likely to comply with external demands for financial liberalisation. Doing so would eliminate the mechanisms that underpinned a business–state relationship premised on restricted access to capital.

Figure 4.2 illustrates the extent to which compliance with financial liberalisation has varied according to a country's prevailing financial reprisal regime. The figure presents the average financial openness index scores for countries with exporter versus non-exporter founding leaders. Higher scores indicate greater openness. The financial openness index is based on information found in the IMF's Annual Report on Exchange Arrangements and Exchange Restrictions (AREAER), including regulatory restrictions on current account transactions and capital account transactions (Chinn and Ito 2008). As such, the index is a proxy for de jure policy change. Figure 4.2 indicates that African countries have been more likely to pursue financial liberalisation if a founding leader emerged from an exporter constituency. There is little evidence of movement towards greater financial openness among countries with non-exporter founding leaders.

Figure 4.2

The impact of founding leader type on financial liberalisation

Despite the onset of liberalisation, African financial systems have continued to reflect the political preferences of founding leaders for managing business–state relationships. The measures of financial market structure and performance shown in Table 4.2 demonstrate the extent to which financial systems of countries with exporter founding leaders have continued to diverge from their non-exporter counterparts since 2000.8 Having been more likely to undertake reforms in the 1980s and 1990s, countries with exporter founding leaders have developed financial systems with greater depth and fewer barriers to capital. As measured by the ratio of broad money (M2) to GDP, a conventional indicator of the financial system's monetisation, these countries today have significantly larger financial sectors. The ratio of bank credit to GDP, an indicator of financial intermediation, also suggests that financial institutions play a greater role in extending credit to the private sector in countries that had exporter founding leaders.

Table 4.2 Financial system characteristics by founding leader type

| Exporter | Non-Exporter | Difference of Means
---|---|---|---
M2 (% GDP)| 35.15| 23.31| 11.84
(1.97, N=136)| (0.51, N=194)| (1.76, p=0.0000)
Bank credit (% GDP)| 20.57| 11.00| 9.57
(1.57, N=126)| (0.42, N=166)| (1.45, p=0.0000)
Bank asset concentration| 82.08| 88.19| -6.11
(1.97, N=70)| (0.99, N=118)| (1.99, p=0.0024)
Bank lending-deposit spread (%)| 9.85| 15.17| 5.32
(0.41, N=86)| (0.70, N=89)| (0.81, p=0.0000)

Note: The first two columns show country-year means since 2000 with standard errors and sample sizes in parentheses. The third column reports the two-tailed difference-of-means test.

As liberalising reforms have permitted greater entry into the banking sector, banking has become less concentrated in countries with exporter, as compared to non-exporter, founders. Privately owned domestic banks now operate alongside foreign-owned and state-owned banks in nearly all African countries, but a few large banks continue to dominate in most of the region's small financial markets and the concentration of the banking system is especially pronounced in countries with non-exporter founders. In these states, the average market share of the five largest banks is appreciably larger, exaggerating their economic influence. One manifestation of the market power that such dominant banks have is reflected in the interest rate spread between lending and deposit rates. As shown in Table 4.2, the average interest rate in countries with exporter founders is about one-third lower than in countries with non-exporter founders. The persistently higher interest rate in this latter set of countries reflects the extent to which governments continue to structurally constrain access to capital. Their higher costs for financial intermediation effectively exclude a larger number of entrepreneurs from financial markets.

# Financial Liberalisation and Multiparty Competition

Variation in financial system development across African countries has been politically consequential. The dismantling of financial reprisal regimes in some countries through liberalising reforms has approximated the dispersal of economic power that democratic theorists associate with the emergence of meaningful contestation. In those countries, reforms such as the privatisation of state-owned banks and the elimination of credit controls effectively meant that the state ceased to serve as a gatekeeper for capital. Entrepreneurs would no longer have to fear that state-owned banks might call in their loans or cut off credit lines. This has resulted in greater economic autonomy, and therefore political independence, for entrepreneurs.

In this way, the dismantling of financial reprisal regimes in many African countries has allowed entrepreneurs to reconsider their political role. Given historically high levels of state interventionism in the economy, entrepreneurs have a vested interest in seeking changes to policies and institutions that affect the rate at which they can make profits or expand their commercial activities. The most direct way for them to secure those changes in democratic polities is by helping to elect politicians and parties amenable to implementing them. Entrepreneurs are most free to do that in African countries where access to capital has ceased to be a politically negotiated privilege, so that they can support opposition politicians without fear of reprisals. In this respect, financial liberalisation has allowed entrepreneurs to reclaim the pivotal role that they had played in building nationalist movements in the run-up to independence. In the context of democratisation, entrepreneurs have been able to fund the emergence of opposition parties as viable political organisations.

The emergence of entrepreneurs as campaign financiers in African elections has reshaped the strategic context of political competition. The return of multiparty elections to most African countries in the 1990s underscored asymmetry in the capacities of presidential incumbents and their opposition candidates. Incumbents have enjoyed a special advantage because they have typically been able to exploit their control of state coffers to fund their re-election campaigns, distributing state resources to politicians and voters alike. Opposition politicians face a distinct problem in this respect. They lack the funding needed to build up the organisational capacities of their parties, compensate other politicians for endorsements, or provide inducements to increase voter turnout on election day. It is this resource asymmetry between incumbent and opposition that entrepreneurs, as campaign financiers, have been able to recalibrate through greater financial liberalisation.

Opposition politicians in African countries rely in particular on campaign funding from business entrepreneurs, lacking alternative options that have facilitated electoral coordination in other contexts. Neither labour unions nor civil society organisations are strong enough to provide a platform for building parties in most African states. And most voters are simply too poor to pay for party memberships that might otherwise provide a campaign war chest. Under such conditions, entrepreneurs are the only members of society with the wherewithal to serve as financiers for opposition campaigns. Wherever progressive financial reforms have enabled entrepreneurs to reconsider their political alliances, they can provide opposition parties with the resources needed to mount nationwide election campaigns.

The argument made here suggests that the electoral behaviour of opposition politicians can be traced back to differences in levels of financial liberalisation. If the availability of entrepreneurial resources can increase the coherence of opposition in African elections, then we should expect to find evidence of stronger opposition emerging in countries with greater access to finance capital. Figure 4.3 provides a test of this expectation with data on bank credit to the private sector as a percentage of GDP since 1990. Bank credit to the private sector, which usually reflects the degree of financial liberalisation in a country (Honohan and Beck 2007), can serve as an indicator of the extent to which the state acts as a financial gatekeeper. The figure shows the average level of credit provision for two samples of African elections defined by whether an opposition coalition formed at least once for elections held since 1990.9 The formation of such coalitions has been critical to Africa's democratisation because presidential alternation in the region has often been achieved when opposition parties work together to unseat entrenched incumbents, as occurred in Malawi in 1994, in Senegal in 2000 and in Kenya in 2002.

Figure 4.3

Higher credit provision encourages coalition formation

Figure 4.3 unambiguously shows that such coalitions tend to emerge in countries with persistently higher average levels of credit provision. In 2010, the average level of credit to the private sector in these countries was 25.7 per cent. Meanwhile, the countries where no coalitions have been formed feature significantly lower average levels of credit provision – just 14.1 per cent in 2010. In this latter set of cases, opposition politicians appear to be constrained by the financing constraints that entrepreneurs themselves face. Indeed, the 2010 average level of credit provision in countries with no coalition formation was still lower than what had been achieved twenty years earlier in countries where coalitions have been formed (16.7 per cent in 1990).

The argument developed thus far suggests that greater financial autonomy for entrepreneurs should be associated with the emergence of stronger, more coherent opposition. To assess this proposition systematically, I use a sample of 107 presidential elections held in 29 African countries between 1990 and 2012. I include all presidential elections held in this time period, regardless of level of democracy, in which multiple candidates were permitted to contest. The data is analysed through standard ordinary least squares (OLS) regression.

If resources enable opposition politicians to mount more united national campaigns against incumbent presidents, we should expect to find fewer presidential candidates competing in African elections. The region's incumbent presidents manage to routinely win re-election because their numerous opponents often end up dividing the vote. But if some opposition politicians were able to secure the funding required to build national parties or forge multiparty alliances, other members of the opposition might be induced to join them, thereby increasing the odds of creating a winning coalition, rather than an opposition that competes in an uncoordinated manner. To gauge whether the availability of finance might influence such a dynamic, I use the effective number of presidential candidates as the dependent variable for this analysis. This measure is calculated as the inverse of the sum of vote shares received by each presidential candidate (Laakso and Taagepera 1979).10 The average effective number of presidential candidates for this sample is 2.6 and ranges from a minimum of 1.1 to a maximum of 6.6.

The main explanatory variable of interest is bank credit to the private sector as a share of GDP. This is a reasonable proxy for the financial autonomy of entrepreneurs for two reasons. First, as noted in the previous section, countries with liberalised financial systems tend to have higher levels of private credit provision. Second, private credit provision represents a measure of the extent to which financial intermediaries channel savings to investors (Beck et al. 1999), who are largely business entrepreneurs in African countries. Given the logic outlined here, higher levels of private credit provision are therefore expected to be associated with a smaller effective number of presidential candidates.

Table 4.3 reports the estimated effects of credit provision on the effective number of presidential candidates. The results support the argument developed throughout this chapter: higher levels of financial autonomy, as proxied by credit provision, are associated with a smaller effective number of presidential candidates. The coefficient of this variable attains its expected negative sign and is statistically significant at conventional levels. Its substantive impact is similarly significant. For example, if the level of credit provision was increased from the 5th to 95th percentile – from 3.8 per cent to 26.1 per cent – the effective number of presidential candidates would be expected to fall by 0.5, holding all else constant. This is a substantively large effect when considering that the average effective number of presidential candidates in this sample of African elections is 2.6 candidates. A change of 0.5 could mean a tight race between 2 candidates (incumbent and opposition) or a less competitive race among 3 candidates that is likely to be won by the incumbent. This result thus suggests that incumbent presidents face more unified opposition challengers in countries with the most liberalised financial systems.

Table 4.3 Estimating the effective number of presidential candidates

Private credit from banks (% GDP), lagged| -0.023**
---|---
| (0.010)
Runoff electoral system| 1.956***
| (0.416)
Politically relevant ethnic groups (PREG)| 2.270***
| (0.517)
Runoff electoral system × PREG| -3.150***
| (0.882)
Incumbent running for re-election| -0.795**
| (0.310)
Incumbent years in office, lagged| -0.015
| (0.010)
Opposition boycott of election| -0.918***
| (0.222)
Polity index, lag| 0.020
| (0.019)
Constant| 2.149***
| (0.305)
Number of elections| 107
R2| 0.333

Note: The dependent variable is the effective number of presidential candidates.

Robust standard errors, clustered by country, in parentheses.

*** p<0.01, ** p<0.05, * p<0.10

The analysis presented in Table 4.3 examines the impact of credit provision alongside standard explanatory variables from the political party system literature (Cox 1997). The model includes a dichotomous variable for countries that employ a runoff system for presidential elections (Nohlen et al. 1999), the politically relevant ethnic groups (PREG) measure for ethnic fractionalisation (Posner 2004) and the interaction between the runoff system and ethnic fractionalisation. The model also includes dichotomous controls for whether the incumbent is personally running for re-election and whether the opposition has boycotted the election. The number of years the incumbent has been in office is added as a measure of regime stability, while the Polity index score is added as a measure for the level of democracy (Marshall and Jaggers 2009).

In Table 4.3, the runoff system, PREG ethnic fractionalisation and their interaction attain statistical significance at conventional levels.11 Their combined coefficients suggest that the interaction between the runoff system and ethnic fractionalisation has a reductive effect on the effective number of presidential candidates: the number of candidates decreases with greater diversity under the runoff system, while the number of candidates increases with greater diversity under the simple plurality or first-past-the-post system. But these results run counter to expectations. The party systems literature suggests that both runoff systems and ethnic diversity should weaken the incentives for politicians to coalesce in elections. A larger effective number of presidential candidates is expected to emerge in more ethnically diverse countries with runoff rules because politicians from different ethnic groups each believe they might win sufficient votes to qualify for the second round. Yet, in this respect, the contrary results in Table 4.3 highlight our limited understanding of how institutions are evolving in the African context to shape the political behaviour of elites and voters.

The results in Table 4.3 further show that other electoral factors can affect competitive conditions. The very composition of the presidential field significantly affects the effective number of candidates. An incumbent who runs for re-election may lower the effective number by attracting a larger share of votes through whatever means available. Opposition boycotts can also reduce the effective number because the votes that are cast end up going nearly entirely to the incumbent or the designated successor. Neither the incumbent's tenure in office nor the Polity score appears to systematically affect the effective number of candidates.

Taken together, the results from the cross-national analysis show that the competitiveness of African elections is not solely conditioned by electoral rules and ethnic diversity. The financial autonomy of entrepreneurs – as proxied by the level of private credit provision – plays an important role in allowing opposition politicians to secure the funds needed to build national political organisations in otherwise inchoate party systems. Notably, in Table 4.3, private credit provision is the only policy-relevant variable that facilitates the coalescence or coordination of the opposition. The other variables either cannot be manipulated (e.g. ethnic diversity) or have unexpected effects (e.g. electoral rules). These findings should prompt us to reconsider reforms promoted as part of democracy assistance that aims to limit sources of campaign funding in many developing countries. The reality is that much remains unknown about the impact of such reforms or how they might interact with existing formal institutions (like electoral systems), or informal practices (like clientelism). By restricting where and how politicians can raise funds for their campaigns, such reforms may well exacerbate the asymmetric resource capacities of incumbent and opposition parties.

# Conclusion

In this chapter, I have explored the long-standing claim of democratic theorists – that economic freedom is a necessary condition for imposing limits on the exercise of power. In the context of Africa's democratising countries, I provide a political economy explanation that attributes the emergence of greater electoral competition – through stronger, more coherent opposition – to the relative autonomy of business entrepreneurs from state-controlled capital. The analysis of financial system and electoral data indicates that liberalising financial reforms, by enabling entrepreneurs to reclaim their role as pivotal political actors, have allowed opposition politicians to access the resources needed to build broad-based electoral coalitions.

The findings from this chapter suggest that a focus on formal institutions, and economic institutions in particular, enables us to better identify and interpret patterns of political action, not fully explained by the paradigm of informal politics. In this respect, the argument presented here has implications that would benefit from greater inquiry from students of African politics.

One implication of this chapter's argument is the need to renew the study of economic institutions. While claims about the importance of informal politics in shaping political outcomes across Africa are often made with implicit reference to the supposed weakness of political institutions, far less attention has focused on economic institutions, namely, the formal rules governing commerce, investment and trade, and how they might interact with politics. There is greater cross-national variation in economic policies among African countries today than at any other time since independence. Some countries have pursued policies that promote the entry of entrepreneurs into markets, while others have refused to reform policies hostile to private enterprise. Despite this, there has been no comparable updating of the scholarship that examined such questions in prior decades (for example, see Sandbrook 1993; van de Walle 2001). The argument advanced in this chapter suggests that cross-national differences in economic institutions will ultimately have political implications. We need to understand how emerging interests tied to those economic changes will affect the construction and maintenance of political coalitions.

Another implication of this research is the need to renew the study of elites in African politics. The paradigm of informal politics often underscores the apparent failure of formal institutions by referencing instances where mass behaviour appears to be inconsistent with the expectations of those institutions (see Chapter 15). Scholars, aided by survey and experimental techniques, have therefore increasingly focused their attention on understanding how voters respond to clientelistic incentives. Nevertheless, some of the most consequential political outcomes affecting democracy in Africa are determined by elite decisions that structure mass-level responses. The stability of the party system, for example, begins with decisions made by politicians to work together across social cleavages and with the entrepreneurs who bankroll those campaigns. We need to understand the factors influencing why and how elite actors are induced to invest in such institution building.

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1 This chapter draws on and expands arguments made in Arriola (2012).

2 Founding leaders are identified as emerging from exporter constituencies if, at the time of independence, their co-ethnics were engaged in producing one of a country's two largest commodity exports such as cocoa, coffee, cotton, groundnuts or tea. Founding leaders are identified as being from non-exporter constituencies if their co-ethnics were not associated with such production.

3 The relationship between banking and commodity production was reinforced after the Second World War, as commercial banks expanded their branch networks into cash crop-growing areas (Engberg and Hance 1969).

4 A country's two largest commodity exports, in dollar terms, were identified through data from the Food and Agriculture Organisation (FAO) (<http://faostat.fao.org/>). Commodity figures are for the years 1961 to 1965.

5 Country-specific studies were used to identify and corroborate the ethnic groups associated with commodity production in each case. For example, to know which groups were associated with the cultivation of coffee and vanilla in Madagascar, I relied on Jackson's (1971) study of agricultural development in that country. Similarly, to confirm the groups involved in Zambia's tobacco production, I turned to Lombard and Tweedie's (1974) study of agriculture in that country.

6 Bank averages are for countries listed in Table 4.1. Bank numbers are estimated at five-year intervals based on volumes of Rand McNally International Bankers Directory and Africa South of the Sahara.

7 This figure is calculated from the Dollar and Svensson (2000) cross-national dataset of internal evaluations made by the World Bank's Operations Evaluation Department (OED).

8 Data on financial system characteristics are from the World Bank's World Development Indicators.

9 An opposition coalition is defined as an electoral alliance in which opposition politicians from different ethnic groups publicly endorse a single candidate for executive office.

10 Electoral data were compiled from print sources like Nohlen et al. (1999), media sources such as Agence France Presse and online sources like the African Elections Database (<http://africanelections.tripod.com/>).

11 In countries with runoff systems, the effective number of presidential candidates is calculated based on data from first-round elections.

# Part II Law and Order
# 5 Constitutions

## The Politics of Constitutional Reform

Muna Ndulo

It has been almost three decades since popular mobilisations, demanding better governance, drove the onset of democratisation in Africa. Although the consolidation of democracy – the building of democratic institutions and state capacity to manage the political and economic policies of society for development – remains a challenge, the number of current 'democracies' represents an improvement since the pre-1990s. A large majority of countries now conduct regular elections at national and local levels, enabling populations to choose their political leaders and ensuring the legitimacy of elected government officials. According to the 2015 Mo Ibrahim Index, democracy consolidation in Africa grew between 2000 and 2008, although it has stagnated since (Mo Index 2015).

Despite progress in the early 2000s, such stagnation indicates that the continent continues to be beset by a number of challenges. The first is the crisis of national identity that faces a number of states and is rooted in the formation of pluralistic states, characterised by differences in language, culture and religion among component groups. The challenge is how to manage this diversity and harness it for national development. The second is the worrying trend of leaders prolonging their power by amending constitutions, as has happened in Burundi, Rwanda and Uganda. The third is social exclusion, income inequality, and vulnerability to economic and environmental risks that face large segments of the populations. As Francis Deng has observed, often the state gets captured by a dominant group or groups that then define the national identity framework on their terms and give themselves the preeminent status as favoured citizens who enjoy all the rights and dignity of citizenship (2010). Other groups become discriminated against, marginalised, excluded and denied their full citizenship rights (see Klaas, Chapter 10, this volume).

Some of this can be explained by colonial rule, which subsumed distinct racial or ethnic groups under a unitary state framework, although many groups would have likely preferred nationhood (Rotberg 1965). All colonial systems were authoritarian and, therefore, all the new nations of Africa inherited a legacy of authoritarian political structures. The colonial rulers' divide-and-rule strategy (in their political and economic policies) correlated diversity with disparities in the shaping and sharing of power, national wealth, social services and development opportunities. In the period following independence many countries failed to address these disparities, and instead, passed amendments to further entrench the position of the executive in the constitutional models bequeathed to them by their colonisers (Ndulo 2010).

Thus, governments centralised power and imposed monolithic concepts of unity that suppressed diversity and participation in governance, leaving many citizens disempowered, marginalised and disenfranchised (Mwanakatwe 1994). The emphasis during this period was on the creation of new sovereign states and the dominant concern was to aggregate power under a centralised authority. As Nwabueze has observed with respect to the 1979 Nigerian constitution (that superseded the 1960 and 1963 constitutions, and entrenched the present unitary system in Nigeria): 'The feeling that people had was that unity was overriding and that you could achieve it by putting so much power in the center. We were misguided that is the truth. It turned out that putting too much power at the center was an invitation to disunity. The struggle for control of the center with all that power led to disunity' (Nwabueze 2014).

The legacy of this institutional inheritance has been problematic in a number of ways. The colonial system involved the superimposition of a new political order without taking into account local conditions. Indigenous political systems that existed before colonial rule were either destroyed or radically modified. This resulted in the general disengagement of the majority of the population from participation in the governance structures. Even where, as in former British protectorates, indigenous political authorities and organisations were used in a system of indirect rule, the roles were significantly changed to the detriment of ordinary citizens (Rotberg 1965). Chiefs and their councils were subject to the authority and discretion of district commissioners or other colonial agents, rather than to the will of their people. Perhaps one of the worst legacies of colonial rule is entrenched popular inertia towards politics. Without the active participation of the people in the governance of the country, it is impossible to carry out the required tasks of nation-building and development. Yet, this is what post-colonial Africa inherited from colonial rule: administrative and institutional structures that stymied participation and promoted the effective exercise of authority by the state (Ndulo 2010).

A number of African countries, such as Tanzania and Zambia, are today under pressure to revisit and rewrite the inherited constitutions with the objective of transforming the colonial state into a constitutional order that is responsive to the needs of the people (Ndulo 2010). This wave of constitution-making is associated with deepening democracy. The processes seek to address fundamental institutional crisis as well as establish democratic state structures. The new constitutions in Africa, such as the 2010 Kenyan constitution, marked a departure from the colonial legacy. They seek to enhance participation and accountability, manage diversity constructively, and promote peace, justice, human rights, human dignity, inclusivity and democratic governance. They typically also establish the office of 'public protector' to promote accountability, transparency and service delivery. Additionally, they encourage decentralised systems to bring power and decision-making closer to local communities, while establishing institutional arrangements to support democracy such as human rights and gender commissions.

This represents a significant shift in the form and quality of legal frameworks that govern politics on the continent. In terms of rights, many of the new constitutions go beyond the traditional concepts of focusing on organs of government, separation of powers and the protection of political and civil rights to include social and economic rights. This trend reflects a growing realisation that the state has a vital role to play in the provision of basic services, either by direct action or by properly regulating the way services are provided via the private sector, especially in the areas of health, education and basic necessities like water. This realisation is reflected in the growing number of provisions for social and economic rights and social goods, the realisation of social justice and the preservation of the environment in national constitutions in Kenya, South Africa and Zimbabwe.

Making a constitution in any country is a major exercise. Since the revolutions in France and the United States, constitutionalism has played an ever-increasing role in nation-building and in the establishment of the rule of law. The fight for new constitutions in multiparty politics in Africa attests to the significance civil society and the general population attach to constitution-making, as a constitutive part of national reconciliation and political development. In so far as the constitution articulates the vision of a new society, defines the fundamental principles by which the country is to be organised and redistributes power within the country, it can play an important role in the consolidation of peace and promotion of development.

However, getting constitutions right is no easy task; and the way in which a constitution is drafted is important. Indeed, it is important to recognise that the process of developing a constitution is as important as its substance. Although constitution-making processes are always context driven, lessons from Namibia, South Africa and Kenya suggest that certain cross-cutting factors – such as effective public participation, transparency and inclusiveness – are crucial to the creation of a constitution that is durable, legitimate and accepted by all. The process must also be governed by a clear legal framework that entrenches these values. The following pages examine the best practices in constitution-making in Africa. This chapter draws, to a large extent, on the 1996 South African constitution and to a lesser extent on the 2010 Kenyan constitution as two model constitutions that have addressed questions of accountability, power distribution and inclusivity in governance, and thus have created institutions that may offer the best chance of successfully reforming post-colonial governance structures.

# Best Practices: Constitutions, Diversity and Inclusiveness

Concern about executive power is a common theme in most constitutional conversations in Africa today (see, for example, Tanzania, Zambia and Zimbabwe). The most striking feature of the presidency in African states is its extensive powers and consequent dominance of the national political system. A serious search for constitutional arrangements that deepen democracy must respond to the need to decentralise power to some national levels of government and local communities. In addition to bringing governance closer to the people devolution can, if appropriately structured, operate as a check on the concentration of power at the centre. In recent years, a number of African states have adopted constitutional arrangements providing for devolution; Ethiopia and Kenya are examples (see Dyzenhaus, this volume). In addition to solving political conflict by providing political accommodation for the different factions and ethnic groups in multi-ethnic countries, devolution is also an attempt to address the unequal distribution of wealth and development opportunities in over-centralised state structures. However, it must be observed that the enhancement of political participation and accountability structures requires truly independent government institutions that are able to make distinct regional political choices.

There is also the need to determine the role of traditional authority in African governance structures. While there is consensus among Africans that traditional leaders such as chiefs should have a place in the political system (Nhlapo 1995), the nature of this role is contested, and in many contexts remains largely undefined. While accommodating traditional structures in modern political systems, one should not ignore the fact that these institutions (with varying degrees of legitimacy, distorted at least by colonial rule) at times can be oppressive, exploitative, discriminatory and intolerant, especially with regard to women. Since the goal is to deepen democracy and improve inclusivity, the need to give a role to traditional authorities must go hand-in-hand with the need to democratise them. Given the economic and institutional challenges in a typical African country, beyond the essential ingredients of a democracy, a democratic constitution for an African country should be a liberating document. It should not only limit the powers of the state and its institutions, but also guarantee the kinds of liberties and freedoms that will make the pursuit of happiness, prosperity and self-fulfilment a reality for all citizens in a national state. It should empower and liberate women, minorities and other underprivileged groups. It should guarantee equality of opportunity for all citizens irrespective of ethnicity, gender, race, religion, ethnic background or physical condition. The subsequent sections examine the extent to which the 1996 South African and 2010 Kenyan constitutional arrangements implement the constitutional values espoused in this section.

## The Rule of Law

A key component of any democratic constitution is the promotion of the respect of the rule of law. Although implementation is often problematic, the supremacy of the constitution over all institutions defines the commitment of the South African (Constitution Section 1(d)) and Kenyan (Constitution Section 2(1)) peoples to the principle of the rule of law. In order to strengthen and consolidate constitutional democracy, the rule of law and a culture of accountability, both the Kenyan and South African constitutions provide for a number of independent state institutions, including human rights commissions; commissions for gender equality; commissions for the protection of the rights of cultural, religious and linguistic communities; and a public protector. If they function as intended, these organisations will operate as further checks on the state's conduct towards its citizen. This is especially important because majoritarian democracies, even without any formal usurpation of power, tend to oppress other groups that may hold unpopular political beliefs or belong to racial or ethnic minorities.

## The Protection of Civil and Political Rights

Both the Kenyan and South African constitutions contain a comprehensive Bill of Rights, which applies to all and binds the legislature, the executive, the judiciary and all organs of state, and guarantees without qualifications the right to equality before the law, human dignity and inviolability. The rights and liberties enshrined in the Bill of Rights may be limited only in terms of law of general application – i.e. that the limitation is reasonable and justifiable in an open and democratic society, taking into account all relevant factors including: (1) the nature of the right; (2) the importance of the purpose of the limitation; (3) the relation between the limitation and its purpose; and, (4) whether less restrictive means exist to achieve the purpose. The responsibility for protecting these rights is vested in courts and watchdog institutions, which are given the power to mediate competing claims of rights by individuals and the state, as well as the power to evaluate the constitutionality of government policies and practices.

In South Africa, the right to form and join trade unions is specifically mentioned in the constitution. Every citizen is guaranteed the right to participate in government, directly or indirectly through freely chosen representatives. The Bill of Rights also guarantees freedom of religion and assembly, and equal access to public services and social services. Discrimination on the grounds of race, religion, conscience, belief, culture, language, birth, sex, gender, pregnancy, social origin, sexual orientation or age is prohibited. The deprivation of life, liberty or property without due process of law is also banned.

In a departure from the independence constitution models, the 2010 Kenyan and 1996 South African constitutions go further, and include in the Bill of Rights justiciable socio-economic rights in addition to political rights. Some examples include: access to land; housing; healthcare services; education, food and water; the right to social security benefits; and children's rights to these same benefits. Although the inclusion of such rights is relatively new, it is a trend that is being followed by other constitutions in places such as Zimbabwe. The inclusion of socio-economic rights, as justiciable rights, is an attempt to introduce a substantive element to these rights, not merely a procedural one. The government is constitutionally obliged to ensure the progressive realisation of these rights, as a recent South African case involving the right to housing held (Grootboom v. State 2000).

However, governments are not always willing, or able, to satisfy citizens' rights to a certain quality of living, which can create a strain in the relationship between the courts, the government and the constitution. Moreover, the effectiveness of such protections depends to a large extent on the ability of citizens to enforce the rights, and access the courts and other forums that are charged with the responsibility to enforce rights.

One important element of best practice present in both the South African and Kenyan constitution is therefore the incorporation of inclusive provisions relating to who has standing to bring an enforcement claim alleging a violation of the constitution before the courts. Article 22 of the Kenyan Constitution and Article 38 of the South African Constitution provide that every person has the right to institute court proceedings claiming that a right in the Bill of Rights has been denied, violated or infringed, or is threatened. Additionally, the constitution allows a person – whether acting on behalf of another person who cannot act in their own name, acting as a member of (or in the interest of) a group or class of persons, or acting in the public interest, and an association acting in the interest of one or more of its members – to have standing to bring an enforcement claim before the courts. This significantly increases the chances that, where violations do occur, cases will be brought to court, and rights will be protected in accordance with the constitution.

## Celebrating Diversity

Both Kenya and South Africa are heterogeneous – with great diversity in race, ethnicity and religion. Rather than deny or gloss over the existence of diversity, both the 1996 South African constitution and 2010 Kenyan constitution proudly acknowledge their ethnic, racial and cultural diversity, and adopt strategies for responding to and accommodating such differences. As well as constitutional arrangements that protect diversity and minority rights and promote political tolerance of ethnic and racial differences, political inclusivity has become a key strategy of building effective and legitimate state institutions. At the same time, they recognise that the enjoyment of these rights has to be balanced with the need to ensure that it does not lead to the erosion of the notion of common citizenship and to isolationism.

South Africa in the apartheid era and Kenya prior to the 2010 constitution lacked institutional arrangements that promoted inclusiveness and legitimate accountability. Mindful of their past, recent constitutions in both countries provide that the constitutional order is founded on the values of: (1) human dignity; (2) the achievement of equality; (3) non-racialism and non-sexism; and, (4) supremacy of the constitution and the rule of law over all institutions and laws (Kenya 2010; South Africa 1996). They also commit themselves to establishing an open society based on democratic values, social justice and fundamental human rights, as well as proclaiming that the country belongs to all who live in it, united in diversity. This is then protected by the constitutional entrenchment of such notions as the rule of law, equality of citizens, equality before the law and the protection of civil and political rights.

## Decentralisation

Both the Kenyan and South African constitutions provide for devolution, demarcating national and local spheres of government that are distinctive, but also interdependent and inter-related. The devolved character of governance in both constitutions decentralises power and empowers subnational governments, but can also be used to accommodate diversity and diffuse hostile relations between various ethnic or religious groups (building trust between communities, as well as trust in government). As Nwabueze has pointed out, the tragedy of tribal or cultural differences, unlike ideological ones, is that the feelings which they arouse are not amenable to rational argument and persuasion (Nwabueze 1993). Further, as Cachalia (2001) has stated, in addition to putting procedural constraints on majoritarian decision-making, these arrangements encourage compromise and deliberative decision-making by requiring that decisions at the central level take the interests of opponents and local communities into account.

Such devolution ensures a measure of autonomy for the various provinces in the country (regions, counties, states and so on) that allows local communities to manage a substantial degree of their own affairs, thereby ensuring the accommodation of local communities and fostering a feeling of inclusivity. Except in areas reserved as core competencies of the national government, parliament has no legislative competence over matters within the exclusive functional areas of the subnational governments. In an 'ideal type' federal structure, the national parliament is only allowed to legislate in matters under the subnational structures, where it is necessary for national security, economic unity (maintaining essential national standards, and establishing minimum standards for the rendering of services) or for preventing unreasonable action taken by a province which is prejudicial to other provinces or the country as a whole. The Kenyan and South African examples are not quite 'ideal types', but they nonetheless reserve a clear autonomous sphere for subnational governments.

The trend towards devolving power to subnational structures and local communities in African constitutions has been strongly encouraged by international donors and development agencies and reflects a growing consensus in favour of more inclusive and participatory forms of government that seek to improve the responsiveness and accountability of political leaders to their communities. It is premised on the fundamental belief that human beings can govern themselves in peace and dignity in pursuit of their collective wellbeing once they are entrusted with control of their own destiny through the medium of popular local democratic institutions. Indeed, if done well, devolution can deliver a number of benefits. In economic terms, it permits governments to match the provision of local public goods and services with the preferences of recipients. In political terms, devolution provides local minorities with greater opportunities to preserve their distinctive cultural and linguistic identities within the framework of a stable, central authority, which may also promote tolerance – a core value in democratic governance that not only keeps the social structure together but also enables it to function smoothly. At the same time, effective devolution provides channels for the expression of regional sentiments, which in turn allows national policies to become more sensitive to regional and local variations within the nation state. This may include creating a greater political profile for minority parties, who might otherwise be totally excluded from power.

There are, however, political dangers in the devolution of power to subregional units (Dyzenhaus, Chapter 14, this volume). Wrongly structured subnational entities can worsen ethnic and racial tensions in a state. They can provide an opportunity for political mobilisation on the divisive basis of ethnicity, with potential consequences for political oppression, intolerance and, at the extreme, secessionist movements. A related danger is that a regional system might frustrate the task of 'nation-building' when territorial claims are tied to ethnic or ideological affiliations, and that the creation of exclusive ethnically homogeneous units may emphasise ethnic divisions and undermine the unity and cohesiveness of a state. For instance, a study on Uganda showed that the power of the districts to employ staff led to a tendency to retain people regarded as 'indigenous' to the area. In Uganda, the notion of territoriality and homogeneity embedded within the logic of decentralisation has tended to create an unending chain of marginalisation and quest for autonomy. Sentiments such as these find expression in the craving for new districts (Ahikire 2002). This is well illustrated by the case of Nigeria, which in 1960 had three regions and today has thirty-six states. Yet, the creation of more districts also results in new demands from local communities who feel marginalised.

# The Rule of Law, Constitutionalism and Governance

Constitutions are only as good as their implementation. Beyond the development of constitutional norms, citizens in many African countries are demanding that governments live up to the constitutional norms contained in the new constitutions. Whether in the debate on the changing of presidential term limits (Posner and Young, Chapter 11, this volume) or the holding of free and fair elections, there is a growing insistence on the rule of law. As Okoth-Ogendo has put it, Africans no longer want constitutions without 'constitutionalism' (1988).

The forgoing analysis has already made the case that one of the most important political and legal concepts in democratic governance is the concept of the rule of law. However, this concept itself faces a lack of clarity in a number of areas including conception, operation and evaluation. There is uncertainty about what the essence of the rule of law actually is, whether it primarily resides in certain institutional configurations or in more diffuse normative structures. There is also the question as to how the rule of law can assist in nation-building, promote good governance and protect human rights. It is therefore worth clarifying the relationship between constitutional design and the rule of law.

The concept of the rule of law implies that all state power ought to be exercised under the authority of law, and that there should be rules of law governing the election and appointment of those who make and execute policy, as well as the manner in which such policies are made in order to ensure rationality, fairness and compliance with constitutional provisions in the decision-making process. This state of affairs is juxtaposed with a regime characterised by caprice or arbitrariness, in which acts or omissions are traceable to the whims of the particular man or woman in power at a given time.

In a democratic context, the rule of law also connotes that state power should only be used through legal rules for establishing the economic and social system popularly agreed upon through constitutionally sanctioned representative institutions or other acceptable surrogates. Typically, the division and regulation of state power is established through the national constitution. A key element of the rule of law is that it provides an assurance of some sort of predictability in the conduct of state officials by the prior existence of a basic law covering the subject matter that falls within their fields of operation. However, if this is to happen, the roles and status of such public officials by law must be clearly and thoroughly defined.

In addition to constructing legal barriers to government arbitrariness, defined as the absence of legal authority for acts done, and the demand for procedural safeguards (Paul 1999), the rule of law legitimises state power. Authority is legitimate if there is an established legal and institutional framework, and if decisions are taken in accordance with accepted institutional criteria, processes and procedures. Any truly enlightened and fair social order must be firmly based on the rule of law and respect for human rights. The very idea of a constitutional democratic government, or constitutionalism, connotes a government defined, regulated and limited by the commonly agreed rules of the game (Nwabueze 1993).

Thus, constitutional democracy is founded upon the notion of checks and balances, namely that different institutions – the legislature, the judiciary and the executive – act as a check and balance on each other, while operating independently of one another. Because all three institutions are duty-bound to uphold the rule of law, it is necessary to precisely define the roles of each institution and that of public officials. It is not enough to assure predictability, and control devices designed to curb bureaucratic excesses are also necessary. If a government bound by a written constitution can have only such powers as are granted by its constituent instrument, then we must accept as a practical consequence that the constitution, in granting powers, can also, and must by necessary implication, limit them. As Lord Acton famously said: 'power tends to corrupt, and absolute power corrupts absolutely' (Creighton 1887).

The mark of good governance consists above all else in its effect on nurturing and promoting the best qualities in the people and habits of obedience to government as the constituted authority; its interposition in the settlement of disputes and the redress of grievances; its tolerance of political, ethnic and other differences; its habits of integrity, probity, fairness, self-restraint and discipline in the conduct of social relations and public affairs; its spirit of enterprise, hard work, self-reliance and inventiveness in the pursuits and activities of life; and its quality of public-spiritedness and patriotism in matters affecting the interests of the community (Nwabueze 1993).

Similarly, the best form of government is that which fosters such qualities in the people as initiative and inventiveness, and which promotes further improvement in their overall intellectual and moral qualities. The success of government in part depends upon such qualities, especially in terms of maintaining and promoting economic development and the wellbeing of society. It is the good qualities of the people that supply the motivating force that works the machinery of the government. Judged by this criterion, a government of absolute or unlimited power is intrinsically 'bad'. Its inherent effect will be to create indifference, apathy and passivity in its people. These negative qualities are 'implied in the very idea of absolute power' (Nissanke & Ndulo 2017) and result inevitably from the lack of public participation in the government. An absolutist government creates other far worse traits in, and propensities among, the people. In this sense, formal political institutions are of the greatest importance.

The rule of law must therefore ensure: (1) regulation and limitation of the powers of government and the provision of mechanisms to ensure the efficacy of such limitations; (2) the provision of measures that ensure the political accountability of political leaders on the basis of openness, probity and honesty; (3) the full protection of the fundamental rights of the people; (4) that disputes, including those concerning the constitutionality of legislation and government acts, are adjudicated impartially by regular, ordinary courts that are independent of the protagonists; (5) that ordinary laws applied in the execution of governance and adjudication of disputes are made in conformity with the provisions of the constitution and in accordance with the procedure for law-making prescribed therein; (6) clearly formulated and transparent processes through which political leaders and government officials are held accountable for their actions to the people; (7) the safety and security of citizens and the rule of law such that contracts can be fairly enforced, both between the public and private operators and between private operators and the state; (8) that public agencies are responsive to the needs of the public and promote social and economic development for the benefit of all citizens in an equitable manner; and, (9) the provision of information that promotes the achievement of accountability, the careful application of laws, functioning of markets, and the creativity and innovation of the people.

The rule of law and democratic governance therefore entails, first and foremost, a government that lives up to its responsibilities by ensuring the effective delivery of public goods and services, the maintenance of law and order, and the administration of justice. Governments are organised around institutions that engage in the delivery of goods and services and ensure government accountability to its citizens. In turn, institutional effectiveness and accountability are central to good governance and the rule of law (Stevenson 2003). However, well-designed institutions cannot do the job on their own – they must be undergirded by behavioural norms that guide the actions of decision makers. If political elites are not committed to playing by the rules of the game, key constitutional provisions may be overlooked or ignored. Thus, in the terms set out in the Chapter 15, informal and formal institutions must complement each other rather than compete.

Unfortunately, such supportive norms are often lacking. As a result, the continent has suffered more than its fair share of weak, unproductive and unaccountable public institutions, which have arguably been largely responsible for the failure of governance and general economic decline in much of Africa (Beutz 1989). Examples of these kinds of problems can be found elsewhere in this volume, particularly in the chapters by Klaas (10), Medie (6) and VonDoepp (13). This raises the question of how to strengthen democratic and constitutional norms, and increase the chances that the official rules will be respected.

## Watchdog Institutions and Respecting the Constitution

The promotion of good governance and the implementation and enforcement of human rights and the rule of law cannot be left to the courts alone. The public must also play a watchdog role. In this regard, it is important to remember that transparency is an in-built 'modus operandi' in the conception of democracy; it relies on the free flow of information processes and access to institutions. For there to be effective transparency, institutions and information have to be accessible to those concerned with them, and enough information has to be provided to enable the citizens to understand and monitor them.

Significantly, the new African constitutions provide for an additional layer of enforcement institutions in order to more fully translate constitutional principles into national government practices. One element of this in Kenya and South Africa has been the creation of institutionalised watchdog bodies, including public protectors, anti-corruption commissions, gender commissions, and human rights and integrity commissions. This trend coincides with the increasing focus within the international community on the importance of watchdog institutions such as national human rights organisations. A 1991 UN International Workshop on National Institutions for the Promotion and Protection of Human Rights resulted in the drafting of guiding principles that were adopted by the UN Commission on Human Rights in Resolution 1992/54 in 1992. These principles, known as the 'Principles Relating to the Status of National Institutions', or the 'Paris Principles', were endorsed by the General Assembly in its Resolution 48/134 in 1993, which states that 'The principles affirmed that national institutions are to be vested with competence to promote and protect human rights and given as broad a mandate as possible, set forth clearly in a constitutional or legislative text'. Similarly, the Vienna Declaration and Program of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993 recognised that national human rights institutions play an important role in promoting and protecting human rights, disseminating human rights information and providing human rights education.

In a developing democracy, watchdog institutions are likely to play a particularly important role, as they provide a viable forum for the investigation and resolution of human rights complaints in cases where the judicial system is weak, slow or inaccessible to ordinary citizens. National human rights institutions may also address problems that are not justiciable in ordinary courts such as maladministration and inefficiency in the provision of services. They can improve the legality and fairness of governance administration, thereby increasing government accountability. A key strategy, therefore, in the process of promoting the rule of law, good governance and inclusiveness is the development of effective and truly independent watchdog institutions that improve indigenous institutional capacities to promote and protect sustained democratic gains.

# The Effectiveness and Enforcement of the Rule of Law

In terms of institutions, rules and regulations, and formalism, an increasing number of African countries would qualify as countries that embrace democratic governance and the rule of law. In Kenya, South Africa and Zimbabwe, the new constitutions that have been introduced detail provisions on civil and political rights of citizens and have in place mechanisms for their monitoring, promotion and enforcement. The normative base of governance is specifically stipulated by these countries' constitutions as 'democracy and social justice'. But respect for the rule of law can be more properly gleaned from the extent to which civil and political rights are respected by law enforcement agencies and other government officials. It is also reflected in citizens' confidence in the ability of law enforcement organs to protect them from crime and violations of human rights. When measured in this way, progress has been more modest.

The general impression within the media and recent academic scholarship (Cheeseman, Chapter 1, this volume) is that African governments do not respect the rule of law, especially in their behaviour towards opposition parties and when confronted with public protest in difficult political and economic situations (Klaas, Chapter 10, this volume). The security forces and the police tend to be the major culprits of human rights violations (Medie, Chapter 6, this volume). The poor observance of human rights by security forces is generally attributed to poor training, minimal exposure to human rights norms, political interference and capacity constraints. Inadequate funding and other types of resource deprivation have undermined the effectiveness of most governance agencies including constitutionally independent ones. The result is that the very institutions charged with protecting human rights and promoting good governance fail to live up to citizens' expectations. This has clearly been the case in both Kenya and Zimbabwe, where new constitutions have done little to increase the efficacy of the police.

The public therefore loses confidence in these institutions and the credibility and integrity of the institutions is, in turn, eroded. Civil society and the media are broadly perceived as doing a better job than official agencies in promoting accountability and good governance in African countries. Nonetheless, inadequate information gathering, weak analytical capacities and scarce resources hamper the effective development of civil society; the fragmentation of civil society in many countries – along ethnic, partisan or personal lines – also inhibits the sharing of expertise and information.

Given this, it is problematic that national institutions with an express human rights mandate struggle to be effective in many African jurisdictions. In general, the executive remains too powerful in relation to all other state agencies, and the independence of such institutions vis-à-vis the executive is not always clear (Ndulo 2014). There exists a high degree of dependency of such institutions on the executive branch, which makes their findings of overall government performance not always impartial. Watchdog institutions may also prove ineffective because the executive often ignores their recommendations. They also often suffer from a crisis of leadership that is explained, at least in part, by the appointment of officials not based on merit but patronage, whereby ethnicity and loyalty to the ruling party are often given priority.

It is also important to recognise that watchdog institutions cannot fulfil their functions effectively in states that do not have some minimum level of democratic governance. Even when they operate in a democratic context, their work may be undermined by both law enforcement officers and victims due to an ignorance of human rights rules and procedures. This represents a critical challenge, because implementing the constitution involves developing a culture of understanding of, and receptiveness for, human rights concerns that extends to people at work and at school, government officials, parliamentarians and members of the security forces. In turn, this suggests a great need to strengthen public awareness of human rights and the role of watchdog institutions in society.

Accountability to the public can also be enhanced by ensuring that annual and special reports are distributed widely and that there is a regular flow of communication between the institution and the complainant during an investigation. It is extremely important to appoint an individual (or individuals) to head a watchdog institution that has expertise, integrity and credibility in the eyes of both the government and the populace. The strength of character and the courage needed to operate effective watchdog institutions should not be underestimated (Economic Freedom Fighters and Others v. Speaker of the National Assembly, Zuma and Others 2016). Given this, political and governmental support must be given to institutions, their work and their recommendations. Improving accessibility to these organisations is also important, and requires such agencies to be open to the population they are designed to protect, addressing such issues as public knowledge of the institution's physical location, as well as ensuring diversity in the leadership composition of such institutions.

Many of these challenges are likely to be easier to meet if institutions are decentralised so that they can easily be accessed by the population. A good example is the Human Rights Commission in Ghana, which is decentralised to the regional level. Such institutions must also be representative, especially with respect to gender. They must also develop effective service delivery mechanisms for the poor. While it is generally agreed that courts have a critical role to play in the enforcement of human rights and constitutionalism, they are often expensive and difficult to access. It is also widely acknowledged that the performance of the judiciary is hampered by the shortage of both human and operational resources availability. In most jurisdictions, courts are congested and are perceived as slow in their disposal of cases that are brought before them (VonDoepp, Chapter 13, this volume). These difficulties tend to undermine the public's confidence in the ability and suitability of the courts as forums for the protection of human rights and the advancement of the rule of law.

Finally, increasing the independence of watchdog bodies from government will be important for improving their effectiveness. Independence requires that the heads of national institutions are appointed in a manner that gives them independence from the influence of the government institution that they intend to investigate (whether it be the executive or administrative branch). Institutional independence is enhanced by providing the head of the institution security of tenure and freedoms in matters such as the investigations and reporting process, the budget and the hiring of personnel. Independence is also important because it increases the prospects that the work and recommendations of the institution will not be ignored by the government – which has been one of the main weaknesses of many of the watchdog bodies created in Africa to date.

# Conclusion

In a democratic state, the constitution establishes the parameters of state power and the scope of citizens' rights and responsibilities. It is the supreme law against which state conduct may be measured or declared unlawful. It establishes the terms of exercising public power, and gives citizens the right to be treated equally under the law. At the epicentre of a democratic political environment, therefore, are the overriding constitutional rules that govern state conduct and power. While the overarching message in the 2015 Ibrahim Index of African Governance is that overall governance progress in Africa has stalled since 2011, it should be noted that significant progress has been made in constitutionalism and participation in government since the 1990s.

Long gone are the days when the one-party system of government was the norm. In particular, this has been reflected in improvements in the quality of constitutional texts, political institutions, administration of elections, in addition to the greater frequency of presidential turnovers and a growing acceptance of political and social pluralism. It can also be seen in the increased role of the courts in promoting accountability of governments (Ndulo and Gazibo 2016; VonDoepp, Chapter 13, this volume). Today, the majority of Africa's fifty-four states hold elections and subscribe to multiparty politics (van Ham and Lindberg, Chapter 9, this volume). The quality of democracy in Africa has improved due to two complementary types of pressure: one arising from international, continental and regional institutions and interventions, and the other from growth in civic engagement.

Deepening democracy and constitutionalism will require continued promotion of structural improvements to the institutions that promote accountability, participation and transformation of governance in Africa. Democratic governance depends on societies adopting and respecting constitutional arrangements that foster good governance. In line with this, there is a critical need to strengthen the human and institutional capacity of the courts and the watchdog institutions to improve their operational effectiveness. It is imperative that there is broader promotion and popular dissemination of information about the rule of law, government accountability, human rights and the mechanisms available for their protection. There must be real and effective access to the courts, and watchdog institutions. While these constitutional protections ensure that every citizen enjoys equally their civil and political rights under the law, such protections depend to a large extent on the ability of citizens to assert the use of these rights. Empowering citizens to participate in government and exercise their civil and political rights must therefore be understood as the government's responsibility (in addition to its duties to tackle poverty, create sustainable livelihoods and promote civic education).

However, as Nwabueze (1993) reminds us, the way to inter-group understanding and accommodation cannot be secured by constitutional provisions alone, as it lies principally in the minds and hearts of the people. The success of the project to promote inclusiveness, accountability and participation in governance is therefore inextricably linked to the eradication of poverty, which undermines the capacity of institutions and citizens to promote good governance. Thus, the transformation of African governance practices into inclusive and democratic governance cannot be sustained unless the economic conditions in African countries improve to a level where countries have the capacity to sustain the institutions necessary for good governance, the protection of human rights and the rule of law.

# Works Cited

Ahikire, Josephine. 2002. Decentralization in Uganda today: Institutions and possible outcomes in the context of human rights, International Council on Human Rights Policy Decentralization, Local Government and Human Rights Project, 116-Stage One: Survey of the Issues.

Beutz, Molly. 2003. 'Functional democracy: Responding to failures of accountability', Harvard International Law Journal 44: 387.

Cachalia, F. 2001. 'Constitutionalism and belonging' in P. Andrews and S. Ellman, The post-apartheid constitution perspectives on South Africa's basic law, Johannesburg University Press.

Carothers, Thomas. 2003. 'Promoting the rule of law project', Carnegie Endowment Working Papers, No. 34.

Deng, Francis. 2010. Self-determination and national unity: A challenge for Africa, Africa World Press. Trenton, NJ.

Economic Freedom Fighters and Others v. Speaker of the National Assembly, Zuma and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11, Constitutional Court of South Africa, 31 March 2016.

Fallon, Jr., Richard. 1993. '"The rule of law" as a concept in constitutional discourse', Columbia Law Review 97: 1.

Hatchard, John. 2006. 'Legal techniques and agencies of accountability, human rights commissions in Commonwealth Africa' in Muna Ndulo (ed.), Democratic Reform in Africa: Its impact on governance and poverty alleviation, James Currey (Rochester, NY) and Ohio University Press (Athens, OH).

Human Rights Watch. 2001. 'Protectors or Pretenders? Government Human Rights Commissions in Africa', www.hrw.org/legacy/reports/2001/africa/. (Accessed July 2017)

Meka, Annie. 8 October 2015. 'Police reform in Kenya: Challenges and opportunities', Centre for Security Sector Governance Blog, www.ssrresourcecentre.org/2015/10/09/police-reform-in-kenya-challenges-and-opportunities/. (Accessed June 8, 2017)

Mwanakatwe, John. 1994. The End of Kaunda Era, Multimedia Publications Zambia. Lusaka.

Nissanke, Machiko, and Ndulo, Muna. 2017. Poverty Reduction in the Course of African Development, Oxford University Press.

Ndulo, Muna. 2010. 'Zimbabwe's unfulfilled struggle for a legitimate constitutional order' in L.E. Miller (ed.), Framing the state in times of transition: Case studies in constitution making, U. S. Institute of Peace Press. Washington, DC.

Ndulo, Muna. 2003. 'The democratisation process and structural adjustment in Africa', Indiana Journal of Global Legal Studies 10: 1.

Ndulo, Muna. 2014. 'Democratic governance and constitutional restraint, of presidential and executive power: The challenges in Africa' in Tiyanjana Maluwa (ed.), Law, politics and rights: Essays in memory of Kader Asmal, Martinus Nijhoff Publishers. Leiden.

Ndulo, Muna, and Mamoudou Gazibo. 2016. 'Growing democracy in Africa: Elections, accountable governance, and political economy', Cornell Institute for African Development Series, Cambridge Scholars Publishing, Newcastle upon Tyne.

Nhlapo, N. 1995 Accommodating Traditional Form of Governance in a Constitutional Democracy: A Motivation'. Paper presented at the International Roundtable on Democratic Constitutional Development, Petoria, South Africa. 17–20 July 1995.

Nwabueze, B.O. 1993. 'The danger of absolute power and total power' in Ideas and facts in constitution making, The Morohundiya Lectures. University of Ibadan

Nwubueze, Ben. The Mistakes Rotini William and I Made about Nigeria's constitution. Iterview by Gbenga Oke. AllAfrica.com stories/201303220300.html (Accessed 14 September 2017).

Ocran, M. 1984. 'The rule of law as the quest for legitimacy', in Muna Ndulo (ed.), Law in Zambia, East African Publishing House Nairobi.

Okoth-Ogendo, H.W. 1988. Constitutions without constitutionalism: Reflections on an African paradox, American Council of Learned Societies. New York.

Paul, James C.N. 1999. 'Putting the governance of African security forces under rule of law', Third World Legal Studies 5: 3.

Rotberg, Robert I. 1965. The rise of nationalism in Central Africa: The making of Malawi and Zambia, 1873 to 1964. Cambridge, MA: Harvard University Press.

Stevenson, Dru. 2003. 'To whom should the law be addressed', Yale Law & Policy Review 21, 1: 105–167.

UN General Assembly. 1993. 'National Institutions for the Protection and Promotion of Human Rights', 84th Plenary Meeting (A/Res/48/134).

World Bank. 1989. 'From crisis to sustainable growth – sub-Saharan Africa: a long term perspective study', World Bank Report, <http://documents.worldbank.org/curated/en/1989/11/439705/crisis-sustainable-growth-sub-saharan-africa-long-term-perspective-study>. (Accessed 16 May 2017).

2015 Ibrahim Index of African Governance. 2015. <http://mo.ibrahim.foundation/> (Accessed 13 September 2017).

# 6 The Police

## Laws, Prosecutions and Women's Rights in Liberia

Peace A. Medie

Of all the formal institutions that make up a state, the rule of law and the police designated to enforce it are two of the most important (Stromseth 2008). The rule of law matters for the capacity of the state to ensure security and order, but also for maintaining a sense of equality among citizens. After all, it is by receiving legal privileges or punishments that many individuals get ahead or fall behind in life; the African elite has been formed, in part, through the selective implementation of rules and laws by the judiciary and police. Indeed, despite the central importance of the system of law and the police, public perception of the police and judiciary is mostly negative (Armah-Attoh et al. 2007). Underfunded and poorly trained, the police are often viewed as part of the problem rather than as a solution (Richmond and Alpin 2013). Thus, if any part of the African state conforms to the 'institutionless' school described in Chapter 1, it would be the police. This chapter considers the implementation of the rule of law in Africa with respect to one of the areas in which citizens' formal rights are most often overlooked – sexual violence in post-conflict countries. In doing so, it highlights the many ways in which the police fail vulnerable girls and women, but also demonstrates that even in the most unlikely of contexts the formal institutions of the state can be made to work in order to deliver better outcomes for marginalised groups.

Sexual violence, and other forms of violence against women (VAW), occurs before and during conflict and does not cease in its aftermath.1 Instead, women continue to be victimised after wars have ended. The United Nations (UN), which has spearheaded the post-conflict peacebuilding effort in several African countries, has underscored the role of police in preventing this violence and in enforcing the relevant laws to ensure the prosecution of offenders (United Nations Women 2011). Prevention and enforcement are important for women's security and their wellbeing as sexual violence has physical, psychological, social and economic effects on the lives of victims. Police enforcement of rape and other sexual violence laws also indicates a strengthening of the rule of law and a strong rule of law is critical for building sustainable peace in the aftermath of conflict (Stromseth 2008).

However, the police response to rape in post-conflict and in other African states is highly inadequate (United Nations Women 2011). Certain police practices discourage victims from reporting rape, while also directly impeding investigation and the arrest and prosecution of offenders. One of these practices is the withdrawal of rape cases after they have been reported. Police have been found to withdraw cases for reasons that include collusion with suspects, while victims seek withdrawal due to pressure from relatives, fear of retaliation and dissatisfaction with police handling of proceedings (Medie 2017). The withdrawal of cases eliminates the possibility of prosecution and reinforces impunity for rape. Consequently, despite the passage of progressive anti-rape laws in many African countries, formal justice remains inaccessible to many women, particularly evident for the poor and marginalised.

The deficiencies in police performance with respect to rape reflect the wider failings of law enforcement on the continent. The literature on the police in Africa has described police forces in most countries as corrupt, inefficient, under-trained and lacking in respect for human rights and principles of democratic policing (Tankebe 2008, 2013; Alemika 2009; Mayamba 2013; Ivković and Sauerman 2015). Scholars argue that these deficiencies prevent the police from investigating crimes, effecting arrests and forwarding cases for prosecution. The police, therefore, fail to provide security for the public and enforce the laws as mandated. Furthermore, these deficiencies often persist despite the implementation of police reform programmes. This evidence therefore suggests that the police are both unable and unwilling to solve crimes, and often act in an excessive or extrajudicial manner.

In this chapter, I use police officers' responses to rape in Liberia as a lens through which to generate insights about the state of policing in Africa more generally. Drawing on interviews with police officers and staff of international organisations, key government ministries and local women's nongovernmental organisations (NGOs), I demonstrate the factors that shape whether or not police officers decide to refer rape cases to court. Significantly, I show that although there are many barriers to the successful prosecution of cases in Liberia, a series of changes to the formal institutions governing sexual violence resulted in a lower rate of withdrawal of rape cases. More specifically, I argue that the positive change in police attitudes resulted from three sets of post-conflict initiatives: (1) the strengthening of the rape law and the formulation of several gender policies, (2) the creation of new institutions and the reforming of existing ones, and (3) the training of police officers.

These reforms were mostly conceptualised, developed and implemented by a coalition consisting of international organisations (with the UN at the forefront), key government ministries and women's NGOs. I argue that while these post-conflict initiatives have not eliminated broader problems that plague the police in Liberia, they have improved police response to rape and demonstrate the potential for a coalition of international organisations, facilitative political leaders and civil society to reform formal institutions, and for the reform of these institutions to, in turn, improve outcomes in the policing sector, even in some of the most challenging areas. Furthermore, the reforms in Liberia reflect broader developments in policing in Africa. In particular, several states, including Sierra Leone, Rwanda, Uganda, Namibia and Ghana have developed various models of specialised policing in the area of VAW. Although these initiatives do not guarantee that policing is free of corruption or respects the principles of democratic policing, the case of Liberia demonstrates that under certain conditions, they can lead to modest improvements in this direction.

# Policing Africa

It is the duty of the police to enforce the laws of the state. Police reform programmes in Africa, sponsored and executed mainly by the United States, other donor governments and agencies such as the UN and the Department for International Development (DFID), have promoted the adoption of the norms of democratic policing. Democratic policing entails police accountability to the rule of law rather than to the government, their protection of human rights, transparency in law enforcement and the prioritisation of citizens' needs (Bayley 2001). However, scholars who have studied police in Africa have concluded that police forces across the continent, which are male-dominated, are largely unable and unwilling to enforce laws and to provide security for the public (Marenin 2009; Tankebe 2011; Osse 2014). Police sometimes choose not to record crimes that are reported to them and often fail to investigate reported crimes, apprehend suspects, and prepare and present cases for prosecution (Amnesty International 2010; United Nations Women 2011). Furthermore, their approach to policing largely falls below the standard of democratic policing (Hills 2008, 2012; Ruteere 2011).

Police failure to provide security for the civilian population of African states is in sharp contrast to their protection of governments in these same states, in part as they are usually accountable to presidents rather than civilian authorities (Hills 2007). Since independence, political leaders and elites have tried and often succeeded in using the police to protect their interests and to maintain a hold on power (Alemika 2009). Presidential appointment of members to police councils, and police commissioners, is one way leaders have maintained control. An example is Zimbabwe, where the police commissioner, appointed by President Robert Mugabe, ordered his subordinates to vote for the president's party in senate elections (Hills 2007). This politicisation often requires diversion of police resources away from activities that support the protection of the civilian population, and that instead benefit the government in power. It has also usually entailed the deployment of the police to monitor and silence opposition to the government, sometimes through the use of force.

This undemocratic – and often illegal – use of the police in Africa can be traced to the colonial era. Under colonial rule, police forces were created to protect the colonial enterprise from the indigenous population (Alemika 2009; Tankebe 2013). After independence, most African leaders changed the names of their country's police forces but maintained the practices that had prevailed under colonial rule (Andersen and Killingray 1991). The leadership of police forces were appointed based on political affiliation rather than on qualifications or merit, and politics determined most aspects of policing. Consequently, the police force has largely remained a tool for regime protection and for the control and, when necessary, the repression of the public.

This politicisation of the police and its use as a tool of repression has contributed to the high level of distrust in the police in most African states. Table 6.1 captures the extent of such lack of trust. In five countries (Ghana, Ivory Coast, Kenya, Liberia and Nigeria) the majority of inhabitants do not trust the police, and in only three countries (Botswana, Senegal and Tanzania) do over 60 per cent of the population have confidence in the force. This lack of trust in the police stems from their perceived inability and unwillingness to effectively and transparently enforce the law and the culture of corruption in the institution (Armah-Attoh et al. 2007; Marenin 2009). In countries such as Ghana, Liberia, Nigeria and Uganda, almost a quarter of survey respondents report often having to pay a bribe to receive service from the police (Table 6.2). Indeed, the police in Africa have been described as corrupt, unprofessional, ineffective, repressive and lacking respect for human rights and democratic principles (Tankebe 2008, 2013; Alemika 2009; Mayamba 2013; Ivković and Sauerman 2015).

Table 6.1 Trust in the police,%2

| Botswana | Benin | Ghana | Ivory Coast | Kenya | Liberia | Nigeria | Senegal | Tanzania | Uganda | Zambia | Zimbabwe
---|---|---|---|---|---|---|---|---|---|---|---|---
Don't Trust| 40| 47| 64| 58| 64| 77| 78| 27| 39| 43| 51| 49
(N)| 1194| 1192| 2340| 1197| 2379| 1188| 2375| 1170| 2358| 2352| 1182| 2381

Table 6.2 Incidence of police bribery,%3

| Botswana | Benin | Ghana | Ivory Coast | Kenya | Liberia | Nigeria | Senegal | South Africa | Tanzania | Uganda | Zimbabwe
---|---|---|---|---|---|---|---|---|---|---|---|---
Never| 99| 90| 77| 88| 86| 64| 72| 98| 96| 86| 81| 91
Often| 1| 10| 23| 12| 14| 36| 28| 2| 4| 14| 19| 9
(N)| 546| 135| 263| 107| 690| 698| 994| 147| 1722| 423| 758| 563

Among other things, studies have revealed that not only do police demand and accept bribes from suspects to conceal evidence and drop charges, but they also charge complainants unapproved fees to record complaints, conduct investigations, arrest suspects and present cases for prosecution (Baker 2009; Human Rights Watch 2013). They have also been accused of either not responding to calls for help or responding too slowly (Human Rights Watch 2013). There is also extensive evidence of police using violence against civilians and condoning violence in the communities they are tasked with serving (Tankebe 2011; Beek and Gopfert 2012).

These deficiencies in policing across Africa can be attributed to four main factors: the politicisation of the force, the lack of capacity of policewomen and men, the lack of resources at their disposal and the organisational norms. Due to politicisation, the protection of the public is not a priority, and civilians often have few means of holding the police accountable. It has been previously noted that the police in most African countries are inadequately trained, and thus lack the knowledge to efficiently and effectively conduct police work (Hills 2008). Inadequate training, low pay and weak oversight contribute to unprofessionalism and often excessive use of force when handling crimes. The low pay that most policemen and women receive also causes them to be unmotivated and contributes to their poor performance (Mayamba 2013).

Studies have also underscored the lack of resources – uniforms, protective gear, vehicles, fuel for vehicles, radios, telephones and even paper and pen with which to record complaints – as a cause of police lack of capacity and unwillingness to enforce the law (Hills 2008; Mayamba 2013; Medie 2015). This lack of resources limits the degree to which they can perform their duties in accordance with police guidelines and principles of human rights. Finally, the literature has also emphasised the extent to which norms (emerging around issues such as corruption) have eroded formal rules (Tankebe 2010; Mayamba 2013). In the terms set out in the Conclusion to this volume, such norms represent a competitive informal institution. In cases of rape, domestic violence and other forms of VAW, patriarchal norms that justify and trivialise this form of violence also affect police willingness to record and investigate complaints, arrest suspects and refer cases to the courts for prosecution (United Nations Women 2011).

Overall, the literature has shown that the police in most African states have generally failed to provide security for the majority of the population and to enforce the rule of law. With only a few exceptions, scholars have not studied instances where the police have succeeded in providing protection and in enforcing the laws. I argue that despite the paucity of these instances and perhaps their failure to meet all of the standards of good policing, they still deserve attention. Indeed, it is only by considering cases in which policing works that we can get a better handle on how to strengthen policing institutions in Africa.

# Police Responses to Rape in Liberia

Liberia has not been immune to the negative practices identified and described in the literature on the police in Africa, and the reputation of the Liberian police is similar to that of police in other African countries. (Baker 2009; Isser, Lubkemann, and N'Tow 2009; Human Rights Watch 2013). Nonetheless, there are exceptions (with police following the official guidelines), and I examine these exceptions in this chapter (Medie 2013, 2015). This chapter is based on interviews with police officers and staff of the Ministry of Gender and Development (MoGD), Ministry of Justice (MoJ), women's organisations, the UN and other international organisations conducted in 2010 and 2011 in Monrovia and Gbarnga in Liberia. In this section, I highlight the actions and strategies of the Liberia National Police (LNP) force in dealing with the crime of rape.

The Liberian Frontier Force (LFF), the first law enforcement body in the country, was established in 1908, during the presidency of Arthur Barclay. Barclay, and every president before him, was an Americo-Liberian, a group of manumitted slaves and other free blacks resettled on the Guinea Coast by the American Colonization Society beginning in 1822. The LFF, tasked with maintaining order, soon became known as an abusive and corrupt force that preyed on the population (Akpan 1973). The LFF continued to exploit the indigenous peoples until it was replaced by the Armed Force of Liberia, which was established by the Defense Act of 1956. The Liberian National Police (LNP) was then established on 6 June 1975 by an Act of Legislature. The force soon earned a reputation comparable to the LFF's, as successive presidents used it to control the civilian population and silence oppositional voices (Aboagye and Rupiya 2005). The LNP also gained a reputation for ineffectiveness during this period.

From its establishment, the LNP was not a force that most Liberians depended on for protection or for justice. Partly because of the repressive practices of the LNP, the majority of Liberians preferred customary forms of dispute resolution during this period. Consequently, only a few rapes cases were reported to the police, and reported cases rarely ended in prosecution (Medie 2012). According to Dedeh Kwekwe, coordinator of the MoGD's gender-based violence (GBV) unit, 'The police didn't know how to handle sexual and gender-based violence. If someone came to report domestic violence, the police would say, "It's your fault you were beaten". If a woman reported rape, the police would suggest she had caused it. They would make it worse, and women would be traumatized' (quoted in Bacon 2012: 3).

The Liberian civil war, which lasted from 1989 until 2003, made rape more visible to the Liberian people. The war was characterised by indiscriminate violence against non-combatants, including girls and women, and there was widespread impunity for this violence. All warring factions, including the police and the army, indiscriminately attacked civilians. It is estimated that 150,000 people died during the war and women experienced both physical and sexual violence.4 In a survey of 205 girls and women in Montserrado County, 49 per cent of respondents said that they had experienced at least one act of physical or sexual violence at the hands of combatants between 1989 and 1994 (Swiss et al. 1998).

In 2003, warring factions signed the Comprehensive Peace Agreement (CPA), signalling the official end of the war. The international community, led by ECOWAS, had spearheaded the peace negotiations, and local women's organisations, many formed during the war, had also mobilised across ethnic and religious lines to demand an end to the conflict (African Women and Peace Support Group 2004). The CPA (2003) called on the international community and the United Nations to reform Liberia's security sector, including its police force. This reform began in 2004 – led by the UN in collaboration with the National Transitional Government of Liberia (NTGL) – with the UN Police's (UNPOL) recruitment and vetting of police officers and continued with the implementation of programmes to recruit women into the force. Reformers in the LNP and UNMIL sought to increase the number of women from 2 per cent in 2005 to 20 per cent by 2014 (Bacon 2012). They also provided equipment, as well as training, that emphasised the principles of democratic policing. The UN and donors also built and rehabilitated police stations across the country.

These reforms generally improved the performance of the LNP but have been subject to several criticisms. First, the LNP remains heavily politicised and headed by political appointees (Baker 2009). Second, the force is severely under-resourced and most units still lack the needed equipment and infrastructure. Third, the very low salaries fail to motivate officers and make the LNP an unattractive career choice for qualified women and men (Bacon 2012).5 Finally, the corruption, ineffectiveness, unprofessionalism and lack of respect for human rights that characterised police practice before and during the civil war remain problems (Human Rights Watch 2013).

# Combatting Violence against Women

In addition to the general reforms that have been implemented since the end of the war, there have also been reforms in the criminal justice sector that aim specifically at addressing the problem of VAW, and rape in particular. The UN has collaborated with the government and women's NGOs in developing and implementing many of these reforms although funding has come primarily from the UN and donors. The goals of these interventions have been to prevent rape and to ensure the arrest and prosecution of offenders. The interventions fall into three categories: amending the rape law and adopting new gender policies; establishing new and reforming pre-existing institutions; and training the police.

## Law and Policies

There have been several policy developments in the area of VAW since the end of the civil war. One of these developments, the amendment of the rape law in 2005, was precipitated by continued reports of sexual violence against women and children after the war had ended. The Association of Female Lawyers of Liberia (AFELL) worked with the MoJ, UNICEF, Doctors Without Borders and other local and international organisations to advocate and lobby for the amendment of the law. Lawmakers supported the amendment but raised concerns about clauses that mandated the death penalty for some forms of rape and criminalised marital rape. The amendment, when it was passed, significantly strengthened the pre-existing penal statute on rape. It extended the definition of intercourse to include orifices other than the vagina and made the terms of consent more stringent. It also included gang rape in the definition of rape and revised the maximum sentence from ten years to life imprisonment. Furthermore, it made the granting of bail non-applicable for first degree rape. The amendment was followed by the formulation of several national gender policies that focused on VAW broadly and on rape in particular. These policies include the National GBV Plan of Action (2006) – crafted by members of the anti-GBV coalition (key government ministries, local NGOs and international organisations) – that aimed to reduce GBV by 30 per cent by 2011 (MoGD 2006). In her discussion of the plan of action, President Johnson Sirleaf said that:

My Administration is convinced that the implementation of this multisectoral Plan of Action will move us closer towards being a country where women and girls can live free from fear and violence and enjoy mutual respect and confidence. We are determined to combat violence against women and girls and to protect the human rights of all peoples in our society. We will furthermore enforce the Rape Law – which came into effect the day after my inauguration – without fear or favor (Johnson Sirleaf 2006: 1).

Each of these policies included the LNP as an implementing partner. At the same time, the policies provide guidelines for how implementers (such as the police) should respond to rape and other forms of VAW. Among the changes to the formal institutions governing rape, the amendment is particularly important because it clearly defines rape, removing any ambiguity that would give officers reason to use their discretion when handling cases. Overall, these legal and policy changes have signified that rape is a crime that should be prosecuted by the state. The president's support of these policies, and the attendant creation of new institutions and reforms of existing ones, have signalled the importance placed by the government on combating rape and other forms of VAW.

## Institutions

International organisations have also collaborated with the government and women's NGOs to establish several new GBV-focused institutions in the criminal justice sector and to reform existing ones. The MoGD's GBV Secretariat coordinates all anti-GBV activity in the country and implements some programmes. The secretariat 'collects and analyses data, shares information, coordinates interventions and directs policy interventions relating to the implementation of the GBV Plan of Action' (UMMIL 2007: 2). A group of international organisations, NGOs and the government established the secretariat's GBV Taskforce in 2006. The taskforce is chaired by the MoGD and has been set up in each of Liberia's fifteen counties. Members are supposed to meet monthly to 'strategize on plans of action, develop policies, evaluate existing programs, and report on the successes and the difficulties that members experience in their day-to-day operations' (Medie 2012: 176).

The members of the taskforce – including representatives of the LNP – monitor and report on each other's activities to ensure that the concerned organisations change their practices when needed. For example, a member of staff of the MoGD in Gbarnga described how members of the taskforce confronted a policewoman who had been accused of demanding a bribe from a rape victim who lodged a complaint at the police station.6 According to her, members of the taskforce reported all incidents of police collusion with suspects or the payment of bribes, to the local LNP commander. These complaints sometimes led to improved police conduct in the enforcement of rape laws (Medie 2012). The taskforce has, therefore, played a key role in shaping how the LNP responds to rape.

Members of the taskforce also work closely with the Women and Children Protection Section (WACPS) of the LNP. The section – which was established in 2005, and created with the support of UNICEF – was modelled after Sierra Leone's Family Support Unit and Ghana's Women and Juvenile Unit. As of 2011, officers of the unit underwent a four-week specialised training course in the 'professional handling and management of sexual violence, exploitation and abuse cases involving women and children' (WACPS 2011). The UN and donors have funded the construction of WACPS units across the country and the provision of equipment and training for officers. Local women's NGOs and individual women's rights advocates have also participated in developing and delivering training to the women and men of the section, while AFELL participated in the formulation of the MoJ's 2009 'Sexual Assault and Police Abuse Handbook'.

Institutional changes in the criminal justice sector have not been limited to the police. AFELL also collaborated with several international organisations to lobby for the passage of an act to establish Criminal Court E, a court with exclusive jurisdiction over sexual violence offenses. The court became operational in Monrovia in 2009 with funding from donors such as the Danish International Development Agency (DANIDA).7 The MoJ – with support from organisations such as AFELL, UNHCR and the Carter Center – also created the Sexual and Gender-Based Violence (SGBV) Crimes Unit in Monrovia in 2009. In addition to assisting victims in navigating the criminal justice system, staff of the unit work closely with WACPS officers in investigating and prosecuting rape (supporting police investigations with legal and technical expertise and equipment such as vehicles and cameras). The regional Justice and Security Hub, which was funded by the UN Peacebuilding Support Office and launched in Gbarnga in 2013, also houses an SGBV Crimes Unit.

These developments represent significant improvements in police response to incidents of SBGV. Not only was rape not on the agenda of the government immediately prior to the war, but there were also no institutions or programmes dedicated to the problem in the public sector. However, these new and reformed institutions face several challenges – including limited resources and government meddling. NGO representatives – members of the SGBV taskforce – have accused MoGD of trying to control their activities and of favouring some organisations over others. This has led some members to either stop participating all together or participating less regularly in taskforce activities. The WACPS also faces severe resource constraints, with most units lacking the most basic infrastructure and resources needed to enforce the law. The presence of only one judge and one courtroom in Criminal Court E slowed prosecutions in Monrovia and created a large backlog of cases.8 Furthermore, other counties do not have a specialised court, while Gbarnga hosts the sole prosecution unit outside of Monrovia. Nonetheless, the development of these institutions has enhanced the structures in place to combat rape.

## Training

There has been training on the problem of rape since the end of the war. The UN has worked with the LNP to offer specialised training – at the National Police Training Academy and through officer development workshops – in the handling of rape and other forms of VAW. Staff members from various women's NGOs lead training and workshops. In this training, rape is framed as a criminal offence to be prosecuted by the state. Police officers and the public are also exposed to awareness-raising campaigns mounted by international organisations, government agencies and women's organisations. These campaigns include the 2005 National Sexual Exploitation and Abuse Campaign and the 2007 Anti-Rape Campaign. UN Radio and Liberia Democracy Radio broadcast programmes that raise awareness of rape and other forms of VAW, erecting billboards and disseminating flyers in Liberia to inform the public about rape and the legal codes. In interviews, police officers have indicated that the framing of rape has influenced how they enforce the law. Thus, programmes pushed through formal institutional frameworks have begun to re-shape the problematic informal norms that have tended to undermine the performance of the police on issues of sexual violence.

# Police Enforcement of the Rape Law

Police withdrawal of cases is a major challenge to law enforcement in Liberia and in other African states. Although the referral of a case to court does not automatically lead to prosecution, it is an important first step in ensuring that victims receive justice – and the withdrawal of cases, particularly when engineered by the police, signifies continuing impunity for sexual violence. Given this, I interviewed forty eight police officers (nineteen women and twenty-nine men) of the WACPS in 2010 and 2011 to understand how they respond to cases of rape.9 I also interviewed two officers who had served on the police force before the war. Serving officers were stationed in thirteen WACPS units in Monrovia, Montserrado County, and one unit in Gbarnga, Bong County.10 At each police station visited, I interviewed all officers who were available and willing to speak with me. The interviews revealed the extent to which legal and policy changes, institutional changes and training introduced by the UN and other IOs, the Liberian government and women's NGOs have led to the increased referral of rape cases to court, in comparison to the pre-war period and the immediate post-war period.

Between January and December 2009, according to findings, police referred 40 per cent of rape cases to court, withdrew 4 per cent, transferred 3 per cent to other agencies, and left 53 percent pending. Meanwhile, forty-eight police personnel who discussed their response to rape said that they always referred rape cases to court. These figures are far higher than the available data for previous periods. For example, there were only two cases of rape on record in the courts in 1972 and four in 1977. The police personnel that I talked to based their decision on two main factors: their perception of rape as a crime that cannot and should not be settled by the police, and the WACPS policy which forbids the independent withdrawal of rape cases.11 Officers' perceptions and the WACPS' non-withdrawal policy have both been shaped by the training provided, institutions built and policies introduced by the UN and other international organisations, the government and women's NGOs.

## The Importance of the Rape Law and Gender Policies

In addition to defining the offense and the role of the police in the fight against rape, the new rape law and gender policies have signalled to police that rape is a serious offense that should always be prosecuted. Interviewees used words such as 'heinous', 'grievous' and 'above the police' to describe rape, and explained that rape cases should not be withdrawn because the offense is a felony, unbailable and a crime against the state.

Officer No. 4, a policewoman stationed in Monrovia, underscored the importance of the law: 'Rape cases, they come in talking about withdrawal but there is nothing like withdrawal in rape cases... Because, it's a first degree felony in Liberia, it is viewed just as murder cases are viewed, so for withdrawal, no'.12 Although some forms of rape were classified as first degree felonies in Liberia's 1976 Penal Laws, the 2005 amendment categorised more sexual offences, including gang rape, as first degree felonies. This has sent a strong message about the gravity of the crime, and reduced the space for discretionary decision-making.

The framing of the rape law and the adoption of several gender policies – all of which emphasise the prosecution of offenders – have also indirectly influenced police officers. This is because the WACPS non-withdrawal policy is a product of these documents. This link between national and WACPS policies exists partly because several of the organisations and agencies that participated in crafting the rape law and related policies have also played key roles in establishing the WACPS and in drafting its operational procedures. Senior officers who enforce the section's policies have, therefore, come to understand that rape is an offense that cannot be adjudicated by the police. These officers also underscored the importance of institutions in shaping the section's policies.

## The Importance of Institutions and Programmes

Several anti-rape institutions, including the WACPS, were created with the aim of ensuring the prosecution of offenders. Discussing the section's response to rape, Officer No. 10, stated:

[W]hen I say most important, it is the issue of focus, rape damages the image of human beings, of women. It is a grave offence, it is a very grave offence, so we take it very serious, we put in all our time and effort in the issue of rape... Because this section came into being because of the high level of sexual violation, if you look at the establishment of this section, the focus point of the establishment of this section is to combat rape in this country.13

Institutions have shaped policy as well as practice. Officer No. 46, a policeman stationed in Monrovia, while discussing the section's non-withdrawal policy stated:

[S]o when you are caught in the process [withdrawing a case], sometimes you can be suspended sometimes indefinitely or you can be forwarded to court to justify your actions why you compromised the case.14

Although I was not able to assess the extent to which officers were sanctioned for withdrawing cases, interview responses indicated that the section's non-withdrawal policy (as well as the SGBV Crimes Unit) has affected police behaviour. First, the unit provided guidance on how to conduct effective police work and supported the police in doing so. Officer No. 29, a senior policeman stationed in Monrovia, described this relationship thus: ' we have some constructive partners that we work with, that help us in the process, like SGBV unit, they help us a lot, they give us legal advice and legal technical know-how on how to handle these cases so we do not contaminate the crime scene and destroy evidence'.15 Officer No. 15, a senior officer explained the extent to which the crimes unit served as a check on the behaviour of police officers: 'for everything we do we must consult the chief prosecutor [SGBV Crimes Unit], we liaise with them and let them know what's happening because they inform us of the type of evidence they would need for successful prosecution'.16 By working closely with the WACPS through all steps of the investigative process, the SGBV Crimes Unit made it more difficult for the police to independently withdraw cases.

Other organisations also provided monitoring for WACPS. UNPOL officers visited police stations daily to review log books and to discuss the status of cases with investigating officers. When necessary, they provided transportation and telephone airtime for police officers to follow up on cases. Women's NGOs (working independently and through the GBV taskforce) also held the police accountable by accompanying victims to the police stations and following up on cases. Together, these actors have shaped WACPS policy and placed pressure on the police to refer cases to court.

## Training

The training stresses the seriousness of rape, and both the old and new police training manuals emphasise that rape is a criminal offense that cannot be adjudicated by the police, presenting prosecution as the only response to rape. Officers learn that the decisions in rape cases should be made in consultation with the WACPS Legal Affairs Office and the SGBV Crimes Unit. Officer No. 46 highlighted the importance of training:

[T]he initial training that we inherited from the academy, the Liberian government alone, UNHCR, we were fully told that rape is not compromisible, avoid it altogether, so it is part of the training initially. Even when you go for [a] criminal investigation course, advanced women and child training, we are always told that rape is not compromisible... the knowledge is imparted in everybody, it is a full weapon to be at the back of your brain, that it is not compromisible.17

The training also teaches that the victim is not to blame, and overturns rape myths that have traditionally affected police treatment of rape victims. The impact of this training is evident in the gap between police and public attitudes towards rape. For example, in contrast to a report that indicates that many Liberians blame victims for their victimisation (United Nations Mission in Liberia 2008), the officers whom I interviewed did not express this view. Instead, my interviews with police officers indicate that the anti-rape initiatives introduced in Liberia after the civil war have had a positive effect on police attitudes and behaviours towards rape. Among other things, these initiatives have deterred police withdrawal of rape cases and promoted their referral to court. Although numerous weaknesses exist in the LNP, it is important to understand the improvements and the routes to such improvements.

# Conclusion: Explaining Police Reform in Africa

Most survivors of rape and other forms of VAW face major hurdles in accessing formal justice in Liberia and elsewhere in Africa. Incidents of rape are rarely reported and most reported cases are never prosecuted. However, for the first time in Liberia, notable progress is being made – the police are referring a significant number of cases to court and withdrawing only a small number. This is because of policy and institutional changes, as well as training provided to police officers. Three factors at the international and domestic levels made it possible for the members of the anti-GBV coalition to affect policy, institutions and knowledge in Liberia.

First, by the time Liberia's civil war ended, the issue of sexual violence was high on the agenda of the UN and other international organisations and donors (in large part due to the systematic use of sexual violence in the Bosnian war and the Rwandan genocide and transnational advocacy by women's movements). These agencies, therefore, devoted political and material resources to addressing rape, as did other international organisations and donor agencies.18 Second, Liberian governments were willing to work with the UN and allowed women's NGOs to assist in crafting the state's response to rape. President Johnson Sirleaf's rhetoric conveyed a commitment to combating rape, but the state depended heavily on the UN and other international organisations for technical and financial assistance, making it easier for these international actors to shape the state's response to rape. Third, Liberian women, after mobilising for peace and for the election of President Johnson Sirleaf, remained organised, politically active and largely committed to advancing women's rights. Moreover, along with the government and international bodies, women's NGOs were particularly concerned about rape reports in Liberia, partly because of the prevalence and brutality of the act during the civil war. These conditions made it possible for this coalition of actors to implement their programmes and positively affect police response to rape.

While these conditions do not coexist in most contexts, the training of law enforcement officers on how to handle VAW and the establishment of police entities that perform specialised functions in several countries (including Sierra Leone, Rwanda, Uganda, Namibia and Ghana) demonstrate that there is a growing recognition of the need for better policing in the area of violence against women in Africa. Women's activism and donor pressure and funding have contributed to the introduction of most of these initiatives. There are still certain obstacles. The level of international and NGO engagement varies across countries, as does the political will towards enhancing policing response. Furthermore, these specialised units are hampered by many of the problems that affect the regular police units (Seelinger 2015) and can lead to the side-lining of VAW in the criminal justice sector.

Yet, positive examples exist. For instance, Rwanda's Isange One-Stop Centers – created by the Rwanda National Police with UN support, and first opened in 2009 in the police hospital – provide free medical and psychosocial care to victims of GBV, who are assigned police officers to investigate cases and refer them to the prosecutor's office.19 The centre won a UN Public Service Award in 2012 and has been lauded by INTERPOL 'as an example of best practice for preventing and responding to gender-based violence and child domestic abuse' and is being adopted by other African countries.20 These new models of policing, although unevenly implemented and subject to many challenges, are an important first step to ensuring that survivors of GBV receive better treatment and service from the police.

The case of Liberia, however, shows that even with some political will and UN and NGO engagement, many deficiencies in the police force persist. Survivors, women's rights advocates and staff of international organisations have accused WACPS personnel of accepting bribes from suspects and of engaging in other unethical practices (Medie 2012). As recently as April 2015, the police director 'threatened to take drastic action against any police officer caught compromising on rape cases'.21 While the unapproved withdrawal of cases is a continuing practice in the WACPS, findings indicate that the frequency of such practices has greatly reduced with withdrawal more difficult. This means that police officers are less likely to independently decide on how to proceed with rape cases.

There is a need to probe individual cases further in order to understand the conditions under which some are referred and others withdrawn. The large number of 'pending' cases raises a red flag. Are cases being listed as 'pending' when in actuality they have been unofficially withdrawn without the knowledge of the SGBV Crimes Unit? Also, given that UN agencies and UNMIL have led the campaign against rape by providing technical assistance, funding, manpower and infrastructure, the government of Liberia may not be capable of taking over this responsibility once UN assistance is reduced. It is, therefore, necessary to evaluate the durability of such gains, and ask how the new models of policing introduced in other countries are affecting police performance. These and other questions can best be answered through nuanced studies that seek to understand police behaviour in Africa.

The Liberian story is an important one as it sheds light on how institutional reforms have affected police behaviour. Literature on the police in Africa demonstrates that they largely fail to protect the public and enforce laws, and that programmes to reform the police have mostly failed to produce the desired results due to political, social and economic contexts (Marenin 2009; Hills 2014). While the LNP continues to face certain challenges, the case of the WACPS shows that when such coalitions – political will, a strong civil society and international attention – emerge, formal police institutions can be strengthened in ways that significantly affect police performance.

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1 The UN defines violence against women as 'any act of gender-based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty whether occurring in public or private life', accessed 17 April 2017. www.un.org/documents/ga/res/48/a48r104.htm.

2 Results from 2014/2015 Afrobarometer Survey. Responses to the question: 'How much do you trust [the police], or haven't you heard enough about them to say?'.

3 Results from 2014/2015 Afrobarometer Survey. Responses to the question (taking out respondents that reported no contact): 'In the past 12 months have you requested assistance from the police? And how often, if ever, did you have to pay a bribe, give a gift, or do a favour for a police officer in order to get the assistance you needed, or to avoid a problem like passing a checkpoint or avoiding a fine or arrest?'.

4 United Nations Mission in Liberia. 'UNMIL Background', www.un.org/en/peacekeeping/missions/unmil/background.shtml.

5 Bacon (2012) reports that from 2005 to 2011 the starting monthly salary for recruits was between US$92 and US$100.

6 Interview, MoGD staff member, 25 May 2011, Gbarnga.

7 A lack of funding has prevented the establishment of Criminal Court E in other counties.

8 A second judge was appointed in 2015.

9 There were 123 WACPS officers (seventy-five males and twenty-eight females) stationed in Montserrado County as of January 2011.

10 As of January 2011 there were twenty-three WACPS units in Montserrado County.

11 According to the WACPS directive, the decision to withdraw a rape case had to be made in consultation with the prosecutor.

12 Interview, Policewoman, 29 September 2010, Monrovia.

13 Interview, Senior policeman, 12 July 2010, Monrovia.

14 Interview, 7 October 2010, Monrovia.

15 Interview, 12 July 2010, Monrovia.

16 Interview, Policeman, 12 July 2010, Monrovia.

17 Interview, Policeman, 7 October 2010, Monrovia.

18 Other forms of VAW have not received the same level of attention, affecting the way in which the police respond to them (Medie 2012). And despite the resources devoted to the problem, the WACPS is severely underfunded and underequipped.

19 United Nations Public Service Awards. 'Isange One-Stop Center: Rwanda National Police', https://publicadministration.un.org/unpsa/Public_NominationProfile.aspx?id=1602.

20 allAfrica. November 2015. 'Rwanda: Interpol Secretary General Jürgen Stock Commend Isange One Stop Centre', <http://allafrica.com/stories/201511050287.html>.

21 allAfrica. April 2015. 'Liberia: Dir. Massaquoi Threatens Drastic Action against LNP Officers', <http://allafrica.com/stories/201504081734.html>.

# 7 The Bureaucracy

## Policy Implementation and Reform

M. Anne Pitcher and Manuel P. Teodoro

New bureaucratic agencies – most commonly central banks, privatisation agencies and regulatory commissions – multiplied across Africa following the adoption of neoliberal reforms in the mid-1980s and 1990s. The theoretical inspiration behind the creation of these agencies was that economic reforms would be more successful if those who implemented them were professionally trained 'technocrats' institutionally insulated from the push and pull of everyday politics (Williamson 1993; White and Bhatia 1998). Concerns about bureaucratic independence have been particularly acute in Africa because bureaucratic institutions are perennially perceived as corrupt and inefficient. For example, the World Bank's 2014 World Governance Indicators (a largely perceptual metric), put sub-Saharan Africa last among all regions in 'government effectiveness', 'regulatory quality' and 'control of corruption' (see Figure 7.1) – aspects of governance associated with the quality of bureaucratic institutions.

Figure 7.1

Selected 2014 World Bank World Governance Indicators by Region

Figure 1 reports regional average 2014 Worldwide Governance Indicators, scored as percentile values from 0 to 100.

(Kaufmann and Kraay 2014)

Despite their widespread proliferation, we know little about where and why independent bureaucratic agencies were created; how independent or insulated the bureaucrats who staffed them were; and how effective the agencies were at accomplishing the tasks for which they were designed. This chapter explores the myriad dimensions of bureaucratic politics and technocratic practice through an examination of privatisation agencies.

Arguments about the value of technically competent, independent bureaucrats have a long lineage in political science. Theorists from Friedrich Hegel to Max Weber to Woodrow Wilson have advocated for a bureaucracy with specialised knowledge and the legitimate authority to administer policy free from interference by politicians (Wilson 1887; Weber 1978). During the 1980s and 1990s, supporters of neoliberalism seized on this notion to advocate for the creation of formally independent agencies to handle sales of state-owned enterprises in Africa. Their justification rested on several claims. First, the process of economic liberalisation is complex and requires a high degree of technical acumen. The formation of an agency staffed by technocrats was expected to increase the likelihood that liberalisation would proceed quickly and successfully (White and Bhatia 1998; Kayizzi-Mugerwa 2003).

Second, independent bureaucracies guard against coalitional drift. In the event of a turnover of the party in power, the presence of an agency increases the possibility that economic reforms will continue (Shepsle 1992). Third, formally independent bureaucratic agencies are a signal to investors that a government has credibly committed to reform (Brune et al. 2004). Fourth, insulating technocrats in an independent agency likely protects the policy implementation process from rent-seeking politicians and distributional pressures exerted by reform's domestic losers (Waterbury 1992). In short, the creation of more or less independent privatisation agencies followed from an implicit – and often explicit – belief that formal bureaucratic institutions would affect policy outcomes in predictable ways.

The proliferation of new bureaucratic agencies, often operating in fluid institutional and political contexts, presents interesting theoretical and empirical puzzles for scholars of institutions in Africa. Do formally independent agencies conform to the theoretical models on which they are based? How effective are technocratic agencies in countries that are authoritarian, politically unstable or in the process of democratic transition?

Building on four cases from Africa that vary by degree of formal agency independence and regime type, we examine the sales of state-owned enterprises in the 1990s and early 2000s. Through an analysis of formal legislation and government policy across cases, we observe considerable variation in the degree of formal independence granted by governments to agencies, and hence in the extent to which they were able to function as intended. Moreover, the domestic context in which these agencies operated – replete with informal institutions of varying strength – shaped their abilities to carry out their mandates: the privatisation of parastatals. The cases show how different African countries established privatisation agencies of varying formal independence and how that variation affected the outcomes they achieved.

Our findings show that greater formal agency independence is associated with greater sales of SOEs, most likely because it signals to investors that the state's commitment to privatisation is credible. This signal is particularly potent under authoritarian conditions, as the Uganda example illustrates. In that case, the creation of an agency offered investors sufficient evidence that the commitment to privatise was credible and the agency was able to realise its mandate. Thus, the creation of viable formal institutions can play a significant role in shaping political and economic outcomes.

But the creation of an agency also sends a similarly credible signal to potential opponents of reform. Under authoritarian conditions, governments tend to stifle such opposition, and so reforms proceed as intended. Under more democratic conditions, however, we claim that the visibility of formally independent, professional privatisation agencies can provoke a political backlash against privatisation by opponents of reform. Taking advantage of the openness afforded by the democratic context, opponents act to derail or disrupt sales of firms, thus thwarting the privatisation efforts of agency officials. This interpretation offers a more nuanced, contextual understanding of how formal bureaucratic independence operates in transitional African economies and democracies.

We begin by tracing the emergence of independent bureaucratic agencies as mechanisms of economic liberalisation in Africa while reviewing the literature on agency independence and privatisation. We then study the process and outcomes of privatisation initiatives in Uganda, Nigeria, Zambia and South Africa from 1990 to 2007, a period of significant economic change and substantial political volatility. A theory on the interaction of agency independence and political context, and its effects on reform outcomes, emerges from the examination of existing theory and empirical study of the cases. We conclude by discussing the implications of our findings with respect to the role and significance of formal bureaucratic institutions in Africa.

# Formally Independent Agencies and Economic Liberalisation

Many developing countries adopted policies of economic liberalisation in the 1980s. Broadly reflecting the predominant sensibilities of economists and international development organisations (the 'Washington Consensus'), reforms included fiscal discipline, protection of private property rights, marginal tax reductions, international trade liberalisation, increased foreign direct investment, deregulation and privatisation of SOEs (Williamson 1990). Because a number of neoliberal reforms were technically complex and politically contentious, theorists and policymakers advocated formally independent agencies or 'technocratic change teams' with the authority to pursue reforms (Waterbury 1992; White and Bhatia 1998; Kayizzi-Mugerwa 2003).

Formal agency independence refers to the degree to which a government legally grants sufficient discretion to a non-majoritarian organisation to carry out decisions without interference from another government body (Thatcher and Stone Sweet 2002; Elgie 2006). Regarding privatisation, support for such agencies rests on claims that situating professional bureaucrats in independent agencies with clear policy mandates offers at least four advantages to governments pursuing economic reforms. Technocratic independence provides: (1) administrative capacity; (2) a guard against drift; (3) a signal of credible commitment; and (4) protection against domestic pressures.

## Administrative Capacity

Following in the traditions of Weber (1978) and Wilson (1887), proponents of independent technocratic agencies argue that bureaucrats, insulated from political interference, will implement policy changes efficiently and effectively. Similar to the theory on central bank institutions and regulatory agencies, this position claims that relying on technocrats lowers transaction costs by delegating authority to those with the expertise to implement a particular policy (Pollack 2003; Elgie 2006).

## A Guard against Drift

Independent bureaucratic agencies also guard against coalitional drift (Shepsle 1992; Epstein and O'Halloran 1994), especially in cases where a party in power expects to lose a future election (McCubbins et al. 1987; Moe 1990). Governments attempting to liberalise their economies may fear a future electoral loss, and so seek to 'hard wire' their privatisation programme by locating it in a highly independent technocratic agency. As Boylan argues, 'by freezing their preferences in institutional structures before they leave office, the authoritarians attempt to maintain de facto influence – if not control – over certain spheres of policy once they are gone' (Boylan 2001: 45).

## Credible Commitment

A third potential advantage of independent agencies follows from the first two: because technocrats situated in independent agencies are expected to act efficiently and sustain a pro-reform coalition, investors perceive the creation of such agencies as a sign of a government's commitment to reform. Research on independent central banks has argued that when governments empower them to manage monetary policy, investors regard these governments as 'credibly committed' to controlling inflation and thereby to protecting capital investments (Keefer and Stasavage 2002; Stasavage 2003). Buoyed by their confidence in a country's commitment, investors and international lending institutions are willing to invest more of their resources in that country (Brune, Garrett, and Kogut 2004).

## Domestic Pressures

Although signals of credible commitment to privatisation are aimed at investors and international organisations, the logic underlying privatisation agency independence is inexorably tied to domestic politics. The creation of independent technocratic change teams, insulated from electoral politics, is thought to minimise distributional conflicts (with labour or parastatal managers) typically associated with the sale of SOEs (Waterbury 1992).

# Research Design and Case Selection

We rely on evidence from Uganda, Nigeria, Zambia and South Africa to explore whether these theoretical claims regarding the value of privatisation agencies apply across the volatile political contexts of Africa after 1990. In each case, we explore how variation in formal agency independence and regime type affected the outcome of privatisation. Our argument can be briefly summarised as follows. Governments establish agencies of varying formal independence. The presence of more independent agencies builds administrative capacity for carrying out the sale of SOEs and reduces coalitional drift, even when governments encounter resistance or face an election. Moreover, governments that establish more independent privatisation agencies signal their commitment to investors and domestic political audiences alike.

The responses of these two groups to agency independence often diverge, but the effect of such divergence depends on whether the political context is democratic or authoritarian. If investors and creditors regard the signal as credible, they respond by investing in former SOEs, as previous research suggests they might. Contrary to received wisdom, however, if domestic opponents in more democratic contexts also regard the signal as credible, a political backlash may ensue. This is because losers, recently empowered by democratic institutions, may act to resist the implementation of policy by an insulated bureaucracy. Such a backlash may slow down privatisation or destabilise the regime. To avoid such an outcome, some democratic governments establish less independent agencies, and opt to commercialise rather than privatise.

Our cases share a common British legal tradition dating back to the colonial period, and also confronted similar challenges in promoting indigenous private capital. However, they vary with respect to regime type and degree of privatisation agency independence. Uganda and Nigeria were more authoritarian during the period of our analysis. The former established a more independent privatisation agency while the latter created a more circumscribed agency (before granting it greater independence later). South Africa and Zambia were more democratic during the period of study but only Zambia created a more independent agency and sold off significant portions of its state sector. Although South Africa commercialised and restructured its parastatals, it never created a formal agency owing to widespread opposition to privatisation. In each of our four cases, then, agencies were accorded different degrees of autonomy and operated in different and, at times, volatile political contexts. This variation allows us to evaluate the causal processes at work in sales of parastatals.

For heuristic purposes, we identify four patterns of privatisation in Figure 7.2. Both regime type and agency independence are continuously distributed variables, which our two-by-two figure unfortunately forces into dichotomies. But this depiction allows us to characterise our cases in an intuitively useful way. We consulted national legislation mandating the creation of each agency to assess the extent to which technocrats were formally independent from political interference. Our assessment of agency independence draws on a larger, fine-grained dataset that coded privatisation laws passed in twenty-nine African countries (Teodoro and Pitcher 2016). As presented in Table 7.1 below, we identified legal provisions that provided agency staff more or less discretion, or gave elected officials more or less influence over the agency's work. Legislative provisions that accorded an agency more discretion over its own operations or explicitly limited the formal influence of politicians over the agency were classified as increasing agency independence; provisions that limited agency discretion or created formal channels for politicians to influence the agency's work were classified as reducing independence.

|  | Regime type
---|---|---
Formal Agency Independence|  | More Authoritarian| More Democratic
More independent| Uganda| Zambia
extensive privatisation| extensive privatisation, but contentious when more democratic
Less independent| Nigeria| South Africa
erratic and limited privatisation| limited privatisation, commercialisation preferred

Figure 7.2

Agency independence, regime type and reform outcomes

Table 7.1 Legislative indicators of formal agency independence

Provisions that increase agency independence
---
Legal status| Personnel
Has a corporate charter| Selects own agency head
Can sue or be sued| Agency head qualifications specified
Statutorily independent| Agency head serves fixed term
Privatisation defined as agency's main purpose| Agency head may be re-appointed
Established as separate ministry| Technical unit for privatisation specified
| Technical unit personnel expertise specified
| Bureaucrats selected by agency
Operations|
Agency sets own budget| Agency evaluates offers
Agency identifies SOEs for privatisation| Agency chooses bidder
Agency identifies method of privatisation| Agency implements privatisation process
Agency performs valuation of SOEs| Agency receives proceeds from SOE sales
Agency advertises SOE sales| Sales proceeds go to dedicated fund
Provisions that reduce agency independence
Oversight| Personnel
Agency is part of existing ministry| Agency head appointed by president / PM
Agency governing board includes political appointees| Agency head appointed by cabinet minister
Agency governing board includes government members| Bureaucrats selected by president / PM
Agency governing board includes civil society| Bureaucrats selected by cabinet minister
Government members dominate agency governing board| Government members can chair agency
Operations|
Legislation specifies SOEs for privatisation| Domestic sales required
Legislation specifies method of privatisation| Periodic reporting required

Source: Authors' coding. See Teodoro and Pitcher (2016).

To classify regime types, we use average and year-on-year Polity IV scores over the time period from 1990 to 2005 (Polity 2010). Polity scores capture the mixture of autocratic and democratic authority in government institutions, ranging from -10 for autocracies to +10 for fully institutionalised democracies. With average Polity scores of -1 and -4, respectively, Nigeria and Uganda were more authoritarian (or 'closed anocracies' in Polity IV's terminology), meaning that there were few constraints on executive power and that political competition was limited. Zambia and South Africa are democratic cases. With an average score of 3, Zambia was considered an 'open anocracy', a mixed regime with democratic features such as regular elections and checks on executive power by the judiciary and the legislature, but where the executive also subverted the constitution and centralised power to some extent. South Africa's average score of 8 reflects its regular elections, checks and balances, and extensive means for political participation (Polity IV Project 2010).

Nigeria, Uganda and Zambia exhibited considerable volatility in their Polity scores over the period of analysis. We rely on careful process tracing to gauge the interaction of privatisation agencies with political context and its impact on privatisation outcomes. Drawing on existing theory, we develop 'analytic narratives' (Bates et al. 1998) for each country that explain why a formally independent privatisation agency was created, the political context in which privatisation occurred and the outcome of the privatisation process. The narratives draw on interviews with policymakers, technocrats, trade union officials and representatives of international financial institutions in Uganda, Zambia and South Africa. We also cite legislation, government reports and newspaper articles on privatisation.

To evaluate whether independent agencies (1) enhance capacity; (2) prevent drift; (3) bring credibility; and, (4) protect against domestic pressures, we examine several closely related features of privatisation: the extent of sales, the value of sales, whether sales were accompanied by rent seeking or resistance, and the policy process itself. Because the size of the state-owned sector varied widely across Africa and across our four cases, we assess sales as a percentage of the total size of the state sector for each country just before privatisation began. In order to determine the credibility of the process, we evaluate large firms that were sold or restructured. Following Brune et al. (2004), we also determine revenues from sales expressed as a percentage of 1985 GDP because that was before most countries began to privatise. It therefore serves as a base year for determining the revenue from sales. Finally, we explore debates and challenges in the policy process to assess the extent to which privatisation was beholden to domestic political interests.

# Authoritarian Context, More Independent Agency: Uganda

In Uganda, the National Resistance Army under Yoweri Museveni toppled the short-lived Okello regime in late 1985. The government established a 'no party democracy' that included regular elections and a robust parliamentary system but prohibited the participation of other parties on the grounds that they were divisive (Kasfir 1998).1 Museveni's government formulated a privatisation policy in 1991 with financial and administrative support from the World Bank. Few sales occurred under the initial policy owing to the lack of an agency mandated to undertake sales and the lack of clarity regarding the privatisation process (Uganda 1993; Opagi 2001).

In response to these concerns, the government made substantial efforts to clarify the process of privatisation and give greater independence to technocrats responsible for it. The Public Enterprise Restructuring and Divestiture statute in 1993 created a cabinet sub-committee that identified which enterprises would be privatised. Chaired by the Minister of Finance, the Divestiture and Reform Implementation Committee (DRIC) encompassed different, potentially conflicting interests affected by privatisation. The committee included the chairperson of the Uganda Investment Authority, the Attorney General, ministers from the sector whose parastatals were under consideration for privatisation, two members of parliamentary committees on the economy and SOEs, respectively, and three 'eminent' Ugandans appointed by the Prime Minister on advice from the Cabinet. In 1995, a Presidential directive further stressed DRIC's importance by appointing a cabinet-level Minister of State for Finance for Privatisation. On the recommendation of Parliament, MPs were dropped from DRIC in 2000 owing to a perceived conflict of interest.

DRIC was essentially the political body in charge of privatisation. Technical responsibility for privatisation belonged to a divestiture secretariat, but it was a cumbersome body of three overlapping units responsible for particular sectors or modes of reform. In 1995, the government abolished the secretariat and created two units housed in the Ministry of Finance, Planning and Economic Development: a Parastatal Monitoring Unit that managed the revenues and expenses of existing SOEs and a Privatisation Unit (PU). The main responsibility of the PU was technocratic. Headed by a director with professional qualifications, it handled the logistical and technical aspects of divestiture from the valuation of companies to their final sale. The PU was located administratively under the Secretary to the Treasury, worked closely with the privatisation minister and DRIC, and had 'extensive operational autonomy' (Opagi 2001; Nyirinkindi and Opagi 2010: 364). In short, the PU was formally a highly independent agency operating in a relatively authoritarian political context.

Figure 7.3 shows annual and cumulative SOE privatisations in Uganda from 1990 through 2005, as well as Uganda's average Polity scores. Between 1992 and 2007, Uganda privatised approximately 90 of its 159 SOEs and liquidated approximately 30 other companies, thus divesting about 75 per cent of its state sector over a 15-year period (White and Bhatia 1998; Nyrinkindi and Opagi 2010). Private investment increased from 5.4 per cent of GDP in 1986–1987 to 13 per cent in 1998–1999, indicating that investors responded positively to signals of commitment to private sector development by the government (Tumusiime-Mutebile 2000).

Figure 7.3

Authoritarian context, moderate agency independence: Privatisation in Uganda, 1990–2005

The creation and strengthening of a privatisation agency were critical to increasing sales of parastatals and avoiding coalitional drift. Privatisation of Ugandan SOEs began after the passage of the initial policy in 1991, increased following the creation of the DRIC and the secretariat in 1993, and spiked in 1995 when the government established a ministerial post for privatisation and clarified the role of the PU. Yet, features such as parliamentary oversight and media scrutiny found more often in democratic countries likely affected the timing and the quality of SOE sales in Uganda. For instance, parliament questioned the legality of several high profile divestitures, including the sale of Uganda Commercial Bank, Hima Cement and Uganda Airlines, and also questioned the authority of DRIC to identify companies for privatisation (Nyirinkindi and Opagi 2010).

Parliamentary intervention resulted in more transparent and formal implementation guidelines, especially in 1995 and 1997, which increased the credibility of the process. Moreover, according to reports from the PU director, supporters of privatisation appealed to Parliament and the Cabinet to challenge entrenched elites within SOEs who were thwarting privatisation efforts. Such appeals resulted in additional legislation targeting the privatisation of particular companies and sped up sales (Opagi 2001). These accounts suggest that the greater visibility that accompanied formal agency independence did not insulate it from domestic pressures as the literature predicts, but rather encouraged domestic interests to hold it more accountable to SOE-related interest groups, especially when Uganda's political environment was more democratic.

Although formal agency independence did not prevent informal political interference and the sale of firms to cronies of the regime (see Mugirya 2000; Tangri and Mwenda 2001), the greater visibility of the agency reduced policy drift by making it harder to hide corruption. According to a representative of the World Bank, when privatisation was subject to greater parliamentary oversight in the late 1990s, the bureaucrats who carried out the privatisation process followed the guidelines more closely and transactions were more transparent (Saravia 2000). Improvements were reflected particularly in the sale of 51 per cent of Uganda telecommunications (UTL), which the government had twice previously tried and failed to dispose of. After liberalising the telecommunications sector and allowing for a more open and competitive bidding process, UTL's sale price of US$33 million was one of the most highly valued asset sales in Uganda. Although many assets were divested fully, the government mostly favoured joint ventures or concessions for utilities such as water, electricity and telecommunications, especially after 2000 when the process was subject to greater parliamentary scrutiny (Nyirinkindi and Opagi 2010).

The Ugandan case demonstrates that, in a more authoritarian context, the formal creation of a highly independent agency resulted in the privatisation of the majority of SOEs. The high number of sales indicates that the agency minimised coalitional drift and offered a sufficiently credible signal to investors who then bought parastatals, even high value parastatals such as UTL and Kinyara Sugar. Moreover, although formal agency independence did not prevent sales to regime cronies, the agency's greater visibility invited scrutiny. The Ugandan parliament intervened to increase the accountability and transparency of the agency rather than to stop the process of privatisation, especially as democratic conditions improved generally (Saravia 2000; Nyirinkindi and Opagi 2010).

# Authoritarian Context, Less Independent Agency: Nigeria

Except for several brief interludes of civilian rule, successive military regimes governed Nigeria for nearly forty years after it gained independence in 1960. In 1993, the Nigerian military aborted an attempt at democratisation, ushering in a highly repressive period of authoritarianism that lasted until democratisation efforts revived in 1999. Although Nigeria did not participate in the wave of democratisation that swept many other African countries, it did adopt measures of economic liberalisation. These continued in fits and starts during the 1990s following the military coup.

Like Uganda, Nigeria established a sizeable state sector following independence but did not eliminate the private sector. At the height of the period of state intervention, the federal government operated approximately 485 SOEs, while state and local governments controlled around 1,500 parastatals (White and Bhatia 1998; Obadan 2000: 46). Nigeria's state sector accounted for 50 per cent of GDP and provided 66 per cent of formal sector employment in the mid-1990s (Jerome 2008).

Economic crisis in the 1980s motivated the government to adopt a package of reforms prescribed by the World Bank and IMF, including privatisation (Adeyemo and Salami 2008: 409). The political environment in which privatisation was implemented was both authoritarian and unstable, as Polity IV scores indicate (see Figure 7.4). The Nigerian privatisation agency's mandate changed with each change in regime, but its independence was not expanded. Rather, vague mandates facilitated politicians' involvement in the agency's work, which stymied both the speed and quality of privatisation.

Figure 7.4

Authoritarian context, low agency independence: Privatisation in Nigeria, 1990–2005

The government announced its intention to privatise SOEs in 1986, but only issued a formal decree after 'two years of dilly-dallying', as one critic put it (Jerome 2008: 6). In comparison with Uganda's PU, the Technical Committee on Privatisation and Commercialisation (TCPC) had little formal independence and its mandate was unclear: it was responsible either for selling state enterprises or restructuring them to operate more profitably. Analysts suggest that ministries with control over parastatals thwarted efforts to create an independent agency, fearing a loss of power if they did so (Adeyemo and Salami 2008: 413). Furthermore, criteria for membership on the eleven-person TCPC was vague (Oloruntimehin 2002: 21–22), and the TCPC was highly dependent on politicians for identifying companies for sale, valuing them, choosing a privatisation method and setting a timetable for sales (Obadan 2000).

In 1993, the Bureau of Public Enterprises (BPE) replaced the TCPC, but the agency was weak and could not prevent the coalitional drift that occurred following a military coup. The new government under Sani Abacha shifted its preference from divestitures to the commercialisation of SOEs, and no significant privatisation occurred for the rest of the decade. Commercialisation was meant to align operations of SOEs with market principles without transferring ownership to the private sector (Obadan 2000). Following flawed elections in 1999, the government of Olusegun Obasanjo resuscitated the privatisation process. As other governments had done, it created a National Council on Privatisation (NCP) to set objectives, establish guidelines for the privatisation process, oversee the appointment of consultants and approve prices for sales of shares or assets, but it did not grant autonomy to the BPE to handle the technical aspects of the process (Nigeria 1999: II). In spite of the designation of the BPE as a 'body corporate with perpetual succession' it was highly dependent on the NCP to carry out its functions (Nigeria 1999: III, 12, 2). The politician-dominated NCP made most of the critical decisions regarding the privatisation process, while the BPE was legally restricted to an advisory role. Moreover, BPE's director general was not required to possess any particular expertise other than to be at or above the rank of a Permanent Secretary in the civil service (Nigeria 1999: III). A lack of funding also hobbled privatisation efforts: the NCP and BPE received less than half of their requested funding in 2001 and 2002 (Adeyemi and Salami 2008). Simply put, Nigeria's privatisation agency enjoyed little formal independence.

Nigeria's unstable political environment and unclear mandate for privatisation contributed to coalitional drift. As Figure 7.4 shows, SOE sales are higher when Nigeria's Polity scores improve and legislation on a privatisation agency is passed or revised; sales drop when democracy declines and legislation is revamped. These episodes occurred when new military leaders reneged on the previous regime's policies and opted to keep SOEs in government hands. Political instability also deterred investors from purchasing companies. By 2005, the Nigerian government had sold approximately 23 per cent of the SOEs previously under direct federal government control in 1990 (World Bank 1999, 2008), prompting one evaluation of the process to conclude that 'The transformation process continues at a snail's pace' (Bertelsmann Transformation Index 2006: 16). The government sold some companies in the financial, manufacturing and energy sectors to foreign investors or listed them on the Nigerian stock exchange. In 2001, Nigeria opened up the mobile phone market to private investors and privatised the fixed line telephone operator in 2006. Still, the government retained majority control over strategic assets, such as oil, electricity and water, and commercialised other assets such as the railways. Cumulative revenues from privatisation were only 4.4 per cent of 1985 GDP by 2004 (Brune et al. 2004: 216), suggesting either that few large companies were privatised or that cronies of the regime largely benefitted from 'sales'.

Contradictory domestic pressures explain the slow pace and the poor quality of privatisation in Nigeria (Jerome 2008). Those well-connected to key politicians often derailed or corrupted the privatisation process to serve their own purposes. A former legal advisor to the BPE lamented the repeated interference of specially created 'Presidential Committees' in the sales process of the most attractive companies (Adoga 2008: 3). Moreover, an independent report asserted that 'privatisation serves largely as a money laundering instrument for legalizing illegally accumulated wealth and income from international drug trafficking' (BTI 2006: 9). In this way, informal institutions contravened whatever formal independence the privatisation agency was granted.

At the same time, popular forces such as trade unions took advantage of improved democratic conditions after 1999 to criticise the lack of transparency and inadequate regulations associated with privatisation. In doing so, they slowed the pace of privatisation (Jerome 2008: 9; see also Adoga 2008), but the low quality of democracy was insufficient to prevent rent-seeking by politicians or sustained efforts by SOE managers to block both sales and commercialisation (Adeyemi and Salami 2008: 413).

Nigeria is thus a case of a politically unstable, largely authoritarian regime creating institutions with little formal independence. Nigeria's struggling privatisation agencies in the 1990s are consistent with Haggard and Kaufman's claim that 'technocrats are marginalized' in unstable regimes with fragile formal institutions (1989: 59). Under Nigeria's volatile political conditions, the mandate to privatise was inconsistent and vague, informal rules were allowed to prevail and the response by investors was thus poor.

# Democratic Context, More Independent Agency: Zambia

Zambia demonstrates both greater formal agency independence and higher levels of democracy than the previous two cases. In 1991, the one party state under Kenneth Kaunda bowed to popular pressures arising from a sustained economic crisis and held democratic elections. These elections brought a new party to power, the Movement for Multiparty Democracy (MMD), whose manifesto promised structural adjustment and privatisation. The new government established the Zambia Privatisation Agency (ZPA) in 1992 and granted it much greater formal authority to privatise SOEs than agencies in other African countries (Zambia 2005; Cruickshank 2005). The agency's board was broad-based and non-government representatives outnumbered government officials: besides three government officials, nine members of the board were from the business community, the trade unions, universities and churches (Zambia 1992).

Importantly, since voting members of the board only met once every two months, a professionally trained staff conducted the day-to-day affairs of the agency, and this staff was given discretion on most technical decisions regarding privatisation. At least three of ZPA's directors between 1992 and 2006 had degrees in economics or backgrounds in business and finance. Following the Cabinet's authorisation of eligible SOEs, ZPA staff were free to undertake privatisation without further interference (Cruickshank 2005).

After the agency's creation, ZPA officials moved systematically (and voluntarily, without threat or pressure) to dispose of SOEs. ZPA's technocrats were not simply responding to World Bank conditionality, but were ideologically committed to the process. The ZPA tried to conduct privatisation 'by the book': 'We wanted to follow the rules and be professional', said former Chief Executive James Matale (cited in Pitcher 2012: 111). With technical expertise and advice provided by UNDP, the World Bank, USAID, Danida, and other donors, ZPA personnel valued assets, advertised companies for sale, selected negotiating teams for each sale and published quarterly status reports detailing particular transactions (Fundanga and Mwaba 1997).

The high degree of agency independence coupled with the country's democratic environment affected not only the sales of SOEs, but also the pace of the process and the quality of divestitures.

Figure 7.5 shows Zambia's annual and cumulative SOE sales from 1990 through 2005, as well as its average annual Polity IV scores. In sheer volume of transactions, ZPA's privatisation efforts evidence little coalitional drift and demonstrate a high degree of technical capacity. By 1999, Zambia's average revenues as a percentage of 1985 GDP were twice those of Uganda and Nigeria, and Zambia had sold a much higher percentage of SOEs than either Uganda or Nigeria by 2005, suggesting that they sold more valuable companies to legitimate buyers who made their payments (Brune et al. 2004; Zambia 2005). The ZPA divested around 261 of the 282 eligible companies in its portfolio,2 including businesses in almost every sector (Zambia 2005). Not surprisingly, the World Bank lauded Zambia for having the most successful privatisation programme in Africa (White and Bhatia, 1998: 4).

Figure 7.5

Democratic context, high agency independence: Privatisation in Zambia, 1990–2005

These outcomes reinforce conventional arguments that a formally independent, insulated change team is effective in privatisation. However, changing political dynamics can still cause agency independence to drive unexpected outcomes, as Zambian privatisation in the mid-1990s illustrates. In 1996, the ruling MMD party disqualified the presidential candidate of the opposition party prior to the national elections and the opposition party, in response, boycotted the elections. Accordingly, Polity IV scores declined from 6 to 1 that year and remained at 1 until the completion of elections in 2001.

As political conditions deteriorated, so did the quality of parastatal divestitures (Tordoff and Young 2005). Emboldened by his re-election victory in 1996, the President began to override the ZPA's privatisation authority. Privatisation of all or part of some parastatals were subsequently completed 'off the books' through special committees and irregular procedures (Cruickshank 2005; Matale 2008). The President removed the privatisation of Zambia's most valuable SOEs (the copper mines) from the ZPA and handed it to a specially created Privatisation Negotiating Team (PNT). During the negotiating process, the PNT did not consult with the ZPA on the methods of sale, the bids received or the awarding of contracts. In some cases, contracts were awarded to personal colleagues of the head of the PNT and/or the President of the country (Cruickshank 2005; Larmer 2005).

When the democratic environment strengthened following the 2001 elections, the ZPA resumed its work, but this time popular opposition and enhanced legislative oversight acted to stall the privatisation process. Prior to the elections, opposition politicians and parties attracted support by campaigning against foreign purchases of SOEs (Larmer and Fraser 2007). After 2001, unions joined with churches and anti-poverty groups to challenge government over privatisation, and more civic issues such as the constitution, press freedom and democracy (Akwetey and Kraus 2007). MPs demanded accountability from Ministers and highlighted abuses in the privatisation process (Zambia 2007). Although the ZPA still had important assets to sell, including Zamtel and the Zambia National Commercial Bank, increased legislative and public oversight slowed the pace of privatisation.

In fifteen years, the Zambian government sold 93 per cent of its assets and received nearly one billion USD in revenue. Such results indicate that the creation of a highly independent agency guards against coalitional drift and sends a credible signal to investors that a government is serious about privatisation. But this case also shows that when the democratic environment worsens, the quality of privatisation wrought by formally independent bureaucratic agencies may deteriorate if politicians interfere in the process using informal mechanisms. When the political context is more democratic, rather than new – as Haggard and Kaufman (1989) claim – the quality of privatisation improves but the pace slows because democratic regimes are more accountable to popular demands.

# Democratic Context, Less Agency Independence: South Africa

In South Africa, a less formally independent agency combined with higher levels of democracy to create a privatisation process marked by policy ambiguity and political compromise. Although South Africa's transition to democracy in 1994 coincided with the height of global neoliberalism, the democratic context allowed well-organised interests to mobilise both for and against privatisation in advance of agency creation. The ruling African National Congress' (ANC) base consisted of many who had been historically disadvantaged by apartheid, such as black workers, managers and business owners, and they favoured using the state to redress past discrimination against the black majority. Yet, unlike other African countries, a large private sector was already well-established in South Africa when elections brought the ANC to power. The established, and largely white, private sector supported greater liberalisation (Handley 2008).

As a resistance movement, the ANC had supported the nationalisation of industry and commerce, but on gaining power, it adopted policies to liberalise and privatise the economy. Just two years after its first multiparty elections, South Africa passed the Growth, Employment and Redistribution Act (GEAR), an economic strategy aimed at balancing the budget, reducing state expenditures, liberalising trade and attracting foreign and domestic investment. Although GEAR announced the state's intention to reform public enterprises, it avoided using the word 'privatisation'; instead, it referred to the 'restructuring' of SOEs (South Africa 1996). Restructuring was to consist of several options – including outright sale, the inclusion of a strategic equity partner or a public private partnership (PPPs) with the government retaining a majority interest. GEAR supported the use of cost recovery approaches in public services through the adoption of PPPs. The only SOEs that GEAR specifically mentioned as candidates for privatisation were six South African Broadcasting Company stations and Telkom, South Africa's fixed line telecommunications company (South Africa 1996).

Just as GEAR's mandate was vague, so were the roles and responsibilities of the bureaucratic agencies linked to SOE reform. South Africa never established an independent agency dedicated to privatisation. Instead, responsibility for SOE privatisation and reform was given to the Office of Public Enterprises (OPE), created in 1994. In 1999, it was upgraded to a department (DPE) headed by a cabinet-level Minister and staffed by civil servants or officials with expertise in business and economics. Neither the OPE nor the later DPE had an explicit mandate to privatise. Indeed, DPE's formal roles were contradictory in important ways and subject to the vicissitudes of the party. On the one hand, it had the responsibility to manage South Africa's nine largest SOEs, including those in defence, railways, telecommunications and electricity. On the other hand, while DPE was formally charged with developing strategies for the state sector through privatisation, restructuring or regulation (South Africa 2000: 19), its enabling legislation restricted its autonomy to do so.

As Figure 7.6 illustrates, in 2005 – ten years after GEAR's passage – less than 10 per cent of South African SOEs were sold, suggesting that coalitional drift was substantial (World Bank 1999, 2008; Jerome 2004). SOEs still comprised 44 per cent of South Africa's fixed capital assets and contributed 14 per cent to the GDP (Rumney 2004). Revenues from privatisation amounted to only 3.4 per cent of 1985 GDP. Some major divestitures did occur – the 1997 sale of Telkom was one of the largest privatisation deals on the continent (Horwitz and Currie 2007) – but significantly, the government retained all or most of the shares in capital and labour intensive industries, such as electricity supply, defence, telecommunications and transportation. Rather than sell these enterprises, DPE reconfigured them in pursuit of greater efficiency and profitability (South Africa 2008).

Figure 7.6

Democratic context, low agency independence: Privatisation in South Africa, 1990–2005

Two factors explain the tepid pace of privatisation and coalitional drift in a case where agency independence was low and democracy was robust (see Figure 7.6). First, opponents took advantage of the opportunities afforded by democracy to challenge privatisation generally and the privatisation of SOEs such as Transnet (the railways parastatal) and Eskom (the electricity parastatal) in particular. These latter two SOEs were large employers of unionised labour and supplied services to millions of consumers (Pitcher 2012: 216–223).

Second, DPE's ambiguous role and contradictory missions, combined with the government's ambivalence towards divestitures, reduced the credibility of its commitment to privatisation in the eyes of investors (BusinessMap Foundation 2004: i–ii). Ambiguity gave the DPE flexibility to modify the privatisation process in the face of domestic opposition to outright sales. As its mixed mandate indicated, DPE had a responsibility to privatise and act in the best interests of the SOEs' employees. These factors contributed to a pattern of extensive bargaining and compromise between DPE officials, SOE managers and trade unions. After 2000, the Minister of the DPE continued to stress the goal of greater efficiency, but added more clearly defined social imperatives to its protocols (South Africa 2000). Privatisation slowed considerably, but restructuring SOEs to make them more competitive continued (South Africa 2008). Restructuring was accompanied by public works projects to reduce unemployment and programmes for black managers aimed at creating a more representative workplace.

# A Theory of Technocracy in Transitional Democracy

Privatisation is a technically complex process, and so it is hardly surprising that agencies with technical expertise facilitated privatisation in all four of our cases. In each case, however, the success of privatisation efforts was contingent on the agency's degree of independence and its political context. In authoritarian Uganda, an independent agency accelerated the sales of SOEs, demonstrating that administrative capacity had improved, and offered a credible signal to investors that the government was committed to privatisation. Moreover, sales were sustained over time, indicating that coalitional drift arising from changes in politicians' preferences was contained. But agency independence did not prevent government interference in the sales process in the ways that conventional logic would predict, owing to Uganda's highly authoritarian political context. In this climate, 'policy demanders' included many cronies of the regime, who benefitted from sales of SOEs and relied on informal institutions to do so. Looking to other cases, Mozambique shows a similar pattern to that of Uganda. The designation of an agency responsible for privatisation enhanced credibility of the process and attracted investors, but a more authoritarian political context reduced accountability and facilitated informal political interference in sales of parastatals (Pitcher 2012).

The Nigerian case demonstrates that the privatisation process is erratic and unpredictable when fragmented authoritarian governments send mixed signals about their intentions. Nigeria's privatisation agency enjoyed some initial successes, but its administrative capacity was highly circumscribed and subject to interference by politicians. The agency's limited independence sent a weak signal to investors, and even its restricted mandate was subject to the changing positions of the ruling party on the desirability of privatisation (Bienen and Herbst 1996). Coalitional drift was considerable, and privatisation rose and fell with each change of regime suggesting that political reliance on informal mechanisms rivalled reliance on formally created institutions.

The degree of technocratic independence had markedly different effects in more democratic Zambia and South Africa. In Zambia, a new government's highly independent and professional privatisation agency was initially effective at valuing and selling SOEs, suggesting that it possessed technocratic capacity and that investors believed the government had made a credible commitment to privatisation. The creation of a highly independent agency largely contained coalitional drift. However, different sets of 'policy suppliers' and 'policy demanders' (Dargent 2011) influenced the pace and quality of sales, depending on democratic conditions. When democratic quality declined between 1996 and 2001, greater interference from politicians (policy suppliers) undermined the sale of Zambia's greatest asset, copper. When the quality of democracy improved, the agency became the focal point for protest by opponents or policy demanders who delayed the privatisation process, especially after 2001.

Finally, although South Africa's civil service was better trained than those of other African countries, the technocratic authority to privatise was circumscribed and diffuse. The ANC refrained from establishing a highly insulated, technocratic agency in part because it anticipated that announcing a privatisation programme would be a red flag to a bull. The government did not entirely avoid political resistance to privatisation, but agency flexibility allowed it to sustain its liberalisation programme within a highly democratic political climate throughout the 1990s. Interestingly, South Africa is not the only case of a more democratic country in Africa hesitating to create an independent standalone agency and eventually drifting away from outright privatisation. Despite liberalising their economies, Mauritius and Namibia did not create privatisation agencies and privatised few SOEs.

Our findings suggest that governments seeking to privatise SOEs are engaged in a 'two-level game' (Putnam 1988): they must bargain not only with external financial institutions like the IMF and the World Bank or foreign investors to establish their credibility, but also with domestic interests. The creation of an insulated agency sends signals to both constituencies, and under more democratic conditions, opponents can thwart the creation or the activities of independent technocratic agencies.

# Conclusion

Does formal bureaucratic agency independence 'matter' in Africa? Our cases offer strong evidence that it does, but that the effects of formal bureaucratic institutions depend significantly upon their political context. The salutary effects of technocratic agencies for privatisation were a pillar of faith in the international development community's push towards liberalisation in the 1990s and 2000s, but as so often happens, the reality is far more complicated.

Our findings reinforce claims that the creation of an independent technocratic agency sends a signal to interested parties that a government is committed to a particular strategy and is willing to tie its own hands to bring it about. Our important theoretical contribution is that the creation of an agency sends a similarly potent signal to opponents of privatisation, who may block sales under more democratic conditions. A practical implication of our finding is that, when pursuing far-reaching economic reforms like privatisation, policymakers in emerging democracies should not try to insulate technocrats from popular influences. Technocrats with circumscribed authority in a democratic political environment cannot privatise by force or fiat, and so must build support for privatisation by accommodating potential 'losers' and engaging in the painstaking task of explaining to voters why reform is important. Democratic political leaders should charge technocrats not only with carrying out reforms, but also with winning public trust in the merits of reform, and, when necessary, accommodating its opponents.

We hope that the present research will contribute to a reconsideration of the value of technocratic independence in Africa and encourage further comparative study of bureaucrats occupying different layers of public administration – from 'street level bureaucrats' to those directing central banks. Although the heyday of privatisation in Africa has passed, many governments have created, or are in the process of creating, independent regulatory commissions to govern the distribution of water, electricity and telecommunications. As with the privatisation agencies that preceded them, the independence of these commissions varies considerably and as such, the importance and effectiveness of these agencies likely differ depending on the political and economic contexts in which they operate. Yet, to date there are few studies that explore how such regulatory commissions function.

Lastly, even more so than the staff of privatisation agencies, 'street level bureaucrats' often interact closely with the public around the supply of essential public goods such as water or electricity, health or education. Justesen and Bjørnskov (2014) suggest that as wealthier residents increasingly forego public service provision in order to take advantage of the availability of private services, poorer and more vulnerable sectors of society are increasingly exposed to demands for bribes from corrupt bureaucrats. These micro-level findings on who gets targeted by bureaucrats and the conditions under which informal institutions are likely to trump the duties and responsibilities expressed in formal mandates promise new avenues of research on bureaucrats in Africa that will complement our own findings.

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2 This number excludes approximately fifty companies that were not under direct control of the ZPA. Most of the fifty companies were liquidations or companies returned to their former owners.

# Part III Elections, Parties and Political Competition
# 8 Political Parties

## Presidential Succession Crises and Internal Party Democracy

Ian Cooper

'Modern democracy' – Schattschneider (1942: 1) wrote – 'is unthinkable save in terms of political parties'. By contesting elections, participating in parliament and taking grievances to court rather than to the streets, parties encourage citizens to regard democratic politics as morally and procedurally legitimate. By representing constituents in the corridors of power, they render public policymaking accountable and expose instances of official malfeasance. By recruiting, training and socialising political actors, they bring fresh talent into the system and ensure that democratic ideals are imbibed at the highest levels of society. And by creating, nurturing and reproducing societal coalitions – with the capacity to secure an electoral majority – they bring together groups with conflicting interests and so facilitate social cohesion. A representative democracy without effective political parties, in other words, is akin to an engine without moving parts.

African parties, however, have a bad reputation. Far from exercising power for the common good, ruling parties are said to intimidate opponents, politicise security forces and erode the boundaries between party, government and state. Far from recruiting fresh talent, they affect an endless circulation of elites, with the discredited autocrats of yesteryear moving from party to party without ever relinquishing power. Far from building broad-based alliances capable of reconciling interests and managing conflict, they seek short-term electoral advantage by fanning the flames of ethnic hatred. And far from establishing acceptable norms of political behaviour, opposition parties attack rivals, denigrate judiciaries and cry foul over electoral defeat even when the popular will has been unambiguously expressed. Little wonder, then, that African parties are often regarded as the 'weak link in the chain of elements that together make for a democratic state' (Randall and Svåsand 2002: 31).

Most African parties, of course, have a constitution intended to define objectives, guarantee rights and responsibilities, establish institutions and place limits on the exercise of political power. These rules, however, tend to exist only on paper. Indeed, few African parties have a grassroots membership capable of effecting vertical accountability or influencing policy, in part because internal party organisation is sustained by the personal fortunes of 'big men'. Fewer still have a professional bureaucracy capable of applying party statute, conducting policy research and creating checks on presidential power. One of the most important consequences of this weakness is that political succession – i.e. the process through which an incumbent president retires and a successor is chosen – frequently degenerates into internecine conflict. Indeed, political fragmentation stemming from mismanaged succession crises has actually contributed to changes of government in Kenya, Senegal, Zambia and Lesotho (Cooper 2015b). My chapter consequently examines variation in the quality and depth of internal party democracy, exploring the case of Namibia's South West Africa People's Organisation (SWAPO), whilst drawing comparisons with a number of other ruling parties.

Like all ruling parties, SWAPO has a number of distinctive features. Its history as an armed guerrilla movement, hegemonic self-perception and organisational longevity are replicated by governing parties in Angola, Ethiopia, Mozambique, Rwanda, Uganda and Zimbabwe, but are otherwise fairly atypical in the African context (van de Walle 2003: 314). Two other factors do, however, make SWAPO an instructive case through which to understand processes of party institutionalisation. First, SWAPO's internal processes have tended to exhibit a combination of coercion, clientelism and personal rule that is common to many other parties in African states. Former President Sam Nujoma cast a long shadow over almost all aspects of internal governance during his forty-seven years at the helm, choosing thirty of the party's fifty-odd members of parliament, reshuffling cabinet ministers every two to three years, side-lining critics and riding roughshod over the few formal checks to his power. Second, however, Nujoma's eventual retirement heralded a period of party-building during which formal institutions came to play a greater role in matters of political succession, parliamentary candidate selection, internal party discipline and policy research. These measures were intended to enhance internal party cohesion, but would also have the unforeseen effect of empowering those grassroots structures dedicated to achieving increased female representation in parliament. Thus, SWAPO's combination of one-time structural weakness and latter-day reform presents an opportunity for drawing lessons of wider relevance.

Thus, the first lesson, which is perhaps the most obvious but is also the most important, is that – contrary to widespread expectation – African parties are capable of shifting from charismatic to legal-bureaucratic forms of authority. In short, they are not all doomed to obscurity or subservience. Internal party democracy can be deepened, presidential autonomy circumscribed and internal decision-making processes regularised. Second, party presidents can be induced to accept a diminution of their autonomy when political fragmentation is regarded not as an inevitable fact of political life, but as a personal and collective disaster. Thus, President Pohamba's willingness to accept – indeed, to champion – institutional reform can be traced to the acute horror with which his party regarded an earlier split in its ranks.

A third lesson, however, is that party-building activity – like all human endeavours – can succeed only when motivation and opportunity are aligned. In other words, SWAPO's reform programme would have been stillborn without: (1) an extant bureaucracy upon which to build; and (2) a position of electoral dominance from which to shower public resources on to centres of potential dissent. Finally, SWAPO's inability or unwillingness to complete its migration from charismatic to legal-bureaucratic modes of internal governance has demonstrated that – as Cheeseman suggests (Chapter 15) – formal and informal institutions may conflict within a single political space. Whether formal rules achieve ascendancy will therefore depend as much on elite goodwill as on grassroots activism.

The chapter is arranged into three sections. First, it describes the extant literature and provides an assessment of what we do and do not know about African political parties, before exploring the way in which party 'weakness' can be defined and explained. Second, it presents empirical evidence that demonstrates that SWAPO has shifted in the direction of legal-bureaucratic authority. Finally, it draws on additional cases – including Botswana, Mozambique, Nigeria and Ghana – to conclude that episodes of political party fragmentation create an impetus for party-building activity.

# African Parties in Comparative Perspective

Since 1989, with third wave democratisation (Huntington 1991) taking root, the number of countries holding regular, de jure multiparty elections in sub-Saharan Africa has increased twelvefold. This remarkable transformation from dictatorship to pluralism has allowed political parties not only to proliferate, but also to claim a pivotal role in political processes – the ways in which public policymaking is conducted, governments are formed, state resources are distributed, conflicts are managed and horizontal accountability is achieved. African democracy, if not African politics more broadly, is indeed 'unthinkable save in terms of African parties' (Schattschneider 1942: 1).

To the extent that African parties have attracted scholarly attention, two strands of literature can be discerned. First, a small but growing body of research has tried to describe the 'modal' African party system, using quantitative methods to determine whether legislative representation is concentrated or dispersed, whether voting patterns are stable or volatile, and whether incumbent rulers are vulnerable or entrenched. Thus, Bogaards (2004: 182) employs a statistical dataset – fifty-nine legislative polls conducted in all eighteen countries to have held at least three consecutive multi-party elections by the end of 2002 – and argues that eight of these polities (Botswana, Burkina Faso, Cameroon, Gabon, Lesotho, Mauritania, Namibia and Zimbabwe) should be classified as single-party dominant.1 Kuenzi and Lambright (2005: 430–431), though primarily concerned with exploring a hypothesised relationship between party system type and political freedom, note that fourteen of the thirty-three countries included in their sample exhibited dominant partyism. Mozaffar and Scarritt (2005) purport to show that single-party dominance, low levels of electoral competition and electoral volatility constitute key features of a 'typical' African polity. Van de Walle (2003: 302–303) concludes, after assessing all eighty-seven legislatures for which election results were available, that 'the modal party system... [comprises] a large dominant party surrounded by a bevy of small, highly volatile parties'.

A second strand of literature, therefore, seeks to explain how and why dominant partyism has become the prevalent form of rule in Africa (Bogaards 2000). On the one hand, structuralists tend to suggest that cleavage structures represent the principal explanatory variable. Thus, Erdmann and Basedau (2007: 18) argue that Africa's unusually large number of dominant parties can be traced to high levels of ethnic fragmentation, which oblige any political operator seeking executive power to construct a 'maximum winning coalition' capable of uniting communities around a single leader. Institutionalists, on the other hand, regard dominant-partyism as derived from legal, regulatory or political frameworks rather than social phenomena. Randall and Svåsand (2002: 36), for example, note how incumbent advantage can often be employed for the purpose of achieving electoral dominance, since ruling parties typically exploit state resources 'to the full. This enables them to outcompete newer parties that lack a national organisational network, and have limited access to newspaper, other media resources, and party finance'. Political incentives, in other words, flow from the manipulation of institutional frameworks rather than from societal structures.

Africa's emerging party systems have, therefore, attracted a modicum of academic interest, even though most of the resulting studies tend to be less concerned with the motives underpinning political behaviour. The literature on African political parties is best described as embryonic. As Basedau et al. (2005: 11) note, 'sweeping generalisations derived from rather cursory observations (obtained in the course of the other research) characterise our knowledge about the several hundred parties in the forty-eight countries of Africa south of the Sahara'. Appropriately enough, their own volume represents an important contribution to the literature on neo-patrimonialism, interest representation and election violence. Another valuable contribution is Randall and Svåsand's study (2002) of the relationship between political party behaviour and democratic consolidation, which offers an exploratory scheme for recognising and diagnosing party weakness (Randall and Svåsand 2002: 38–46). Meanwhile, Elischer (2012) uses the schema developed by the Manifesto Research Group (MRG) to demonstrate how programmatic, as opposed to clientelistic, differentiation has been attempted in Ghana, Namibia and Kenya.

Taking a different approach based on insights gained from the Indian party literature, Mac Giollabhuì (2014) hypothesises that 'inclusive' parliamentary candidate selection processes serve to promote political party cohesion by providing unsuccessful nominees with an opportunity for personal rehabilitation. This argument is confirmed, in the author's view, by comparative analysis of the Tripartite Alliance in South Africa and SWAPO in Namibia. By contrast, LeBas (2011) explores the question of opposition efficacy, using a comparative study of Zimbabwe, Zambia and Kenya to argue, first, that state-sponsored trade unions can become a Trojan horse for political opposition, and second, that internal party cohesion can be enhanced by political polarisation.

Although these contributions have advanced our understanding of political parties, few of these studies seek to engage with each other or to map out the terms of the debate. Fewer still grapple with the vexed questions of party-building, internal party democracy or intra-party factionalism. However, one significant point of consensus has emerged. Africa's political parties, it is argued, are characterised by informal rather than formal structures of authority. Thus, Gyimah-Boadi (2007: 27) asserts that:

African political parties share several common features. They tend to have weak bureaucratic and other organisational structures... and [to] lack organised membership rosters and regular mechanisms for collecting membership contributions... Internal democracy tends to be poorly developed and there is an over-emphasis on loyalty to the party and especially loyalty to the party leader. Indeed, African parties tend to be dominated by personalities (as in Chiluba's MMD, Rawlings' NDC, or Nujoma's SWAPO) [emphasis added].

Randall and Svåsand (2002: 42) similarly portray African parties as under-bureaucratised, personalised and lacking in internal democracy, while Manning (2005: 716) notes that parties tend to be rooted in clientelistic networks rather than in 'liberal, pluralistic' interest groups. Similarly, van de Walle and Smiddy Butler (1999: 15) argue that most African parties are 'plagued by weak organisations, low levels of institutionalization, and weak links to the society that they are supposed to represent', and Fomunyoh (2001: 48) notes that, in francophone Africa, 'party structures remain extremely hierarchical, and charismatic leadership rather than party platform often drives party loyalty'. African parties, in other words, are characterised by personalised leadership, under-bureaucratisation and low levels of internal democracy.

One implication of many of these arguments is that Africa's strong parties are so few in number as to be unworthy of scholarly attention. Yet, strong parties are by no means absent in the African context (as also supported by Riedl's work in this volume). In South Africa, the African National Congress (ANC) claims to have 1.2 million members arrayed into nine provincial structures, fifty-three regional structures and 4,872 branches; in 2008 its national executive committee actually ousted an incumbent head of state. In Tanzania, Chama cha Mapinduzi (CCM) has a 2,100-member national congress responsible, inter alia, for electing the party's presidential candidate; in 2005 it selected Jakaya Kikwete from amongst eleven nominees (Tanzanian Affairs, 1 March 2005). In Uganda, National Resistance Movement (NRM) legislators reportedly defied President Museveni to elect an opposition politician, Betty Amongi, as chairperson of the Uganda Women's Parliamentary Association (The Observer, 21 July 2011). And in Ghana, both major parties – the National Democratic Congress (NDC) and the New Patriotic Party (NPP) – have become sufficiently rooted in the country's social fabric to survive two electoral defeats and several changes of leadership. Strong parties, therefore, represent a small but important minority in some countries.

A second assumption implicit in the literature is that African parties – like many other organisations noted in the introduction to this volume – are incapable of shifting from informal to formal structures of authority. Such perspectives are perhaps not unreasonable when judged against the frequency with which African parties are formed, looted and disbanded by predatory leaders seeking to leverage political office. But they also raise the question of how, when and why party-building – the process by which formal institutions are strengthened – is achieved. Unpacking this puzzle requires, in turn, a conceptual understanding of party strength.

Randall and Svåsand (2002: 37–38) identify four indicators of institutional capacity. First, they argue that weak parties are characterised by a limited degree of territorial penetration, while strong parties maintain organisational structures throughout national space. Second, given that most electors are too impoverished to pay subscriptions, weak parties are 'continuously short of resources' (Randall and Svåsand 2002: 37). Third, weak parties are ephemeral in nature, bursting into life only during campaign periods, whilst strong parties are active throughout the electoral cycle. And finally, weak parties tend to be 'underdeveloped in terms of the more formal aspects of organisation' (Randall and Svåsand 2002: 38). This latter point is not developed in detail, but given its importance to the study of party-building, must be briefly addressed here.

My own criteria for diagnosing organisational weakness are five-fold. First, party statutes are insufficiently comprehensive in covering the full range of activities in which the organisation is involved. For example, a party leader's prerogatives are only vaguely defined, disciplinary procedures are inadequately prescribed, and candidate selection rules fail to offer enough guidance on how nominees should be selected. Second, where party statutes exist, they are frequently ignored. Thus, party conferences are convened at irregular intervals, packed with appointees and/or bullied into accepting the leader's preferences, while disciplinary procedures are manipulated to destroy pockets of internal resistance. Third, presidential succession crises are destabilising, with open conflict over matters of procedural integrity, candidate selection and eligibility, campaigning technique and so forth. These squabbles often act as a catalyst to political party fragmentation (Cooper 2015b). Fourth, bureaucratic structures are small in size, inadequately resourced and unable to influence the decision-making process. Fifth, weak bureaucracies typically fail to collect, analyse and use political information: opinion polling is not undertaken, discussion documents are not circulated and policy alternatives are not developed. Instead, party leaders exercise a monopoly over the formulation and implementation of policy.

Party-building, therefore, represents the process through which party statutes are expanded, rules are legitimated, political succession is more systematically managed, bureaucratic structures are enlarged and political information is more widely sought. Each of these developments implies a shift towards a legal-bureaucratic authority with formal institutions exercising an increased influence over strategic policy-making and disciplinary decision-making, and imposing at least some constraints on the party leader's autonomy. In the following section, I argue that President Hifikepunye Pohamba's tenure as SWAPO leader was characterised by at least some progress, as measured against these criteria.

# Namibia: The Politics of Charismatic Authority

SWAPO was established in 1960, a product of long-simmering nationalist mobilisation against South African rule. Most of its leadership moved into exile shortly afterwards, establishing offices in Lusaka, Dar es-Salaam, London, New York and, later, in Lusophone Africa. From these and other centres, party leader Sam Nujoma and his colleagues devised a two-pronged strategy for achieving national liberation. On the one hand, SWAPO diplomats tried to capture international attention by isolating South Africa from world finance, jurisprudence and sport. On the other hand, SWAPO guerrillas launched an armed struggle intended to bolster the party's revolutionary credentials and weaken South Africa's position on the world stage (Dobell 1998). By 1980, SWAPO had achieved international recognition as the 'sole, legitimate and authentic representative of the Namibian people', whilst thousands of colonial troops and police waged a grim struggle against SWAPO forces in north-central Namibia (Brown 1995).

As Melber (2007: 74–75) has suggested, however, SWAPO's commitment to national liberation did not imply a flourishing of democratic practices within its own ranks. Indeed, by the early 1970s, Nujoma's demand to be treated with the deference accorded to other heads of state, combined with espionage paranoia, produced an authoritarian political culture that equated expressions of dissent with treachery (Saul and Leys 1995: 43). Three purges were to follow: the 'Shipanga Rebellion' of 1975–1976 (when 1,600 party members were arrested over demands for a leadership election); the 'CANU Crisis' of 1979 (when SWAPO's Caprivian leaders were imprisoned for complaining about ethnic discrimination), and the 'Spy Drama' of 1981–1989, when hundreds of SWAPO members were detained, tortured and killed on suspicion of spying for South Africa (Saul and Leys 1995: 55–56). These events tended to strengthen Nujoma's position within the nationalist movement, not least because SWAPO's much-feared security apparatus reported exclusively to him (Saul and Leys 1995: 56).

By 1988, South Africa had finally decided – under pressure at home and in diplomatic circles – to grant independence to Namibia in exchange for a withdrawal of Cuban forces from Angola. SWAPO's leadership returned from exile a year later, triumphantly proclaiming its role in achieving national liberation, and declaring that only a SWAPO government could deliver peace (Cliffe et al. 1994: 256). This message helped to deliver a SWAPO majority in Namibia's independence election, after which a SWAPO-led Constituent Assembly elected Nujoma as the country's first head of state. Independence was to follow on 21 March 1990.

Not surprisingly, these events represented a personal triumph for Nujoma, whose long years of struggle and sacrifice appeared finally to have been vindicated. As 'father of the Namibian nation', a liberation icon willing (in his own words) to stand firm where others had wavered, he rapidly assumed an unassailable position not only within the corridors of power, where criticism came to be regarded as unpatriotic, but also within public discourse (Melber 2007: 67). When, in 1994, Namibia entered its first post-apartheid election, Nujoma was permitted to choose the first thirty names on SWAPO's seventy-two-member parliamentary list, as well as the ten non-voting legislators allotted to him by the country's constitution. Four years later he persuaded this legislature, almost half of its members whom he had appointed, to enact a constitutional amendment allowing him to seek a third term in office. Later that same year he committed troops to military conflict in the Democratic Republic of Congo (DRC) without so much as consulting the Cabinet, let alone parliament or the party (Melber 2007: 67). And when Ben Ulenga, a former high commissioner to the UK, resigned in protest at these actions, Nujoma bullied SWAPO's central committee into suspending him from the party (The Namibian, 26 March 1999). An account of that meeting (The Namibian, 26 March 1999) was carried in the press and is worth quoting at length:

Some people proposed that the Central Committee should find a means to try Ulenga for flouting the principles of the party. Others argued it would be unprocedural for the meeting to deliberate on Ulenga. [Youth League secretary Ignatius] Shixwameni reportedly pointed out that if proper procedures where [sic] not followed the Central Committee would end up looking like a kangaroo court. When President Nujoma returned [to the meeting] and resumed the chair, he apparently pronounced that Ulenga was henceforth suspended. Nobody among the 40-odd in attendance objected... Nujoma went on to ask Shixwameni to apologise for saying the Central Committee was a kangaroo court. Shixwameni... asked for an opportunity to explain himself because he felt that what he had said had been wrongly conveyed to the President... But Nujoma reportedly interrupted, lecturing him about the importance of the body and its honourable history... In the end the youth leader... agreed to withdraw the statement.

In 1999, therefore, SWAPO closely resembled the stereotype of a weak African party. Indeed, this fragility was demonstrated once again when, in 2004, Nujoma announced that he would not seek a fourth term in office. SWAPO's Politburo decided to convene an extraordinary congress for three candidates to contest the succession: land minister, Hifikepunye Pohamba (who enjoyed Nujoma's support); foreign minister, Hidipo Hamutenya; and education minister, Nahas Angula. From the outset, it became clear that Nujoma had no intention of facilitating a free election. Senior officials were summoned to State House, favours were called in, rewards promised,2 and four days before the congress convened, Hamutenya was sacked as foreign minister (Sherbourne 2004: 4). Not surprisingly, Pohamba subsequently emerged as the winning candidate, taking 67 per cent of the vote to Hamutenya's 33 per cent.

Nujoma, however, had not given up in his efforts to destroy the Hamutenya faction. While now only responsible for selecting the first ten names on SWAPO's parliamentary list, plus ten non-voting presidential appointees (with an electoral college comprising youth, women's groups, union and branch representatives selecting the remaining sixty-two names), by circulating unsigned 'blacklists' and spreading rumours about Hamutenya's alleged tribalism, Nujoma managed to cajole these delegates into endorsing his preferred candidates (Windhoek Observer 10 July 2009). Consequently, Hamutenya's faction lost most of its parliamentary representation, all of its Cabinet ministers and many of its public servants, as Nujoma loyalists proceeded to purge the executive, parastatals, unions and party bureaucracy. As Sherbourne (2004: 3) noted, 'in the end it was Nujoma who emerged victorious, proving once again that no one knows his party or using power to its limits better than he'.

By 2004, therefore, SWAPO clearly met each of the five diagnostics for political party weakness. Its presidential succession process was so ill-defined that Nujoma had been able to retain the party leadership even after retiring as state president, a gambit which greatly aided his attempt to influence the congress vote. SWAPO's disciplinary procedures were routinely flouted, as Nujoma bullied the Politburo and Central Committee into accepting his view. Its bureaucratic infrastructure had atrophied as the distinctions between party, government and state blurred (Bauer 2001: 45), and its structures lacked the capacity to gather information independent of the executive. Not surprisingly, one study written in 1999 concluded that 'SWAPO is still tied to the career of Sam Nujoma, as is ZANU-PF to that of Robert Mugabe' (Du Toit 1999: 214).

Nujoma's victory over the Hamutenya faction, however, was to prove pyrrhic in nature. In 2007, SWAPO suffered its most significant rupture since independence, losing two former cabinet ministers, two deputy ministers, the National Council chairperson, the Electoral Commission chairperson and numerous other party functionaries to a splinter group led by Hamutenya. This breakaway party – the Rally for Democracy and Progress (RDP) – tried over the following months to loosen SWAPO's electoral stranglehold on the all-important 'Four O' regions of north-central Namibia, where Hamutenya's local origins created hope of an electoral breakthrough.3 SWAPO's nationalist rhetoric, abuse of state resources and intimidation of RDP activists served largely to thwart these efforts in 2009, when the RDP secured 11 per cent of the vote mainly by drawing support away from other opposition parties (Cooper 2010: 531). But SWAPO's willingness to take such drastic measures illustrated its deep-seated hostility towards the RDP project.

Indeed, many SWAPO leaders regarded Hamutenya's departure as a traumatic experience.4 For almost half a century, the party had exhibited – notwithstanding the 'Shipanga Rebellion' in 1976 and Ben Ulenga's defection in 1999 – an extremely high level of internal cohesion. Many party leaders had spent thirty years in exile, living and working together in Dar es-Salaam, New York and elsewhere. Some had formed bonds not merely of friendship, but also of marriage; Hamutenya, for example, is cousin to Pohamba's wife.5 Dense relationship networks therefore created an elite esprit de corps of remarkable magnitude, endurance and longevity.

This camaraderie was strengthened by a perception that internal unity, or at least the appearance thereof, represented a prerequisite of political efficacy. As a nationalist movement struggling to free Namibia from colonial rule, SWAPO had been well aware that enemy forces would use agents provocateurs to sow discord within its own ranks. In 1978, South Africa went so far as to sponsor an 'internal settlement' that saw SWAPO defectors (including Andreas Shipanga) joining hands with traditional leaders, white moderates and other ethnic entrepreneurs to forge a multi-racial government opposed to the African nationalist project (Katjavivi 1988: 94–102). As in other 'struggle states', therefore, disunity was perceived to be a counter-revolutionary tool for sabotaging SWAPO's agenda. It remains anathema to the many SWAPO leaders schooled in the language and assumptions of guerrilla insurgency.

# Towards Formalisation

It might be suggested – so far, so predictable. The 'institutionless' school of thought, as described in Chapter 1, has long argued that patronage, not statute, represents the core framework around which African political interaction is structured. Chabal and Daloz (1999) regard formal institutions as little more than a façade behind which African rulers exercise informal control, whilst Jackson and Rosberg (1982) warn that political succession represents a potentially dangerous moment in the life of any personal regime. More recently, this outlook has been challenged in Posner and Young's research (2007; also this volume, Chapter 11) on political institutionalisation in Africa. Presidential succession crises, they argue, are no longer characterised by the violence, fragmentation and military interventionism so often described in the 'institutionless' literature. Instead, formal institutions – constitutional rules, term limits and so on – now play a prominent role in determining when power is transferred, how it is transferred and how the successor is selected.

By 2007, SWAPO's leadership had indeed identified a correlation between charismatic authority and the greatest of all perceived calamities: political fragmentation. Its response to this epiphany involved, in part at least, a shift towards formalisation. As one journalist commented, party officials had concluded that:

If they level the playing field, if they fight fairly, no-one should go away feeling hard-done by. That is why after 2007 they started to put in place some measures to steer any succession debates so they are not too open-ended. I am talking about the guidelines that SWAPO eventually approved, last year, by which they had set rules about when to campaign, how nominations should be done, that the nominations must come from the Politburo as well as the Central Committee... If the processes are so rigged that they can prove it, the losing candidates can... appeal.6

In other words, by stipulating that any SWAPO leader unable to seek an additional term as state president would yield the nomination to his or her deputy, the party could hope to limit the extent of internal contestation and, more importantly, neutralise any pressure for an extraordinary congress of the kind held in 2004. By declaring that any parliamentary candidate must have been a paid-up member for at least the previous ten years, it could reduce the potential for procedural disputes and pre-empt any complaints about former RDP members (some of whom began returning to the ruling party after 2009, and were receiving plum jobs at the expense of party loyalists).7 And by creating a disciplinary committee and a code of acceptable conduct, it could moderate behaviour, provide opportunities for redress, legitimise outcomes and thereby mitigate the possibility that allegations of impropriety would be used to mobilise support for a breakaway party.

These measures were to be tested when, in 2012, SWAPO's fourth ordinary congress met for the purpose of electing a deputy leader. Given President Pohamba's impending retirement from office, the successful candidate would receive SWAPO's presidential nomination in 2014 and, barring any electoral upset, succeed to the presidency a year later. Three candidates contested the election: trade minister Hage Geingob, regional government minister Jerry Ekandjo and justice minister Pendukeni Iivula-Ithana. All campaigned openly – holding public rallies, conducting press interviews and attracting ministerial endorsements – and none made any suggestion that procedural irregularities were occurring or would affect the outcome. When Geingob won the election, taking 52 per cent of the vote to Ekandjo's 37 per cent and Iivula-Ithana's 11 per cent, former President Nujoma hosted a luncheon at which all three candidates were reminded of the need for unity (The Namibian, 4 December 2012). He need not have worried; neither Ekandjo nor Iivula-Ithana (nor any of their respective supporters) subsequently broke away from the ruling party, which emerged from the succession battle substantially intact.

Party-building did not, however, cease with measures designed to prevent a repetition of the Hamutenya debacle. Indeed, SWAPO's 'Prague Spring' encouraged its women's movement to demand a radically reformed and highly formalised candidate selection procedure. In 1997, President Nujoma had suggested to SWAPO's congress that candidates for local government office be selected in accordance with a fifty-fifty gender quota. Delegates chose not only to ignore this idea, but also to elect seventy-three men to the party's eighty-three-member Central Committee (Akawa and Gawanas 2014: 184). Four years later, the SWAPO Party Women's Council (SPWC) declared its support for equal representation across all party structures, but declined to endorse a cross-party campaign demanding that 'zebra-style' party lists should be introduced in all elections. A breakthrough appeared to have been achieved in 2002, when SWAPO's third ordinary congress resolved that female representation should be equal across all party structures, but congressional delegates quickly rejected a suggestion that Nujoma nominate twenty-one women to the Central Committee (The Namibian, 27 August 2002). Two years later, as Nujoma struggled to assert his supremacy over Hamutenya, SWAPO's Electoral College selected only sixteen women for safe positions on the seventy-two-member party list.

Against this background, the party's decision in 2012 to implement a 'zebra-style' gender quota appears all the more remarkable. Its motivation was probably twofold. As a national liberation movement claiming to occupy the centre-left of Namibian political life, SWAPO has long encouraged expectations of progress towards female emancipation. Many leading members of the party – including Nujoma and his successor, Pohamba – were sincerely committed at least to the notion of gender equality, even if other objectives had tended to take precedence. On the other hand, by 2012, SWAPO leaders seem to have concluded that party structures would no longer tolerate their failure to enact conference resolutions on gender equality. As Pohamba said at the launch of SWAPO's newly amended constitution, women had played an important role in the struggle against colonialism: consequently, he remarked, 'we can no longer turn a blind eye on the issue of 50/50 representation in the structures of the party' [emphasis added] (The Namibian, 28 August 2013). As a civil society activist, more blunt in his assessment of Pohamba's motives, stated – 'the move towards gender balance has featured as a resolution at several SWAPO congresses and it was getting more difficult to tell the SPWC and others that it should always be put off'.8 Once party-building begins, in other words, it tends to develop a momentum of its own.

Perhaps surprisingly, SWAPO's predominantly male leadership had not anticipated that its pursuit of gender equalisation meant a substantial turnover in personnel.9 In Namibia, as elsewhere, legislative office represents an important source of status, wealth and opportunity. Backbench parliamentarians receive a US$60,000 remuneration package, a pension entitlement, social acclamation (as indicated by the much-used designation 'Honourable') and opportunities for travel (The Namibian, 19 May 2014). For SWAPO members, moreover, parliamentary office also carries the prospect of promotion. Ministers and deputy ministers belong to a narrow state-bureaucratic elite with living standards far above the Namibian average; indeed, the days when SWAPO leaders commuted from Katutura, an impoverished township outside Windhoek, have long gone. This privilege is derived partly from the trappings of office: in a country where 62.2 per cent of people live on US$2 or less per day (World Bank 2009: 2), ministers receive a US$77,500 salary, a government car, and housing, entertainment and utility allowances (The Namibian, 19 May 2014). Yet, executive power also offers an opportunity to abuse state resources for personal gain. Thus, ministers and deputy ministers channel public contracts to companies in which they have a stake (Hopwood 2008: 174), fence off communal farmland (The Namibian, 10 March 2015) and use official transportation for personal and electoral purposes (Lodge 2000: 203). In 2009, higher education bursaries intended for low-income students hoping to study in China were awarded to the children of Cabinet ministers, deputy ministers, the inspector-general of police and even President Pohamba himself (Informanté, 12 November 2009). Elected office, in other words, represents a very valuable prize.

When SWAPO's male-dominated leadership belatedly recognised that a gender quota might threaten its privilege, the backlash was both sudden and fierce. Media reports circulating in March 2014 indicated that, 'some men in SWAPO, especially those without strong influence and support, are now clinging to slim hopes that the party would realise the mistake it made in enforcing the gender quota and that an extraordinary congress would be convened to discard that decision' (Namibian Sun, 11 March 2014). A month later some senior figures reportedly argued at a Central Committee meeting that reform would banish many struggle stalwarts to the margins of political life and should therefore be abandoned (Namibian Sun, 27 April 2014). To his credit, President Pohamba belied his cautious image by rebuffing these objections in clear and unambiguous terms. Critics, he said, could 'forget about' a repeal of the controversial gender policy (Namibian Sun, 27 April 2014). Ever the conciliator, however, he also recognised that some form of reassurance was needed to persuade dissenters of their continued place in the sun.

Consequently, in August 2014, Minister of Presidential Affairs Albert Kawana brought the Third Constitutional Amendment Bill before parliament. Its provisions included the creation of a Deputy Presidency, Deputy Chief Justice and Magistrates Commission, but its centrepiece was a proposal to expand the National Assembly from seventy-two to ninety-six members (Republic of Namibia, clause 10a). Kawana and his associates justified this expansion on the grounds that quorum could more easily be reached if the ratio of ministers and deputy ministers to backbenchers was reduced (Windhoek Observer, 1 August 2014). Most critics, however, detected an attempt to appease SWAPO parliamentarians worried about the implications of 'zebra-style' affirmative action. Thus, RDP spokesperson Jeremiah Nambinga referred to 'an open secret that the Bill was created to accommodate some of the SWAPO cadres who would not make it because of the fifty-fifty gender quota' (Namibian Sun, 29 August 2014). This view was echoed by a local commentator who regarded the 'main motivation... to have been to make the tent bigger so that Hage Geingob backers and the old guard who were refusing to retire would still have seats in parliament' (Personal communication, 19 June 2015). Given SWAPO's overwhelming majority in parliament, and its need to accommodate internal critics, the Third Constitutional Amendment Bill was enacted just four weeks after Kawana's motivation in parliament (The Namibian, 28 August 2014).

Thus, SWAPO's adoption of a 'zebra-style' gender policy was facilitated by its electoral dominance. Dissenting voices were reassured by a constitutional amendment, so transparent in its objective that passage would have been inconceivable without a super-majority in parliament. Ironically, however, even this act of constitutional gerrymandering was unable to save SWAPO's struggle generation, or at least significant parts of it, from disaster. At the Electoral College held two days after the amendment bill was passed, factional infighting – apparently orchestrated by junior officials acting on their own initiative – prevented numerous party stalwarts from securing a safe positions on SWAPO's ninety-six-member parliamentary list (The Namibian, 30 August 2014). Six months later Namibia's newly inaugurated president, Hage Geingob, responded by appointing several of his former rivals – including Ekandjo and Iivula-Ithana – to parliament and thence to the cabinet. Electoral dominance had created a further opportunity to defuse internal opposition, thereby acting as a midwife to institutional strengthening.

# Conclusion

Four lessons can therefore be derived from SWAPO's success in migrating from informal to formal institutions of authority. First, and most importantly, scholars have been too precipitous in assuming that African parties cannot make this particular journey. By formalising some of its succession, candidate selection and disciplinary processes, SWAPO has indeed shown that party machines can push back against the clientelistic modalities so characteristic of political life in many parts of the continent. Its achievement in transcending a cult of personality has been replicated, to a greater or lesser extent, elsewhere. In Tanzania, for example, CCM dominance has long outlived President Julius Nyerere, the revered mwalimu ('teacher') and ascetic, whose nationalist vision represented a defining feature of the single-party era. In Ethiopia, the Ethiopian People's Revolutionary Democratic Front (EPRDF) survived Prime Minister Meles Zenawi's death, remaining united and winning all 500 legislative seats in a disputed election held three years later. And in Ghana, the National Democratic Congress (NDC) actually rebuffed Nana Konadu Agyeman-Rawlings' attempt to secure its presidential nomination, even though her candidacy was supported by party founder Jerry Rawlings (BBC 2011). Some African parties, therefore, are capable of transcending their reliance on strongmen and consequently of establishing a basis for longevity.

A second lesson to be drawn from SWAPO's experience is that party presidents may accept, or even promote, institutional reform when political fragmentation is regarded not as an inevitable fact of political life, but as a collective tragedy. Elite norms, in other words, can serve to motivate party-building activity. SWAPO's own 'preoccupation with the outward appearance of unity' (Soiri 1998: 205) is rooted in the combination of solidarity, camaraderie and paranoia familiar to many of the former rebel movements now holding power in southern and eastern Africa. Thus, Mozambique Liberation Front (FRELIMO) President Armando Guebuza claimed in 2014 that his successor, Defence Minister Filipe Nyusi, had been selected during a heated but comradely discussion 'impregnated with the responsibility that we have and we feel for the destiny of our... motherland' (Mozambique News Agency 2014). The resulting unity, he added, provided a means with which to 'close our ranks against all the forces plotting to sow suspicions [sic], confusion and misunderstandings amongst us' (Mozambique News Agency 2014). Later that year Angolan President Jose Eduardo dos Santos opened a party congress at which internal unity represented the principal topic of concern (Agência Angola Press 2014). Similarly, Ugandan President Yoweri Museveni convened a National Resistance Movement (NRM) retreat in 2012 at which 'party-building and managing internal party dynamics and strengthening political unity within the NRM party caucus' represented the key points of debate' (New Vision 2012). All of these former rebel movements seem to share SWAPO's sense of political entitlement, its perception of external threat and its desire to prevent the externalisation of factional conflict, even if their attempts to promote internal cohesion – most notably in the Ugandan case – do not always involve a diminution of presidential autonomy.

The third lesson to be drawn from SWAPO's experience is that successful reform embodies a combination of motivation and opportunity. SWAPO's desire to move away from charismatic modes of political authority might well have been frustrated without: (1) at least some extant infrastructure upon which to build; and (2) a position of electoral dominance from which to shower state resources and political patronage onto sources of perceived opposition. Still, a note of caution is required here. Neither extant infrastructure nor single-party dominance is inherently linked to party-building activity; indeed, there are many dominant parties in Africa that exhibit personalised forms of leadership, and some non-dominant parties that feature a highly developed institutional architecture. An example of the former phenomenon is provided by the People's Democratic Party (PDP) of Nigeria whose President Goodluck Jonathan unilaterally abrogated an informal understanding that party leadership should alternate between the country's Muslim-dominated north and the Christian-dominated south in 2013 (The Observer 2015). Conversely, Ghana's non-dominant New Patriotic Party (NPP) – which won the 2004 presidential election by 7.8 per cent and lost the 2008 election by a mere 0.5 per cent – boasts finance, constitution, disciplinary, research and vetting committees, as well as branch committees at home and abroad (New Patriotic Party 2015). Here, at least, party bureaucratisation can perhaps be traced to the intensity of electoral competition and to the comparatively limited development of neo-patrimonial politics. Extant infrastructure and single-party dominance do not, therefore, represent failsafe predictors of party-building activity. But they did assist SWAPO's leadership in legitimating and implementing its reform programme, as well as in reconciling party stalwarts opposed to gender equality.

A fourth and final lesson to be drawn from SWAPO's experience, however, is that the strengthening and entrenching of formal institutions is heavily shaped by informal institutions such as intra-elite norms. SWAPO's transition from charismatic to legal-bureaucratic internal governance is not yet complete partly because these norms are still evolving: its succession machinery has been strengthened but only partially codified, its policy research unit remains relatively weak and its disciplinary committee has struggled to negotiate the minefield of internal party factionalism.10

Such outcomes are perhaps only to be expected. In South Africa, the ANC has since 2005 recruited half a million new members, expanded its formal infrastructure and jettisoned a long-standing informal convention that party leaders should be elected unopposed. Yet, it has also experienced an upsurge in electoral fraud, vote-buying, corruption and intimidation (Cooper 2015a). In Botswana, the ruling Botswana Democratic Party (BDP) has introduced a highly formalised succession procedure (according to which an outgoing head of state is forced to retire simultaneously as party leader) without curtailing the president's remarkably wide-ranging powers of patronage (Good 2008). And in Uganda, the NRM's increasingly assertive parliamentary caucus was unwilling to oppose President Yoweri Museveni's demand for a constitutional amendment legitimising his third term in office (Nakamura and Johnson 2003). These examples suggest that, as party machines grow and develop, their workings continue to be influenced by patronage-rich heads of state seeking to consolidate informal patterns of control. Whether formal rules achieve ascendancy will depend, inter alia, on the president's willingness to tolerate dissent, the extent to which grassroots activism has been mobilised and the degree to which state power is centralised.

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The Namibian. 30 August 2014. 'Shock and awe at SWAPO pot elections'.

The Namibian. 28 August 2013. 'SWAPO's pro-women constitution launched'.

The Namibian. 26 March 1999. 'Ulenga suspension was never debated'.

The Observer (Kampala). 21 July 2011. 'Why NRM MPs defied Museveni to elect Amongi', accessed 2 July 2015. Available at: www.observer.ug/news-headlines/14374-why-nrm-mps-defied-museveni-to-elect-amongi.

The Observer (London). 18 January 2015. 'Goodluck Jonathan: from poor boy to accidental president'.

Van de Walle, Nicolas. 2003. 'Presidentialism and clientelism in Africa's emerging party systems', Journal of Modern African Studies 41, 2: 297–321.

Van de Walle, Nicolas, and Kimberley Smiddy Butler. 1999. 'Political parties and party systems in Africa's illiberal democracies', Cambridge Journal of International Affairs 13, 1: 14–28.

Windhoek Observer, 23 June 2013. 'Ngurare has Learnt his Lesson',

Windhoek Observer, 1 August 2014. 'Controversial bill tabled'.

World Bank. 2009. Namibia: Country brief, Washington, D.C.: International Bank for Reconstruction and Development/World Bank.

1 Bogaards employs Sartori's definition (2005) such that a party is considered dominant after achieving three consecutive legislative majorities.

2 Jeremiah Nambinga. 4 June 2009. Interview, Windhoek.

3 RDP official. 11 May 2009. Interview, Windhoek.

4 Civil society activist Telephone Interview, 25 July 2013.

5 Hidipo Hamutenya. 11 May 2009. Interview, Windhoek.

6 Journalist, Telephone Interview, 18 July 2013.

7 Civil society activist, Telephone Interview, 20 June 2015.

8 Civil society activist. 19 June 2015. Personal communication, Windhoek.

9 Ibid.

10 See, for example, the Central Committee's summary expulsion of SPYL secretary Elijah Ngurare and three other Geingob critics in 2015.

# 9 Elections

## The Power of Elections in Multiparty Africa

Carolien van Ham and Staffan I. Lindberg1

Multiparty elections are not only the sine qua non of modern representative democracy, they also constitute perhaps the most notable set of formal institutions on the continent today. At the same time, electoral institutions in Africa are often accompanied by the kind of competitive informal institutions described in Chapter 15. This has led to a fierce debate about the quality and impact of elections in Africa.

Elections in sub-Saharan Africa (hereafter referred to as Africa) are more common than ever in the continent's history: multiparty elections have spread to almost every country. This is all the more remarkable given Africa's relatively brief experience with elections. While multiparty elections were held on the continent before 1989, the real upsurge came only after the end of the Cold War.

Under colonialism, colonial subjects in the French territories voted in elections both to assemblies in France and to local government councils, and elections were also held for councils with limited legislative power in some of the English colonies. In conjunction with decolonisation, many countries also held multiparty elections, bringing leaders such as Kwame Nkrumah, Kenneth Kaunda, Leopold Senghor and Jomo Kenyatta to power.

Yet, after independence, about half of all African countries reverted to military regimes, starting with the 1960 coup in the then Zaire, today Democratic Republic of Congo. More than twenty other countries fashioned one-party regimes (often with a nominal socialist ideology) holding non-competitive elections. The justification for doing so was that legal processes had been followed – such as constitutional review commissions and referenda – and that these changes were necessary to forge national unity in the interest of rapid economic development.2 Consequently, by the mid-1980s, forty-two out of forty-seven countries in Africa could be categorised as either military or single-party regimes. Only Botswana, Gambia and Mauritius continued with multiparty elections from independence.3

The end of the Cold War marked the start of a rapid transformation. In just a few years, almost all the previously autocratic regimes started holding multiparty elections (Bratton and van de Walle 1997; Lindberg 2006). The proportion of countries holding multiparty polls jumped from just 25 per cent in 1988 to 84 per cent in 1994 (van Ham and Lindberg 2015). At present, forty-six of forty-nine countries on the continent (94 per cent) hold multiparty elections for national offices.4 As a result, elections have become one of the most significant formal political institutions on the continent.

Yet, they are also one of the most controversial. Elections in Africa vary widely in terms of their de facto quality, ranging from elections that are relatively free and fair, to elections that are severely marred by fraud, violence and other irregularities (Groemping and Martinez i Coma 2015; van Ham and Lindberg 2015). When elections are manipulated, the consequences are not just inefficiencies and delays in the announcement of results, but also potential distortion of results and de-legitimation of the political system. In the worst cases, such as Kenya in 2007 or Côte d'Ivoire in 2010, disputed elections may even lead to ethnic clashes and civil war.

Regarding the impact of elections, Lindberg (2006; 2009) found that formal electoral institutions generated broader processes of democratisation. In an empirical study of elections held on the continent after 1986, he demonstrated how holding successive elections led to learning and socialisation of elites and citizens with the practices of democracy, causing subsequent increases in civil liberties, and thus improving the overall quality of democracy.5

Despite this overall trend, Africa's democratisation record continues to be mixed, with some countries moving ahead and becoming democratic (for example, Ghana and Kenya) while others drag their feet (Angola and Mozambique) or regress (Madagascar and Zimbabwe). Lindberg's results (2013) have also been challenged (Bogaards 2013). In any case, it now seems to be an empirical fact that 'democratisation-by-elections' may have occurred in some regimes but not in others. This leads to the question: under what conditions do formal electoral institutions promote broader processes of democratisation? In this chapter we argue that the answer to this question is to be found in the presence of formal electoral institutions (de jure multiparty elections) and the quality of the electoral process (the way that elections operate in practice).

In the next section we develop a theoretical framework to explain the conditions under which 'democratisation-by-elections' has and has not occurred in Africa. In contrast to Lindberg (2013), our theory predicts that the combination of repeated elections and the quality of those elections shapes the democratising power of elections.

# 'Democratisation-by-elections' Revisited?

Lindberg's initial argument (2013) was that repeating de jure multiparty elections would create opportunities for citizens and elites to experience democracy, allowing them to learn about democratic practices and become socialised into democratic norms, consequences that would remain even after the elections were over. Building on this, we argue that the quality of the elections should affect the degree to which these effects occur: when citizens and elites experience flawed elections, learning about democratic practices and socialisation into democratic norms is unlikely to occur, and hence we would not expect a strong democratising effect of elections in this case. We thus expect both the number and the quality of elections to condition the democratising power of elections. We argue that in order to understand the conditions under which elections have democratising power it is necessary to revisit the original 'democratisation-by-elections' thesis by: (1) unpacking the causal mechanism connecting elections and democratisation (and distinguishing between formal rules and informal practices); and (2) temporalising the connection between elections and democratisation (evaluating the role of path-dependency and institutional reproduction). Figure 9.1 illustrates the revised model.

Figure 9.1

Unpacking and temporalising 'democratisation-by-elections'

As shown in Figure 9.1, the original 'democratisation-by-elections' thesis posited that holding repeated multiparty elections increased the quality of other, non-electoral, 'partial regimes' that are crucial elements of democracy, such as civil liberties, rule of law and institutions of horizontal accountability.6 Elections were thus envisioned as a necessary but not sufficient institution for democracy, which could have positive spill-over effects on other aspects of democracy, thereby improving the quality of the overall regime.7 Originally, Lindberg (2006) emphasised elections as formal institutions, arguing that what really mattered was that elections formally allowed for multiple parties and candidates, and that they were repeated. According to this account, the de facto quality of elections – or whether elections were free and fair – did not affect their democratising power.8 Instead, what counted were the socialising and experiential learning effects of being exposed to repeated interactions with the formal institutions (Lindberg 2006: 111–116).

Yet, in Africa today, there is near homogeneity in terms of the formal rules: most elections in Africa are now de jure multiparty, legally allowing for competition between multiple candidates and political parties, with national executives and legislatures being (directly or indirectly) popularly elected at predictable intervals in time.9 This calls into question the capacity of formal rules – by themselves – to explain the widely different democratisation trajectories observed on the continent.

At the same time, the quality of elections in Africa varies widely, ranging from polls plagued by violence and fraud – like the 2012 elections in Congo Brazzaville or the 2014 elections in Mozambique – to elections that were relatively free and fair – such as the 2012 elections in Ghana or the 2014 elections in South Africa (Groemping and Coma 2015; van Ham and Lindberg 2015). Moreover, the literature on electoral authoritarianism and election integrity has shown how effective electoral manipulation is in undermining the democratising power of elections and sustaining electoral authoritarian regimes (Schedler 2002, 2006, 2013; Levitsky and Way 2010; Birch 2011; Norris 2014).10

We therefore argue that a first step to understanding under what conditions 'democratisation-by-elections' occurs is to investigate to what extent the de facto quality of the election makes a difference for the democratising power of elections (as shown in Figure 9.1b). In our empirical analyses in this section, we first replicate the original 'democratisation-by-elections' test by Lindberg (2006) using updated data until 2012, and subsequently analyse the extent to which election quality affects the power of elections to generate democratisation.

A second reason why we should expect democratisation trajectories to differ in Africa despite the near-universal spread of multiparty elections, is that institutional reproduction 'locks-in' regimes that started off holding elections of low de facto quality and vice versa. Van Ham (2012) has found substantial institutional 'stickiness' in her time-series-cross-sectional analyses of election quality in ninety-seven third wave regimes from 1974 to 2009 (i.e. low quality elections tend to be followed by subsequent low quality elections, and vice versa). Hence, early elections that were of low (or high) de facto quality could lock regimes into low quality or high quality equilibria, or 'vicious' and 'virtuous' cycles, that allow for less or more 'democratisation-by-elections'.

The tendency for informal institutions to reproduce over time is illustrated in Figure 9.1c, which shows that flawed elections tend to have limited effects on democratisation after the elections, and limited democratisation in turn tends to shape the quality of the subsequent elections, and so on. Note that Lindberg's original argument was also essentially a temporal argument about changes over time, but one that theorised only a causal connection from elections to democratisation. In the empirical analyses here, we trace the development of both election quality and democratisation over time, as schematically presented in Figure 9.1c, to evaluate to what extent institutional reproduction plays a role in explaining differences in 'democratisation-by-elections'.

Finally, the context in which elections take place may affect their democratising potential. Structural conditions such as poverty, ethnic heterogeneity, a history of civil war and resource dependency are known predictors of democratisation. Thus, in the empirical analyses, we control for structural factors, and focus on exploring the explanatory mechanisms shown in Figures 9.1b and 9.1c.

# Elections and Democratisation in Africa 1986–2012

Since very few de jure multiparty elections were held in Africa before 1986, we limit our empirical analyses to 1986 onwards. Of the fifty countries in Africa, forty-six had held de jure multiparty elections by 2012. Table 9.1 shows the variation across the continent in the number of elections held in each country between 1986 and 2012.11

Table 9.1 Number of national multiparty elections held per country (1986–2012)

Elections held (N) | Countries (N) | Per cent of countries
---|---|---
0| 4| 8.2
2| 1| 2.0
3| 5| 10.2
4| 5| 10.2
5| 7| 14.3
6| 9| 18.4
7| 5| 10.2
8| 6| 12.2
9| 3| 6.1
10| 3| 6.1
11| 1| 2.0
Total| 49| 100

Source: Coppedge et al. (2015a, b) and V-Dem Database (v4.4.2). National elections include direct elections for the national legislature and executive. Since V-Dem data for all sub-Saharan African countries in v4 runs until 2012, South Sudan is still counted as having had '0' elections here. Note that Equatorial Guinea is not included in the V-Dem dataset, and hence the total N reported in this table is 49. Equatorial Guinea has held de jure multiparty elections since 1993 but is one of the most autocratic regimes on the continent.

The spread of elections on the continent varies greatly from countries that have held no de jure multiparty elections yet, to countries that have held ten or more elections, with a mean of six elections.12 To what extent is the number of elections held in each regime related to its a posteriori level of democracy?

Figure 9.2 gives a descriptive answer to this question, showing the level of respect for civil liberties in each country in 2012 as scored by Freedom House (y-axis) by the number of successive elections held in each country (x-axis). The civil liberties data were recoded so that higher scores indicate higher levels of civil liberties (from 1 to 7). There appears to be a relation between the number of elections held in a country since 1986 and the level of civil liberties in 2012, and the relationship is slightly stronger if we take into account interruptions in electoral regimes such as a coup d'etat or civil war.

Figure 9.2

Level of civil liberties in 2012 by total number of elections held 1986–2012

Source: Coppedge et al. (2015a, b) and V-Dem Database (version 4.4.2).

Yet, Figure 9.2 also indicates that the relationship is far from perfect. A number of regimes, such as Gambia or Zimbabwe, have held quite a substantial number of elections and yet record low levels of civil liberties. Other regimes display high levels of civil liberties despite few elections on the books, such as Cape Verde and South Africa. Evidently, the relationship is not deterministic, demonstrating the need to investigate under which conditions 'democratisation-by-elections' occurs.

# Data and Design

We start our empirical analyses by testing the original 'democratisation-by-elections' hypothesis, replicating Lindberg's (2006: 139) analyses for Africa for a larger sample of elections until 2012. The original 'democratisation-by-elections' thesis proposed that an uninterrupted sequence of successive elections should lead to improvements in other partial regimes of democracy over time. This means that some countries will appear with more than one series of elections in the data, since several countries started holding successive elections but then had a breakdown (typically due to a coup d'etat or civil war) interrupting the electoral regime.13

We test our hypotheses using new 'Varieties of Democracy' data, analysing 277 de jure multiparty elections held between 1986 and 2012 in 45 African regimes.14 Our main variable of interest is the variable 'election sequence number', which indicates whether this was the first, second, third, etc. de jure multiparty election held in an uninterrupted sequence. This variable was constructed using data on electoral interruptions from the 'electoral regime index' that was designed and coded for V-Dem by Amanda Edgell and Valeriya Mechkova.15 Data on the quality of the elections come from the expert-rated variable 'election free and fair'.16 For our descriptive analysis of institutional reproduction in election quality we categorised the quality of elections into three categories of flawed, ambiguous and clean elections using the 'election free and fair' variable and the cut-off points of the measurement model.17 Finally, we use the level of civil liberties as measured by Freedom House in the year after the elections as our dependent variable but recoded it so that higher values indicate more respect for civil liberties.18

In addition to our main variables of interest, we include as control variables structural factors that have been shown to be important predictors of democratisation in Lindberg's study and others (Hadenius 1992; Linz and Stepan 1996; Lindberg 2006; Teorell 2010). These include data measuring the resource curse (total natural resources rents as a proportion of GDP, logged); international influence (measured by development aid received – net official development assistance and official aid received in 2012 in USD, logged), modernisation (measured by level of economic development – GDP per capita, PPP constant international USD, logged), regime performance (measured by economic growth – GDP per capita growth, annual per cent), religious and ethnic heterogeneity (measured by religious fractionalisation and ethnic fractionalisation – 'fractionalisation index') and civil war (measured by a dummy variable indicating whether the country was engaged in a civil war in the year of the election).19 Data for the control variables were derived from the Quality of Government dataset (Teorell et al. 2015), the World Development Indicators and the UCDP/PRIO Armed Conflict Dataset (version 4–2015) (Gleditsch et al. 2002; Pettersson and Wallensteen 2015).

We use time-series cross-sectional analyses to analyse the data. Since Lindberg's original model included time-invariant control variables, we first run a model using random effects, enabling us to test the impact of all control variables. We then proceed to analyse the data using fixed effects, as the arguments regarding 'democratisation-by-elections' refer to changes over time within countries, and hence are more reliably tested this way. Table 9.2 shows the results of analyses testing the original 'democratisation-by-elections' hypothesis. Model 1 shows the results using random effects, Model 2 shows the results with fixed effects and Model 3 shows the results when the effect of successive elections is modelled as having diminishing returns. This specification is included because Lindberg (2006) and more recent analyses (Edgell et al. forthcoming 2017) suggest that democratising effects should be strongest for early elections. The intuition underpinning this argument is that the learning and socialisation curve for norms and practices of democracy among citizens and other actors is likely to be steepest when they have just been introduced.

Table 9.2 'Democratisation-by-elections' revisited

| Model 1 Replicating Lindberg (2006) – random effects | Model 2 Replicating Lindberg (2006) – fixed effects | Model 3 Replicating Lindberg (2006) – diminishing returns
---|---|---|---
Election sequence number| 0.063**| 0.044+| 0.150*
| (0.023)| (0.026)| (0.067)
Election sequence number squared|  |  | −0.011+
|  |  | (0.006)
Resource curse: Natural resources % GDP logged| −0.279**| −0.133| −0.147
| (0.104)| (0.155)| (0.154)
International influence: Aid % GDP logged| 0.075| 0.047| 0.055
| (0.087)| (0.113)| (0.112)
Modernisation: GDP per capita, logged| 0.336*| 0.530| 0.473
| (0.144)| (0.336)| (0.336)
Regime performance: GDP growth per capita| 0.011| 0.005| 0.003
| (0.008)| (0.012)| (0.012)
Religion: religious fractionalisation index| 0.594|  |
| (0.555)|  |
Ethnicity: ethnic fractionalisation index| −0.044|  |
| (0.670)|  |
Civil war (0–1)| −0.518**| −0.369+| −0.385*
| (0.174)| (0.192)| (0.191)
Constant| 0.040| −0.776| −0.658
| (2.060)| (2.745)| (2.732)
N level 1 (elections)| 254| 254| 254
N level 2 (electoral regimes)| 62| 62| 62
R-squared overall| 0.24| 0.16| 0.19
R-squared within| 0.07| 0.07| 0.09

Time series cross-section analyses. Model 1 random effects, Model 2 and 3 fixed effects.

P-values: + 0.1, * 0.05, ** 0.01, *** 0.001 (two-sided). Note that forty-three countries are included in these analyses, but the number of electoral regimes is sixty-two due to interruptions of successive elections by regime breakdowns.

# 'Democratisation-by-elections', election quality and institutional reproduction

Table 9.2 shows that the original 'democratisation-by-elections' thesis is corroborated for elections in Africa between 1986 and 2012: the more elections are held, the higher the level of civil liberties in the year after the elections. This holds regardless of whether we use random effects or fixed effects, and still holds when we include the control variables.

The coefficient for the number of successive elections (first row: 'Election sequence number') is positive and statistically significant in all three models. When modelling the impact of successive elections as a linear effect, as in Models 1 and 2, on average a shift from having held one election to having held ten elections is associated with an increase in the level of civil liberties of about 9 per cent.20 Model 3 also corroborates that elections have diminishing returns; hence, the effect is likely to be larger in early elections and smaller in later elections. Analyses of the marginal effects of successive elections, shown in Figure 9.3a, demonstrates that the effect of the first election on civil liberties is about 0.13 while the effect of the fifth election is about 0.04. After the fifth election, the effect of successive elections is no longer significant. Thus, it is only the first five elections that have democratising effects.

Figure 9.3a

Marginal effect of successive elections on level of civil liberties

Confidence intervals 90 per cent, all other variables set at their means. Results from Model 3, Table 9.2.

Figure 9.3b displays the predicted level of civil liberties in the year after elections by the number of elections held. The results illustrate the finding that after about the fifth election, the impact of holding additional elections on civil liberties levels off.

Figure 9.3b

Predicted values of civil liberties by repeating elections

Confidence interval at 90 per cent, with all other variables set at their means. Results from Model 3, Table 9.2.

As regards the control variables, religious and ethnic fractionalisation do not appear to affect the level of civil liberties significantly, nor does the proportion of aid received. Model 1 shows that natural resources and economic development are important explanatory factors in a random effects model, associated with lower and higher levels of civil liberties respectively, but the fixed effects Models 2 and 3 demonstrate that economic development and resources are better able to explain differences between countries than they are changes over time within countries. The control variable that remains significant in both models is civil war, which substantially lowers the level of civil liberties after elections regardless of how often elections are repeated.

## The Quality of Elections Matters

Does accounting for the quality of elections change these findings? Table 9.3 shows the results of models that account for the quality of elections. Model 1 testifies that accounting for election quality improves the model fit substantially, almost doubling the explained variance of the model from 24 to 42 per cent. Thus, election quality has a strong and significant effect on the level of civil liberties in the year after the elections. A shift from the lowest to the highest election quality is associated with an increase of civil liberties by about 27 per cent. Yet, despite the strong effect of the quality of elections on democratisation, the effect of the number of elections held remains close to statistically significant in Model 1, even if the strength of the effect is somewhat diminished. Model 2 demonstrates that when the effect of election sequence is modelled including a curvilinear effect to account for diminishing returns, the results remain virtually identical (compared to results presented in Table 9.2, Model 3). In other words, repeatedly holding elections has a significant positive effect on the level of civil liberties, even when the quality of elections is taken into account, corroborating Lindberg's earlier intuition. The democratising power of elections is thus enhanced both by higher quality elections (the de facto, informal institution) and by repeating elections (the de jure, formal institution).

Table 9.3 Formal and informal institutions: The role of quality of elections

| Model 1 Election quality | Model 2 Election quality & diminishing returns | Model 3 Election quality interact with election sequence?
---|---|---|---
Election sequence number (1–11)| 0.037| 0.136*| −0.140+
| (0.025)| (0.064)| (0.075)
Election sequence number squared|  | −0.010+|
|  | (0.006)|
Election quality: Free and fair?| 0.475***| 0.471***| 0.214
| (0.101)| (0.101)| (0.145)
Election sequence number * Election quality|  |  | 0.068*
|  |  | (0.027)
Resource curse: Natural resources % GDP logged| −0.202| −0.215| −0.146
| (0.148)| (0.147)| (0.147)
International influence: Aid % GDP logged| 0.074| 0.082| 0.046
| (0.107)| (0.107)| (0.106)
Modernisation: GDP per capita, logged| 0.569+| 0.515| 0.366
| (0.319)| (0.319)| (0.325)
Regime performance: GDP growth per capita| 0.001| −0.001| 0.003
| (0.011)| (0.011)| (0.011)
Civil war (0–1)| −0.470*| −0.484**| −0.491**
| (0.184)| (0.183)| (0.181)
Constant| −2.706| −2.579| −0.104
| (2.635)| (2.623)| (2.799)
N level 1 (elections)| 254| 254| 254
N level 2 (electoral regimes)| 62| 62| 62
R-squared overall| 0.42| 0.45| 0.47
R-squared within| 0.17| 0.18| 0.20

Time-series cross-section analyses, fixed effects. P-values: + 0.1, * 0.05, ** 0.01, *** 0.001 (two-sided). Note that forty-three countries are included in these analyses, but the number of electoral regimes is sixty-two due to interruptions of successive elections by regime breakdowns.

Model 3 shows how repeat elections and election quality interact: if election quality is higher, holding successive elections has a larger positive effect on the level of civil liberties. To visualise the effect of holding repeated elections at different levels of election quality, Figure 9.4 displays the marginal effect of holding successive elections at different levels of election quality.

Figure 9.4

Marginal effect of successive elections by election quality

Confidence intervals 90 per cent. Higher scores = more free and fair elections. For a discussion of how the quality of elections is measured and what different scores on this scale mean, see Footnote 16.

The marginal effects should be interpreted as such: that there is only a real effect when the confidence bounds do not cross the zero-line on the y-axis. Repeating elections thus only starts having an effect on democratisation at a certain level of election quality. In other words, and in contrast to Lindberg's findings (2006, 2009), if elections are a sham, simply repeating elections will not lead to significant improvements in civil liberties after elections.21

That does not mean elections have to be completely clean to have democratising effects. At about 2.6 on the election quality scale (which ranges from 0 to 4) the effect becomes positive and significant. This point is almost exactly in the middle between pure sham elections and perfectly clean elections and corresponds to elections that were scored as 'ambiguous' (i.e. elections with 'substantial competition and freedom of participation but also significant irregularities') (Coppedge et al. 2015b). The cleaner the elections are, the stronger the impact of repeating them on democratisation, but even elections of substantially lesser quality tend to have democratising effects. Election quality, thus, seems to condition the democratising power of elections.

In sum, the first five elections have democratising effects, but only if they are not complete shams or seriously compromised. The implication is that regimes with low quality elections during their first few electoral cycles have not reaped the democratising benefits of elections.

## The Temporal Dimension

To investigate the temporal dimension further, Table 9.4 shows the election quality for the first elections of all electoral regimes in Africa, followed by the election quality of the second, and subsequently by the quality of the third elections. To ease interpretation, we break down this analysis according to the quality of elections on the basis of a three-fold classification of polls (flawed, ambiguous or clean). When electoral regimes break down due to a coup d'etat or civil war, this is noted in the table, as well as when electoral regimes have only held one or two elections.

Table 9.4 Election sequencing and election quality

1st Elections | 2nd Elections | 3rd Elections
---|---|---
Election quality | % (N) | Election quality | % (N) | Election quality | % (N)
Flawed| 100% (16)| Flawed| 77% (10)| Flawed| 73% (8)
|  |  |  | Ambiguous| 9% (1)
|  | Ambiguous| 15% (2)| Flawed| 9% (1)
|  | Clean| 8% (1)| Clean| 9% (1)
Total N| 100% (16)|  | 100% (13)|  | 100% (11)
Breakdown after 1st| 19% (3)| Breakdown after 2nd| 15% (2)| Breakdown after 3rd| 0% (0)

* * *

Ambiguous| 100% (16)| Flawed| 14% (2)| Flawed| 17% (2)
|  | Ambiguous| 57% (8)|  |
|  |  |  | Ambiguous| 42% (5)
|  |  |  | Clean| 8% (1)
|  | Clean| 29% (4)| Clean| 33% (4)
Total N| 100% (16)|  | 100% (14)|  | 100% (12)
|  | Only 2 elections held yet| 14% (2)|  |
Breakdown after 1st| 12% (2)| Breakdown after 2nd| 0% (0)| Breakdown after 3rd| 8% (1)

* * *

Clean| 100% (32)| Flawed| 4% (1)|  |
|  | Ambiguous| 21% (5)| Flawed| 6% (1)
|  |  |  | Ambiguous| 6% (1)
|  |  |  | Clean| 11% (2)
|  | Clean| 75% (18)| Ambiguous| 6% (1)
|  |  |  | Clean| 72% (13)
Total| 100% (32)|  | 100% (24)|  | 100% (18)
Only 1 election held yet| 6% (2)| Only 2 elections held yet| 17% (4)|  |
Breakdown after 1st| 19% (6)| Breakdown after 2nd| 8% (2)| Breakdown after 3rd| 0% (0)
|  |  |  |  |
Electoral Regimes Total N| 64|  | 51|  | 41

Note: The first three elections held in Botswana, Gambia and Mauritius are included in this table, though they were held well before 1986.

There are a total of sixty-four electoral regimes, indicating that a number of countries experienced regime breakdown, after which a new electoral regime started. Indeed, 17 per cent of electoral regimes broke down after the first elections and another 6 per cent broke down after two elections, indicating regime interruptions are still rather common in Africa. Moreover, 13 per cent of electoral regimes experienced only one or two successive elections. In total, 36 per cent of electoral regimes did not complete a cycle of at least three successive elections.

Of the forty-one electoral regimes that did hold three successive elections, Table 9.4 shows the quality of the first, second and third elections, respectively. The most remarkable pattern in the descriptive data presented in Table 9.4 is the pattern of institutional reproduction. We have marked the dominant categories in bold. One should read the table horizontally. Countries that held flawed first elections subsequently held second elections that were also flawed (in almost two-thirds of the cases), and in countries that went on to hold third elections, an even higher proportion were flawed. A similar pattern can be observed for clean elections. Of the countries that started off with clean first elections, more than half experienced clean second elections and more than a third of those stayed clean in the third elections.

In other words, in the majority of cases, the classification of the quality of the second and third elections (flawed, ambiguous or clean) was the same as for the first. This suggests that the past exerts a significant influence on the present. Among regimes that did not break down, elections that started off flawed were still flawed in 73 per cent of cases (eight out of eleven) after third elections, and in regimes where elections started off clean, they were still clean in 72 per cent of cases (thirteen out of eighteen). Of the forty-one regimes that held three or more elections, 63 per cent were 'locked-in' in terms of their election quality in either positive, ambiguous or negative cycles from the first elections by the time of their third election. Considering that these early periods of transition are often thought of as highly unstable contexts that are strongly influenced by contingent factors and can change quickly, finding such clear patterns of institutional reproduction in almost two-thirds of our sample is notable. It is also in line with findings on a global sample of third wave regimes (van Ham 2012).

As might be expected, institutional reproduction is less pronounced for those countries whose first elections were classified as ambiguous. While ambiguous quality remains the dominant category for these states' second and third elections, a significant proportion of these regimes manage to hold clean elections either by the second election (29 per cent) or by the third (33 per cent).22 This is therefore the category of regimes where 'democratisation-by-elections' seems to be the most pronounced.

Taken together, the evidence provided in this section suggests that electoral practices are often reproduced over time, 'locking' regimes into high quality or low quality cycles, thereby strengthening or weakening the democratising power of elections. Election quality can and does change over successive election cycles in some regimes, sometimes in a positive direction, and sometimes in a negative direction. In particular, regimes with ambiguous election quality in early elections are the ones most open to positive developments along the lines suggested by the 'democratisation-by-elections' thesis. The question –under which structural conditions change is more likely, and what the role of political and societal actors is in generating reform – is an important question to be investigated in future work.

# Conclusion

This chapter has extended and reflected on previous work by Lindberg (2006, 2009) and van Ham (2012). Lindberg's (2006) panel-based analyses demonstrated that improvements in civil liberties tend to be driven by the holding of elections and occur soon afterwards, rather than in periods before or between elections. We find similar patterns in the extended data presented here. We also corroborate the finding that most breakdowns occur after first elections, or more rarely, after second elections. Regimes that make it to third elections almost never break down. However, Lindberg's earlier claim that the quality of elections does not matter for the democratising effect of elections is not supported by our analysis. To the contrary, we find that flawed elections rarely have positive effects on civil liberties. Countries starting off with sham elections often continue holding sham elections, while countries managing to start an electoral regime with decent elections often manage to stay and improve on that path. Why would this be the case?

We argue that this is due to the impact of informal institutions on actors' expectations and behaviour, as well as the division of power between incumbents and opposition. First of all, if the first multiparty elections that a country holds are clean, this sets the expectations of citizens and political actors for future electoral contests. Clean elections likely generate trust among the losers of the elections, who have greater reason to believe that if the elections continue to be fair, they will have a shot in the next elections. At the other end, free and fair elections bring in a cadre of winners – parliamentarians, ministers and holders of various offices in parties who became winners because of the due process. They now have a vested interest in maintaining these processes even if, say, the party leader wishes to turn back the clock. Vice versa, flawed first elections signal to political actors and citizens that 'all bets are off' and that electoral manipulation is an acceptable way of competing in electoral contests. Hence, a flawed first election generates losers who may not accept the results, and winners who will be motivated to undermine election quality at the next elections.

Second, in severely flawed elections opposition parties and leaders may be excluded, as political exclusion is commonly used as a tool of electoral manipulation in Africa (see Klaas, Chapter 10) to undermine election quality. In such cases, incumbents often enjoy inflated majorities, and hence are given more space to undermine institutions that could monitor electoral conduct, such as electoral management bodies, the judiciary and the media, enabling them to rig subsequent elections more easily as well. Conversely, in clean elections the opposition is likely to be included and win legislative representation as well, increasing the chances that checks and balances in the political system more generally – and checks on electoral conduct more specifically – will be further strengthened. In turn, this contributes to the maintenance of high election quality in subsequent polls.23

By contrast, an election that sits in the middle category (between being outright flawed and evidently clean) does not give such clear signals to political actors and citizens, nor does it generate such a clear division or concentration of power as clean and flawed elections do. Perhaps poor election quality was due to administrative problems, and if so, political actors and citizens may not take their electoral experience to mean that subsequent elections will be problematic too. Also, if the elections were problematic but not clearly flawed, opposition actors are likely to win at least some representation, and the quality of subsequent elections will depend on the outcome of power struggles between incumbents and opposition after the first elections. Hence, it is not surprising that change is most likely to occur in regimes that start off by holding ambiguous elections.

In essence, this is an institutional thesis buttressed by the intuition that formal political institutions can both restrict actors' available alternatives (Bates 1989; Moe 1990; North 1990) and magnify individual choice (Ostrom et al. 1993). This does not always occur, but when formal electoral institutions achieve a certain degree of transparency and efficacy (i.e. when informal electoral institutions become complementary rather than competitive) they can have a significant impact on African political life. One can think of this as a repetitive game played under a constant set of rules (de jure multiparty elections), which shapes the reckoning and strategies of various actors in a way that is profoundly different from what would occur under a one-shot game. In other words, the effect of elections and their quality hinge on political leaders' and citizens' thinking about their involvement in both current elections and the elections to come. Once enough actors expect elections to continue, they begin to care not only about winning the current election, but also about how to increase their prospects for winning in the future. In turn, this emboldens the opposition to both strategise about how to mobilise greater support in the longer term and to campaign for more effective and independent electoral institutions that will increase their chances in the future. In this way, the stability of the rules of the game – perceived or real – is critical to the process of 'democratisation-by-elections'.

In this sense, our findings also speak to Rustow's argument (1970: 345) that by establishing the institutions of democracy it is possible to trick, lure or cajole non-democrats into democratic behaviour that eventually becomes informally institutionalised. But this chapter also shows that there is a flip side to this particular coin. Holding elections can serve to legitimate authoritarian leaders without creating any such positive trends. Instead, politically dominant and shrewd players can tilt the field to their favour and learn how to institutionalise a non-democratic electoral game, and thus stabilise their autocratic regimes. In this sense, the findings here reconcile the debate between more optimistic accounts like Howard and Roessler (2006), Lindberg (2006, 2009) and Tucker (2007), with the more pessimistic views on elections under authoritarianism espoused by authors such as Gandhi and Przeworski (2007), Magaloni (2008), Lust-Oskar (2009), who have argued that elections can help sustain and stabilise autocratic rulers' hold on power. The implication of the analysis presented here is that both sets of analyses are valid. Institutional reproduction is to a large extent dependent on the outcome of the initial game, the first elections. In that sense, we find evidence of 'democratisation-by-elections', as well as stabilisation by autocracy.

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1 This research project was supported by Riksbankens Jubileumsfond, Grant M13-0559:1, PI: Staffan I. Lindberg, V-Dem Institute, University of Gothenburg, Sweden; by Swedish Research Council, PI: Staffan I. Lindberg, V-Dem Institute, University of Gothenburg, Sweden and Jan Teorell, Department of Political Science, Lund University, Sweden; by Knut & Alice Wallenberg Foundation to Wallenberg Academy Fellow Staffan I. Lindberg, V-Dem Institute, University of Gothenburg, Sweden; and by the Australian Research Council DECRA funding scheme to Dr Carolien van Ham, project number RG142911, project name DE150101692.

2 A series of countries allowed within-party competition at the constituency level, and by existing accounts these elections presented meaningful choices to voters (e.g. Hyden and Leys 1972; Hayward 1987). Uganda was the only country where a civilian regime suspended elections altogether.

3 This paragraph draws on a number of important sources (MacKenzie and Robinson 1960; Morgenthau 1964; Cliffe 1967; Price 1967; Hyden and Leys 1972; Collier 1982; Hayward 1987).

4 There are three countries that do not hold de jure multiparty elections yet: Eritrea, Somalia and Swaziland. Eritrea and Somalia have experienced long periods of civil war which have prevented elections from taking place. Swaziland has held direct elections for (part of) its legislature since 1993, but executive power still lies with the unelected monarch. Note that in our empirical analyses we also exclude Southern Sudan due to its short history of elections.

5 The 'democratisation-by-elections' thesis was subsequently confirmed in a global sample (Teorell and Hadenius 2009). Yet, empirical studies focusing on regions other than Africa have found little empirical support for the democratising power of elections in Latin America (McCoy and Hartlyn 2009), or in the former communist countries in Central and Eastern Europe (Kaya and Bernhard 2013), and in the Middle East and North Africa (Lust-Okar 2009). A recent re-evaluation of the 'democratisation-by-elections' thesis using a global sample that analyses regional and period differences suggests that 'democratisation-by-elections' occurred mainly in the third wave, and mainly in Africa and post-communist Europe, finding weaker or no effects in other regions and time periods (Edgell, Mechkova, Altman, Bernhard, and Lindberg 2017 [forthcoming]).

6 Note that the specific set of partial regimes that scholars consider necessary to define democracy differs, as democracy has different normative meanings and different empirical varieties (Collier and Levitsky 1997; Lindberg et al. 2014).

7 Note that we define 'democratisation' as occurring when the quality of the overall regime (i.e. the composite of various political components) improves over time (van Ham and Lindberg 2015). However, in order to analyse the causal effect of elections on other parts of the regime, when it comes to our empirical analyses, we use only changes in the quality of non-electoral elements of the regime as our dependent variable.

8 One of the main conclusions of the book was: 'no matter what their quality, the longer the series of elections, the higher the level of democracy in a society' (Lindberg 2006: 137–138).

9 Of course, there is still considerable variation in terms of formal rules as regards electoral systems, the structure and power of election management bodies, and broader electoral legislation.

10 Note that the burgeoning literature uses many different terms to refer to de facto election quality or lack thereof, ranging from election quality (Elklit and Reynolds 2005), election integrity (Norris 2014) and 'free and fair' elections (Elklit and Svensson 1997) to electoral manipulation (Schedler 2002), electoral malpractice (Birch 2011) and electoral fraud (Lehoucq 2003). For an overview and discussion of different conceptualisations see van Ham (2014). We use the terms interchangeably in this chapter.

11 Note that elections that took place in the same year are counted together, so if two legislative elections occurred within the same year they are scored as one election, and if presidential and legislative elections occurred in the same year they are scored as concurrent elections.

12 This is without taking into account interruptions in the electoral regime such as coup d'etat or civil war. When we do take such interruptions into account, the mean number of elections held drops to five.

13 The analyses reported here use this election sequence variable that re-sets after every electoral interruption, coding elections after a coup d'etat or civil war as 'first elections' again (see also Footnote 16). In the online Appendix (available on the authors' website) we report results using a continuous election sequence variable, and confirm the results reported here, although the interaction-effect of election sequence and election quality is somewhat weaker.

14 The V-Dem dataset is a new comprehensive dataset on democracy that collects data on almost 400 indicators of democracy in 173 countries around the world from 1900 until 2012 (Coppedge et al. 2015a, b). Multiple country-expert ratings are corrected for measurement error and converted to quasi-continuous variables with point estimates using a Bayesian ordinal item response theory-model designed specifically for the project (Pemstein et al. 2015; Coppedge et al. 2015c). We use these error-corrected continuous variables in our models. Note that we only include elections that were at least de jure multiparty, hence we exclude elections in which the electoral law allowed for no political parties or only government parties to participate in elections.

15 The electoral regime index codes whether in the measurement year 'regularly scheduled national elections were on course, as stipulated by election law or well-established precedent', and 'A country is coded 0 until the first election, at which point it is coded 1 until there is an electoral interruption'. An electoral interruption is (1) an event that dissolves, replaces, or otherwise terminates an elected body (executive or parliament) or (2) an event that implies that the elected body, while still intact, will not be subject to election in the future. Typically, an interruption is the product of a coup, declared state of emergency or military defeat. After an interruption, a coding of 0 continues until another election occurs. Full question and answer wording can be found in the codebook version 4 (Coppedge et al. 2015b) downloadable from <https://v-dem.net>.

16 Country experts were asked to evaluate for each election in their country: 'Taking all aspects of the pre-election period, election day, and the post-election process into account, would you consider this national election to be free and fair?' Responses varied on a five-point ordinal scale, ranging from '"0 = No, not at all" (The elections were fundamentally flawed and the official results had little if anything to do with the "will of the people") to "4 = Yes"'. There was some amount of human error and logistical restrictions but these were largely unintentional and without significant consequences. We use the error-corrected continuous variable in our models (see Footnote 14).

17 Using the error-corrected continuous variable on freedom and fairness of the election, we code elections as flawed if they have a score lower than the cut-off point for elections that were 'not really' and 'not at all' free and fair. Elections are scored as clean if they have a score higher than the cut-off point for elections that were 'somewhat' and 'yes' free and fair, and elections in between are scored as ambiguous. The replication dataset and do-file are available upon request from the authors.

18 We also tested all models using the level of civil liberties two years after the election as the dependent variable. Results remain substantively the same, although the interaction effect of election quality and election sequence is somewhat weaker in these models. Results are available in the online Appendix on: [www.democracyinafrica.org].

19 The only other control variable that Lindberg (2006) includes, in addition to these variables, is 'popular mobilisation'. However, as this variable is only available for a limited number of cases and it did not turn out to be significant in Lindberg's original analyses, we do not include it in the analyses presented here.

20 To calculate this, one takes the coefficient for election sequence reported for example in Model 1: 0.063. If one election is held, the effect on the level of civil liberties is 1 times 0.063, or 0.063. If ten elections are held, the effect on the level of civil liberties is 10 times 0.063, or 0.63, so shifting from one election to ten elections leads to an increase in the level of civil liberties by 0.56 (0.63 minus 0.063). The civil liberties scale varies from 1 to 7, and hence this shift represents a 9.4 per cent ((0.56 divided by 6) times 100) shift in the level of civil liberties. Yet, these are linear effects, and as we show in Model 3, the effect of election sequence is best modeled as a curvilinear effect reflecting diminishing returns.

21 Note that this finding is not driven by a correlation between the number of elections and the quality of elections, and, in fact, in the current sample election sequence and election free and fairness are hardly correlated.

22 Note, however, that there are relatively few elections in these categories. Of the electoral regimes that started off with elections of low quality, and then held clean second elections, 100 per cent were still clean in the third election (n = 5). However, those regimes that started off with clean elections, and then held flawed and/or ambiguous second elections, do not appear to be locked in to the same extent in the third election (n = 6).

23 Of course, it is important to note that first elections do not take place in a vacuum, but are themselves shaped by prior circumstances. It may very well be that flawed or clean first elections are shaped by the type of transition and power balance in particular regimes at the time they start to hold multiparty elections, and that the presence of prior institutional checks and balances, as well as the level of antagonism between contenders in the electoral race, may shape whether first elections are of high or low quality.

# 10 Electoral Rules

## The Relationship between Political Exclusion and Conflict

Brian Klaas

In Liberia's 1927 election, C.D.B. King, the candidate of the True Whig Party, faced T.J.R. Faulkner, the opposition leader of the People's Party. It was a lopsided victory for the incumbent True Whigs, as their candidate won an official tally of 243,000 votes, compared to just 9,000 for the People's Party. There was just one problem. Formal rules on voter eligibility were so strict that only 15,000 people were legally allowed to cast ballots in Liberia by 1927 (Kieh Jr. 2003: 202). The election was certainly rigged. Either each eligible voter had cast an average of seventeen ballots apiece (and most of them in favour of the True Whigs), or hundreds of thousands of ineligible voters were allowed to vote.

It is no surprise that African elections in 1927 were arenas of competition that had little regard for formal rules. Such events are rare today. Increased importance has been given to formal electoral laws, although official regulations are certainly not ironclad guarantors of electoral behaviour. Degrees of electoral manipulation were commonplace in the intervening decades – throughout the era of paternalistic colonialism, 'Big Men' and one-party states, and finally the third wave of democracy that swept across the continent in the 1990s (Huntington 1991). There are endless examples of African elites contravening electoral institutions in order to illegitimately gain an upper hand (Chaturvedi 2005; Calingaert 2006; Aalen and Tronvoll 2009; Beaulieu and Hyde 2009; Collier and Vincente 2012; Cheeseman 2015). However, the interaction between formal and informal rules is markedly different than it was when the True Whigs blatantly stole an election with an obviously implausible vote tally. Today, only amateurs steal elections by brazenly breaking the law.

In this chapter, I aim to demonstrate how African electoral manipulation has shifted into a new realm of 'strategic rigging', whereby incumbents may bend, re-interpret or change election laws, but always with a critical focus on being perceived as democratic, and in accordance with codified institutions. Elite behaviour in response to institutional change provides an important insight into the role of formal political institutions in Africa: institutions constrain elite action, but may also incentivise new forms of rule-bending or -breaking, in pursuit of the same goals – such as new, but no less insidious, forms of manipulation. Indeed, innovative, strategic rigging has given rise to a series of what I call 'counterfeit democracies' across the continent, which are typically 'competitive authoritarian' (Way and Levitsky 2002) states seeking to masquerade as fully fledged democracies. In such states, formal institutions may not always be followed but they nonetheless condition elite behaviour. Scholars such as Chabal and Daloz (1999), therefore, perhaps dismiss the importance of such institutions too readily. Instead, one of the fiercest arenas of political competition in Africa in contemporary politics revolves around the writing and re-writing of the rules of the electoral game. As Staffan Lindberg points out: 'when elections are institutionalized, new actors are created and power is distributed in new ways, which goes a long way towards explaining the contentiousness of electoral rules negotiations in many places in Africa' (2006: 7).

In other words, institutions matter – even when they are not fully respected. With regard to electoral malfeasance, institutions shape what leaders think they can and cannot get away with. African elites are now more constrained than before (Posner and Young, Chapter 11), but it is important to recognise that as new institutions close off some possibilities they open up others. In this sense, institutions are also productive: they create new forms of rule-breaking that may have not been attractive before, shifting dubious electoral practices rather than ending them. Which strategies elites pursue depends, in part, on what activities are deemed to be less risky in attracting unwanted attention from international actors, such as election monitors. When blind spots exist, where African elites can receive an international stamp of approval even after a 'fixed' election, this creates incentives for domestic leaders to pursue these tactics in the future.

The quality of regulations, and the extent to which incumbents feel compelled to follow them, is therefore of critical importance. The research presented in this chapter also suggests that this extends not only to processes of democratic consolidation, but also to the prospects for managing political conflict. I focus on one type of formal electoral institution – the rules surrounding the inclusion or exclusion of candidates – and draw on qualitative and quantitative research from several examples across the continent to demonstrate how respect for well-written rules that promote electoral inclusion can be a stabilising force in a continent often known for volatility and violence. When the rules are respected there are high barriers to the exclusion of opposition figures, and elections are far less likely to trigger coups d'état and civil wars. In turn, such rule following is most likely to occur when effective institutional design at the domestic level is reinforced by international norms (including African-led norms), creating strong disincentives for elites to pursue electoral manipulation. Although most African elections are now formally inclusive, ambiguous legislation and the lower standards that international election monitors apply to elections across the continent mean that many such contests continue to involve political exclusion.

This is well demonstrated by the quality of recent legislative and presidential elections in Africa. Table 10.1 provides the ranking of the most recent African contests within the NELDA dataset of 180 global elections held between 2012 and 2015. Higher scores indicate a better global ranking. Of the entire African sample, only two (Benin 2015 and Burkina Faso 2015) are represented in the top fifty. Of the five worst elections globally, all were in Sub-Saharan Africa, and African polls comprised eleven of the twenty worst elections held during this period.

Table 10.1 Electoral integrity in Africa1

Country | Year | Type of election | Ranking (out of 180)
---|---|---|---
Benin| 2015| Legislative| 38
Burkina Faso| 2015| Presidential| 49
Mauritius| 2014| Legislative| 54
Rwanda| 2013| Legislative| 55
South Africa| 2014| Legislative| 57
Lesotho| 2015| Legislative| 60
Namibia| 2014| Presidential| 71
Côte d'Ivoire| 2015| Presidential| 78
Botswana| 2014| Legislative| 82
Ghana| 2012| Presidential| 84
Guinea-Bissau| 2014| Presidential| 93
Nigeria| 2015| Presidential| 106
Mali| 2013| Presidential| 111
Malawi| 2014| Presidential| 126
Cameroon| 2013| Legislative| 129
Mauritania| 2014| Presidential| 130
Swaziland| 2013| Legislative| 132
Zambia| 2015| Presidential| 138
Tanzania| 2015| Presidential| 139
Guinea| 2013| Legislative| 140
Sudan| 2015| Presidential| 141
Guinea| 2015| Presidential| 148
Burkina Faso| 2012| Legislative| 149
Kenya| 2013| Presidential| 150
Madagascar| 2013| Presidential| 156
Togo| 2013| Legislative| 161
Togo| 2015| Presidential| 162
Zimbabwe| 2013| Legislative| 166
Angola| 2012| Legislative| 167
Mozambique| 2014| Presidential| 168
Republic of Congo| 2012| Legislative| 172
Burundi| 2015| Legislative| 176
Djibouti| 2013| Legislative| 177
Equatorial Guinea| 2013| Legislative| 178
Ethiopia| 2015| Legislative| 179
Burundi| 2015| Presidential| 180

# The Rules of the Game

Electoral rules vary across the continent, and much of that variation can be traced back to the third wave of democratisation in the late 1980s and early 1990s, which ushered in multi-party elections to most African nations. There were several critical factors at play during this pivotal time – namely, the extent of international pressure – that continue to shape modern African politics. In some countries, such as Ghana, Benin and Malawi, international pressure was staunchly in support of a robust democratisation process because the West had few competing geostrategic interests at stake. In other countries, such as Nigeria, that played a more central role in the geostrategic interests of Western countries (most notably the United States) international pressure to democratise was more convoluted (Cheeseman 2015). Greater pressure often produced stronger democratic reform and more stringent rules, particularly when combined with strong pressures from below brought by opposition and civil society groups.

Second, the interplay between opposition groups and the ruling party often dictated the terms of reform (Riedl, Chapter 2). A stronger, united opposition was often able to force more institutional constraints than a weak, divided opposition. Third, there was a divergent trajectory in many African states linked to their colonial heritage. Former French colonies tended to incorporate more robust constitutional reform into their democratic transitions, while a majority of former British colonies democratised more superficially by simply legalising opposition parties (see Mbaku 1996, 1998). Fourth, while the formation of electoral commissions became commonplace, they prove more independent in some countries, such as Ghana, while in others they continue to serve at the bequest of the president. In the latter case, the commission often provides an institutionalised 'cover' for state manipulation of elections.

## Shrewd Incumbents, Desperate Incumbents: Bending the Law or Breaking the Law?

When incumbents enter electoral competition (as most in sub-Saharan Africa do to some extent), they face three main types of choices. First, they can do nothing to influence the outcome of the election. This is rare, although there have been some bright spots of incumbents losing power peacefully in purported 'clean' elections in countries such as Benin and Ghana. Some governments face less pressure to interfere with electoral processes because they enjoy dominant positions, such as South Africa's African National Congress (ANC) or the Botswana Democratic Party (BDP). However, most incumbents that could plausibly lose a clean election do not decide to roll the dice and gamble with their presidencies.

This is significant, because most regimes in sub-Saharan Africa do not have the luxury of an easy, and relatively clean, victory. Dominant parties may hold sway in states such as Angola and Uganda, but their survival has been based in part on an unfair playing field. Incumbents that could conceivably lose an election face the so-called Fraudster's Dilemma: incumbents that rig an election 'too much' will likely win but run the risk of international condemnation and isolation, while incumbents that do not rig 'enough' may actually fall from power (Birch 2011: 56). This dilemma has become even more daunting as international pressures for legitimately elected governments has become more intense in the post-Cold War era. The cost of illegitimacy is now higher, as donors often condition future aid, trade deals and investment on the verdicts of international election observation reports (Kelley 2009). As a result, African incumbents typically prefer forms of election manipulation that guarantee victory but have a comparatively low risk of 'being caught' and condemned by international election monitors and the donor community (Calingaert 2006).

This presents leaders determined to stay in power with a difficult choice between two further options. In addition to (1) doing nothing to illegitimately influence the outcome of the election, they may also (2) rely on older and riskier forms of blatant electoral fraud, such as ballot box stuffing, or (3) turn to 'strategic rigging' such as gerrymandering – the manipulation of constituency boundaries to benefit one party over another – and the legal but illegitimate exclusion of opposition figures. Which of these options appears to be the most attractive has, like the focus on electoral laws, shifted over time. Today, incumbents worry considerably more about how elections look to outsiders than they did in the past (Birch 2011; Hyde 2011). It is therefore worth considering the relative advantages and disadvantages of the second and third strategies.

On the one hand, blatant manipulation guarantees victory, because incumbents can stuff the number of ballots – or add the number of votes – that they require to win. However, the downside of such strategies is that they are more visible and likely to be identified by election monitors and opposition parties as they occur while the election takes place (Table 10.2). On the other hand, more strategic forms of rigging, such as gerrymandering, can be carried out well in advance of the election, and are therefore less likely to attract the attention of the international community. However, they also give incumbents less certainty, because leaders do not always know how much of an additional advantage they require to secure power and so may fall short. Such strategies are therefore less costly, but riskier.

Table 10.2 The 'Fraudster's Dilemma'

Strategy type | Rigging impact | Risk of detection | Likely victory? | International legitimacy?
---|---|---|---|---
No manipulation| None| None| Unclear| Yes
Blatant Manipulation| High| High| Yes| Unlikely
Strategic Manipulation| High| Low| Probable| Likely

Which of these routes leaders choose is shaped by a number of factors: their fear of defeat, the strength of the electoral challenge they face, the extent of their personal commitment to plural politics and so on. In this sense, each decision needs to be understood in its local context. However, it is also possible to sketch some broader trends that have shaped the attractiveness of these options for African political leaders over the last twenty years. In the early 1990s, blatant electoral malfeasance was the most commonly deployed tool in the African 'menu of manipulation' (Schedler 2002). Such forms of electoral rigging, as Bratton suggests, included 'vote-buying and political intimidation' (1998: 63). However, the growing norm in favour of credible polls both internationally and within Africa has increased the costs of such explicit strategies, encouraging incumbents to swap into more strategic forms of rigging instead. Thus, as Nic Cheeseman aptly points out, 'the high profile nature of coercion and electoral fraud, and their tendency to delegitimate a government both at home and abroad, ensured that these strategies were usually employed either by desperate governments that had run out of options, or by incumbents empowered to ignore domestic and international protests' (2015: 149).

Of course, these trends did not occur evenly across the continent. In cases of resource wealth or geostrategic importance – as in Angola and Uganda, as Cheeseman highlights, such electoral-authoritarian regimes can be shielded from international pressure to hold clean elections. I would add the Sahel region, as a critical ally in the fight against the growing threat of African Islamist terrorism, has appreciated similar concessions (Keenan 2009; Zoubir 2009). Partly as a result of such international laxity, despite the third wave of democratisation, the vast majority of the continent's oil producers have political systems rated 'unfree' by Freedom House.2 Even in the majority of Africa (including Benin, Malawi, and Zambia) – that is non-resource rich and, thus, less insulated from international pressures – international opinions regarding the quality of their elections still matter, as flawed elections can stem foreign aid flows overnight (Hyde 2011; Savun and Tirone 2011; Kelley 2012). For the leaders of such countries, the strengthening of anti-rigging norms creates new imperatives that guarantee electoral victory, but do so in a way that deflects scorn (or the potential loss of aid and diplomatic recognition) from international partners. Savvy incumbents faced with this challenge quickly learned that it was better to bend, reinterpret or change election laws than to break them.

## Inclusion, Exclusion and Strategic Rigging

International and domestic election monitors face a difficult job. In many cases, manipulation is conducted behind closed doors and away from the eyes of civil society and the media. As a result, criticism of rigging often centres on activities that can be easily verified and demonstrated, such as the flagrant breaking of an existing electoral law. It is for this reason that struggles over securing term limits have become more widespread in recent years. As Posner and Young note (Chapter 11), growing criticism of electoral malpractice has generated strong incentives for governments to pursue legislative channels, either manipulating ambiguities in existing legislation or rewriting the rule book.

One of the most significant consequences of this process of political 'learning' has been a surge in what I term 'electoral exclusion': the illegitimate (but often legal) banning of specific opposition candidates from an election for the purpose of securing an incumbent victory. For example, and as highlighted in the introduction, in Zambia's 1996 elections, the long-term president, Kenneth Kaunda, was declared ineligible as a candidate after questions about his parentage proved he was not a Zambian citizen (Rakner 2001). In Madagascar's 2006 election, dairy kingpin turned President Marc Ravalomanana successfully excluded his main rival, Pierrot Rajaonarivelo, by selectively applying an obscure electoral law that required presidential aspirants to sign their registration paperwork in person at the registration office in Antananarivo, the capital city. Forced into a prolonged exile as a result of the election-related crisis of 2001/2002 in Madagascar, this proved impossible for Rajaonarivelo. When Rajaonarivelo tried to return (on multiple occasions), President Ravalomanana unilaterally closed all of the country's airports, forcing flights to turn around (Klaas 2016). Likewise, in Côte d'Ivoire's 1995 and 2000 elections, the current president, Alassane Ouattara, was excluded from the contest due to the enforcement of an election law that was specifically tailored to ensure that he would be deemed ineligible.

Each of these instances is indicative of 'strategic rigging', as it was done openly, legally and directly under the gaze of international election monitors. While one might think that such exclusion would be easily picked up and condemned by the international community, since such exclusion is often given a degree of legal legitimacy via the invocation of existing regulations, this is rarely the case. The NELDA dataset compiled by Susan Hyde and Nikolay Marinov (2012) allows us to analyse how often incumbents manipulated electoral institutions by changing, bending or making new election laws to exclude their opponents, and how frequently such rigging was condemned by international election monitors. During the 1990s, 87 per cent of elections in sub-Saharan Africa were 'inclusive' insofar as the incumbent did not actively seek to illegitimately exclude a major rival candidate (Hyde and Marinov 2012).3 This, of course, does not mean that 87 per cent of elections were 'free and fair', or that all of those 'inclusive' elections were fully inclusive on other measures, such as voter registration.

Since the 1990s, there has been a remarkable rise in the use of electoral exclusion across the continent. In the 2000s, only 83 per cent of elections were 'inclusive', meaning that the use of exclusion rose from 13 per cent to 17 per cent (Hyde and Marinov 2012). Significantly, this trend has spiked in recent years. From 2008 to 2010, 26 per cent of elections were exclusionary – meaning that incumbents in more than one out of every four African elections actively intervened to illegitimately exclude one or more major rivals from the contest as a means of securing a victory. These figures are markedly higher than elsewhere in the world. Outside of sub-Saharan Africa, roughly 11 per cent of elections feature the illegitimate exclusion of a major opposition candidate.

The increasing popularity of this form of electoral manipulation in Africa is related to the fact that it is rarely punished. As shown in the NELDA dataset, when exclusion did occur monitors only condemned the overall conduct of the election 39 per cent of the time. In other words, in the vast majority of elections wherein a major opposition figure was excluded from contestation – including elections held in Côte d'Ivoire (1995), Madagascar (2006), Mauritania (2001), Niger (1996), Togo (2005), Zambia (1996) and several others – the elections were still approved by election monitors. In part, this may occur because monitors tend to discount the significance of pre-election manipulation and to pull their punches when leaders win by large margins – which is precisely what candidate exclusion is designed to achieve. It works, too. Since 1989, the average margin of victory in Africa's exclusionary presidential elections has been 44.4 per cent above the nearest challenger. By contrast, the average margin of victory for fully inclusive elections is markedly lower (but still high) at 27.9 per cent.

However, international responses to such practices of exclusion are markedly different in Africa compared to the rest of the world. When looking at the data on incumbent exclusion of opponents outside sub-Saharan Africa, election monitors condemned the overall conduct of the election 64 per cent of the time. This suggests that monitors are motivated by a range of factors – including lower expectations of elections in Africa – but perhaps also emphasises international hesitancy and greater concerns about civil conflict if elections are declared to have been rigged. While such lower standards for rejecting election results in Africa are troubling, especially given minimal prospects for contests being 'free and fair' when a major challenger is denied the chance to contest, incumbents have been able to sustain a degree of 'legal legitimacy' by pursuing a form of strategic rigging that is conducted by bending existing laws, changing laws or exploiting legal loopholes.

Such strategies have proved successful. According to the NELDA data, since the end of the Cold War, the only election wherein an incumbent party in sub-Saharan Africa was defeated even after employing such exclusion practices was the 2000 elections in Côte d'Ivoire. This case is also an unusual outlier, because the snap election was held soon after General Robert Guéï took power, at which point he had been unable to consolidate his regime's authority.

## Exclusion and Regime Time

As one might expect, some types of regimes are more inclusive than others during elections. This is intuitive, as inclusive elections are a key feature of democratic quality. However, inclusivity is not the only measure of democracy – indeed, many of the main democracy indices do not systematically include data on electoral exclusion. It is therefore important to see how a country's overall democratic quality conditions the propensity of electoral institutions to be consistently inclusive. Using Polity IV data (which ranges from pure authoritarianism at −10 to fully consolidated democracy at +10), Table 10.3 tells the story that we would expect: inclusive elections are least common in authoritarian African states (−10 to −6) and most common in democracies (+6 to +10). The regimes falling in the middle of the spectrum I call 'counterfeit democracies' as they aspire to be democracies but do not fulfil key requirements, and instead are four times less likely to have inclusionary elections than genuine democracies.

Table 10.3 Levels of electoral inclusion, by regime type (1989–2010)

Regime Type | Percentage of elections deemed 'inclusive'
---|---
Consolidated democracy| 97.0%
Counterfeit democracy| 88.3%
Authoritarian regimes| 45.0%

Table 10.3 suggests that the patterns identified by van Ham and Lindberg, and Posner and Young (Chapters 9 and , respectively) are correct. Across the continent's democracies, leaders are overwhelmingly following both the formal rules of the game and the spirit of those rules when it comes to electoral inclusion. However, in a set of recalcitrant authoritarian systems, the majority of elections still feature the exclusion of a significant candidate. In this sense, we are seeing an increasing divergence on the continent between those countries where free and fair elections are becoming increasingly entrenched, and those where 'exclusion norms' have come to the fore.

What does this mean for the significance of political institutions in Africa? Clearly, electoral institutions matter. If that were not the case, incumbents would not invest so much effort in changing them to their advantage. But they do not always matter in the way that one might expect. The strengthening of some electoral rules – such as the need to hold multiparty contests and the growing capacity of electoral commissions in some countries – has supported freer and fairer electoral contests in many countries, leading to transfers of power in places such as Ghana, Kenya and Nigeria (Lindberg and van Ham, Chapter 9). However, in countries where leaders face fewer constraints and are more determined to retain power, stronger electoral regulations have not resulted in high quality elections. Instead, they have encouraged incumbents to switch out blatant forms of manipulation for subtler strategies. This may be a minority trend – after all, more than three-quarters of elections still remain 'inclusive' – but it nonetheless demonstrates the limited capacity of formal rules in delivering fairer outcomes in a significant number of states.

# The Impact of Exclusion

Elections are important for a number of reasons, but one of the most significant is that they offer a glimmer of hope to opposition candidates across the continent. While it is true that Africa has often been a region where incumbents more often than not easily defeat their challengers, election day is still a pivotal moment because 'only the ballot box provides regular opportunities for the public to select representatives, to hold governments to account and to "kick the rascals out" where necessary' (Norris 2004: 3). Elections also serve as safety valves for releasing political pressure; opposition groups that have been shut out from state power can often look forward to a pending election date as another chance to remove the incumbent and have 'their turn to eat' (Branch et al. 2010). This is particularly true if electoral institutions are inclusive, clean and offer ample and robust mechanisms for credible contestation and certification of an electoral outcome once the votes have been counted. When those institutions are functioning properly, opposition candidates across Africa face much stronger incentives to remain within the realm of legitimate opposition – for instance, challenging the regime within parliament.

There are few, if any, downsides to securing power by winning an election, and African opposition groups would in most cases prefer to topple the incumbent in the legitimate sphere, taking power by the ballot rather than by bullets. Democratic victories are usually rewarded by international recognition, a continuation of foreign aid and a mandate of perceived legitimacy. By contrast, violent victories receive none of those benefits and come with substantial risks – failed rebellions and coup plots usually do not end well for the perpetrators, particularly under (usually) unforgiving African regimes. Imprisonment, torture and even death are realistic consequences for those who plot failed attempts to seize the state violently (Humphreys and Weinstein 2008). As a result, in cases where the opposition deems electoral victory within reach, political violence would be less likely; even if the opposition loses a given election, it will at least have reason to feel invested in the legitimate system and maintain its credibility for future electoral contests.

However, when incumbents bend, re-interpret or change the electoral rules in order to illegitimately exclude challengers, the opposition loses the possibility of a fairly won victory. By eliminating the legitimate pathway to power, electoral exclusion forces the opposition to change tactics – to either accept the results (possibly with a boycott, court challenge or other strategies aimed at imposing reputational costs on the incumbent regime), hope for a fairer shot in several years or seek power by an alternative pathway.4 One alternative strategy is to try to take power through force, for example by engineering a coup d'état or launching a civil war. The increased pressures placed on the opposition give rise to my primary hypothesis: that inclusive elections in Africa reduce the overall risk of political conflict.

In order to test this hypothesis, I adopt a mixed method approach, drawing on an original large-N continent-wide dataset that builds on the NELDA dataset introduced in this chapter and 113 elite-level interviews that I conducted in Madagascar and Côte d'Ivoire. Using both methods, I examine the same independent variable (inclusive elections) and the same dependent variable – whether a coup or civil war broke out within two years of the election taking place.5 In building this dataset, I paid particular attention to previous explanations for conflict in the literature, to be certain that any statistical relationship between exclusion and conflict reflects a plausible causal relationship and does not capture the effects of other salient variables. As a result, the dataset includes a multitude of control variables6 drawn from prior scholarly explanations of coup and civil war onset. The main independent variable – whether the elections were inclusive or not – is also derived from the NELDA dataset, though I also conducted my own independent coding of all elections between 2005 and 2010, and found that I agreed with 99 per cent of coding decisions – offering another layer of robustness to the variable.

To test the proposition that inclusive elections are likely to be more peaceful as they provide losing parties with a reason to keep faith in the electoral process, I run a probit regression. The dependent variable is peace, measured in terms of whether or not a civil war or coup broke out within two years of the election.7 The results, which are presented in Table 10.4, suggest that inclusive elections do indeed act as a safety valve, mitigating risk of both coups and civil wars in Africa.

Table 10.4 The impact of inclusive elections in sub-Saharan Africa

Dependent variable = two years of no coup or civil war
---
Inclusive elections| 0.898 (0.254)***
Boycotts| −0.062 (0.216)
Prior coup activity (within 2 years)| −0.561 (0.201)**
Election type| 0.209 (0.172)
Polity IV| −0.028 (0.018)
Population (ln)| 0.025 (0.097)
GDP per capita (ln)| 0.055 (0.096)
Land area (ln)| −0.047 (0.078)
Ethnic fractionalisation| 0.448 (0.434)
Number of excluded groups| −0.188 (0.044)***
Founding election| −0.250 (0.253)
Aid per capita| −0.003 (0.002)
Constant| −0.154 (1.035)
N=371| Pseudo R2: 0.147

P values: *p<0.05; **p<0.01; ***p<0.001

The regression indicates that in addition to inclusive elections, two other factors – namely a prior history of coups d'état and a high number of marginalised groups in society – decrease the likelihood that the post-election period will be peaceful. This is not terribly surprising. After all, there is a robust literature on destabilising 'coup traps' (Londregan and Poole 1990; Harkness 2014) and an equally robust power-sharing literature on how African power-sharing agreements, by limiting the number of excluded groups in society, can be an antidote to conflict (Cheeseman 2011; Hartzell and Hoddie 2015).

However, the effect of these variables is significantly weaker than the impact of inclusive elections. Using predicted probabilities, the model suggests that – all things being equal – the two years after an inclusive election will be peaceful 82 per cent of the time, compared to just 50 per cent of the time when election institutions are manipulated to exclude a major opposition candidate from contesting the election, a difference of some 32 per cent. Put differently, when incumbents in sub-Saharan Africa seek to win an election by removing their opponent(s) from the ballot, they dramatically increase the prospects that their country will succumb to a civil war, a coup d'état attempt or a successful coup d'état.8 This analysis raises a number of important questions. Can we be sure that it is exclusive elections that drive conflict? What factors may mediate the relationship between exclusion, coups and civil wars? In what ways should electoral institutions be formed to ensure inclusivity rather than exclusionary manipulation? These questions represent the foundations for case study research of Côte d'Ivoire (1995 and 2000) and Madagascar (2006) that allow us to trace the relationship between exclusion and political violence in greater depth.

## Côte d'Ivoire: The Allure of 'Ivoirité' and the Destabilising Politics of Exclusion

Over five years, Côte d'Ivoire experienced two non-inclusive elections – one in 1995 and the other in 2000. When electoral institutions were manipulated in 1995 to exclude one of the main candidates, Alasaine Ouattara, peace continued for several years following the rigged contest. However, when the same tactic was repeated in 2000, a civil war broke out. As a result, Côte d'Ivoire provides an excellent internal control case; the main actors and tactics were largely the same but only the second act of electoral exclusion led to conflict.

Interestingly, between 1995 and 2000, the regime changed hands but the tactic used to manipulate electoral institutions remained the same. The incentives that drew President Henri Konan Bedié to use exclusion in 1995 were the same that led his successor, Robert Guéï, down a similar path five years later. Both incumbents were primarily motivated by a desire to retain power and both faced the same threat: the northern half of the country, unified by a loosely shared Muslim identity, had sufficient numbers and support to win a free and fair contest (as compared to their support base, the largely Christian south) (McGovern 2011). They also both faced the challenge of mobilising support in the context of economic decline as a result of falling cocoa prices (Daddieh 2001).

Ouattara ran as an opposition candidate in both elections under the banner of the Rally of the Republicans (RDR). Given his strong networks in the north, he came to be the candidate that President Bedié 'was most afraid of' in 1995 and that Guéï equally feared in 2000.9 It was Bedié that first realised he could re-interpret or change election laws to neutralise Ouattara. He also realised that doing so would be doubly expedient if he based that institutional manipulation on the premise that Ouattara was a 'foreigner' trying to infiltrate the nation. It would allow Bedié to scapegoat migrants (of which Côte d'Ivoire had many) for the country's economic woes while also neutralising the primary electoral threat (Klaas 2008; McGovern 2011). As a result, Bedié began to fixate on the notion of ivoirité, the quality of being 'truly' Ivoirian, which challenged Ouattara's eligibility to be president (even though Ouattara had already served as Prime Minister). By changing the electoral regulations to reflect this – the 'crowning act was made by a law adopted by the PDCI-RDA the 23rd of November 1994, with a new law affecting the electoral code' – he successfully pressured the government to exclude Ouattara from the 1995 vote.10

There were three resulting changes, each aimed squarely at Ouattara. Candidates had to prove that both parents were native Ivoirians; candidates could not have dual nationalities; and, candidates were required to have lived for the previous five years in Côte d'Ivoire. Ouattara was therefore excluded from the 1995 contest on the basis of his allegedly dubious citizenship and interrupted residency.11 In this way, legal changes that remained within the parameters of the constitution generated the clearly illegitimate exclusion of one of the main election candidates. In line with the pattern highlighted above, Bedié won the subsequent election with 96 per cent of the vote. The opposition considered contesting the results outside of official channels but ultimately decided against this course of action, in part because it was deemed unfeasible. As Affoussy Bamba, the former spokeswoman for the Forces Nouvelles rebel group aligned to Ouattara explained: 'Ouattara, having spent most of his formative professional life outside the country, did not have a machine of comparable depth to challenge really in 1995 – the northerners were not yet in a position to challenge directly.'12 However, just five years later, Ouattara proved to be of equal or increasing threat, and the president embarked on a long campaign to discredit Ouattara as part of the 'foreigner problem' and legitimate his continued exclusion from electoral competition.

In the process of this campaign, the manipulation of electoral institutions to destroy his political ambitions in 1995 morphed into a more widespread form of political exclusion and harassment of entire communities in 2000. Lifelong residents of Côte d'Ivoire were given 'foreign residence permits', northerners were shaken down for bribes to avoid being deported or arrested and police routinely tore up the national residency cards of northerners – making it impossible for them to vote (McGovern 2011).13 Here again, formal rules were contorted to serve self-serving interests. The regime accepted the international norm for voter identification and candidate registration as important institutional controls, but then used those institutional constraints to push through certain political agendas. This behaviour was possible as a result of the weakness of electoral institutions at the domestic level – including a deeply compromised electoral commission and court system – as well as the lack of international pressures from observers and donors.

The consequences of this unchecked exclusion were severe. Shortly before the election, a coup d'état executed by General Robert Guéï and elements within the Ivoirian military reflected growing public discontent while not connected directly to Ouattara. Once in power, Guéï followed Bedié's exclusionary strategy and manipulated electoral institutions to prevent Ouattara from standing in the 2000 polls (McGovern 2011). Yet, instead of giving Guéï the landslide victory he craved, another candidate that he had allowed to stand – Laurent Gbagbo – won a narrow victory. Like Guéï, Gbagbo continued with the policy of excluding Ouattara and demonising the north, which made it clear that inclusive polls were unlikely to occur in the near future.

Ouattara's continued exclusion had become a symbol of a broader movement to exclude northerners from Ivoirian society that also blamed them for the country's ailing economy. In this way, Ouattara's exclusion was a lightning rod for a much broader set of concerns felt by marginalised groups. Tensions boiled over less than two years after Gbagbo took office, on 19 September 2002, when the Forces Nouvelles launched a rebellion that split the country in half and led to a decade of chronic political instability. Thus, although the Côte d'Ivoire experience is complicated by a number of different twists and turns, many of which were driven by other factors, it demonstrates how the manipulation of formal electoral rules to marginalise the opposition can push a country to the brink of civil war.

## Madagascar: Playing Games with Electoral Institutions

Following his victory in 2002, President Ravalomanana presided over a growing economy with a relatively stable political system. That stability was partly forged by the fact that Ravalomanana had forced many of his major rivals – including former President Didier Ratsiraka and Pierrot Rajaonarivelo – into exile (Marcus 2016). The announced intention of Rajaonarivelo to contest the 2006 elections against the incumbent led to a new era of formalised exclusion through electoral laws. Although Rajaonarivelo was 'widely believed to be the most serious challenger to President Ravalomanana' (Marcus 2016, one other candidate also posed a major threat, General Andrianafidisoa (known locally as General Fidy).

President Ravalomanana thus faced the choice of doing nothing and allowing inclusive polls, or pursuing blatant or strategic rigging. Like an increasing number of incumbents, he chose the latter, aiming to remove both General Fidy and Rajaonarivelo from the ballot by using electoral mandates. For General Fidy, who was already in the country, Ravalomanana moved to bar him from the contest through a procedural denial of his paperwork – claiming that the General had not paid the MGA 25 million registration fee (roughly $11,400 in 2006) before the registration deadline (Iloniaina 2006). General Fidy appealed, insisting he had paid the fee, and claimed that the ruling was politically motivated. His appeal was rejected and the High Constitutional Court nullified his candidacy on 16 October 2006 – less than two months before the December election (Marcus 2016). It is impossible to be sure that Fidy paid his fee, but given some of his wealthy allies it seems unlikely that the sum was beyond him – especially given the value of the position which he sought to contest. However, the ambiguity generated by the government's claims sufficiently discredited the candidate from standing.

The exclusion of Rajaonarivelo was less subtle. Candidates are required by Malagasy law to sign their paperwork at the election registration office in Madagascar; it cannot be done in absentia. When the former Deputy Prime Minister attempted to return to his party's coastal stronghold of Toamasina on a commercial Air Austral flight from Paris via the neighbouring island of Réunion on 7 October 2006, Ravalomanana issued an order closing the airport of Toamasina for a period of three months.14 The order provoked unrest; police had to use teargas to disperse 'the thousands of protestors that had come to welcome the opposition leader to the airport'.15 If Rajaonarivelo did not arrive by 14 October, he risked being disqualified from the contest. Every time Rajaonarivelo attempted to return – which he did four times in total – the President closed the airports. It was an example of using electoral laws as a political weapon at its most cynical.

The case of Madagascar is instructive, as it reminds us that even when electoral commissions are more independent, they are restricted by their role in determining whether legal requirements have been met, not taking into consideration legal loopholes or the broader institutional context that may allow for executive abuses. In the absence of stronger regulations, or checks and balances, exclusion may undermine confidence in the elections and encourage losing parties to seek power through force. In March 2009, two and a half years after his exclusion from the election, Rajaonarivelo was involved in plotting the coup d'état that overthrew Ravalomanana (by the former radio disc jockey turned Mayor of Antananarivo, Andry Rajoelina). The day after the coup, Rajaonarivelo admitted: 'I'm with Rajoelina; we've met. We have a sort of deal and I'm among the people behind him...'.16 Subsequent events supported this statement, as he returned to the island as Madagascar's Minister of Economy and Industry in March 2011 before being named the Minister of Foreign Affairs six months later. For Rajaonarivelo, much as for Ouattara in Côte d'Ivoire, electoral exclusion had led to the pursuit of power through force. In this way, Ravalomanana's strategy of manipulation undermined not only his own position, but led to a further deterioration in the political stability of the country.

# Conclusion

Given that electoral exclusion undermines the quality of elections and increases the prospects of political conflict, what can be done to foster inclusive contests? To answer this question, we have to acknowledge two lessons from the past twenty-five years of African politics. First, electoral institutions are not meaningless. Around three-quarters of African elections are inclusive, a significant change from the 1980s. This is particularly common in countries that are already more democratic, where governments are not insulated from international pressure by resource wealth or their geo-strategic importance. Moreover, even when formal institutions are not respected, their presence shapes the behaviour of incumbent leaders, and this may encourage them to pursue alternative, more ambiguous, strategies of electoral manipulation. We therefore need to be aware of both the intended and unintended impacts of formal institutions.

Second, and relatedly, in cases where more authoritarian leaders are determined to stay in power, stronger institutional checks on electoral manipulation may not lead to cleaner polls, but rather prompt leaders to find new ways to gain an unfair advantage. The rise of 'strategic rigging' under the noses of international election monitors has allowed savvy incumbents to transform election laws from instruments that constrain the regime into weapons that can be yielded against the opposition, with the approval – or at least acquiescence – of international forces. In this regard, it is important to note that while improving the clarity of legislation would help reduce the legal leeway that government's enjoy, even well-specified clauses can be distorted by executive discretion.

With these lessons in mind, several changes could help mitigate the risk that electoral fraud will lead to exclusive elections in some parts of Africa. First, changes need to occur in tandem at the domestic and international level. Domestically, more independent electoral commissions, judiciaries and legislatures need clear regulations for preventing leaders from interpreting the laws in a biased and self-serving manner. Internationally, Western governments engaged in election monitoring need to use carrots (such as the possibility of expanded aid for genuinely clean elections) and sticks (such as condemnation of illegitimate elections) more explicitly to change the incentives facing incumbent leaders. While this already occurs to an extent, monitors tend to overlook the legal loopholes manipulated by sitting presidents; democracy promoters must pay more attention to less obvious forms of rigging, with awareness that strategies of manipulation are not static but evolve over time.

These changes have implications not only for the quality of democracy, but also for conflict management. As the data shows, electoral exclusion can increase the prospects for coups and civil wars, especially in countries that are already unstable. There is more research that needs to be conducted on assessing the correlation between electoral exclusion and conflict outbreak, but the overall evidence is clear: electoral institutions matter in a variety of ways, and developing a better understanding of exactly how and why is critical to the prospects for democratic consolidation in Africa.

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1 Data from Perceptions of Electoral Integrity database (2015), available at www.electoralintegrityproject.com (15 April 2015).

2 Freedom House. www.freedomhouse.org (2 March 2016).

3 These figures are drawn from the NELDA dataset (Hyde and Marinov 2012), which codes elections on whether or not opposition leaders were prevented from running in the election as a result of regime intervention. The codebook guideline states: 'Coded yes if any specific opposition candidates are explicitly prevented from running.'

4 This is similar to Robert Merton's 1949 concept of 'anomie', which suggests that illegitimate behaviours become more appealing when individuals are less likely to succeed in legitimate behaviours. The concept is one of the most influential ideas in sociology literature, used primarily to explain deviant behaviour. However, it is equally useful to think of opposition elites operating in a similar way: when they cannot win an election, alternatives become comparatively more appealing.

5 The original dataset takes election-related variables from NELDA but also includes whether civil wars or coups began after election dates (with one year and two-year cut-off thresholds). The dataset is composed of 385 national-level elections in sub-Saharan Africa (each individual cases) that were held between 1989 and 2010 – with the start date chosen to reflect continent-wide variation on the independent variable (inclusive versus exclusionary elections).

6 These include: election date, election type (parliamentary or presidential), boycotts, whether the election is considered a 'founding' election, whether there were riots and protests surrounding the elections (Hyde and Marinov 2012), democratic quality (Polity IV), population size (logged; World Bank), economic prosperity (logged GDP per capita; World Bank), prior coup activity within one or two years of the election (compiled based on data from the Center for Systemic Peace, 'Coups d'État, 1946-2013'), ethnic fractionalisation (Ethnic Power Relations dataset), total number of excluded ethnic groups (EPR dataset), land area (logged; World Bank and CIA World Factbook 2013), percentage of country that is mountainous (Collier and Hoeffler 2004) and aid dependence (defined as aid dollars per capita; World Bank).

7 Of course, this is a crude measure of peace, and in some ways is better thought of as the absence of high levels of political conflict, as it is compatible with episodes of low-level violence. The coup data is drawn from the Center for Systemic Peace and the civil war onset data is drawn from a variety of sources (including ACLED, PRIO Armed Conflict Battle Deaths data, along with newspaper reports and encyclopaedic entries to determine dates of deaths). If either a coup or civil war broke out within two years of voting, the 'peace' variable was coded as a '0'; if there were no attempts at a coup or civil war, 'peace' was coded as a '1'. I tested an array of other variables (most of which are included in the regression below, but some variables that were not statistically significant have been removed for the sake of parsimony).

8 Types of political violence are not equal; for example, a successful coup is more damaging than a failed coup attempt. However, any of these three types of violence (civil war, failed coup attempt, successful coup attempt) can devastate a country for years, if not decades.

9 Interview, Venance Konan (General Director of Fraternité Matin), Abidjan, Côte d'Ivoire, 19 July 2012.

10 Interview, Kokhav Koné Abou Bakary Sidic, Historian and public intellectual, Abidjan, Côte d'Ivoire, 25 July 2012.

11 Interview, Alain Lobognon, former Forces Nouvelles spokesperson and current Ivoirian Minister of Youth, Sports, and Culture, Abidjan, Côte d'Ivoire, 17 July 2012.

12 Interview, Abidjan, Côte d'Ivoire, 24 July 2012.

13 Interview, Bamba, 24 July 20.

14 Liberation. 2006. 'Pierrot Rajaonarivelo, interdit de retour à Madagascar.'

15 Ibid. October 2006. 'La police a dispersé, à coups de gaz lacrymogène, le millier de manifestants venus accueillir l'opposant à l'aéroport.'

16 James Mackenzie. 2009. 'Exiled Madagascar Politician Urges New Elections', Reuters.

# 11 Term Limits

## Leadership, Political Competition and the Transfer of Power

Daniel N. Posner and Daniel J. Young

If institutions are rules that restrain political actors, then the most important institutions that constrain the most important political actors are the rules that tell presidents how and when they must relinquish power. The most significant of these are the constitutional provisions that restrict presidents to two terms in office. Since 1990, such term limits have been put in place in all but seven of the forty-seven countries in sub-Saharan Africa that have non-ceremonial heads of state. This chapter explores how African leaders have responded to these limits. Our findings suggest that these constitutional checks on presidential power are real and that they have come to constrain African leaders in ways that were almost unimaginable in earlier eras.1

In the first decades after independence from European colonial rule, African leaders were rightly depicted as 'big men', unconstrained by the rules that formally limited their power (Jackson and Rosberg 1982; Chabal and Daloz 1999; Hyden 2006). Authority in this era stemmed from a combination of military might, intimidation and the command of informal networks. Leaders entered and exited office not through elections or other regular means but primarily through the barrel of a gun. In this era, it was almost unthinkable that a head of state would relinquish power simply because a clause in the constitution said that he must. Much more likely, he would ignore the provision and simply declare himself (or have the legislature he controlled declare him) 'President for Life' – as Kwame Nkrumah did in 1964, Hastings Banda did in 1970, Jean-Bédel Bokassa and Francisco Macías Nguema did in 1972 and Idi Amin did in 1976. Many other African leaders effectively did the same, even if they never adopted the formal title.

But by the 1990s, things began to change. The modal means by which African leaders surrendered power shifted from coup d'état to voluntary resignation, either due to term limits or following a defeat in a relatively free and fair election. Political power also became much more institutionalised during the intervals between elections. Although not every African country during this period moved towards greater constraints on executive authority, the overall shift in this direction was discernible. Across the continent, the unfettered 'personal rule' that had previously characterised the politics of the region began to be displaced by a more rule-bound, institutionalised political order. Today, although pockets of old-style authoritarianism remain, nearly all African leaders seek to achieve their goals through formal institutional channels rather than extra-constitutional means. This represents a major change in how power is exercised and, we believe, constitutes the most important development in the last two and a half decades of African politics.

The displacement of violence by formal rules is clearly illustrated by tracing changes over time in how leaders leave office. We therefore begin our discussion by presenting evidence on this issue. We then turn to an analysis of how leaders, faced with two-term limits, have responded to this significant limitation on their power. If we assume – as we think is reasonable – that nearly all leaders would prefer to stay in office rather than step down, then studying how they react to a constitutional provision that forces them to relinquish power provides a fundamental test of the ability of formal institutional rules to constrain leaders' behaviour. We show that of the thirty-six heads of state that faced a two-term limit between 1990 and 2015, twenty accepted the limit and voluntarily retired, while sixteen either ignored the provision or attempted to amend the constitution to permit the continuation of their rule. Of these sixteen, eleven were successful and five were rebuffed in their efforts. The record therefore indicates that the majority of African leaders respected the constitutional limits on their tenure.

Equally important, nearly every leader who was unwilling to accept the two-term limit sought to prolong his rule not by ignoring the constitution but by seeking to change it to better align it with his preferences. The decision in nearly every case was to operate through rather than around the constitution. This represents a major and telling shift in how presidents exercise their power. Of course, many African presidents in earlier eras also sought to legitimate the perpetuation of their rule by pushing constitutional amendments through parliament. But such moves were almost always taken in contexts where the president's dominance was so overwhelming that working through the formal rules offered little risk. For today's leaders, choosing to change the constitution by working through its codified procedures is selecting a path that entails significant costs and (as the cases of Zambia, Malawi and Nigeria demonstrate) real prospects for failure.

Also significant is the fact that in the two cases in which presidents tried to extend their rule without legally changing the constitution (Burkina Faso and Niger) the military – historically Africa's quintessential anti-constitutional actor – intervened in opposition to the attempt. This rejection of extra-constitutional means by African militaries is mirrored in – and no doubt also in part caused by – high levels of support for presidential term limits by regular citizens, a point we return to later in the chapter. The denunciation of attempts by African leaders to circumvent their constitutions by international actors such as the African Union also plays a key role. This all points to the emergence of a new equilibrium whereby actors – presidents, the military, citizens and the international community – locate the source of political authority in the constitution rather than in a monopoly on the use of violence.

It bears underscoring, however, that not every leader has voluntarily resigned when facing a two-term limit. The variation in leaders' willingness to push back against term limits demands explanation. In the penultimate section of the chapter we therefore seek to account for why some leaders acquiesced in the two-term limits they faced while others sought to overturn them. We present suggestive evidence that African presidents who were older, received less political support in the previous election and ruled countries that were more aid-dependent (often because they did not have significant oil reserves) were more likely to relinquish power when facing a two-term limit. We also find, however, that one of the strongest predictors of a leader's decision about whether or not to try for a third term is whether his predecessor(s) voluntarily gave up power when they faced term limits of their own. In the ten instances where a predecessor had stepped down in the face of a two-term limit, every single president who followed chose not to push for a third term. This finding suggests that, while still not universal, the progress towards institutionalising political power in Africa is not likely to be reversed where it has already occurred.

# How Presidents Leave Power

Benin, perhaps more than any other country, epitomises the change that has taken place in how leaders exit power. During its first decade after independence in 1960, Benin had twelve different heads of state, all of whom were overthrown by coup d'états. This striking record of serial leadership change by force stands in complete contrast to Benin's record since 1990. From 1990 to 2006, Mathieu Kérékou and Nicéphore Soglo alternated as president following wins and losses in national elections. Facing restrictions due to term limits and age, both stood down in 2006, paving the way for the election of a new president, Thomas Yayi Boni, who was then re-elected in 2011. When Yayi's second term expired in 2016, he too stepped aside, and watched from the sidelines as his handpicked successor was defeated by a political outsider. While Benin provides perhaps the most dramatic example of the change that has taken place in how leaders leave power in Africa, it is nonetheless indicative of a broader trend.

To document this trend, we present data on how every African head of state exited power between independence and the end of 2015. Our sample includes some 286 leaders from 45 African countries. We code each leader's means of exit from office into two broad categories: leaders who left power through regular means (natural death, voluntary resignation or losing an election) and those who were removed by irregular means (coup, violent overthrow or assassination). Figure 11.1 presents the decade-by-decade averages.

Figure 11.1

How African leaders have left power, by decade

As the figure demonstrates, nearly three-quarters of African leaders who left power in the 1960s and 1970s did so through a coup, a violent overthrow or an assassination. In the 1980s, this dropped to just below 70 per cent. By the 1990s, the share of those who left power through natural death, voluntary resignation or electoral defeat surpassed the number removed from office by irregular means. In the 2000s, the share of leaders leaving power through irregular means dropped to just 15 per cent. Although it crept up to 19 per cent between 2010 and 2015, the numbers are still near historic post-independence lows. The upshot is that, while African heads of state used to leave office only by coup, violent overthrow or assassination, it is now by voluntary resignation, which is in most cases triggered by constitutional term limits.2 These trends point to the increasing institutionalisation of political power in Africa. Whereas political power used to change hands principally through violence – usually at a time and in a manner chosen by coup plotters – it now changes hands principally in accord with institutional rules.

Of course, the manner in which executives leave office is only one indicator of how beholden they are to formal constraints on their exercise of power. It says nothing, for example, about the extent to which they adhere to objective procedures when they allocate jobs, award contracts, enforce regulations or exercise other prerogatives of office. Nor does it say anything directly about how the behaviour of other important actors – legislators, the police, bureaucrats, judges or local government officials – is affected by institutional limits. Eschewing violence also does not guarantee that presidents will not take other sorts of unsavoury measures to extend their rule or to accomplish other objectives.3 Nonetheless, whether a leader departs (and expects to depart) office via regular or irregular means is critical. A regular departure means that there is an understood set of basic limits on how long a head of state may stay in power, as well as on how his opponents may seek to replace him, and therefore marks a fundamental indicator of the institutionalisation of political authority.

# Term Limits

A similarly important indicator of the strength of formal institutions – and the focus of this chapter – is how leaders respond to constitutional provisions that limit them to two terms in office. To explore this issue, we sort Africa's countries into five categories based on: (1) whether or not their post-1990 constitution puts a two-term limit on the presidency; (2) whether at any point between 1990 and 2015 that term limit had been reached; (3) whether, if reached, the term limit was ignored or an attempt was made to amend the constitution to overturn it; and (4) whether that attempt succeeded.4 The results are summarised in Table 11.1, which provides a separate account of each president for each country in which a term limit was reached.

Table 11.1 Presidential term limits in Africa (1990–2015)

Constitution does not contain a two-term limit on the presidency | Constitution contains a two-term limit on the presidency
---|---
Two-term limit not reached by 2015 | Two-term limit was reached by 2015 (year limit was reached; leader)
Limit accepted; no attempt made to amend constitution | Limit ignored or attempt made to amend constitution
Attempt was successful | Attempt was not successful
Côte d'Ivoire| Angola| Benin (2006; Kerekou)| Burundi (2015; Nkurunziza)| Burkina Faso (2015; Campaoré)
Gambia| Central African Republic| Botswana (2008; Moage)| Cameroon (2011; Biya)| Malawi (2004; Muluzi)
Guinea-Bissau| Democratic Republic of Congo| Cape Verde (2001; Monteiro)| Chad (2006; Deby)| Niger (2009; Tandja)
Lesotho| Equatorial Guinea| Cape Verde (2011; Pires)| Congo-B (2016; Sassou-Nguessou)**| Nigeria (2007; Obasanjo)
Somalia| Ethiopia| Ghana (2000; Rawlings)| Djibouti (2011; Guelleh)| Zambia (2001; Chiluba)
South Sudan| Liberia| Ghana (2008; Kufuor)| Gabon (2005; Bongo)
Madagascar| Kenya (2002; Moi)| Guinea (2003; Conté)
Mauritania| Kenya (2012; Kibaki)| Namibia (1999; Nujoma)
Rwanda| Mali (2002; Konaré)| Sudan (2005; Bashir)
Senegal| Mali (2012; Touré)| Togo (2003; Eyadema)
Seychelles*| Mozambique (2004; Chissano)| Uganda (2006; Museveni)
South Africa| Mozambique (2014; Guebuza)
Zimbabwe| Namibia (2004; Nujoma)
Namibia (2014; Pohamba)
Sao Tome (2001; Trovoada)
Sao Tome (2011; Menezes)
Sierra Leone (2007; Kabbah)
Tanzania (1995; Mwinyi)
Tanzania (2005; Mkapa)
Tanzania (2015; Kikwete)

*Seychelles has a three-term limit, **Sassou-Nguesso's term did not end until 2016 but a referendum to permit him to run for a third term took place in 2015.

As Table 11.1 shows, six countries do not have constitutions that contain two-term limits and another thirteen have term limits that had not yet been reached by 2015.5 In the remaining twenty-seven countries, there were thirty-six instances in which presidents found themselves in the position of having completed two terms and being constitutionally barred from seeking a third (in several cases, this occurred multiple times in a single country). In nearly every case, these leaders heard strong calls from their supporters to find a way to stay in power. Facing this pressure – and no doubt often also wanting to remain in office for their own personal reasons – these incumbents had three options: (1) they could abide by the constitutional term limits and step down; (2) they could attempt to change the constitution to permit a third term; or (3) they could scrap the constitution altogether and prolong their tenure through extra-constitutional means. Twenty leaders chose the first option, fourteen chose the second and just two (Omar al-Bashir of Sudan and Pierre Nkurunziza of Burundi) pursued the third. The fact that so few African leaders chose to take this third path – and that one of the two only took this route after unsuccessfully trying the second route – indicates just how important it has become to not be seen as overtly flouting the rules set out in the constitution.

These trends are striking, but they only tell us so much. A deeper appreciation of the depth of the changes that have taken place comes from a discussion of several key examples. Take the case of Burundi. Having already served two terms, and with a two-term limit in place that barred him from running for re-election in 2015, President Pierre Nkurunziza decided to seek a third term. His first move was to try to amend the constitution, but he fell one vote short of the 80 per cent parliamentary majority he needed. His next move was to seek a ruling from the Constitutional Court that would permit the third term on the grounds that his first election in 2005 should not count towards the two-term limit because the election had been by the national assembly rather than directly by the people. Although the court did rule in his favour, the decision was by all accounts coerced. In any case, Nkurunziza took the court's ruling as justification for proceeding with the third term bid. When protestors took to the streets in large numbers to oppose the president's attempt, police responded harshly and several demonstrators were killed. As protests continued, officers associated with General Godefroid Niyombareh attempted a coup, but it was put down. At least 100 people were killed and more than 20,000 fled the country during the ensuing crackdown. The end result was that the election went forward and Nkurunziza was re-elected in a contest marred by an opposition boycott and low turnout.6

While the Burundi case provides an example of a leader who pursued both constitutional and extra-constitutional strategies to extend his rule, Uganda represents a more typical case of a president seeking a third term within institutional channels – albeit not by particularly open or fair means. Yoweri Museveni had come to power in 1986 as the leader of an armed rebellion, was first democratically elected in 1996 and then re-elected in 2001. Faced with a two-term limit in 2006, Museveni undertook a campaign to convince the national assembly to amend the constitution to legalise a third term bid. Several accounts report that this campaign involved corrupt tactics – in particular, bribing some select MPs to sway them to a 'yes' vote, as well as MPs who publicly supported a third term (Tangiri 2005). But, viewed alongside the history of how African presidents perpetuated their rule in earlier eras, Museveni went to the trouble of lobbying parliamentarians (and engaging in outright bribery) for a vote to change the constitution because he faced considerable opposition.

This pattern of securing the desired outcome by working through the existing set of formal institutions rather than around them was repeated in Cameroon, Djibouti, Gabon, Namibia and Togo (and, as we saw, at least initially in Burundi). In these cases, legislative action led to constitutional amendments that permitted the president to run for re-election, and in Congo Brazzaville, Chad and Guinea, the same result was achieved via a national referendum. As in Uganda, the means by which these legislative and popular votes were won was often shady, but the leaders clearly felt that simply ignoring the constitution was not an option, which marks a critical departure from the historical pattern.

In another group of cases, sitting presidents were rebuffed in their attempts to secure third terms. These cases come in two types. In the first (Zambia, Malawi and Nigeria), members of parliament either persuaded the incumbent to give up the third term bid or voted down the amendment that would have permitted the attempt to go forward. In the second (Niger and Burkina Faso), the opposition came from a historically much less likely source: the military.7

Facing the end of his second term in Niger, Mamadou Tandja announced in 2009 that he would call a referendum on a new constitution to drop any limitation on the number of terms that a president could serve. When the Constitutional Court ruled that this was illegal, Tandja responded by declaring that he would suspend the government and rule by decree. Strikes and protests ensued, and the military ultimately intervened to remove Tandja from power. The military then went on to hold competitive elections (not involving Tandja) the following year.8

In Burkina Faso, Blaise Compaoré similarly attempted to change the constitution by asking parliament to consider an amendment that would permit him to prolong his tenure. But when thousands of Burkinabè stormed the National Assembly during the debate on the question, the military intervened to remove Compaoré from office. After an interval, the military leader gave way to a civilian one at the behest of the public.9

These five cases demonstrate that the public, legislatures, courts and even the military now serve as agents who will defend the constitution. This provides insight into both why many presidents do not seek to circumvent term limits and why, when they do, they are sometimes unsuccessful.

Thus far we have focused on cases where presidents tried to change the rules to permit a third term. In the majority of cases, however – in twenty of the thirty-six instances in which presidents faced term limits – the incumbent presidents simply stepped down in accordance with the constitution. John Kufuor, the second consecutive Ghanaian president to abide by his country's two-term limit, summed up the rationale for this course of action well when, in response to a journalist's question, he said: 'These days it has become fashionable that you do only two terms because people have come to believe that no matter how good you are, exposure to two terms for a leader is enough' (Daily Monitor 2013).

Kufuor's description of 'what people have come to believe' accords with what public opinion surveys tell us about African citizens' views on term limits. Figure 11.2, borrowed from Dulani (2015), reports the results of an Afrobarometer question that asked respondents in twenty-six countries between 2011 and 2013 whether they agreed that the constitution should limit the president to serving a maximum of two terms in office. As the figure makes clear, most Africans – three out of four in the sample overall – support a two-term limit on the presidency.

Figure 11.2

Popular support for term limits in Africa

Source: Dulani (2015)

These strong levels of popular support for term limits do not always lead to the rejection of leaders who run for third terms, however. In Togo, Afrobarometer surveys in 2012 and 2014 found that more than 80 per cent of respondents favoured limiting the presidency to two terms. Yet, President Faure Gnassingbé won 59 per cent of the vote when he ran for his third term in 2015 (Ahlin, Dionne and Roberts 2015).10 Even so, the overwhelming popular embrace of term limits cannot but shape the calculations of African leaders (and the militaries on whose support they depend) as they contemplate altering their constitutions to prolong their tenure. The fact that support for term limits in Burundi rose from just 51 per cent in 2012 to 62 per cent in 2015 almost certainly affected the military's response to Nkurunziza's third term bid, even if it did not alter the president's own thinking.

# Under What Conditions Do Presidents Attempt to Secure Third Terms?

Although the majority of African presidents who faced term limits since 1990 accepted them and stepped aside, nearly 45 per cent attempted to extend their rule to a third term. This variation requires explanation.

One factor that might account for why presidents may choose to go for a third term is age. Older presidents may be more willing than younger presidents to step down when their constitutionally determined term of office is complete – for reasons of declining health, the recognition that the number of years they have left to rule (or during which they could be prosecuted for past abuses) are fewer or the availability of a son who can carry on the family name. Of course, there will be leaders who will stay in power into their 80s or even 90s (Zimbabwe's Robert Mugabe is 93, for instance). But, on average, older presidents may be more likely to step down at the end of their second term than younger presidents.

A second factor is the president's popularity. Incumbents may not bother trying to alter the constitution to permit a run for a third term if they do not believe they can win the ensuing election. Those presidents who enjoy higher levels of popular support may therefore be more likely to try for a third term than those whose popularity is lower – in part because it will allow them to argue (as many do) that amending the constitution to permit another term is what the people want. In the absence of up-to-date public opinion polls, one way of gauging that popularity is by looking at the incumbent's vote share (or margin of victory) in the previous election. All else equal, presidents elected to their second terms with higher vote shares (or by larger margins) may see themselves as having bigger mandates, and thus be more inclined to try to circumvent the constitutional ban on seeking a third term.11

A third factor is aid dependence. Countries that are dependent on foreign aid are more beholden to the donors that supply it. To the extent that donors value the rule of law and are willing to apply pressure on African governments to adhere to it, presidents whose countries receive higher levels of official development assistance (ODA) may be more vulnerable to outside pressure to relinquish power in the face of constitutional limits. By contrast (and by the same logic), in instances where levels of aid dependence are not just low but reversed – for example, in cases where an African country supplies rich countries with oil – presidents may have particular leeway in ignoring calls to step down at the end of their constitutionally mandated terms.

We examine the impact of these factors on presidents' decisions about whether or not to pursue a third term in Figure 11.3. The figure presents box-plots of the distributions of each variable of interest – age, vote share/vote margin in the prior election and aid as a share of Gross National Income (GNI) – for the sixteen countries in which presidents attempted to secure third terms (on the left) and the twenty countries in which presidents voluntarily stepped down (on the right) by 2015.12

Figure 11.3

When do presidents attempt to secure third terms?

Although the differences between each set of cases are not statistically significant for any of the variables of interest, the general pattern is in keeping with the expectations sketched in this section. Presidents who attempted to secure third terms were on average younger (65 years old, SD=7) than those who stood down (69 years old, SD=8). Presidents who tried to overturn the two-term limit were more popular (before doing so), as reflected in both the average margin by which they had been elected – 45 points (SD=22) versus 34 points (SD=28) – and the average vote share they received – 66 per cent (SD=13) versus 62 percent (SD=15) – than presidents who accepted the term limit. And presidents from countries that were less dependent on foreign aid were slightly more likely to attempt to secure a third term. Among presidents who tried to extend their tenure, average levels of ODA as a share of GNI were 9.3 per cent (SD=7.3), and among presidents who voluntarily stepped aside, average levels were 14.1 per cent (SD=11.8).

As noted above, for the same reasons that high dependence on foreign aid might constrain a president's ability to go for a third term, significant oil wealth might enhance it. Table 11.2 shows that this is indeed the case. Among the eight oil producers in our sample (Cameroon, Chad, Congo Brazzaville, Gabon, Sudan, Nigeria and Cape Verde in 2011), presidents facing term limits attempted to secure a third term six times (75 per cent of the time) – and were successful in every case but one. Among the twenty-eight non-oil producers, just ten presidents (36 per cent) tried to circumvent their country's term limits. The cases are too few to draw definitive conclusions, but the pattern is highly suggestive of the impact of outside leverage on leaders' decision-making with respect to this key issue.

Table 11.2 Oil and third term attempts (1990–2015)

| Did the President attempt to secure a third term?
---|---
Yes | No
Was the country an oil producer?| Yes| 6| 2
No| 10| 18

A final issue to consider is the impact of precedent: that is, the effect on the current president's decision of what his predecessor did. Of course, it is tricky to disentangle the effects of precedent from the effects of country-level factors that might explain a president's decision about whether or not to seek a third term, irrespective of what his predecessor(s) may have done. For example, in settings where the rule of law is weak, or where the president's political party is expected to continue dominating the country's politics, a leader who relinquishes power could be confident that he would not be prosecuted for past crimes. Countries that offer generous retirement benefits to former leaders are also more likely to have presidents who agree to step down when their second term is up. Such conditions could lead to correlated outcomes across presidents facing term limits without there being any causal effect of precedent. But it is nonetheless worth inquiring whether leaders whose predecessor(s) stepped down in the face of a two-term limit were more likely to do so themselves. The answer, as Table 11.3 shows, is unambiguous that they were.

Table 11.3 Precedent and third term attempts (1990–2015)

| Did the President attempt to secure a third term?
---|---
Yes | No
Was there a precedent of abiding by term limits?| Yes| 0| 10
No| 16| 10

In the twenty-six instances in which there was no precedent of abiding by term limits, sitting presidents sought a third term sixteen times (62 per cent of the time). By contrast, in the ten occasions where a precedent existed, not a single president tried to alter or abrogate the constitution to extend his tenure. While our simple analysis cannot establish a causal linkage, the strength of this association suggests that term limits, once adhered to, are difficult to break.

Does the effect of precedent also operate across national borders? Leaders who are grappling with the question of whether or not to seek a third term and who lack an example from their own country might be affected by what they observe in neighbouring countries. In the twenty-six instances where presidents facing third term decisions lacked a local precedent, leaders who looked to their immediate neighbours and could find at least one example of a president who voluntarily stepped down in the face of a two-term limit were actually more likely to try to secure a third term: eight tried, and just two voluntarily stepped aside. Meanwhile, leaders who could find no such example among their immediate neighbours (either because a two-term limit had been circumvented or because it had not yet been reached) were almost equally likely to try for a third term themselves (in seven cases) as they were to stand down (in eight cases). So to the extent that precedent matters, it would appear to be limited to the norms in one's own country.

# Conclusion

Term limits are the most important check on the power of the individuals who hold the most important political office. As such, the extent to which they are respected offers a critical indicator of the degree to which political power is institutionalised. Our analysis of term limits in Africa between 1990 and 2015 generates two main findings. First, the majority of African leaders who faced two-term limits during this period stepped down when their second term was complete. Second, those who chose to seek third terms attempted to do so by working through constitutional channels rather than around them. With very few exceptions, they went to the trouble of either holding a national referendum, or whipping votes in the national assembly to pass legislation that would legalise their bid to extend their tenure. Sometimes these efforts failed, but this pattern marks a significant departure from how power was maintained in the past.

Beyond their role as bellwethers for institutionalisation, term limits are valuable for a number of additional reasons. Maltz (2007) underscores the extent to which term limits generate alternations in governing political parties, which can build trust in the democratic process and aid in democratic consolidation.13 Cheeseman (2010) points out that term limits generate open-seat polls, which tend to be more transparent and fair than elections in which an incumbent is contesting. He also notes that open-seat polls tend to generate fissures in monolithic ruling parties, which makes them more vulnerable, opening space for opposition groups.

Even before the elections they generate, term limits provide an issue around which opposition parties, civil society groups and international actors can coalesce. The fact that term limits are high profile and easy to track makes their impact particularly significant: it is much easier for domestic and international audiences concerned with democracy promotion to observe whether or not a president seeks a third term than it is to track whether he violates other aspects of democratic practice – whether by buying votes, engaging in corrupt contracting or nepotism, and so forth. Opposition parties can anticipate an opportunity to gain power, and this can facilitate coordination and reinvigorate political energy. Furthermore, term limits can create opportunities for unity among ordinary citizens to rally around a commitment to the constitution, further deepening and entrenching democracy (Riedl 2015).

We began this chapter by stressing the sea change that has occurred in how power is institutionalised in Africa and the role that term limits play. But what is the trend in adhering to term limits? Are leaders today more likely to abide by them than they were when term limits first came into force in the late 1990s? The simple answer is no: the share of leaders facing term limits that have sought to extend their rule has not changed very much over time. Forty-four per cent sought third terms in the years prior to 2005; and 45 per cent have done so since. For every Jakaya Kikwete or Mwai Kibaki who voluntarily stepped down at the end of his second term there was a Blaise Campaoré or a Denis Sassou-Nguesso who tried to extend his rule. Yet, hidden within this seeming balance is a systematic pattern: since 2005, every single president who sought to run for a third term (eleven cases) was located in a country where there was no precedent for abiding by term limits. By contrast, nine of the twelve presidents who voluntarily stepped aside were in countries where previous presidents had respected the constitutional limits on their tenure.

The implication is that we may be seeing the bifurcation of African countries into two types: those where term limits have been respected in the past, and where they will in all likelihood continue to be respected in the future, and those where there is no history of abiding by term limits and where the prospects for initiating such a history are poor. As we look beyond 2015 to the countries where term limits were reached in the next few years, this observation proved prescient. In the two countries where previous leaders had voluntarily stepped down at the end of their second terms (Benin and Sierra Leone), Presidents Yayi and Ernest Koroma flirted with running for third terms but both ultimately agreed to step aside. In the Democratic Republic of Congo and Rwanda, however, no such precedent existed and both Presidents Joseph Kabila and Paul Kagame moved to extend their rule – the former by employing political manoeuvres to delay the electoral calendar, and the latter by holding a referendum to change the constitution. Nonetheless, the fact that both leaders circumvented term limits by working through the existing institutional framework is a critical – and in the broad context of African post-colonial history, novel – development.

# Works Cited

Ahlin, Ekoutiamé, Kim Yi Dionne, and Tyson Roberts. 2015. 'Most Togolese support term limits. But they just re-elected their president for a third term', The Monkey Cage, 4 May.

Banégas, Richard. 2014. 'Benin: Challenges for democracy', African Affairs 113, 452: 449–459.

Baudais, Virginie, and Gregory Chauzal. 2011. 'The 2010 coup d'etat in Niger: A praetorian regulation of politics?' African Affairs 110, 439: 295–304.

Chabal, Patrick and Jean-Pascal Daloz. 1999. Africa Works: Disorder as Political Instrument, London: James Currey.

Cheeseman, Nic. 2010. 'African elections as vehicles for change', Journal of Democracy 21, 4: 139–153.

Cheeseman, Nic. Nd. 'Should I Stay or Should I Go: Term-limits, Elections and Political Stability in Africa.' Unpublished paper.

Daily Monitor. 2013. 'Ghana's Kufuor says two terms are enough', 3 August.

Dulani, Boniface. 2015. 'African publics strongly support term limits, resist leaders' efforts to extend their tenure', Afrobarometer, Dispatch No. 30.

Frère, Marie-Soleil, and Pierre Englebert. 2015. 'Briefing: Burkina Faso – The fall of Blaise Compaoré', African Affairs 114, 455: 295–307.

Guriev, Sergei, and Daniel Treisman. 2015. 'The new dictators rule by velvet fist', New York Times, 25 May.

Huntington, Samuel P. 1991. The third wave: Democratisation in the late twentieth century, Norman, OK; University of Oklahoma Press.

Hyden, Goran. 2006. African politics in comparative perspective, Cambridge University Press.

Jackson, Robert H., and Carl G. Rosberg. 1982. Personal rule in Black Africa, Berkeley and Los Angeles: University of California Press.

Kramon, Eric, and Daniel N. Posner. 2011. 'Kenya's new constitution', Journal of Democracy 22, 2: 89–103.

Maltz, Gideon. 2007. 'The case for presidential term limits', Journal of Democracy 18, 1: 128–142.

Moehler, Devra C., and Staffan I. Lindberg. 2009. 'Narrowing the turnover gap: Turnovers as a cause of democratic consolidation', Journal of Politics 71, 4: 1448–1466.

Posner, Daniel N., and Daniel J. Young. 2007. 'The institutionalization of political power in Africa', Journal of Democracy 18, 3: 126–140.

Riedl, Rachel Beatty. 2015. 'The Advantages – and drawbacks – of presidential term limits as a tool for building democracy in Africa', Scholars Strategy Network: Key Findings, March.

Tangiri, Roger. 2005. 'Politics and presidential term limits in Uganda', In Roger Southall and Henning Melber, eds. Legacies of power, Pretoria: HSRC Press.

Vandeginste, Stef. 2015. 'Burundi's electoral crisis – Back to power-sharing politics as usual?' African Affairs 114, 457: 624–636.

1 This chapter builds upon and updates prior research presented in Posner and Young (2007) and Kramon and Posner (2011).

2 Between 1990 and 2015, seventy-eight African leaders have left office. Of these, nine died of natural causes, forty-five voluntarily resigned and eleven lost an election. The remaining thirteen were ousted by violent means.

3 Indeed, authoritarian leaders in many settings are increasingly embracing techniques of 'soft dictatorship', in which they stifle opposition, concentrate power and eliminate checks and balances without using violence (Guriev and Treisman 2015).

4 We exclude Comoros (because of its rotating presidency), Eritrea (because its constitution, ratified by a constituent assembly in 1997, never came into force), Mauritius (because its president is only ceremonial) and Swaziland (because it is a kingdom). Complete notes describing how we coded our cases are available at [www.democracyinafrica.org].

5 Although term limits in Congo-Brazzaville technically would not be reached until 2016, we code this as a case where term limits have already been reached because President Denis Sassou-Nguesso had already had the constitution changed to permit him to run for a third term prior to 2015.

6 See Vandeginste (2015) for an excellent summary of these events.

7 As we have seen, the military also intervened against Nkurunziza's third term bid in Burundi – albeit unsuccessfully.

8 For a useful account of the 2010 coup in Niger, see Baudais and Chauzal (2011).

9 For a fuller account of Compaoré's fall, see Frère and Englebert (2015).

10 Although Faure's run for a third term was not supported by most Togolese citizens, it was not in breach of the constitution, since term limits had been scrapped in 2002 by his father, Eyadéma Gnassingbé.

11 The behaviour of Benin's president Yayi, who flirted with seeking a third term until his party lost seats in the April 2015 parliamentary election, is consistent with the argument that levels of popular support are relevant for presidents' decisions. For more on Yayi's contemplation of a third term, see Banégas (2014).

12 We lag our measure of aid as a share of GNI by one year to ensure that our measure reflects the level of development assistance being received at the time the president was weighing what to do.

13 Moehler and Lindberg (2009) looked at African citizens' perceptions of the legitimacy of governing institutions. They found that the gap in perceived legitimacy between those who support the winning party and those that support the losing party narrows after an alternation in power, furthering democratic consolidation. Huntington (1991) also stresses the link between alternations in political power and democratic consolidation.

# Part IV Countervailing Institutions
# 12 The Legislature

## Institutional Strengthening in Dominant-Party States

Michaela Collord

African legislatures are typically viewed as pliant and docile bodies, the quintessential 'rubber stamp' institution. They have, consequently, been largely neglected in the study of African politics while the executive has remained the primary preoccupation of researchers. This trend reflects the enduring legacy of neo-patrimonial theory, with its emphasis on presidential patronage politics, as the lens through which much of the literature views the continent (Chapter 1). Even after the 'third wave' of democratisation brought new political openings, scholars gravitated towards the study of elections – deemed critical in securing democratic gains – while largely ignoring parliament, a mere 'sideshow' according to some (van de Walle 2003).

Yet, the stereotype of the irrelevant 'rubber stamp' legislature appears increasingly divorced from the various instances of legislative activism recurring across the continent. In this vein, the Ugandan legislature threatened a government shutdown over an unsatisfactory health budget; the Tanzania parliament forced seven Cabinet reshuffles over the space of two presidential terms; and South African MPs from the Economic Freedom Fighters party captivated TV audiences nationwide by repeatedly calling President Jacob Zuma a thief in response to allegations of corruption. This legislative assertiveness has brought fresh scholarly interest in African parliaments. This is also being driven by normative concerns, as scholars take note of the broader comparative literature, which contends that robust parliaments promote both stronger democracies (Fish 2006) and improved development outcomes through greater executive accountability (Santiso 2005). Out of this growing interest, a new research agenda is beginning to materialise, namely to explain variation in legislative institutional development across African states, its causes and consequences.

The emerging literature has not advanced very far. While it has improved our empirical knowledge of how African parliaments operate, theoretical advances remain minimal. A key issue is the tendency to focus on individual factors that influence institutional development across a range of disparate case studies. There is little sense of how these various factors and case studies relate, or what they contribute to our cumulative understanding of legislative strengthening. The most influential contribution to date, Joel Barkan's edited volume from 2009, presents itself as the 'first comparative effort at theorizing about the process of legislative development on the continent' (Barkan 2009: 5–6). The book offers many valuable insights; yet, even so, the analysis remains focused on the proximate triggers of legislative development and says less about underlying structural causes.

This chapter argues that a key shortcoming in this recent literature is its failure to consider in sufficient depth the complex – and often contradictory – ways by which the informal institution of clientelism shapes the incentives of individual legislators, and ultimately the prospects for legislative institutional strengthening across African states. In keeping with the 'institutionless school' (Chapter 1), scholars present clientelism – or 'neo-patrimonialism'– as a uniform constraint. According to this view, African legislatures in the 'neo-patrimonial past' were all similarly weak while post-transition, multiparty parliaments are emerging as strong, autonomous institutions only in so far as legislators manage to insulate themselves from the perverse incentives fostered by executive-led patronage politics (Barkan 2009: 16–17; Barkan 2013: 254–255). Although it explains part of the picture, this characterisation is a problematic simplification of the way formal and informal institutions interact. The nature of clientelist institutions varies across space and time, and as a result has differing effects on legislators' incentives; these sometimes discourage but at other times encourage legislative institutional strengthening. To use Helmke and Levitsky's typology (Chapter 1), clientelism can be either a 'competing' or a 'substitutive' informal institution vis-à-vis the formal institution of the legislature.

This chapter investigates when and how clientelist pressures can, in fact, increase the potential for legislative strengthening. Clientelism is a pervasive feature of politics across many African states and developing economies in general (Khan 2010; Whitfield 2015). The central concern is whether the specific configuration of patron-client networks and the institutional norms they engender in a given country case empower individual legislators as patrons in their own right. In some African states, legislators play the role of 'linkers', connecting the centre to the periphery and gaining the opportunity to cultivate a supportive clientele in their constituency. In other states, legislators are largely bypassed in the process of patronage distribution; they do not play a prominent role as 'linkers' and, as a result, do not have the same political clout. The argument here is that, where prevailing patterns of clientelist redistribution create the opportunity for legislators to cultivate a prominent role as patrons, they tend to be more autonomous from their political party and the executive. The incidence of intra-elite contestation is also higher where a greater number of powerful local patrons pursue their own, at times conflicting, material and ideological interests. Where there are more autonomous legislators-cum-patrons, this helps transform the legislature into a lively arena of intra-elite bargaining, and ultimately increases the chances of legislative assertiveness and institutional strengthening.

The objective of this chapter is to draw on the experience of one-party rule and multiparty politics to develop the above analysis of legislative strengthening in Africa. This historical approach offers a better opportunity to assess variation in clientelist institutions, what factors explain this variation, and its implications for legislative strengthening over time. A historical focus also serves to counter the widespread assumption that the one-party era is somehow irrelevant when considering the variable strength of African legislatures today. Drawing on a mix of original fieldwork and secondary sources, the chapter reflects on the case of Tanzania with comparative reference to Kenya.

Under one-party rule in Tanzania, MPs' patronage role was limited while Kenyan MPs emerged as strong 'linkers'. Accordingly, while the Kenyan legislature was relatively assertive and underwent notable institutional reform during both the authoritarian period and after the democratic transition, Tanzania's legislative development has occurred more recently. These formal institutional changes in Tanzania have come on the back of a parallel intensification of legislators' patronage role. Indeed, MPs' prominence as local patrons has grown since the 1980s, notably due to economic liberalisation and an attendant increase in the availability of political finance from private actors. In recent years the effects of these politico-economic changes have contributed to a process whereby the historically 'weak' Tanzanian legislature, or Bunge, has started to acquire some of the bite of its Kenyan counterpart. The combination of cross-case and within-case comparison thus provides strong evidence that legislative strengthening is more likely to occur when formal and informal institutions converge (Riedl, Chapter 2), such as when MPs' formal role in holding the executive to account is bolstered by their informal status as (semi) autonomous patrons.

# The Return of the Legislature: Strengths and Weaknesses in the Recent Literature

In the immediate post-independence years, researchers showed a strong interest in African legislatures, but this interest waned as parliaments appeared to wither under one-party rule or were abolished entirely due to military coups and conflict. After a long hiatus, scholars in the mid-2000s turned their attention back to the study of the legislature in African states. This renewed interest was a response to the advent of potentially game-changing institutional reforms in a number of African parliaments, as well as a fresh perception that a strong parliament could further the process of democratic consolidation in Africa's multiparty states.

A first edited volume on African legislatures appeared in 2005 (Salih 2005). It outlines the historical emergence of legislatures but does not offer a theory to explain variation in legislative development. The real watershed came with the publication of Joel Barkan's (2009) influential volume, Legislative Power in Emerging African Democracies. Barkan draws on six country case studies to formulate an initial explanation as to why legislatures in some countries have strengthened institutionally since the 'third wave' of democratisation while others have stagnated. He further articulates a clear normative ambition: to understand how legislatures can emerge as a more effective check on executive power, thereby furthering democratisation across Africa.

Barkan's book served as a springboard for the ambitious African Legislatures Project whose purpose, as stated on its website, is to 'learn everything there is to know about how African legislatures function'.1 The project brings together academic institutions and donor agencies in an effort to gather data and provide analyses for seventeen parliaments across the continent. More journal articles have also appeared in recent years, some of which share Barkan's overall research agenda (Nijzink et al. 2006; Brierley 2012) while others present the significance of parliament in a different light. For instance, Martin van Vliet (2013) argues that a weak parliament helped enable government collapse and conflict in Mali, thereby positioning the legislature as critical to state-building and national integration.

Taken together, recent studies point to a high level of institutional diversity across African parliaments. Some scholars attempt to capture this diversity through a numerical account of institutional differences. Fish and Kroenig's (2009) Parliamentary Powers Index (PPI) attempts to assign 'scores' to legislatures based on their formal institutional capacity. The PPI score is calculated using thirty-two items grouped into four categories, namely, influence of the executive, institutional autonomy, special powers and institutional capacity. Each item is an unweighted dichotomous variable with 1 indicating its presence and 0 its absence. The overall score is calculated by dividing the sum of all affirmative answers by the total number of items in the survey, which creates a range from 0 (the lowest score) to 1 (the highest).

Table 12.1 shows the results for a sample of African legislatures, including their overall amalgamated score as well as the rating for a sample of the formal powers that parliaments may enjoy. The table helps confirm the institutional variation and contrast in formal powers observed across African parliaments. Beyond signalling this diversity, however, the value of the PPI score is limited. For one, it is misleading as it weights each of the formal powers of legislatures equally, while some are clearly more important than others. It also captures formal powers rather than everyday reality, and we know that in some legislatures certain formal rules are enforced while others are not. As a result, the numbers do not align with the conclusions presented in more qualitative assessments of legislatures in question. For instance, South Africa and Benin receive high scores but in practice are often seen to be subservient to the executive; Uganda, meanwhile, receives a lower score but as we shall see below, has been cited as having one of the most independent legislatures in the region.

Table 12.1 Parliamentary Powers Index (PPI) for selected African legislatures

Country | Power to impeach | Independent investigation capacity | Oversight of security agencies | Can appoint Ministers | No confidence vote | PPI score
---|---|---|---|---|---|---
Benin| 0| 1| 0| 0| 0| 0.56
DRC| 0| 0| 0| 0| 0| 0.25
Ghana| 0| 1| 0| 1| 0| 0.47
Nigeria| 0| 1| 0| 1| 0| 0.47
Senegal| 0| 1| 0| 0| 1| 0.44
South Africa| 1| 1| 1| 0| 1| 0.63
Tanzania| 0| 1| 0| 0| 1| 0.31
Uganda| 0| 0| 0| 1| 0| 0.44
Zambia| 0| 0| 0| 0| 0| 0.28

To move beyond the limitation of the PPI scoring method requires acknowledging the effect of political context on MPs' behaviour and thus parliamentary performance. Existing research on African legislatures has identified a range of these environmental factors that appear to influence legislative strengthening and performance across the continent.2 The level of party discipline is clearly critical. Highly cohesive and disciplined parties discourage their members from adopting an independent stand in the house, or from challenging the executive by pushing for institutional reforms. Similarly, the type of electoral system is important, with first-past-the-post affording MPs more individual autonomy than proportional representation, which exposes them directly to parties' powers in candidate selection.3 Additionally, some scholars have stressed the importance of a new generation of MPs with attitudes and values better suited to an autonomous legislature (see contributions to Salih 2005; Barkan 2009).

Even this more contextually sensitive analysis, however, has its shortcomings. It neither builds significantly on insights already outlined in the wider comparative literature, nor integrates the study of such individual factors and their effects into a more cohesive theory of institutional change. What work has pursued a more ambitious theoretical analysis again is indebted to Barkan (2009), who outlines the most influential explanation to date regarding the actual mechanism behind legislative strengthening in African states. He argues that in order to launch the institutional reform process, a 'coalition for change' must emerge from within parliament itself. He defines this coalition as a cross-party alliance propelled by genuine 'reformers', a vanguard of MPs who desire a stronger parliament for its own sake. These 'reformers' are then joined by 'opportunists', MPs who are along for the ride in so much as they can benefit personally. The more self-interested focus of the 'opportunists' influences what kind of reforms are most likely to occur first. These include improvements to MPs' own professional opportunities and emoluments, as well as the resources available within parliament to ensure effective work. Referring to the Kenyan case, Barkan notes how such a coalition came together in the late 1990s and early 2000s to push for independent control over parliament's budget and, notably, over MPs' salaries.4 He stresses the added importance of raised salaries in the African context as a means of liberating legislators from their historic dependence on executive patronage.

Barkan's 'coalitions for change' are a reoccurring phenomenon across African legislatures that have undergone a reform process (see also Kasfir and Twebaze 2009; Tsubura, 2014). The nature and sequencing of reforms also fits Barkan's model. However, when accounting for the emergence of a reformist coalition, Barkan himself acknowledges there is a need for further investigation. The various contributors to his volume identify a number of factors that appear to increase the probability of a coalition forming. In Kenya, for instance, Barkan focuses in particular on the role of civil society, understood as a collection of Nairobi-based, donor-funded organisations with the research and lobbying expertise to push a reform agenda (Barkan and Matiangi 2009). However, contributors to Barkan's volume identify many more factors than there are cases explored, and it is not always clear how these various factors relate across cases or which prove to be the most significant.

This result is to some extent understandable in a volume that is essentially laying the groundwork for further study. There is, nevertheless, a sense that Barkan misses an opportunity to probe the deeper, structural factors that may influence variation in legislative development across African states. A notable limitation of Barkan's volume – and the recent literature on African legislatures more broadly – is its oversimplified analysis of how 'neo-patrimonial' politics affect legislative growth. Barkan presents patron-client ties as '[impeding] the development and performance of the legislature' (Barkan 2009: 6). On one level, he is correct. The time spent by African legislators responding to constituency pressures and performing their role as local patron certainly distracts from their other, more specifically parliamentary roles legislating and exercising executive oversight. The pressures of satisfying the expectations of a constituency clientele also make legislators more vulnerable to executive co-optation; a powerful President can simply buy off financially vulnerable MPs to discourage them from acting more independently in parliament.

However, in stark contrast to his earlier scholarship – discussed later in this chapter – Barkan's most recent publications fail to consider how patterns of 'neo-patrimonial' politics vary both between states and over time, and how this variation, in turn, leads to more diverse legislative development outcomes. Instead, drawing heavily on the work of scholars associated with the 'institutionless school', Barkan's analysis reproduces some of the same analytical shortcomings (Chapter 1). Referring to the period from the late 1960s to the late 1980s as the 'era of neo-patrimonial rule', he maintains that 'African regimes were relatively homogeneous' and that 'the legislature [was] a rubber stamp or ceased to exist' (Barkan 2009: 16–17). He then suggests that diverging trajectories in African politics, and in the fortunes of African legislatures, only began to emerge after the return of multiparty elections in the early 1990s as certain parliaments began to shield themselves against the perverse influence of 'neo-patrimonial' politics (Barkan 2009: 16–17; see also Barkan 2013: 252). Barkan thus portrays 'neo-patrimonialism' as implying a kind of bland uniformity across Africa's one-party regimes, and presents a clear trade-off between patronage politics and the growth of formal institutions such as parliament.

This chapter, by contrast, argues that neo-patrimonial or clientelist politics evolved in very different ways under both one-party regimes and multi-party states and that these different forms of clientelism have had contrasting effects on legislative development, both before and after the so-called third wave of democratisation. As noted at the start, clientelism is a major feature of politics in almost all developing economies (Khan 2010), but the nature of patron-client networks and, notably, the prominence of MPs as local patrons are by no means uniform. Where MPs are able to consolidate their position as local patrons, they can adopt a more assertive posture vis-à-vis the executive; they elevate the legislature as an arena of intra-elite bargaining and thereby catalyse its institutional development. The next section illustrates this argument through a cross-country comparison of clientelist politics and legislative strengthening in Tanzania and Kenya during the one-party era. The chapter then explores how changes in the patronage role of Tanzanian legislators since the 1980s underpin the more assertive stance and reformist drive of Tanzania's historically weak legislature in recent years.

Ultimately, this analysis pushes back against the view that informal clientelist institutions or 'neo-patrimonialism' are diametrically opposed to any form of legislative strengthening; rather, there is a complex interplay between informal and formal institutional growth. Depending on the specific nature of prevailing clientelist institutions, they may discourage or encourage legislative strengthening. What is more, while the democratic transition has certainly proved crucial in a number of countries, it alone is not enough to explain continuities and discontinuities between the one-party and multiparty eras.5 Again, in order to probe the underlying structural factors informing the balance of power between the legislature and executive, an understanding of variation in the patronage role of MPs is key.

# Legislators as 'Linkers': Tanzania and Kenya in Historical Perspective

Clientelism – at a very basic level – refers to an informal institutional arrangement whereby clients and patrons are engaged in a mutually beneficial yet unequal exchange relationship (Lemarchand 1981). In the electoral arena, politicians are the patrons exchanging material rewards – either individual benefits such as jobs or locally distributed public goods – in exchange for votes from their clients. As politicians seeking votes, legislators in developing economies are no exception. They routinely adopt the mantle of patron in order to secure local support; however, whether referring to Latin America, Southeast Asia or East Africa, scholars underscore variation in the kinds of informal clientelist institutions that come to define legislators' patronage role (see for example Barkan 1984; Hyden and Leys 1971; Scott 1972; Taylor-Robinson 2006).

This variation exists between states, within states – for instance between urban and rural areas – and over time as changing conditions reshape the structure and significance of patron-client networks. One way the structure of these networks varies is with regards to the position legislators occupy within the larger chain of patron-client exchange. Parliamentarians may play a prominent role as 'linkers', channelling state resources to their constituencies to provide a range of public goods (Barkan 1979; Taylor-Robinson 2006). They may also strengthen their position as local patrons still further where they can access additional, private sources of political finance. Alternatively, legislators' patronage role may be far less pronounced as state resources are distributed through other channels – for instance, through administrative or party structures – while access to private political finance is scarce. Legislators and constituents may still maintain a patron-client relationship, but the extent of clientelist exchange will be relatively limited, as will be the stature of the legislator as patron.

The aim here is to indicate how the nature of legislators' patronage role affects their independence and ultimately the likelihood of legislative strengthening. The principal claim is that, in a developing country context where legislators play a more central role as patrons, there is a greater likelihood of legislative assertiveness and institutional strengthening. This is for two reasons. First, legislators have more opportunities to develop an independent support base, which gives them more leverage relative to their party and a dominant president. Second, where MPs have this individual power as local patrons, the potential for intra-elite contestation is greater as powerful politicians clash over diverging material and ideological interests. Ultimately, the combined effect of more autonomous legislators and greater contestation is to transform the legislature into a forum for intra-elite bargaining, thereby increasing the likelihood of more legislative assertiveness and institutional development.

A comparison of Tanzanian and Kenyan clientelist politics during the one-party period provides an initial indication of how this dynamic plays out in practice, leading to variation in legislative autonomy and institutional strength even under authoritarian rule. The immediate post-independence scholarship offers an especially rich literature on the legislature in both countries, which provides the basis for the forthcoming comparison. While neither institution was exactly strong – certainly neither was 'supreme' – scholars nevertheless noted important differences in their overall performance. By the end of the 1960s, the Tanzanian Bunge appeared to be one of the weakest in East Africa, failing to challenge government on fundamental policy issues (Kjekshus 1974; Tordoff 1977). The Kenyan parliament, by contrast, seemed by far the strongest in the region. Through her close study of Kenyan politics in the 1960s, Cherry Gertzel (1970) paints a picture of the legislature as a 'lively' arena in which members made full use of private motions, intervened vigorously in budget debates and subjected government bills to careful scrutiny.

In accounting for these differences, scholars suggest that contrasting strategies of regime consolidation, and in particular the extent to which post-independence rulers relied on a strong ruling party, produced varying legislative outcomes (Tordoff 1977; Cheeseman 2006; Opalo 2015). For instance, Tanzania's parliament was first handicapped as a result of the executive's successful effort to subordinate Bunge to the ruling TANU party. In 1968, following repeated executive-legislative clashes, the party expelled seven MPs, which ensured the loss of their parliamentary seats. These expulsions marked a critical turning point as any notion of parliamentary 'supremacy' was de facto discarded (Kjekshus 1974:32; Tordoff 1977; Van Velzen and Sterkenburg 1972). The TANU National Executive Committee emerged as a parliament-within-the party, vetting policies and legislation before it reached the House (Martin 1988). Moreover, in 1975, reforms enshrined the principle of party supremacy in Tanzania's constitution.

The elite disciplinary efforts may not have succeeded, though, if it were not for simultaneous efforts by the TANU leadership to systematically deprive legislators of an opportunity to cultivate a prominent role as local patrons. Regarding elections under the one-party regime, nominations were closely controlled by TANU, with the top leadership vetting all aspirants before narrowing the field to two. The election campaigns for the two TANU nominees were then carefully stage-managed by the party, offering minimal opportunities for candidates to project an image of themselves as a viable local patron (Hyden and Leys 1972; Kjekshus 1974; Barkan 1984). At the same time, the kind of financial support needed to help legislators play the role of patron was not readily available. A strict leadership code adopted in 1967 barred individual politicians from drawing two salaries or from engaging in a wide range of business activities. Alternative private sources of campaign funding were also scarce. Finally, there was limited opportunity for legislators lobbying the government administration to redirect state funds towards their local area. Tanzania's socialist commitment to central planning militated against this more piecemeal distribution of state resources. Civil servants also tended to jealously guard their own patronage power, keeping it out of the hands of politicians (Kjeshus 1974; Holmquist 1984). Despite Tanzanian MPs' claims that catering to constituency needs featured among their chief responsibilities (Hopkins 1970), these combined obstacles barred them from acting as strong local patrons and curtailed the consolidation of a clientelist relationship between legislators and their voters.

Ultimately, the effects of TANU's two-pronged intervention proved debilitating for legislative autonomy and institutional strengthening. Strong party discipline in parliament and extra-parliamentary management of legislators' financial autonomy and their local patronage role effectively reduced parliament to a rubber stamp. This situation led some observers to opine that the very survival of the Tanzanian Bunge would be a mystery were it not for the role elections played in elite recruitment and regime legitimation (Kjekshus 1974).

The situation in neighbouring Kenya was altogether different. The ruling KANU party was relatively weak, and President Jomo Kenyatta struggled to assert party discipline in parliament. Gertzel writes that by the mid-1960s, legislators had emerged as the 'most vigorous and critical group within the party; and indeed the only group that had a definite forum and opportunity for debate' (Gertzel 1970: 41). KANU backbenchers used their position to criticise government policy in key areas, often along clearly ideological lines. The formation of the breakaway Kenya People's Union (KPU) party in 1966 and its subsequent banning in 1969 did dampen parliamentary opposition; however, the relative autonomy of Kenya's MPs endured. Crucially, this independence was largely due to the position MPs acquired as strong patrons in their respective constituencies. Weak party control over candidate selection ahead of elections plus the greater availability of private campaign finances led to the proliferation of personalised, patron-client networks centred on elite politico-business ties. Hyden and Leys (1972) illustrate this dynamic through their discussion of Kenya's 1969 'quasi general election' during which KANU held party primaries in the absence of any registered opposition parties. The resulting tussle featured high levels of intra-elite competition channelled through rival 'political machines' battling for supremacy in different constituencies across the country, although most especially in the relatively affluent Kikuyu-dominated Central Region. After first making a name for themselves through their campaigns, elected MPs had ample opportunity to further develop their role as local patrons. Indeed, in stark contrast to government policy in Tanzania, President Kenyatta decided in the early 1970s to promote an ideology of 'self-help' through partially state-funded community development projects, which MPs played a prominent role in overseeing. As such, legislators were encouraged to compete as 'linkers', funnelling resources from the centre to their constituencies (Barkan 1979; Holmquist 1984).

The linkage role of Kenyan MPs, on top of their personal investments as local patrons, ensured they retained a degree of autonomy and strategic political importance to the regime. The sorts of intra-elite rivalries generated – notably through the election process – also helped further animate legislators' horse-trading within parliament, fuelling particularly intense bargaining over the budget. As Opalo (2015) illustrates in more depth, the relative vitality of legislative activity throughout the one-party period contributed to a process of incremental legislative reform, and also helped normalise instances of executive-legislative confrontation. In terms of actual performance, Opalo provides an empirical indicator of legislative strength, measured as a function of the proportion of government bills passed by parliament. When contrasted with the Zambian one-party legislature – generally considered somewhat stronger than the Tanzanian parliament – Kenya performs considerably better.

These two brief reviews offer an initial indication of how the contrasting patronage roles assumed by legislators in Tanzania and Kenya contributed to very different institutional outcomes under one-party rule. Kenyan MPs' more prominent patronage role enhanced their individual autonomy, which in turn, encouraged a process of long-term legislative strengthening. Clearly the differences in both clientelist practices and legislative outcomes in Tanzania and Kenya also depended on the varying levels of institutional strength and cohesion in the ruling party, a point further developed by Cheeseman (2006).

It is worth noting, however, that both MPs' patronage role and, with it, the cohesion of the ruling party, may change over time, thereby enabling a shift in the legislature's institutional trajectory. Such an evolution recently took hold in Tanzania, a phenomenon explored in the next section.

# 'A Bunge with Teeth:' Patronage and Intra-Elite Contestation in Tanzania

Tanzania returned to multiparty politics in 1992 and held its first multiparty general election in 1995 following a top-down initiative orchestrated by the leadership of the ruling party (Hyden 1999; Nyirabu 2002). Little changed in Tanzania's weak legislature in the decade following the 1995 elections (Killian 2004); however, starting in 2005, parliament began to push through a series of institutional reforms, exposing the executive to bruising corruption scandals and turning the annual budget session into an embarrassing referendum on the government's economic stewardship. This section sets out to explain the increased legislative assertiveness and institutional strengthening of Tanzania's parliament between 2005 and 2015.

As previously noted, recent scholarship on African parliaments has tended to present such cases of post-transition legislative strengthening as closely linked to democratic transition. According to this view, legislatures are now reaping the benefits of having opposition parties within parliament capable of galvanising a 'coalition for change.' The opposition in Tanzania has certainly played a catalytic role, and evolving attitudes within the ruling party regarding the legitimacy of legislative independence have also helped bring about institutional change. One obvious problem with an explanatory emphasis on the multi-party transition, though, is that the Tanzanian legislature started to adopt a more assertive stance before the opposition posed any serious electoral threat. Statistics on the Parliament seat share of the ruling party – which changed its name from TANU to Chama Cha Mapinduzi (CCM) in 19776 – illustrate the electoral weakness of the opposition. The percentage of CCM members in parliament varied from 79.6 per cent in 1995 to a high of 90.7 per cent in 2000 before falling to 86.0 per cent in 2005 and then reaching a low of 74.2 per cent in 2010 (Weghorst, 2015). These numbers indicate that the opposition had not made any significant inroads by 2005, which marked the start of Tanzania's reformist ninth parliament (2005–2010). What's more, competition within CCM during this period was far more intense than between ruling party candidates and their opposition rivals. Of the CCM parliamentarians who entered parliament in 1995, 2000 or 2005 and have since left, 57.2 percent did not return because they lost their party primaries, 31.4 per cent because they chose not to contest, and only 11.4 per cent because they lost the election to an opposition candidate (Weghorst 2015). The alternative argument outline here, then, is that the key factor underlying Tanzania's heightened parliamentary assertiveness is the altered nature of patronage politics within the ruling party, brought on more as a result of economic change than political transition. From being largely side-lined, Tanzanian MPs have come to play a more prominent role in patronage distribution. Due to changing politico-economic conditions, they rely more on their personal appeal and resources to fend off rivals from within the ruling party and to capture a local base. The results include more autonomous MPs and rising intra-party tensions, which have spilled over into the legislature and contributed both to the push for institutional reform and to the growing incidence of executive–legislative confrontation.

As indicated above, Tanzania's ruling party largely succeeded in centralising patronage flows within the government administration as well as the party structures throughout the 1960s and 1970s. Economic decline and liberalisation in the late 1970s and 1980s, however, altered this distribution of power and resources. CCM could no longer sustain the same levels of patronage distribution through the party and state bureaucracy (Tripp 1997; Kelsall 2003). Salaries failed to cover living expenses and many civil servants were retrenched. Liberalising reforms, meanwhile, created new opportunities for wealth accumulation in the private sector through both legitimate and corrupt means. Import-export trade was especially appealing for many, although land-grabbing, real estate and tax loopholes lined the pockets of still more. The privatisation of parastatals was another invitation to engage in spoils politics as politicians positioned themselves to get kickbacks or became shareholders of newly privatised companies (Kelsall 2003; Gray 2015).

The shock of these changes to the somewhat sleepy way of doing politics within CCM could hardly have been greater. Now that a bureaucratic position did not have the same material attraction, competition to reach elective office through the party intensified. This, in turn, empowered local level elites who could help mobilise support for a national political aspirant during party nominations. The race to capture the support of these local kingmakers led political elites at the national level – notably incumbent or aspiring legislators – to seek closer ties with private sector financiers, thereby multiplying the number of personalised patron-client networks and driving up the cost of elections in Tanzania (Mmuya 1998; Gray 2015). The recent concern over a rise in Tanzania's historically low levels of election spending testifies to the effects of this new combination of heightened intra-party contestation and a more decentralised, inflationary form of patronage politics. In contrast to past experience, parliamentary candidates have developed new strategies to appeal to voters, notably by dispensing 'takrima' or traditional 'hospitality' in the form of individual handouts to prospective voters. Concern over voter 'bribery' led to the introduction of new campaign spending regulations in 2009, although these have yet to be effectively implemented (Babeiya, 2011).

Finally, the increased prevalence of 'grand corruption' in Tanzania also attests to the more decentralised nature of patronage-client networks within CCM, as well as the intra-party tensions it fosters. Cooksey (2011) notes that 'the use of rent-seeking of all types to advance the interest of groups of rentiers intent on taking control of the party has also heightened pressures to loot the public purse and natural resources' (73). Meanwhile, Gray (2015) highlights how the balance of power between these party factions undermined CCM's ability to control rent-seeking activities. Despite the party's strong formal political institutions and appearance of centralised authority, 'neither the president nor any one particular faction could enforce its particular agenda within the ruling party' (396). These groups remain 'weak vis-à-vis each other' (Ibid.), unable to police or channel their competitors' rent-seeking ambitions.

Taken together, increased electoral pressures and a changing patronage system within CCM suggest that something akin to the KANU-style politics has started to emerge in Tanzania, fuelled notably by the effects of economic liberalisation on opportunities for private wealth accumulation. The new status of MPs as prominent patrons, and the intra-party contestation this has engendered, have had a direct impact on legislative reform and performance. The ninth Parliament (2005–2010) constituted a watershed for legislative reform while the tenth Parliament (2010–2015) continued on the same trajectory. From the start, the growing reform momentum was encouraged – and further abetted – by intra-party disputes over political ambitions and access to patronage.7 Shortly after Kikwete was elected President, a major cleavage surfaced between two key members of his campaign team, Samuel Sitta and Edward Lowassa. Both allegedly wanted to be Prime Minister, and in the end Lowassa scooped the position while Sitta became Speaker of Parliament. This was significant, because Sitta later oversaw some of the most ambitious legislative reforms to date while also championing Parliament as an anti-corruption check. His genuine commitment to legislative strengthening aside, close observers and colleagues argue his reformist zeal enabled him to raise his profile ahead of a planned presidential bid while also satisfying a personal vendetta against Lowassa.

Concerning institutional reforms, Sitta oversaw the amendment of the parliamentary Standing Orders in 2007 as well as the enactment of the National Assembly Administration Act (NAAA) in 2008. The new standing orders strengthened the powers of parliamentary committees, notably the oversight committees, while also granting the legislature fresh powers to convene ad hoc committees of inquiry. The NAAA, meanwhile, started as a private member's bill and was later adopted by the government in an effort to take ownership of the parliamentary initiative. As Speaker, Sitta soon ensured that the new standing orders were put to good use. In 2007, allegations surfaced that the government had, in 2005, awarded a lucrative emergency power supply contract at a highly inflated price to Richmond LLC, supposedly a shell company (Gray 2015). While Sitta could easily have buried the scandal in parliament, he instead used the legislature's newly acquired powers to convene a parliamentary investigative committee, which later issued a report implicating Prime Minister Lowassa. Efforts led by Lowassa and the then CCM Secretary General to convene the CCM parliamentary caucus before the scheduled tabling of the report failed amidst protests from MPs that the party was attempting to deny them their independence as legislators. Driven into a corner, Lowassa announced his resignation on the floor of Parliament. He did so defensively, however, alleging that the Richmond investigations were nothing more than a witch hunt and that his premiership was the main prize.

The fallout from Richmond led to the emergence of two loose CCM factions with Sitta and Lowassa as their unofficial leaders. President Kikwete endeavoured to distance himself from both camps, but the fallout with Prime Minister Lowassa was clear after Kikwete had failed to defend him in the heat of the Richmond scandal. The two sides, which later earned the titles CCM-safi and CMM-mafisadi (safi meaning 'clean' and mafisadi meaning 'the corrupt'), only ever counted a small minority of CCM MPs among their ranks; however, much of the subsequent parliamentary activity as well as party business centred on tensions between the two factions as CCM-safi continued its anti-corruption efforts. In that sense, the Richmond scandal set a precedent. Even after Sitta lost his speakership following a challenge from a CCM-mafisadi candidate in 2010, the trend remained the same. The newly empowered parliamentary oversight committees took the lead, while a majority of CCM MPs rallied behind them. The resultant clash between the legislature and executive was profound. During his two terms as President, Kikwete was forced to reshuffle his cabinet no less than seven times, removing over sixty ministers as a result of pressure from parliament.

Within CCM, the factional rivalries spilled over into a debate over the proper relationship between the party and parliament. In 2009, individuals associated with CCM-mafisadi attempted to push a motion through a National Executive Committee (NEC) meeting that would have stripped Sitta of his party membership and triggered his expulsion from parliament. Supporters of the motion argued that Sitta was working against the interests of the party both through his reform agenda and through his support for controversial corruption probes. Former Speaker and CCM Vice Chairman Pius Msekwa offered a particularly blunt critique, accusing Sitta of attempting to 'arm Parliament with teeth so as to bite CCM' (Msekwa 2012: 123). Although NEC stopped short of expelling Sitta, it did censure a number of CCM MPs for failing to make use of parliamentary caucus meetings as a forum for building consensus.

While this public dressing down might have had a powerful effect on CCM MPs in the past, its impact this time was minimal. This assertiveness stems from the way party factionalism and the emergence of privately financed political networks have empowered individual legislators. In the ninth Parliament, the core group of MPs in the CCM-safi group formed their own political 'family', as one former member put it, assisting each other in constituency work and collectively benefiting from private sponsorship. Some members did lose their re-nomination bid ahead of the 2010 elections, in one case seemingly due to opposition from top party organs, which are chaired by the President. Nevertheless, they were replaced by a new generation of vocal CCM legislators.

Following the 2010 polls, the party leadership also appeared to change its attitude towards more assertive CCM MPs as, finally, opposition parties succeeded in attracting more electoral support. Where CCM leaders were no longer confident of the vote-winning ability of the party brand, the personal political capital of individual legislators becomes more valuable. In this vein, the leadership did not reject the re-nomination of veteran dissidents as parliamentary candidates in the 2015 elections. What's more, being singled out as a vocal MP came with its own added advantage. Under Kikwete, MPs noted that a sharp tongue was an effective means for a legislator to extract favours from government ministries in exchange for a promise to keep mum during budget debates and the like. CCM Secretary General Abdulrahman Kinana also hinted at the need to reform the relationship between the party and its MPs, recommending that the CCM parliamentary caucus be granted more independence by removing the prime minister as caucus chairperson.

The extent of CCM legislators' relative autonomy in recent years should, nevertheless, not be exaggerated. Old habits die hard and meetings of the CCM parliamentary caucus were still notorious for killing a hot debate under President Kikwete. What's more, his successor, John Pombe Magufuli, has taken a far stricter line in trying to discipline both legislators and CCM members more generally. Interestingly, these efforts have focused notably on reigning in what Magufuli identified as the dangerous and corrupting ties between private business, on the one hand, and politicians and party officials, on the other. In addition to sweeping party constitutional reforms and an ongoing anti-corruption campaign, Magufuli has promised stricter regulation of political finance alongside a commitment to use CCM's own revenue-generating capacity – for instance, rents from various party-owned properties – to bankroll routine party activities and political campaigns. Despite this renewed executive offensive, it remains unclear the extent to which Magufuli can reverse-engineer the profound politico-economic changes that have come about in Tanzania since the 1980s, recentralising control over patronage distribution and, consequently, reinforcing his own authority over a fractious party and oppositional parliament.

Without indulging in speculation regarding Tanzania's current trajectory under Magufuli, it is safe to say that, under Kikwete, the decentralisation of patronage networks within CCM led to a more prominent patronage role for MPs while also fuelling intra-party factionalism. Vocal opposition party legislators helped galvanise parliamentary debate; however, given their meagre numbers, opposition MPs could not have achieved much on their own. As such, the Tanzanian case is particularly helpful for highlighting the significance of changes in MPs' status as patrons, which can substantially alter politics within the ruling party and create a new window for legislative development.

# Conclusion

The legislature in African states can no longer be dismissed as an inconsequential rubber stamp, if indeed it ever could. New scholarship has tried to make sense of apparent variation in legislative development across the continent, and the extent to which such variation affects the quality of democracy in different states. This chapter argues that, while recent studies offer some important insights to help us make sense of legislative strengthening, they fail to examine the deeper, structural factors that may account for contrasting legislative outcomes. The treatment of 'neo-patrimonial' politics as a uniform constraint is particularly problematic, as is the sharp distinction between a 'homogeneous' neo-patrimonial era and a democratic period of renewed legislative growth. Indeed, the argument here is that it is differences in the configuration of patronage networks across states that account for varying patterns of legislative development, both under one-party rule and after a multi-party transition.

Specifically, the extent to which legislators assume a prominent patronage role within their constituencies is crucial. Where MPs have greater access to patronage resources, they gain a degree of political autonomy through the cultivation of a local support base. Intra-elite competition over parliamentary seats is also likely to be more pronounced. Together, the relative autonomy of individual MPs and the prevalence of intra-elite contestation encourage more legislative assertiveness and institutional strengthening.

The comparative study of the Tanzanian and Kenyan parliaments provides an initial illustration of how these dynamics unfold. The Kenyan parliament has remained among the strongest in the region both before and after the return to multiparty politics, and this notably because of the important patronage role MPs play in their constituencies and the challenges of enforcing party discipline to control their legislative behaviour. The Tanzanian parliament, by contrast, was relatively weak under one-party rule but gained strength in recent years as ruling party MPs invested more in their role as local patrons and as intra-elite tensions began to erode party unity in parliament.

This analysis should not be taken as a normative endorsement of MPs' informal patronage role. The point is solely that where this more pronounced patronage politics exists, MPs are likely to enjoy greater autonomy vis-à-vis their party and President, which in turn allows for greater legislative independence as well as institutional strengthening. These seemingly desirable outcomes aside, MPs' status as prominent local patrons – coupled with enhanced competition over legislative seats – has problematic implications as well. These include a trend towards inflationary patronage and diminished accountability as a result of the distorting influence of campaign finance (Scott 1972; Barkan 1979; Barkan 2009). Rising corruption in Tanzania, linked to enhanced factionalism amidst competing patron-client networks, is also clearly not something to celebrate. Building on this, we can question parliament's own much-publicised efforts to check corruption as intra-elite competition threatens to obstruct the objective review of alleged cases of executive malfeasance. Confronted with this ambiguity, popular frustration with parliament and MPs has, if anything, risen in recent years. Activists in both Kenya and Uganda, for instance, released piglets around the parliament buildings in protest over the supposed greed and corruption of so-called MPigs.

So what does this suggest about the significance of a stronger legislature, and particularly, the presumed link between legislative strengthening and democratisation? On a positive note, African parliaments continue to publicise instances of government corruption or else challenge executive spending priorities in the annual budget, demanding more money for key social services. At the same time, though, stronger parliaments can fall afoul of the very intra-elite contestation that helps ensure their rise. The legislature becomes an arena for settling political scores and, in the process, becomes enmeshed in the very corruption scandals it is meant to check. Stronger parliaments do appear to encourage stronger democracy as conventional wisdom would have it. But we should also understand that these gains may come through a process of political manoeuvring and intra-elite contestation that at times seems far removed from the end goal of more accountable and representative government.

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1 African Legislatures Project, 'Project Website', www.cssr.uct.ac.za/alp (accessed 24 March 2016).

2 These findings echo research from legislative studies in other regions, such as Latin America (Morgenstern and Benito 2002). Efforts at direct, cross-regional comparison are, however, lacking.

3 A minority of African states use closed-list proportional representation. These include South Africa, Namibia, Mozambique, Rwanda and Sao Tome and Principe.

4 This line of argument is broadly in keeping with Squire's (1992) theory of legislative institutional strengthening through 'professionalization'. According to this theory, individual legislators' self-serving efforts to improve their own professional rewards and long-term career prospects ultimately strengthen the legislature as a whole. Legislators push for increasingly ambitious reforms aimed at improving their own efficacy and power, and thus the likelihood of being re-elected and of achieving additional professional and political goals through their legislative work. The cumulative effect is that turnover rates go down and the experience and efficacy of legislators improves, thereby transforming the legislature into a more vibrant, assertive body.

5 Some recent doctoral work also emphasises the significance of MPs' patronage ties, party cohesion and legislative institutional change. See: Cheeseman, 2006; Opalo, 2015.

6 This change followed a merger with Zanzibar's Afro-Shirazi Party to create the 'party of the revolution'.

7 The foregoing discussion draws on a series of interviews with MPs, party officials, observers, as well as media coverage.

# 13 The Judiciary

## Courts, Judges and the Rule of Law

Peter VonDoepp

Although somewhat less visible than Africa's turn to more democratic forms of rule in the early 1990s, the rise of 'constitutionalism' stands as an equally important development. This rise has been reflected, at the level of discourse, in the increasing attention that constitutions have received among scholars concerned with Africa, and with governance activists on the ground (VonDoepp 2013; Ndulo, Chapter 5). At the level of practice, it has been witnessed in the turn to rule-governed politics, as described by Posner and Young in their path-breaking 2007 article, which they revisit in this volume (Chapter 11).

As constitutions and rules now matter, it comes as little surprise that judiciaries are playing a far more visible and consequential role in Africa's democratic and hybrid regimes. As Kenyan Justice Jackton Ojwang describes, '[J]udicialism has become the handmaiden of constitutionalism; and it follows that, of the three conventional arms of government the one which has distinctly benefitted from the changing political philosophy is the Judiciary' (2013: 40). Constitutionalism has empowered judiciaries; so much so, that Prempeh, writing in 2006, could suggest that 'Marbury's legacy' was enjoying a quiet resurgence in Africa (2006: 3).

In this chapter, I examine the rising role of judiciaries in Africa's democratic and hybrid regimes. My objectives are both descriptive and analytical. With respect to the former, I seek to detail and highlight the visible and consequential roles played by judiciaries on Africa's political landscape. From there, I turn to the analytical task of conceptualising the role of judiciaries and exploring why some might be more inclined to positively contribute to governance than others. In undertaking the latter, I develop a framework that engages with and draws from the broader comparative literature on judicial politics, and then offer an in-depth case analysis of recent judicial developments in Zambia to help illustrate central elements of my general scaffolding.

One of the central themes that I seek to illuminate concerns the importance of both structure and agency in the development and performance of judiciaries. While the former refers to institutional and contextual forces that shape the judiciary, the latter refers to the central role played by judicial actors themselves. Scholarship on judicial politics tends to give varying levels of emphasis to these. My analysis of the Zambian case, and the contrast between developments in Zambia and Malawi, highlights the importance of considering both elements in order to understand the challenges that the courts have faced with respect to the level of authority they enjoy in society. In this regard, the central point of the chapter broadly recalls themes raised in the volume's Conclusion about the importance of the interaction between more 'formal' (institutional) and 'informal' (the strategies and practices of individual actors) factors in shaping the status of key institutions.

# The Relevance of Judiciaries in Africa's Democratic and Hybrid Regimes

As I have indicated, judiciaries have emerged as more visible actors in Africa's politics. In the abstract, one would expect that this would translate into gains for democracy and good governance. Empirically, this appears to be the case. In at least three important respects, judiciaries have positively shaped the governance climate of Africa's hybrid and democratic regimes.

First, judiciaries have been vital to the exercise and consolidation of basic civil and political liberties. Press freedom stands as one clear example. Recent research (VonDoepp and Young 2016) indicates that governments are more likely to respect media freedoms in environments with higher rule of law indices. One central reason for this has to do with the role of judiciaries in helping to preserve and advance media freedoms. In the 1990s, for instance, the Zambian judiciary prevented the government from establishing a body to regulate journalists' conduct (Makungu 2004; Matibini 2006). In the following decade, they halted the government from deporting a journalist who had offended government with a satirical column. In Uganda, the Supreme Court in 2004 decriminalised the publication of false news (Twinomugisha 2009), and in 2010, declared unconstitutional a sedition law that had been used against journalists and media outlets.1 Likewise, respect for rights of association and organisation have been supported by the courts. Within a few years of each other in the mid-1990s, both Zambia's and Ghana's Supreme Courts issued rulings that upheld the rights of individuals to organise and demonstrate without first obtaining police permission (VonDoepp 2009).2 In the early 2000s, courts in both Zambia and Malawi also upheld rights to demonstrate against government, and in Malawi, found officials who ignored this right in contempt of court.

Second, courts have played central roles in thwarting efforts by executives to extend their hold on power, or to exercise their power beyond the legal scope of authority. As I have discussed elsewhere, in the early 2000s, Malawi's courts issued decisions that kept intact a fragile parliamentary balance of power that ultimately helped to undermine the efforts by the ruling party and its allies to extend former president Bakili Muluzi's term in office (VonDoepp 2005). After Muluzi left power, the courts blocked his successor's efforts to fire his own vice president (Gloppen et al. 2010). More recently, Kenya's courts undermined the effort by former president Mwai Kibaki to appoint a new chief justice in a manner that contradicted the stipulations of the 2010 constitution (Sibalukhulu 2012).

Finally, judiciaries have helped to mediate contentious disputes concerning elections, enhancing the credibility of the contests and helping to stabilise tense periods. Malawi affords striking examples. Gloppen et al. (2010) describes the positive role of the courts in the 1999 electoral processes as follows:

[T]he Malawian judiciary ruled that presidential candidates were allowed to contest with a vice-presidential candidate from another party, it ordered the Electoral Commission to register prisoners as voters... and ordered the date of polling to be set in accordance with the constitution... This enhanced voter participation and promoted constitutionalism.

In the 2004 contests, the courts even postponed polling day to allow a further inspection of the voter registry, while in 2014 they undermined efforts by the incumbent to nullify the election. Positive judicial mediation in electoral processes has also been witnessed in Ghana, Nigeria and Tanzania (see Gloppen et al. 2010; Kwaku Asare 2007).

On the other hand, courts have also mediated disputes concerning electoral outcomes. For instance, in the aftermath of Ghana's 2012 elections, the declared loser of the electoral contests Nana Akufo Addo took the electoral commission to court, challenging the win of the incumbent, John Mahama (where it was also clear party activists were preparing to undertake civil disobedience). In this instance, the authority and credibility of the courts provided opposition elites an avenue for challenging the election results without undermining political stability. Moreover, by threatening to hold in contempt those who engaged in aggressive and hostile rhetoric regarding the court's decision, the Supreme Court served to 'tame political extremism' (Kwarteng 2014; see also Azu 2013). A similar course of events took place in Malawi after the 1999 elections (see VonDoepp 2005).

Yet, some cautionary notes are needed. As Ellett has pointed out, the 'judicialization' of politics is not necessarily evidence of an empowered or independent judiciary (Ellett 2015); 'judicialization' is actually one proximate cause of government efforts to interfere with the courts (VonDoepp and Ellett 2011). In addition, while the courts have upheld civil liberties and rights in some contexts, in others they have facilitated and sanctioned abuses of those rights. Ghana's courts, for example, have awarded considerable sums in damages in defamation cases against newspapers, a practice described by one observer as the 'judicial suffocation of the media' (Kwaku Asare 2007: 18). Likewise, courts have enabled governments to increase executive powers. In Zambia in 2007, the Supreme Court nullified a lower court decision opposing appointments to the national broadcasting company and broadcasting authority, the effect of which was to sharply reduce the role of civil society in those appointments. Subsequently, in 2013, the court issued a ruling that allowed the president's formation of a special tribunal to try three judges that the government sought to remove from office, despite legitimate questions as to whether the president followed proper, legal course of action.

Finally, while the courts have helped to generate stability in some contexts, in others they have failed in this respect. For example, in the aftermath of the disputed 2007 Kenya presidential elections, the courts – packed by a series of last-minute appointments by President Kibaki – failed to offer the declared losers of the contests a viable arena through which to pursue their grievances (Ouma Oseko 2011). The court's lack of impartiality was, in turn, detailed by the Waki commission, established to investigate the post-election violence. This lack of impartiality 'increased the tendency to violence among members of public' (Ouma Oseko 2011: 6).

# Thinking about the Dependent Variable: Judicial Assertiveness, Autonomy and Authority

In the above overview, I have indicated that judiciaries have played various roles in regard to democratisation. Yet, raising this issue requires some attention to how we conceptualise the role of judiciaries in political systems. That is, if we are concerned with the role and performance of judiciaries, especially in terms of enhancing the rule of law and good governance, what are the specific 'dependent variables' we should focus on? The literature suggests three possible directions.

On one level, various judicial roles can be understood with attention to their level of assertiveness vis-à-vis governments. In this regard, the focus is on what others have called 'positive' judicial independence – courts challenging 'powerful actors in their rulings; that is, deciding cases in ways that seek to nullify, restrict, or change the behaviour of those actors'.3 Such assertiveness is central to courts serving as instruments of accountability (Gloppen et al. 2010). For those concerned with African politics this is critically important as 'untamed executives' have represented a central governance problem in many societies (Prempeh 2008).

Yet, it is also important to note that judicial assertiveness in the form of anti-government decisions may not reflect the independence of institutions, and may not serve governance-enhancing functions. Courts can be captured by other interests – opposition politicians, business elites or criminal networks, and judicial power asserted in the service of these interests may restrict and frustrate an executive in ways that actually undermine good governance. Thus, we need to exercise some caution in drawing too close a connection between assertive judicial behaviour and good judicial practices or impartiality. Moreover, attention to court behaviour may fail to capture important dimensions of judicial influence on the political system. Consider the role of courts in mediating disputes about electoral outcomes. In the cases of Malawi and Ghana, it was the stature and credibility of the courts that contributed to the stability of those countries in the aftermaths of their respective electoral contests in 1999 and 2012. In this regard, it was not the behaviour of the judiciaries per se that mattered, but the respect and authority that they enjoyed. Indeed, in the end, the court did not assert itself against sitting governments by overturning incumbent electoral victories in either case.

On another level, the role and status of the courts can be understood with reference to the level of autonomy they enjoy (VonDoepp 2009; VonDoepp and Ellett 2011). In this regard, the focus is on the extent to which the courts are variously respected and/or undermined by political forces. The concept of 'negative' judicial independence is closely aligned with this idea, especially as it refers to the extent to which courts are free from interference.4 In analytical terms, the spotlight shifts to the behaviour and actions of other actors within the political system – especially executives – vis-à-vis the courts. Do they allow the judiciary to function without fear of retribution for their decisions and respect their decisions? Do they interfere with and manipulate the judiciary through appointments, threats to remove judges, public badgering or 'informal' exchanges? To the extent that they do the latter they likely reduce the odds of the judiciaries engaging in assertive behaviour and can also undermine the credibility of the courts. At the same time, because the focus is on how other actors treat the courts, and not on the courts per se, one can lose some perspective on how relevant the courts are in the political system and the extent to which they are positively contributing to the governance climate.

On a final level, it makes some sense to consider and evaluate the authority that the courts enjoy as instruments of accountability. In some sense this captures elements of both assertiveness and autonomy, but it extends beyond that. The concern here is with the extent to which the courts can effectively assert their power in support of the rule of law and democratic governance. This is revealed partly by the nature of court judgments in key political cases, especially those concerning limits on executive power and respect for key civil and political liberties (Gloppen et al. 2010; Ellett 2013). But it is also witnessed in the extent to which courts enjoy respect from government, as well as key actors in politics and civil society. Clearly, the authority of the courts is limited when governments refuse to comply with court decisions and suffer few consequences as a result. Moreover, indications that the courts are no longer viewed as legitimate arbiters of disputes, as appeared to be the case in Kenya prior to 2007, bespeak a lack of authority on the part of the courts.

All three of these concepts – assertiveness, autonomy and authority – are valuable when considering the role and relevance of courts in Africa's hybrid and democratic societies. Each of them captures, imperfectly, the potential for courts to positively contribute to governance and democratic consolidation, and all three of them are interrelated. Assertiveness can reflect and increase the authority of the courts, but it can also generate incentives for governments to undermine their autonomy. High levels of authority, especially respect from key elements of political and civil society, can buffer the courts from infringements on their autonomy. Finally, a lack of autonomy can lead to a lack of both assertiveness and authority.

With this in mind, in the brief analysis of developments in Zambia that follows, I focus on the issue of judicial authority, accepting that this is intimately connected with both assertiveness and autonomy. My specific focus is on why the judiciary has faced challenges to its relative standing and apparent capacity to exercise authority. While this helps to illuminate concepts described earlier, it more fundamentally leads us to consider how courts are shaped by both broader structural and contextual circumstances, as well as by the actions of individuals occupying positions of power within the institution. In the next section I address this issue in theoretical terms.

# Thinking Theoretically about Judicial Development and Performance

How do we understand variance in the roles that judiciaries have performed in Africa's societies? Specifically, why have they emerged as authoritative and assertive institutions in some contexts and not in others? While a variety of themes emerge in the literature, one important distinction lies in the different levels of emphasis assigned to structural or contextual factors, as opposed to the agency of individuals involved with the courts. Scholars emphasising the former prioritise attention to the political context in which the courts are situated and the institutional environment that informs their operation. Those highlighting the latter stress the ways in which judicial actors shape judicial process and development.

The comparative literature on judicial assertiveness brings this divide between structuralist and agent-centred approaches into focus. Perhaps the most classic 'structuralist' perspective on the judiciary highlights the extent to which institutional structures allow governments to, among other things, wholly determine the composition of the bench (or the institution as a whole) and punish and/or reward judges. Many analysts of African courts have emphasised such issues when accounting for the relatively weak performance of judiciaries in certain contexts. For example, Ghanaian scholars have singled out rules regarding the size of the Supreme Court, the appointment process for the chief justice, and the discretion of the chief justice to empanel the court to hear constitutional cases as potential threats to judicial independence (Kwaku Asare 2007; Center for Democracy and Development/Friedrich Naumann Stiftung 2000; Owusu-Dapaa 2011).5

Obviously, these kinds of considerations have informed constitutional designers for centuries, and continue to be the focus of constitutional reform programmes in Africa. For example, Kenya's constitutional reforms in 2010 included a number of changes specifically designed to increase judicial independence. These included the addition of specific language stipulating such independence, and substantial changes to the rules regarding appointments to the bench and procedures for removing judges from the bench (in both cases decreasing the power of the executive) (Ouma Oseko 2011).

Yet, others have questioned the relative importance of institutional conditions, and instead, focused on a different structural factor shaping judicial assertiveness: the political context in which judges are situated. In effect, the political setting is viewed to be as, if not more, consequential for judicial assertiveness as the 'parchment' barriers protecting judicial independence. In this perspective, judges are viewed as strategic actors who read signals from the political environment about when it is safe or even prudent to decide cases against governments. Anti-government rulings can be expected to increase during periods of government division, or when it appears that an incumbent will exit power, as research on courts in Latin America and Africa has confirmed (Helmke 2002; Iaryczower, Spiller and Tommasi 2002; VonDoepp 2006).

The emphases on broader structural (whether institutional or political) determinants of judicial assertiveness have been challenged by those who embrace more agent-based understandings of judicial behaviour. In this regard, scholars have sought to understand behaviour with reference to the norms, values and role orientations of judges themselves. For example, Lisa Hilbink (2012) explores the emergence of positive judicial independence in contexts such as authoritarian Spain and Chile. As she writes, '(s)incere attitudes... are themselves crucial to explaining judges' proclivity to assert authority against powerful actors' (2012: 589). An appreciation of the 'professional role conceptions' that inform the actions and choices of judges is of particular importance, and is also found in the African context. Gloppen et al. (2010) consider the role of attitudes and legal cultures when investigating the accountability functioning of the courts. Others have focused on the importance of the 'jurisprudential frameworks' that inform judicial decision-making. Prempeh (2006) and Kwaku Asare (2007) have criticised Ghanaian jurisprudence for its relatively weak emphasis on rights and liberal democratic constitutionalism.6 Indeed, Prempeh (1999) calls for a wholesale refashioning of jurisprudence in Africa in order to reposition judicial action in support of democracy and the rule of law.

Structural or contextual approaches have tended to also dominate the literature on the development of judicial autonomy and authority, sometimes bringing attention to the same factors that presumably abet the exercise of judicial assertiveness. Some suggest that political competition and fragmentation can facilitate government respect for judiciaries (Ramseyer 1994; Bill Chavez 2003; Ginsburg 2003; Stephenson 2003). Where power is fragmented and electoral uncertainty high, political officials will have incentives to invest in, or at least respect, autonomous judiciaries, and have limited ability to unilaterally undermine judicial independence. Others have focused on the power of 'protective constituencies' such as the media or popular support for judicial independence. These are assumed to have the capacity to raise the costs for governments wishing to interfere with judiciaries, and, as such, dissuade such behaviour (Vanberg 2000; Gloppen et al. 2010; Helmke 2010).

In contrast, others have adopted more 'agent-centered' accounts of judicial development, placing judicial actors at the centre of analysis. Focusing on different contexts, scholars have highlighted the ways that leading justices have acted to build the authority and autonomy of judicial institutions. Scheppele argues that the development of court power in Russia and, especially, Hungary was tied to the important roles and actions undertaken by the individuals who held top judicial offices after these countries transitioned from communist rule (2006: 1848). Likewise, Crowe's discussion of the American context highlights the ways that Chief Justice William Howard Taft contributed to the development of judicial autonomy. Taft enhanced the reputation of the courts through his own stature, as well as through measures to improve court efficiency and by currying favour with the media and bar association in order to build support for the judiciary. Likewise, in the African context, Widner (1999; 2001) highlights the importance of chief justices in cultivating support among key constituencies and the public when discussing court successes in sub-Saharan Africa. Echoing several of these themes, Rachel Ellett highlights different ways that judicial leadership can contribute to the empowerment of the judiciary. These include helping to develop a courageous judicial culture or forming alliances with key actors, international and domestic, who can support the courts (VonDoepp 2009; Leakey 2012; Ellett 2013: 206–209).

To be sure, many scholars, notably Ellett (2013), Leakey (2012) and Gloppen et al. (2010), emphasise that both structures and agents – interactions between, and variation within, these two aspects – need to be considered fully in order to account for varying patterns in the roles that judiciaries have played in African societies, and understand the performance and development of judiciaries over time. In the section that follows, I offer a brief case study that attempts to shed further light on the factors shaping the roles and performances of judiciaries in African societies. My specific focus is on the apparent authority Zambia's judiciary has enjoyed.

# The Trajectory of the Zambian judiciary: Authority Compromised (and Regained?)

In February 2015, Irene Mambilima, a Supreme Court justice and chairperson of Zambia's electoral commission, was unanimously ratified as chief justice by Zambia's parliament. Her appointment garnered widespread applause. Mambilima, who carries the nickname 'Iron Lady', is reputed to be a person of high integrity and independence. Observers hoped that these same personal attributes would come to characterise the judiciary. The enthusiasm for Mambilima, and hope for her success, needs to be understood partly in the context of the recent history of Zambia's judiciary, reflective of a particular hope that Mambilima could transform the judiciary and fundamentally affect its trajectory. During the five to seven years preceding her appointment, the judiciary had reached a low point in terms of its ability to effectively project authority. Close observers described the judiciary as 'in crisis' and 'lacking the confidence' of the public.7 Leading political figures questioned the integrity and impartiality of the courts, and civil society called for the removal of judges, including two chief justices, from office. The courts were also the target of a 'reform' programme that could undermine their independence and credibility.

It is this assumption – that an individual can shape the status of a formal institution – that I consider here, focused on the period preceding Mambilima's tenure in office. If we examine the relative crisis that the courts faced from 2009–2014, to what extent did individuals, as opposed to institutional or political dynamics, shape the fate of the judiciary? As will become apparent, both help to explain the decline of the courts.

In terms of background, although the courts sometimes played an important and assertive role during the first ten years of democratic rule (1991–2001), they also came under considerable criticism owing to perceptions and open suggestions that leading figures on the Supreme Court had been co-opted by the executive, particularly by means of informal practices linking the personal interest of judges to the political interest of power-holders. Some of these concerns were confirmed after President Frederick Chiluba left power in 2001, when it was revealed that the chief justice (Matthew Ngulube) had received money from a clandestine government account controlled by Chiluba's allies. During the subsequent administration of Levy Mwanawasa (2002–2008), the courts witnessed less apparent interference from the administration and less open criticism in leading media outlets. Still, while the High Court issued rulings against the government, the Supreme Court remained largely deferential – that is, wholly non-assertive – vis-à-vis the executive (VonDoepp 2009).

The discernible deterioration in the authority of the courts took place most clearly in the aftermath of Rupiah Banda's ascension to the presidency in late 2008 as the judiciary came to be associated with the corrupt and heavy-handed practices of his administration. Part of this had to do with key rulings rendered by the courts from 2009 onwards. These included decisions that supported and even cleared presidential allies facing corruption, and served charges and decisions against government critics in civil society, the media sector and political society. Yet, it also had to do with a growing perception that certain judges, including the chief justice, were allied to or controlled by Rupiah Banda and willing to do his bidding in the courts.

Partly as a result, the judiciary came to be a frequent target of attack from, and appeared to lose the support of, key constituencies in political and civil society. Already in late 2009, opposition media groups raised questions about the behaviour of the judiciary, openly suggesting that respect for the courts was waning in the face of problematic decisions.8 Several lawyers attempted to remove the chief justice from his position, claiming that he had exceeded the mandatory retirement age and was serving on an executive-issued contract. Opposition politicians claimed that the courts were in collusion with the executive or that the judiciary was 'destroying democracy'.9 While attacks on the courts were not unprecedented, the level and extent of criticism through 2010 and 2011 did represent a unique development. Elements of civil society, including the Catholic Archbishop, spokespersons for Zambia Council of Churches, and traditional leaders, complained about the courts.10 The leading opposition newspaper, The Post (one of the key voices leading the campaign) indicated in an editorial, 'We do not think that our judiciary has ever been so diminished in its standing, in the 46 years of our independence, as it is now.'11

The narrative of a compromised judiciary was firmly entrenched by the elections of late 2011, when incumbent Rupiah Banda was defeated by Michael Sata, a vociferous critic of the courts. Indeed, Sata had been involved in a very public row with Chief Justice Ernest Sakala when the latter refused to shake hands with him at a public event in 2010. Given this, the conditions seemed ripe for conflict between the new president and the judiciary, itself weakened by its limited support among key sectors of civil society. Moreover, within months of Sata's election, many voices in society, some of them highly respected, began calling for reforms to the judiciary12 and the resignation or removal of the chief justice.13

This context provided the pretext for the administration to take measures against the judiciary in the name of restoring the integrity of the institution. While Sata and others in his administration may have had sincere intentions to positively reform the courts, it is also clear that they stood to benefit tremendously from having a judiciary closely aligned to their interests. Sata's first major move vis-à-vis the judiciary was an April 2012 attempt to suspend and dismiss three judges, all of whom were seen to be allied to the previous administration. After the High Court rendered a judgment challenging Sata's move, government ministers openly questioned and criticised the judge on the case and even threatened to 'dissolve' the judiciary if reforms were resisted.14 While key opposition figures and media outlets rose to challenge such voices, other elements of civil society continued to demand reforms of the judiciary, including the removal of senior judges.15 Soon thereafter, in June of 2012, both the chief justice and deputy chief justice announced their intentions to retire and went on leave. While the decision was applauded, the appointment of a new acting chief justice, Lombe Chibesakunda, an alleged relative of Sata, did not restore great confidence in the bench, as she was already beyond the mandatory retirement age, which raised questions as to whether her appointment could legally be ratified by parliament.

While many remained concerned about continued disrespect for the courts by the Sata administration,16 as time went on the more acute issue lay in perceptions of collusion between the top bench and the executive. A focal point for this concerned questions about the legality of Chibesakunda's appointment and her continued presence as acting chief justice, presiding over cases and rendering decisions of substantial political importance. At the start of 2013, the president sought to have her formally ratified as chief justice; yet, a parliamentary committee rejected this, apparently on the grounds that she had already passed the retirement age and was serving on a contract, conditions that disqualified her from taking the position of chief justice. This view was supported by the Law Association of Zambia.17

The issue gained momentum over the next few months, with the Law Association going so far as to state that Chibesakunda was 'illegally occupying and performing the functions of the office of judges of the Supreme Court'.18 Criticism increased following actions by the Supreme Court that raised questions about its integrity and independence. A number of high profile cases relating to election petitions went against opposition members, providing fodder for government opponents calling for the ouster of Chibesakunda. Then, in August of 2013, the Supreme Court issued a controversial 'irregular' ruling on the eligibility of some opposition members to contest by-elections – a 'ruling' that was not based on questions formally before the Supreme Court, but which had been issued as a press release. By September 2013, the Law Association sued the government over Chibesakunda's continued stay at the head of the judiciary, while others questioned the validity of whether any decision taken while she was in the role of acting or permanent chief justice.19

By 2014, the authority of the courts remained in crisis – with top officials and judges seen as closely aligned with government, or captured by other interests. In interviews, observers suggested that judges were acting as 'brokers' for the powerful political and business 'cartels' operating beneath the surface of the Zambian political scene20 – a reminder of the ways that 'informal' practices can undermine the authority of formal institutions. Although the government initiated a commission to consider judicial reforms in early 2014, this did little to remedy the situation, and the ability of the institution to authoritatively issue legitimate decisions was openly questioned. About three months later, following President Michael Sata's death in late October 2014, Lombe Chibesakunda's 'acting' appointment expired, and Mambilima was appointed to serve as chief justice.

# Structure and Agency in the Demise of Zambian Judicial Authority

The decline of court authority in Zambia held real potential to shape the trajectory of the country, opening the door to the expansion of executive power (enhancing the prospects for government interference) and increasing the prospects for political instability (recall the Kenyan case discussed earlier in the chapter), while alienating key allies in civil society. How do we make sense of this situation? In addressing this question, I consider first the extent to which Zambia's judiciary was the victim of broader structural circumstances, and then consider the actions of individuals in positions of power on the bench. In so doing, I also draw on the situation and judicial experience in neighbouring Malawi, which has avoided the kind of authority crisis that has afflicted Zambia, in order to offer a deeper perspective on the sources of declining judicial authority in Zambia.

In terms of structural conditions, both institutional and political dynamics deserve consideration. The Zambian case suggests that institutional arrangements can indeed facilitate the undermining of the judiciary, especially in so far as they allow executives excessive influence in financial and administrative matters over the courts and judges (Ndulo 2013, and Chapter 5). Yet with respect to developments from 2009, a more fundamental issue appears to have been executive control over who gets to sit on the bench. Zambian presidents have the authority to extend the tenure of judges who have reached retirement age through the use of contracts. Since the start of the democratic era in 1991, all of Zambia's presidents have used this power. This has created the impression that judges have been wedded to executive interests.

Indeed, the issue of 'contracts' has been a central concern of court observers and constituents over the past decade. In interviews conducted by the author in 2006, several judicial insiders indicated that the system of 'contracts' provided judges with incentives to bow to executive interests, and the legality of such appointments (or contracts) has been drawn into question, as indicated above in the prominent court case in 2009 of the chief justice and another Supreme Court justice. After Sata's election, the Law Association specifically highlighted the issue of contracts as an area in need of reform. Yet, President Sata proceeded to elevate another judge (his ally) on contract to serve as acting chief justice. In this regard, the use of this power by executives has served to undermine the integrity of the courts in the eye of the public and important constituents. An internet post in 2013 captured the concern about this when describing the outcome of an important political case:

(F)our of the majority judges in the case of Mutuna are all on contract. The three judges, Muyovwe, Mwanamwambwa & Chibomba, who dissented are not on contract and are below the retirement age. Could the Supreme Court have ruled any differently had those judges not been on contract? Did the contracts play a role in making Wanki, Mumba, Chibesakunda, and Phiri rule for the State?21

Notably, this use of 'contracts' has occurred in an environment where observers and constituents of the courts have perceived close informal and even surreptitious linkages between the judiciary and the executive branch.22 The importance of this factor becomes even clearer when we compare this situation to that in Malawi. There, judges must retire at sixty-five and are allowed to remain on the bench only to finish cases that they have already begun. In at least one instance, this appears to have helped preserve the reputation of the courts' impartiality. In 2002, Chief Justice Richard Banda, an individual suspected of sympathies and informal linkages to then-president Muluzi was forced to retire (VonDoepp 2009). Had he been allowed to stay on, especially on the basis of a contract granted by the executive, this might have undermined the reputation of the judiciary.

The political context also figures importantly. The key issue in the Zambian case concerns the role of certain 'constituencies' – like the media – that scholars have singled out as central to the health of the courts. The role of the media is central, because the declining authority of the judiciary was linked to perceptions, propagated by the media, that the institution was corrupt and captured by elite interests. Yet, it is also the case that key media elements have been aligned with elite interests competing in the political sphere. In this context, rather than 'support' the courts, media outlets may have, for their own reasons, abetted the undermining of their authority.

This issue is especially relevant when one considers the role of Zambia's largest independent newspaper, The Post. The newspaper and its publisher were deeply embedded in the political fight between Rupiah Banda and Michael Sata, holding strong allegiance, and, by some allegations, financial connections to the latter. While Banda was president from 2008 to 2011, The Post was one of his fiercest critics. In this context, its publisher became the target of a legal investigation and court case concerning his investments and financial dealings. Some suspected that the case was politically motivated.23 As perceptions of ties between President Banda and the chief justice hardened, and as the courts appeared increasingly willing to support Rupiah Banda's efforts against his opponents, The Post and its publisher had a major incentive to discredit the courts. The news and editorial pages were the vehicle they used, quite forcefully, to do so, claiming that the judiciary was compromised and operating in collusion with the executive. Thus, while the narrative of a compromised judiciary may have had some legitimate basis, one of the chief proponents of that narrative had very powerful instrumental reasons to propagate it.

In the aftermath of Banda's defeat and Sata's ascension to the presidency, it is likely that The Post's publisher continued to view Chief Justice Sakala as a threat. The newspaper's support for reform and 'cleansing' of the judiciary can partly be understood in this light. Moreover, it is notable that all three of the judges that Michael Sata targeted for removal had been involved in the financial case against The Post's publisher and his allies. Some close observers indicated that it was under their encouragement, if not direction, that Sata targeted the three judges.24 Thus in Zambia, the media appear to have facilitated, if not orchestrated, attacks on the courts.

Malawi again provides a contrast. Especially in the late 1990s, during the term of Bakili Muluzi (1994–2004), as evidence surfaced that certain judges were aligned to and perhaps compromised by the executive, some voices within the opposition press raised questions about the integrity of individual judges and surreptitious linkages to the president. However, these questions were less about the judiciary than about individual judges (VonDoepp 2009). These claims became even less frequent under the Mutharika administration (2004–2012). Indeed, although Mutharika and his allies claimed that the courts were compromised by his opponents, this narrative did not resonate with the independent press and media outlets. In turn, as Mutharika's rule became increasingly authoritarian during his second term, important players continued to see the courts as a potential locus of resistance. When public protests emerged to challenge Mutharika in July 2011, one of the demands was to reverse measures that had eroded the authority of the courts and respect for the rule of law.

Finally, what of the actors within the institution; did they themselves contribute to the fate of the courts? The literature that highlights the central role of such agents in judicial development is instructive, especially in offering guidelines for what judges should do in efforts to build the authority of their institution. In the discussion that follows, I extract two of these guidelines and then consider the behaviour of Zambia's judges in light of them.

One of the more central themes, presented especially by Scheppele (2006), concerns the extent to which the courts are well served when judges are willing to engage in the 'contact sport' of inter-branch politics. This 'strategic deployment of aggression' involves more than rendering decisions that challenge other branches, and comprises what Trochev and Ellett (2014) describe as 'off-bench' politics. In the cases discussed by Scheppele (2006), this includes making public statements and arguments through the media when the courts or constitutionalism were under attack, and sometimes executives were openly questioned.

Malawi affords examples of such inter-branch sparring, particularly during the Mutharika administration. Despite aggressive rhetoric against the courts and actions against individual judges during the latter part of his first term (2004–2009), judges refused to simply kowtow to the government. Indeed, as relations deteriorated, judges continued to demand that government implement pay increases, and even stood by quietly while the Law Society of Malawi filed suit against the government on their behalf. They also quietly refused to attend Independence Day celebrations in July 2007, in apparent protest of rhetorical attacks and insults from the president and his allies against senior judges. Although the chief justice, Leonard Unyolo, resigned in the context of these disputes, his doing so just after the Supreme Court's rendering of a major decision against the government, was seen less as a retreat than a noble exit. And even in the worst days of Mutharika's second term, judges joined in solidarity with judicial workers who were striking over conditions of service.

There are few analogues to these kinds of actions on the Zambian side. For one, while the High Court rendered some decisions against government, during the Banda and Sata administrations, the Supreme Court was deferential to the government in its decisions. By the author's count, no 'high interest' cases were decided against the government during the period from 2001 to 2014. Judges also did little to assert their authority via 'off-bench' activities. Indeed, when judges, especially those at the senior level, might have challenged the executive in defence of the judiciary, they remained passive and perhaps complicit in the undermining of their institution. For example, in 2003, President Levy Mwanawasa publicly berated a judge for rendering a decision against him, and then called on the judges to avoid issues which may bring the judiciary in conflict with the executive again. Yet senior members of the judiciary kept silent (VonDoepp 2009). In other incidents, under Presidents Mwanawasa and Banda, senior judges allegedly communicated the president's displeasure and tacitly threatened High Court judges who had rendered decisions against the executive.25 The circulation of these stories augmented perceptions that top judges, and thus the institution, were captured by political interests.

A second theme concerns the reputations that judges develop for themselves, and by extension, for their institutions. Crowe (2007), for instance, demonstrates how William Howard Taft was able to build the power and autonomy of the judiciary in the United States by virtue of the respect that he generated by building the administrative efficacy of the courts. Scheppele (2006) suggests that senior judges in Hungary and Russia built images of themselves as intellectual authorities and guardians of constitutionalism. This shaped the respect that their institution enjoyed. An additional component of this, drawing loosely from Widner (1999), is the extent to which senior judges are able to present images of impartiality.

In the Zambian context, senior judges have been less effective in developing reputations that contribute to the authority of the courts. The primary issue has been perceived proximity to executives and their interests. Chief Justice Ernest Sakala, for instance, came to be seen as allied first to Levy Mwanawasa and then to Rupiah Banda. Much of this was of course based in rumour and perception; yet, Sakala's refusal to shake hands with then-opposition politician Michael Sata in 2010 solidified perceptions that he was tied to President Banda. Indeed, interviews conducted in 2014 with close observers of the judiciary indicated that this perception of closeness undermined his own stature within the institution. In the words of one observer, 'Sakala's problem is that he had been too partial... He had shown his hand as a Rupiah Banda supporter' and, 'had been overbearing with other judges'. Another insider indicated, '(U)nder Rupiah Banda, the apparent closeness with Sakala was a problem'.26 The former chief justice was also perceived as advancing ethno-regional interests in appointments. Given that President Banda came from the same region, this likely further undermined the perceived impartiality of the institution.

These kinds of perceptions continued after Lombe Chibesakunda, an alleged relative of Michael Sata, was appointed as acting chief justice. Members of her own family also served in official roles in his administration and had claims on traditional leadership positions.27 Moreover, after accepting the controversial appointment on contract, she remained in office even after a parliamentary committee refused to support her and the Law Association of Zambia unanimously declared that she was not qualified to hold office.28 On top of this, certain court actions, such as issuing a controversial ruling through a press release, eroded support from the legal community and civil society.

In short then, the demise of the court's authority in Zambia reflected both peculiar institutional and political factors, as well as problems with roles and behaviours of the top judicial leadership. The erstwhile lesson for Zambia appears to be that the new chief justice may indeed help to restore the effectiveness of the institution. However, she will not enjoy sole authorship over the course of institutional development. At a broader level, the case helps to illuminate the ways that structure and agency interact to shape the emerging roles of judiciaries, in Africa and elsewhere.

# Conclusion

Over the last few decades, judiciaries have clearly mattered for Africa's democratic and hybrid regimes – in certain cases, helping to enable the exercise of civil and political liberties, delimit the scope of executive power, and legitimate and stabilise electoral competition. Yet, as we have seen, the development of judiciaries is very much shaped by political and institutional factors, and accepting that their role and performance have varied across contexts, there is pressing need to consider and explore how these factors shape their development as governance-enhancing institutions. Much of this chapter has been devoted to that project. While political factors are often difficult to change, the institutions can be refashioned.

We have also seen that individuals significantly affect the role and authority of the courts, and shape how judiciaries develop as institutions. Governance activists and policy-makers seeking to enhance the functioning of judiciaries thus do well to target these aspects in reform efforts. Acknowledging the agency of judges, we can appreciate the opportunities for these key agents to purposively shape the governance climates in their societies.

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1 Media Legal Defense Initiative. 30 August 2010. 'Uganda: using the law to fight for media freedom', www.mediadefence.org/article/uganda-using-law-fight-media-freedom.

2 For more discussion also see Center for Democracy and Development/Friedrich Naumann Stiftung (2000).

3 See Kapiszewski (2007: 18), cited in Hilbink (2012: 588).

4 See Rios Figueroa (2006), cited in Ellett (2013): 27.

5 See also Mutua (2001) on the Kenyan case prior to 2010, or Ellett (2012) on Lesotho.

6 See also Ngongola (2002) on Malawi.

7 Author interviews and correspondence 2014 and 2015.

8 See, for example, Times of Zambia. 19 December 2009. 'An erosion of confidence in the judiciary', <http://allafrica.com/stories/200912211023.html>.

9 George Chellah, 'There's collusion between Chief Justice, Rupiah –HH', The Post, 19 November 2009; George Chellah, 'Parliament, judiciary have destroyed democracy by protecting rebel MPs – Sata', The Post, 23 November 2009.

10 Ernest Chanda, 'Archbishop defends criticism of Judiciary', The Post, 29 September 2010; Salim Dawood, 'Selective application of justice worries CCZ', The Post, 7 November 2010; 'Zambia's judiciary needs redemption – Nalubamba', The Post, 19 August 2010.

11 The Post. 29 September 2010. 'A disgraced judiciary', <http://maravi.blogspot.co.uk/2010/09/disgraced-judiciary.html>.

12 Such calls came from The Post, the Law Association of Zambia and the Zambian chapter of Transparency International.

13 See Arthur Simuchomba. 29 January 2012. 'Chief Justice under Fire', Sunday Times (South Africa), www.timeslive.co.za/africa/2012/01/29/chief-justice-under-fire.

14 Kombe Chimpinde and Mwala Kalaluka. 26 May 2012. 'Judge Chisanga Personal – Zulu', The Post, <http://maravi.blogspot.co.uk/2012/05/judge-chisanga-personal-zulu.html>; Zambia Reports. 1 June 2012. 'Zulu threatens to dissolve Zambia's judiciary', <http://zambiareports.com/2012/06/01/zulu-threatens-to-dissolve-zambias-judiciary/>.

15 Nse Udoh. 1 June 2012. 'Council of churches joins PF attack on judiciary', Zambia Reports, <http://zambiareports.com/2012/06/01/council-of-churches-joins-pf-attack-on-judiciary/>.

16 Sata's administration remained openly hostile to the courts. On one occasion, police violated a court order allowing an opposition party to hold a rally. Sata also suspended two more judges in May of 2013.

17 Lusaka Times. 26 July 2012. 'Select Committee rejection of Justice Lombe Chibesakunda is final, she can't be chief justice-LAZ', www.lusakatimes.com/2013/07/26/select-committee-rejection-of-justice-lombe-chibesakunda-is-final-she-cant-be-chief-justice-laz/.

18 Mail and Guardian (South Africa). 31 May 2013. 'Zambia's Sata defies calls to oust "biased" chief justice', http://mg.co.za/article/2013–05-31-zambias-sata-defies-call-to-oust-biased-chief-justice.

19 Lusaka Times. 24 September 2013. 'LAZ in court to have Chief Justice Lombe Chibesakunda Removed', www.lusakatimes.com/2013/09/24/laz-in-court-to-have-chief-justice-lombe-chibesakunda-removed/.

20 Zambian civil society leaders. August 2014. Interviews, Lusaka.

21 Elias Munshya. 23 October 2013. 'Justice on contract: Judges, the President & the future of our democracy', <https://eliasmunshya.org/2013/09/23/justice-on-contract-judges-the-president-the-future-of-our-democracy/>.

22 'A captive chief justice or a victim of a vicious criminal cartel', originally published in the Times of Zambia, www.facebook.com/barbrah.chama.942/posts/1532473216998602.

23 See 'GRZ Turning the Screws on Zambian Airways', confidential cable authored by US Ambassador Donald Booth, 9 April 2009, <https://wikileaks.org/plusd/cables/09LUSAKA246_a.html>.

24 Civil society activists. August 2014. Interviews, Lusaka.

25 Judicial and legal officials. 2009 and 2014. Interviews, Lusaka.

26 Civil society activists. 2014. Interviews, Lusaka.

27 Zambian Watchdog. 13 November 2013. 'Sata sends police to arrest Chitimukulu for impersonation', www.zambiawatchdog.com/sata-sends-police-to-arrest-chitimukulu-for-impersonation/.

28 Lusaka Times. 24 August 2013. 'LAZ maintains Justice Chibesakunda is not qualified, want a new chief justice within a Month', www.lusakatimes.com/2013/08/24/laz-maintains-justice-chibesakunda-is-not-qualified-want-a-new-chief-justice-within-a-month/.

# 14 Decentralisation

## Accountability in Local Government

Alex Dyzenhaus

African presidents have historically controlled politics on the continent through highly centralised states, a situation that is enshrined in around 80 per cent of African constitutions (Kuperman 2015). But in the past several decades, various reforms have sought to decentralise African states and transfer both power and resources from central governments to subnational ones. Some policymakers, development agencies, civil society organisations and academics advocate for such reforms in the hope that they will realise a number of benefits, including reducing local and national conflict, alleviating poverty, creating greater efficiency in service delivery, enhancing public participation and more generally deepening democracy (Crawford and Hartmann 2008; Dickovick and Riedl 2010).

But scholars of decentralised political institutions in Africa and the broader developing world are divided about whether such institutions in the majority of cases work as intended or, indeed, work against these goals. In the ideal case, decentralised governments are more responsive to their citizens, more aware of their needs, better at delivering services and more capable of collecting taxes. However, there are a number of barriers to decentralisation that can impede these gains or even exacerbate the problems that decentralisation sought to resolve (Crawford and Hartmann 2008).

This chapter focuses on the question of when, and why, decentralisation fulfils its promise to enhance local accountability. In some cases, decentralisation may increase accountability, but in others it can lead to minimal change or simply the transfer of corrupt practices from national to local governments (Crawford and Hartmann 2008). The existing literature highlights a number of factors that shape the quality of accountability in devolved systems, such as the strength of citizens and civil society (Sisk 2001), and the extent of local elite and political usurpation of newly decentralised institutions (Wunsch 2001, 2014). This process of capture is said to impede accountability, by directing the efforts of decentralised institutions away from the local interests towards the interests of national or local elites. Thus, informal practices of patronage undermine the process of strengthening formal institutions.

While acknowledging these factors, drawing on the experience of Kenya I demonstrate the potential of decentralisation for strengthening ties of local accountability. Following the introduction of the 2010 constitution, and the subsequent election of forty-seven new county governments in 2013, Kenya presents an important case for exploring how devolution can be used to enhance accountability in the African context. To date, much of the discussion on devolution in Kenya has focused on the spread of corruption and mismanagement that has characterised county-level governments. Following Helmke and Levitsky (2006) – and their interest in understanding how informal and formal institutions may not always act in competition but may complement each other – I demonstrate the ways in which county leaders have promoted a system of horizontal accountability between different figures at the county level. This kind of often opportunistic defence of the rules of the game echoes the parliamentary marriages of convenience documented by Joel Barkan (2009). He argues that these arrangements have the potential to evolve into effective 'coalitions for change', supporting processes of legislative strengthening (for a full discussion, see Collord, Chapter 12). One might even argue that giving power and resources to local legislators could increase local vertical accountability by reinforcing an institution that is more accessible to the average voter and provides more widely shared development resources. However, such an argument is beyond the scope of this chapter.

To illustrate this argument on horizontal accountability, I draw on the experiences of two Kenyan counties: Embu and Kericho. The governors of both counties faced (ultimately unsuccessful) impeachment motions from their county assemblies, and therefore provide interesting case studies for exploring inter-institutional conflict in the context of decentralisation. Many commentators argue that these impeachments demonstrated attempted power grabs by various local and national elites (Shilaho 2015). While these accounts contain a great deal of truth, they also overlook efforts by assembly members to increase accountability, whatever their motives. The governors of both Embu and Kericho were reluctant to work with other county officials, and much of the reason for their impeachments was to bring them into the formal institutional fold at the county level. Using a variety of newspaper sources as well as over thirty interviews1, conducted in Kenya in the summer of 2014 and January 2015, I show how these attempted impeachments were triggered by a mix of motives that involved both self-interest and commitment to institutional accountability – such motives are not mutually exclusive, but indeed, appear to have been mutually reinforcing.

Kenya is one of a number of countries that have introduced decentralised systems of governance, but the Kenyan experience will not necessarily be repeated elsewhere. For one thing, significantly more power has been devolved in Kenya than has usually been the case in other parts of Africa. After the election of local governments in 2013, national authorities tried to prevent the county governments from assuming various responsibilities (Ghai 2015: 137; Shilaho 2015: 148), but early evidence suggests that the counties have seized the power afforded to them by the constitution and consolidated it against national interests (Cheeseman et al. 2016). While the fate of decentralisation in other countries has been less impressive, the Kenyan case provides an interesting opportunity for analysing how local dynamics play out in a strongly decentralised context, in ways that may not always advantage national elites – where formal institutions seem to interact with the informal practices and behaviours of local elites in an unexpected way.

My cases challenge the commonly held conception – explored in detail in the following section – that corruption and patronage always work against accountability and thus undermine local government. I find that when local governments have genuine and tangible powers, the pursuit of patronage resources may go hand-in-hand with pushing for accountability. In other words, informal practices and networks can work towards the strengthening and consolidation of institutions rather than their subversion, and can create more accountable local governments.

# Decentralisation in Africa: Impeding Accountability

In the 1980s, international financial institutions like the International Monetary Fund, the World Bank and other donor agencies saw decentralisation as a means to shrink the powers of African states (Ndegwa 2002). In their eyes, African governments were oversized and predatory, and to make the state more efficient one had to take its power away through decentralisation and privatisation. There are two major ways in which these reforms have played out: through devolution and deconcentration.2 Devolution (also known as political or democratic decentralisation) is perhaps the strongest form of decentralisation, and it involves a transfer of powers and resources from the central government to an independent and elected local authority. Deconcentration (or administrative decentralisation) is much less substantial and usually consists of a transfer of powers from the central government to local branches and unelected representatives of the central government – which in many cases enhances, rather than weakens, the control of central government. On the whole, African leaders proved able to manipulate the proposed reforms in order to protect their own power (van de Walle 2001), ensuring deconcentration rather than devolution.

Partly as a result, the late 1980s and 1990s saw a change in the goals of decentralisation. In this phase, decentralisation became less about promoting efficiency and more about creating local democracy and giving communities ownership of, and power over, political processes and development around them (Kauzya 2007: 90). However, this second iteration of the decentralisation agenda also met with limited success. In a fairly comprehensive survey of African states conducted in 2002, Stephen Ndegwa found that of thirty states with available data, all had a semblance of local government institutions, but only two had decentralised to a high degree; eleven had moderately decentralised; thirteen had a low degree of decentralisation; and a final four (as well as probably many of the countries with insufficient data) had nominal or no decentralisation at all. While nearly all countries had some semblance of political decentralisation, only half had moderate or high levels of decentralisation according to Ndegwa's index.

A more recent survey by Anwar Shah and Maksym Ivanyna (2014) deployed indicators from 2005 to measure decentralisation worldwide. It found that African states were poorly decentralised compared to their counterparts in Europe, Asia and Latin America when measured by political, fiscal and administrative indicators. Only ten African states are located in the top hundred on this indicator, and the highest ranked was Ethiopia at 37 (others included South Africa, Uganda, Nigeria, Tanzania, Sudan, Ghana, Senegal, Morocco and Kenya). Ivanyna and Shah also created a binary variable to reflect the level of political decentralisation, rating countries on a 0–1 scale based on whether local governments have a directly elected legislature and executive, as well as the degree to which public participation is enshrined in the procedure of local politics. Using this as a proxy for understanding political decentralisation is interesting, because it ranks African countries in a much more favourable light relative to the rest of the world, with eighteen states appearing in the top 100, and Uganda ranking twenty-third overall. The index for African states with a ranking of 0.25 or higher is outlined in Figure 14.1.3

Figure 14.1

Political decentralisation in Africa (2010)

In recent years, decentralisation reforms have been introduced or mooted in countries as diverse as Kenya, Liberia and Zambia. This chapter addresses this more recent trend in devolution and political decentralisation that sees an increase in the number of countries over the last two decades committing – rhetorically at least – to some form of decentralisation, with many states either adopting subnational elected bodies or deepening the power of existing subnational governments (Dickovick and Riedl 2010). For example, the Ugandan Local Governments Act of 1997 changed the local government structure from one that had directly elected village committees appoint the superior tier of local government (which would, in turn, appoint the next superior tier, and so on), to one where people directly-elected each tier of local government (Steiner 2008). But the creation of so many new subnationally elected governments across the continent does not necessarily imply that the quality of accountability has improved. Rather, one must carefully investigate these cases to work out how local government respond and interact with local citizens, the central government or other local government bodies.

Before developing answers to these questions, it is important to say a word about terminology. Only three African countries (Nigeria, Ethiopia and South Africa) have instituted fully fledged federalism, whereby decentralised units are constitutionally recognised as having sovereign powers at the local level and a veto on national decisions that affect them. Federalism is typically viewed as a particularly strong set of arrangements in the sense that it creates constitutionally independent subnational units. While this is true, subnational governments in more centralised states may still have a significant impact on the distribution of power. In Kenya, for example, the system of decentralisation established in 2010 is very similar to a federal model, with provisions for the direct election of county level leaders enshrined in the constitution (Cheeseman et al. 2016).

In each of these counties, subnational governments have been organised in very different ways: around boards, assemblies, executives or councils at the district, state, county or municipal level. Some, like the Nigerian states, reflect the national governance structure, with a governor taking the place of a president and a state assembly taking the place of a national one. The Ugandan system is multi-layered, with five tiers of local councils that see districts and cities taking on the largest role, while villages are the smallest and least powerful unit. These smaller councils receive fewer funds than the larger federal Nigerian states. Alongside its subnational provincial governments, South Africa also has tried to merge local traditional governance structures with more formal subnational government in rural areas (Ntsebeza 2005). But even with the existence of such varied institutional configurations, a similar question arises: does decentralisation increase the accountability of government, or does it do little to change accountability or, in fact, further empower established political leaders?

## Theories of Decentralisation and Accountability

By bringing democracy closer to communities, decentralisation is meant to increase public control of government and public policy, creating a more accountable and responsive political system (Sisk 2001: 24). Accountability largely operates in three ways in the ideal-type decentralised government. Local governments are vertically accountable to the people below them (downward accountability) and the national government institutions above them (upward accountability), while they are also horizontally accountable to other local institutions that surround them (Agrawal and Ribot 1999; Wunsch 2014). In an ideal three-pronged system of accountability, 'central officials must support and monitor decentralisation in a controlled way', 'local officials must learn to work with elected representatives and other actors' and 'perhaps, most critically, local people must learn to hold local officials responsible' (Smoke 2003: 14).

However, accountability does not necessarily follow from the creation of subnational units, and local governments – fairly unaccountable to their constituencies – often answer only to the central government and local elites. A USAID-based study managed by J. Tyler Dickovick and Rachel Beatty Riedl (2010) conducted in-depth case studies of ten African states with a relatively high level of political decentralisation. The resulting analysis revealed severe obstacles for accountable and responsive subnational governments, even in cases that already showed high levels of political decentralisation. In particular, the literature to date has identified three main barriers. First, national governments can look to control local institutions in the name of vertical accountability, but their real motive may have less to do with accountability and more to do with regaining control over local politics and resources (Dickovick and Riedl 2010; Wunsch 2014; Cheeseman et al. 2016). Second, local elites can capture decentralised institutions, circumventing downward accountability to the residents (Wunsch 2001, 2014). Finally, the weakness of local legislative bodies as compared to the local civil service or executive means that horizontal accountability can be ineffective (Steiner 2008).

The first of these barriers results from the actions of national governments. Their legacy of a strong central authority goes back to the colonial era, but the trend crystallised during the post-independence authoritarian era in the 1960s and 1970s and was somewhat counterintuitively entrenched during the era of structural adjustment, despite the pressure to reduce the size of the government (van de Walle 2001). In part, this is because national leaders in Africa have often been able to co-opt and dominate subnational leaders via patron-client ties and other forms of personal persuasion. Thus, in the terms set out in Chapter 15, the formal institution of decentralisation is often seen as being undermined by the presence of a strong set of competing informal institutions.

In Africa, powerful central authorities often seek to undo attempts at decentralisation by attacking the new local institutions, assuming their responsibility or co-opting them to serve the interests of the centre (Wunsch 2001; Boone 2003). A good example of this practice can be found in Kenya's attempt at decentralisation in the 1980s through the District Focus for Rural Development (DfRD) programme. On its surface, the DfRD aimed to decentralise development capabilities to local authorities through deconcentration. But Daniel Arap Moi, Kenya's then president, also used it to undermine the power structures left by his predecessor, Jomo Kenyatta (Barkan and Chege 1989; Lynch 2011). By going straight to the districts, Moi was able to circumvent the powerful provincial administrations and establish his own network of loyal administrators who could service his own constituencies ahead of Kenyatta's. Yoweri Museveni's decentralisation reforms in Uganda were similarly useful in undermining his predecessors and opponents (Lewis 2014) and spreading support for his own party (Kauzya 2007).

The local accountability and responsiveness of decentralised institutions is not only threatened by national elites; subnational political institutions are also prone to elite capture by local elites and pre-existing informal networks of patronage. Thus, rather than delivering more accountable local government, subnational institutions may turn out to be even more corrupt than their national counterparts, a decentralising of corruption from the national level to the local one (Watt et al. 1999: 48). Thus, new subnational institutions may become vulnerable to the same kinds of neo-patrimonial networks that run through other political institutions, with the consequence that decentralisation simply adds another layer of interest to the already corrupt and complex system of local politics (Olivier de Sardan 1999; Bierschenk and Olivier de Sardan 2003: 166–167). According to Susan Steiner, elite capture is feasible because 'those with vested interests are capable of turning the institutions and opportunities created by decentralisation to their own advantage' (2008: 58). The common theme running through this literature is that when elite capture occurs, 'there is no reason to expect that [decentralised] institutions will work for the benefit of anyone but [elites]', thereby making local government unaccountable (Wunsch 2014: 8).

Finally, local institutional incapacity may undermine prospects for horizontal accountability, irrespective of the actions of national elites. In his analysis of decentralisation in Africa and Asia, Paul Smoke points out how decentralised local institutions should aim to create a new degree of independence from national elites, and warns that if this lack of accountability 'is not replaced by a degree of accountability to local people, local officials may become primarily accountable to themselves and influential local elites' (2003: 11). Yet, local legislatures meant to serve as a check against local executive representatives, and draft local legislation, are often staffed with poorly trained and educated people, unable to understand their roles and therefore act outside their formal responsibilities (Steiner 2008: 52). This makes horizontal accountability ineffective, especially against better-staffed local executives. Given the general depiction of untrained local officials acting in an unclear local institutional framework (Chinsinga 2008), it is not surprising that competition between local governmental institutions (the legislature, the executive and the public service) is usually viewed as a scramble for patronage funds, rather than an attempt to secure better policy.

The danger of national manipulation and subnational dysfunctionality implies that the task of holding local governments to account will often fall largely on local voters themselves. Indeed, some scholars (Sisk 2001) do not even address horizontal accountability, and instead focus their analysis on the question of whether a supportive national elite exists, and whether local governments establish accountable relationships with their electorates. For example, Agrawal and Ribot explicitly state that achieving horizontal accountability in decentralised institutions is less important, and that 'downward accountability... is the primary dimension of decentralisation since it can broaden the participation of local populations and enhances the responsiveness of empowered actors' (Agrawal and Ribot 1999: 479, emphasis added). However, the case of decentralisation in Kenya suggests that it would be unwise to throw the baby out with the bathwater.

# The Kenyan Case in Comparative Perspective

One seemingly obvious but important finding from Susan Steiner's study in Uganda is that decentralisation does not increase accountability unless it is accompanied by 'the establishment and enforcement of accountability mechanisms, such as competitive elections, auditing and evaluation, public hearing, third-party monitoring... and procedures for recall' (Steiner 2008: 38). In the case of Uganda, Steiner found that since councils had to rely on conditional transfers from the national government, autonomy from the central state was difficult to establish with decreased capacity and perceptions of increased corruption as one proceeded down the five tiers of local councils in Uganda. Without accessible mechanisms for accountability at the local level, there was little hope for decentralisation having a positive effect on government accountability.

One such mechanism for improving accountability in many local governments is the ability to recall or indict corrupt elected or appointed officials. The impeachments of Nigeria's state governors and their assemblies provide a case for such recall. However, these processes have also been subject to much criticism in devolution's ability to increase accountability. Joseph Fashagba (2015) and Yayaya Baba (2015) find that when impeachments happen in Nigeria's states, they often originate when the national government attempts to remove governors who were in a party opposing the president's party at the national level. Otherwise, 'state legislatures largely function as mere appendages of the governors' and therefore are too weak to make any sincere attempts at holding the executive to account (Baba 2015: 139).

However, such concerns of central domination of decentralised institutions have been less prevalent in the Kenyan case, where the new county assemblies have been granted similar impeachment powers. This is because sufficient local pressures on subnational leaders to satisfy the demands of vocal local electorates have made it dangerous to simply 'sell out' to national elites (Cheeseman et al. 2016). As a result, in Kenya, the way that devolution has played out has been strongly shaped by local, rather than national, issues. In the analysis that follows, by comparing the varied outcomes of local impeachment processes in two subnational authorities, I argue that informal institutions such as neo-patrimonialism (and attendant local competition over authority and state resources) may actually play a role in promoting accountability in new political institutions, and serving as a motivating force for horizontal accountability.

## Devolution in Kenya

Kenya devolved power to forty-seven new counties following the March 2013 elections, as directed by the 2010 Constitution. The county governments are much more powerful than the previous districts were under Moi, and they receive 15 per cent of national government revenue, which is then allocated to individual counties by a formula that takes into account factors like size, population, degree of economic marginalisation and capacity of counties to raise revenue through limited taxes, including property taxes. While the districts were mere branches of the national government administration, county governments have almost unimpeded control over how they spend that money in a number of devolved sectors. The formal responsibilities of the county governments encompass infrastructure projects like public works (such as water infrastructure and roads), early childhood education, some agricultural sectors and, perhaps most importantly, healthcare.

Additionally, such power over resources is subsumed under a democratic mandate. In the pre-devolution era, decentralised administrators controlled development resources while elected local councillors had few resources at their disposal. The new county system is very much a politically, fiscally, administratively and democratically decentralised one. By contrast to many other subnational governments in Africa, which struggle to prise resources away from the national government, in Kenya elected county officials control the allocation of vast development resources (Dickovick and Riedl 2010).

The constitution outlines a number of formal roles for county officials. The governor, who is elected by all voters within the county, heads the executive, while the assembly acts as both a legislative body and a check against the governor's executive power. The assembly is populated by members of county assembly (MCAs), two-thirds of whom are elected in wards by a first-past-the-post-system, while parties appoint the final third to ensure the assembly represents minority and marginalised groups. This gives the local electorate considerable control over the composition of the assembly, in contrast to many other systems with higher rates of appointments. For example, in Ghana's local governments, the president directly appoints 30 per cent of local authority members, and these appointees are often more loyal to the president and ruling party than they are concerned with local interests (Ayee and Dickovick 2010). Having the local parties control nominations in Kenya circumvents this national control to some degree, especially as the distribution of appointment members reflects parties' local popularity. Finally, each county elects a senator to serve in the Kenyan senate, a newly created second chamber, envisioned as the guardian of the devolution process.

The focus of this chapter is the county assembly's significant capacity to hold the executive accountable horizontally through the approval or dismal of governor's appointments (for example, to the county executive committee), as well as oversight over the county budget. These formal powers of local scrutiny over executive actions, underpinned by the assemblies' ability to impeach the governor by a two-thirds majority vote (Republic of Kenya 2012: S.33), enable MCAs to hold governors to account, setting the scene for a series of prolonged power struggles within Kenya's counties.

While the County Governments Act (CGA) confusingly does not outline specific charges that constitute a minimum benchmark for impeachment proceedings for governors, roles of impeachment for the president provide some guidelines, and a governor can be impeached for having acted illegally, unconstitutionally or improperly in such a way as to constitute 'gross misconduct' (Republic of Kenya 2010: S.145.1.c). The CGA does state that any impeachment motion is to be referred to the senate, where a committee will decide whether the claims are legitimate (Republic of Kenya 2012: S.33). If the committee upholds the impeachment, then a majority vote within the senate will impeach a governor, and the governor will be replaced by his or her deputy governor. If not, then the governor remains in office to finish out his or her term.

Impeachments in Kenya are thus more local affairs than in a country like Ghana, where the president can use the 30 per cent of assembly members appointed to control the impeachment of the local 'Chief Executive' (Ayee and Dickovick 2010). In the initial two years of the devolved era, much of the local political competition in Kenya has revolved around executive and legislative struggles over who controls development resources (Ghai 2015: 133). Most notably, Kenya experienced several impeachment bids in 2014, starting in Embu and Kericho counties. More recently, the Makueni county assembly voted to impeach its governor, and many other county assemblies such as Nakuru4 have come close to impeaching their governors. In analysing these impeachment processes, I seek to trace the role played by formal and informal institutions in shaping local struggles over resources and executive accountability.

## Embu and Kericho Counties

Embu and Kericho are two of Kenya's smaller counties. They are largely agricultural and moderately resource-rich. Embu, located in the Mt Kenya East region, is home to just over 500,000 people and is one of Kenya's more multi-ethnic counties with over half of its population hailing from the Embu community, a third from Mbeere and the rest from the Kamba or Kikuyu communities. Ahead of the county government elections in 2013, Embu elites forged a power-sharing agreement that stipulated that the governor would come from the Embu ethnicity, while the deputy governor and senator would be Mbeere.5 Following this agreement, appointments in both the assembly and governor's executive were made to reflect the ethnic breakdown of the county. The county assembly contains thirty-three MCAs (twenty of whom have been elected and thirteen appointed). The various county positions are shared predominately between two parties, The National Alliance (TNA) and the Alliance Party of Kenya (APK).

Kericho, which can be found in the South Rift Valley is much more ethnically homogenous. Nearly 90 per cent of the county's 750,000 strong population are Kalenjin, mostly from the Kipsigis sub-group. The governor, senator, MPs, executive and all but one of the forty-seven MCAs are Kipsigis (thirty were elected and seventeen appointed), and all MCAs (except one) are from the United Republican Party (URP). The county has been the site of several instances of electoral violence, where the Kipsigis have instigated attacks against the minority Kikuyu, Luo, Luhya and Kisii populations, who have at times retaliated with violence of their own (Akiwumi 1999; Throup and Hornsby 1998). While the 2013 elections were marked by the absence of overt violence, there is effectively no representation of these minorities in the county government (Dyzenhaus 2015).6

Embu and Kericho are unlike each other in most aspects. Indeed, the only clear similarity is that the three parties represented in both counties are allies of the current ruling Jubilee Alliance at the national level. Despite this, their experiences under devolution reveal some interesting parallels: these two counties were the first two cases of gubernatorial impeachment in Kenya, and the governors in both cases emerged from their impeachment difficulties with their positions intact, but their powers greatly diluted. This similar experience, in counties that are otherwise very different, demonstrates the potential for devolution to generate horizontal accountability.

# Impeachments: Background and Motives

Embu's county politics have continued to be rocky and unpredictable. The runner-up challenged the governor elect, Martin Wambora, and appealed his vote, keeping him out of office for three months in early 2013.7 Eventually sworn in as the governor of Embu County, Wambora began his work as an already suspect county executive in a county that had begun to attempt to work without the executive branch for months.8 Partly as a result, Wambora viewed with suspicion key actors in the county government, like the senator and the county assembly speaker.9 For example, Wambora refused to sit on a county stakeholder committee organised by the senator, Lenny Kivuti, because the committee had been active in his absence.10

At the end of January 2014, the county assembly had impeached Wambora, with twenty-two of the thirty-three MCAs voting for the motion, and the senate upheld the impeachment several weeks later. They alleged that Wambora had spent more than five times what he had allocated on redeveloping the stadium in Embu Town, spent 35 million Kenyan Shillings (KSh) on maize seeds for farmers that did not germinate and that he had acted improperly in the tendering of both contracts.11 Wambora challenged his impeachment in the Embu High Court, which, in April, ruled in his favour.12 But later that month, twenty-three MCAs voted to impeach Wambora again, and again the senate voted in favour of the impeachment.13 Wambora's appeals continued into 2015, with various court rulings declaring him free to govern, while senate and assembly rulings as well as other court decisions determined he was legally impeached.14 It was only in December 2015, nearly two years after the first impeachment motion, that an appeal court absolved Wambora of the impeachment charges.15

Kericho's impeachment process was comparatively short-lived. Paul Chepkwony, Kericho's URP and Kipsigis governor, had won his position with over 70 per cent of the vote, maintaining a large degree of popularity with his Kipsigis supporters for promising to address the issue of the colonial acquisition and foreign ownership of the area's large tea estates.16 However, while Chepkwony may have enjoyed a stronger local support base, he also ran into trouble with his county assembly quite early on. First erring with the appointment of a number of civil servants (including CECs), without following the official hiring process; he subsequently prevented MCAs from using county money to travel abroad.17 This led to the tabling of a unanimously supported impeachment motion in the county assembly in May 2013, although local Kipsigis elders stepped in and brokered a truce between the executive and legislature.18 Despite the elders' intervention, Chepkwony's relations with his assembly continued to worsen, with the assembly stalling many of Chepkwony's projects. Frustrated by the intransigence of the MCAs, Chepkwony tried to subcontract ambulance services to the Kenya Red Cross and sign a deal with a firm to begin a solar power project without the assembly's consent.19

When tensions rose even further, Chepkwony took the issue to the Kericho High Court to clarify the role of the executive and assembly. This prompted thirty-two MCAs to vote to impeach him again in May 2014, this time on the basis of his alleged violation of several acts surrounding public-private partnerships and the distribution of government contracts. This time his rivals – which included national level figures such the Deputy President William Ruto and the county's senator – mobilised to send the issue straight to the senate.20

In contrast to Wambora's drawn-out battle with the senate, a senate committee ruled Chepkwony's errors to be insufficient grounds for impeachment within a month; and, thus, Chepkwony continued to rule as governor.21 Some have even alleged that the accusations against him were accurate, but that the senate chose to let Chepkwony return to office fearing a second impeachment might lead to a nationwide impeachment crisis, setting precedent for other assemblies.22 Chepkwony was also helped by his local popularity; elders mediated in favour of Chepkwony and thousands of residents signed a petition against the impeachment, denouncing the deputy president.23 The ability of Chepkwony to withstand a national move against him by the deputy president reflected his popular support, but also stands as testimony to the independence of Kenya's county governments.

## Elite Capture and the Impeachment Process

How can we explain the rise of impeachment at the county level in Kenya? According to some scholars, it may represent the devolution of corruption as assembly members – and the communities they represent – demand 'their turn to eat' (D'Arcy and Cornell 2014). Following from this interpretation, decentralisation creates the conditions for local competition over resources and the extortion of the executive by the assembly, and such legislators are primarily motivated not by a desire to strengthen subnational institutions, but by a shortage of resources for securing re-election (Cheeseman et al. 2016).24 These accounts are accurate up to a point.

It is true that many MCAs in both Embu and Kericho desired to control county development resources. As one civil society activist in Embu explained:

When the governor does just a little thing without involving the MCAs, that arises to be an issue. And instead of them solving it amicably... the MCAs see an opportunity to impeach a governor so that they can get that position and be the head of the county governments.25

Indeed, Embu's MCAs proved able to assert a huge amount of authority over the development resources in the county. In the 2013/2014 budget, the MCAs tried to push through funding for ward projects for each of the twenty elected MCAs that would start out at 16.2 million KSh per ward, increasing to 20 million in 2014/2015.26 One audacious attempt saw Embu's MCAs ask for monthly salaries for their 'lonely' spouses.27 A bill passed in the county assembly in January 2015 – while the impeachment proceedings were still ongoing – confirmed that 10 per cent of the county's money would go towards a Ward Development Fund for Embu's MCAs.28 In his bid to evade impeachment proceedings, Wambora had to tame his mutinying MCAs by awarding them with contracts and tenders, eventually carving out a loyal faction in the assembly to stop further impeachments.29 This shows how MCAs in Embu were able to use leverage they gained through the impeachment process to capture devolved resources outside their formal constitutional role as local legislators.

In Kericho, the elected MCAs have made similar gains; 'the powers of the governor and the executive have been significantly diluted'.30 MCAs can influence the appointments of the county executive's ward administrators (who control development at the ward level), providing them with greater control over development expenditure in their wards.31 Yet, while Kericho's MCAs have a tighter grip on tenders and contracts and often award them to friends, family and supporters since the impeachment process, it is worth noting that there was never a serious bid to give Kericho's MCAs direct control over resources in the form of 'projects' or 'funds' for their wards,32 as there was in Embu.33 In large part, this reflects Chepkwony's stronger position within the county, which ensured that he never became as desperate as Wambora.

What is evident from the above analysis is a clear desire by local legislators in both counties to capture decentralised development resources in order to sustain their informal patronage networks in ways that moved well beyond the formal role of MCAs set out in the constitution. In Embu, MCAs exerted a stronger and more direct grip on development funds through Ward Development Funds, while the MCAs in Kericho controlled some tenders or contracts and indirectly managed county funds through their relationships with ward administrators. However, the impeachment proceedings in these counties cannot simply be reduced to a scramble for resources. It would be unfair to argue that MCAs impeached the governor just to receive the Ward Development Fund and salaries for their spouses. Both Kericho and Embu also had a degree of national-level elite involvement in the impeachment process. For instance, in Embu, both the senator, Kivuti, and the MP who had initially coaxed Wambora to join TNA were said to have stoked the flames of impeachment.34

## Accountability as a Motive for Impeachment

Rather, in examining the underlying reasons for Embu's impeachment motion, one can see how it was, to some extent, a bid to establish executive accountability in the county. Instead of trusting other branches of government, given his delayed arrival in county politics, Wambora concentrated power with his county secretary, Margaret Kariuki.35 Kariuki controlled executive spending, was unwilling to make political compromises or concede resources or control to Wambora's perceived rivals, like the senator and the assembly.36 The county secretary had sourced maize seeds that failed to germinate,37 and the MCAs used this as an opportunity to demand that Wambora replace her with someone more neutral. He even ignored the demands of local MP Cecily Mbarire, Wambora's powerful sponsor within his party, to change his county secretary, which lost him the support of his own political party.38 Altogether, these actions added to a perception that Wambora's administration favoured the section of Embu from which both Wambora and Kariuki hailed.39

Wambora's impeachment was a sign of his isolation from county politics, and instead of negotiating with the assembly Wambora took the issue to the courts. Had he made minor concessions such as reshuffling his county executive committee, he may have avoided an impeachment debacle that dragged on for twenty-three months.40 MCAs' determination to impeach the governor reflected their need for patronage resources, but also a growing sense of frustration with a governor unwilling to compromise and make concessions to improve the functioning of the county. It was only in January of 2015 that Wambora finally bowed to pressure and appointed a county secretary who could better manage the assembly through strategic political concessions.41

In Kericho, Chepkwony behaved in a similar fashion, working around the many opposition leaders in the county assembly, which led him to break several laws (in trying to make appointments and initiate projects without approval of his legislature) and rely on the court to adjudicate rather than make a political compromise. When the impeachment bid emerged out of this dissatisfaction, Chepkwony accused the deputy president, Kericho's senator and the MCAs of corruption and pursuing political interests.42 While there was an element of truth in his complaint, county legislators were also responding to Chepkwony's failure to adopt a more inclusive form of governance.

Embu and Kericho are extreme cases, but they are representative of a more general trend. Since their election in 2013, Kenya's governors have acted with a great deal of aloofness, showiness and authority that has benefited them in the face of national-level challenges (Shilaho 2015; Cheeseman, Lynch and Willis 2016), but has also rendered them less accountable to local institutions, and subject to inter-institutional conflict at the county level. Successful governors, like Isaac Ruto in Bomet and Alfred Mutua in Machakos, have managed national and local pressures, coming to mutually acceptable arrangements with other local branches of government (Cheeseman et al. 2016).43 In contrast, many political newcomers – like Chepkwony and Wambora – that have little political experience (D'Arcy and Cornell 2014), have faced numerous obstacles since taking office.

If these political greenhorns are to enjoy successful periods in office – however defined – they will need to learn how to manage and accommodate other actors, recognise the potential strength of the institutions under the country's new constitution and the importance of establishing horizontal accountability. In this sense, while the impeachment proceedings in these counties manifested themselves as struggles over resources, they reflect deeper battles over the control of subnational political institutions and how political power should be exercised and distributed. One of the goals of MCAs in both counties was to clip the wings of executives who appeared to think they were above the law, and above the county-level political system. A combination of motives – of self-interest, informal imperatives and a concern to defend formal institutions – generated a powerful impulse to check the abuse of power by the executive, even by assembly members that were abusing their own positions. As one civil society activist put it, the MCAs have used impeachments to push for a more supervisory and consultative role: 'When the governor was elected, some thought that now... they could do things without consulting others and the MCAs now feel that they are the ones who supervise the functions of the governors.'44

# Conclusion

Much of the literature on devolved systems of government in Africa is bleak on the prospect for decentralised systems to deliver effective horizontal accountability, with national elites often undermining new local institutions in order to regain power and local elites capturing local institutions to pursue self-interest and sustain their own local patronage networks. However, as the cases of Embu and Kericho demonstrate, in some cases formal and informal norms may converge to hold the executive to account, reinforcing mechanisms of horizontal accountability. Combined with the relative strength of Kenya's county governments within the wider political system, which is underpinned by counties' control of significant resources, direct elections and the incentives for governors to resist central co-optation, this has led to the emergence of a system of devolution that is more vibrant and appears to be more robust than similar systems in Ghana and Uganda.

This conclusion is not meant to downplay the very real problem of corruption at the local and national level in Kenya (D'Arcy and Cornell 2014). Neither do I wish to imply that county assemblies should be viewed as democratic or reform-minded bodies. Rather, I have sought to demonstrate the efforts of some county legislators in checking abuses of legislative and executive power and the strong incentives in place (while not always unproblematic) for MCAs to hold the executive to account. In this way, developments at the subnational level thus mirror (to an extent) the national trends identified – by Joel Barkan in his work on the Kenyan National Assembly (2009) – of a cross-party coalition of reformers and opportunists coming together to push for greater legislative autonomy. This did not end corruption or necessarily improve the performance of the National Assembly in terms of public policy, but it did make it harder for the executive to dominate the legislature in the way that it had done in the past (Collord, Chapter 12). Thus, when informal institutions motivate actors to invest in formal rules, even fleetingly, it can advance the slow and uneven process of institutionalisation.

But how generalisable is this finding? As discussed in this chapter, decentralised institutions in Africa are relatively weak. Many such decentralised political institutions in Africa emerged with limited powers (Ghana), others have few independent financial resources (Uganda) and more have fallen prey to recentralising forces and, therefore, have lost some of their independence (Nigeria). In cases where the formal institutional framework for subnational government is weaker, the kind of inter-institutional bargaining documented here may prove inconsequential in the face of scarce resources and national interference. But even in these cases, the introduction of new political institutions may have profound effects. Consider the ways in which federalism has decentralised conflict in Nigeria from the national to the subnational level (Suberu 2010), or the ways in which the opposition used their control of states such as Lagos to secure their national electoral victory in 2015. These, too, were important consequences of the introduction of subnational government, and suggest that the promotion of decentralisation in countries like Liberia and Zambia will refashion politics in new and important ways – even if they do not perform as intended.

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Republic of Kenya. 2010. The Constitution of Kenya.

Republic of Kenya. 2012. County Governments Act.

de Sardan, J. P. Olivier. 1999. 'A moral economy of corruption in Africa?', The Journal of Modern African Studies 37, 1: 25–52.

Schelnberger, Anna. 2008. 'Decentralisation and conflict in Kibaale, Uganda' in Gordon Crawford and Christof Hartmann (eds.), Decentralisation in Africa: A pathway out of poverty and conflict?, Amsterdam University Press.

Shah, Anwar, and Maksym Ivanyna. 2014. 'How close is your government to its people? Worldwide indicators on localization and decentralization', Economics: 1–61.

Shilaho, Westen. 2015. 'Third time lucky? Devolution and state restructure under Kenya's 2010 constitutional dispensation' in Carl LeVan (ed.), African state governance: Subnational politics and national power, London: Palgrave Macmillan: 147–178.

Sisk, Timothy D. 2001. Democracy at the local level: The international IDEA handbook on participation, representation, conflict management, and governance, Stockholm: International Institute for Democracy and Electoral Assistance.

Smoke, Paul. 2003 'Decentralisation in Africa: Goals, dimensions, myths and challenges', Public Administration and Development 23, 1: 7–16.

Steiner, Susan. 2008. 'Constraints on the implementation of decentralisation and implications for poverty reduction – the case of Uganda' in Gordon Crawford and Christof Hartmann (eds.), Decentralisation in Africa: A pathway out of poverty and conflict?, Amsterdam University Press: 33–72.

Suberu, Rotimi. 2010. 'The Nigerian federal system: Performance, problems and prospects', Journal of Contemporary African Studies 28, 4: 459–477.

Throup, David, and Charles Hornsby. 1998. www.amazon.com/Multi-Party-Politics-Kenya-Kenyatta-Election/dp/082141206X.

van de Walle, Nicolas. 2001. African economies and the politics of permanent crisis, 1979–1999, Cambridge University Press.

Watt, David, Rachel Flanary, and Robin Theobald. 1999. 'Democratisation or the democratisation of corruption? The case of Uganda', Commonwealth & Comparative Politics 37, 3: 37–64.

Wunsch, James S. 2001. 'Decentralization, local governance and 'recentralization' in Africa', Public Administration and Development 21, 4: 277–288.

Wunsch, James S. 2014. 'Decentralization: Theoretical, conceptual, and analytical issues' in James S. Wunsch and J. Tyler Dickovick (eds.), Decentralization in Africa: The paradox of state strength, Boulder, CO: Lynne Rienner Publishers: 1–22.

1 Due to the politically sensitive nature of my interviews, I have kept all of my interviewees anonymous.

2 Others will contest that there is a third type of decentralisation in the form of fiscal decentralisation (Crawford and Hartmann 2008) or delegation (Wunsch 2001). Many see it as a middle ground between decentralisation and deconcentration. Still others will point to privatisation of state functions as another form of decentralisation.

3 This leaves out the fourteen African states that have little to no political decentralisation.

4 Civil Society Activist. 25 January 2015. Interview, Nakuru, Kenya.

5 Elder. 12 September 2014. Interview, Embu, Kenya.

6 Youth Activists. 22 January 2015. Interview, Kericho, Kenya.

7 Civil Society Activists. 4 September 2014. Interview, Embu, Kenya.

8 Businessman. 8 September 2014. Interview, Embu, Kenya.

9 Political Advisor. 25 September 2014. Interview, Nairobi, Kenya.

10 Political Advisor. 25 September 2014. Interview, Nairobi, Kenya.

11 MCA. 7 September 2014. Interview, Embu, Kenya.

12 Journalist. 22 August. Interview, Nairobi, Kenya. Also, see Julian Kamau. 15 February 2014. 'Embu Governor Wambora becomes the first governor to be impeached', Standard Digital, www.standardmedia.co.ke/article/2000104675/embu-governor-wambora-becomes-the-first-governor-to-be-impeached.

13 Journalist. 22 August. Interview, Nairobi, Kenya.

14 Political Advisor. 30 January 2015. Interview, Nairobi, Kenya.

15 Makana, Fred. 11 December 2015. 'Appeal court nullifies Martin Wambora's impeachment', Standard Digital, www.standardmedia.co.ke/article/2000185119/appeal-court-nullifies-martin-wambora-s-impeachment.

16 Civil Society Activists. 11 August 2014. Interview, Kericho, Kenya.

17 Political Organiser. 30 July 2014. Interview, Kericho, Kenya.

18 Journalist. 26 July 2014. Interview, Kericho, Kenya.

19 Journalist. 26 July 2014. Interview, Kericho, Kenya.

20 Kemei, Timothy. 15 May 2014. 'Governor kicked out', Daily Nation, www.nation.co.ke/counties/MCAs-Kericho-Governor-Paul-Chepkwony/-/1107872/2315992/-/u8w27lz/-/index.html.

21 Kiplang'at, Jeremiah. 3 June 2014. 'Kericho governor survives impeachment', Daily Nation, www.nation.co.ke/news/politics/Kericho-governor-survives-impeachment/-/1064/2336266/-/r75uyv/-/index.html.

22 Journalist. 26 July 2014. Interview, Kericho, Kenya.

23 Kipsigis Activist. 20 January 2015. Interview, Kericho, Kenya.

24 Kwayera, Juma. 4 July 2015. 'Why impeachment stalks some governors as politically savvy survive', Standard Digital, www.standardmedia.co.ke/article/2000167942/whyimpeachment-stalks-some-governors-as-politically-savvy-survive?articleID=2000167942&story_title=why-impeachment-stalks-some-governors-as-politically-savvy-survive&pageNo=1.

25 Community Activist. 3 September 2014. Interview, Embu, Kenya.

26 MCA. 7 September 2014. Interview, Embu, Kenya.

27 Wanyoro, Charles. 28 August 2014. 'Give our lonely wives allowances, say MCAs', Daily Nation, <http://mobile.nation.co.ke/counties/County-first-ladies-forum-launched/-/1950480/2433248/-/format/xhtml/-/qcw0saz/-/index.html>.

28 Wanyoro, Charles, 'Embu assembly passes ward fund Bill', Daily Nation.

29 Peace Activist. 14 January 2015. Interview, Embu, Kenya.

30 Civil Society Activist. 19 January 2015. Interview, Kericho, Kenya.

31 Journalist. 19 August 2014. Interview, Kericho, Kenya.

32 Youth Activists. 11 August 2014. Interview, Kericho, Kenya.

33 Civil Society Activist. 19 January 2015. Interview, Kericho, Kenya.

34 Representative of the Governor. 13 January 2015. Interview, Embu, Kenya.

35 The county secretary is the chief administrator of the county.

36 Government Planner. 4 September 2014. Interview, Embu, Kenya.

37 Capital FM. 28 January 2014. 'Embu Governor, Deputy first to face impeachment', www.capitalfm.co.ke/news/2014/01/embu-governor-deputy-first-to-face-impeachment/.

38 Political Advisor. 25 September 2014. Interview, Nairobi, Kenya.

39 Urban Activist. 1 September 2014. Interview, Embu, Kenya. Civil Society Activists. 4 September 2014. Interview, Embu, Kenya.

40 Urban Activist. 1 September 2014. Interview, Embu, Kenya.

41 Peace Activist. 14 January 2015. Interview, Embu, Kenya.

42 Wanga, Justus. 17 May 2014. 'MCAs demanded Sh30m to save my job', Daily Nation, <http://mobile.nation.co.ke/news/MCAs-demanded-Sh30m-to-save-my-job-says-Chepkwony/-/1950946/2318566/-/format/xhtml/-/9r5hrlz/-/index.html>.

43 Cheeseman, Lynch and Willis formulate governors' action as a two-level game whereby the governors must balance the demands of those above and those around them. See also www.standardmedia.co.ke/article/2000167942/why-impeachment-stalks-some-governors-as-politically-savvy-survive?articleID=2000167942&story_title=why-impeachment-stalks-some-governors-as-politically-savvy-survive&pageNo=1.

44 Community Activist. 3 September 2014. Interview, Embu, Kenya.

# 15 Conclusion

## Political Institutions and Democracy in Africa: A Research Agenda

Nic Cheeseman

The thirteen chapters that make up this book have demonstrated the significance of formal political institutions for democracy and development in Africa. However, it is important not to exaggerate the extent to which African politics has changed. The reintroduction of multiparty politics did not represent a clean break from the authoritarian era any more than the first decade of independence represented a clean break from the colonial period. During both transitions much changed, but much also remained the same. The survival of old political logics – winner-takes-all politics, neo-patrimonialism and so on – meant that in many countries the official rules of the game continued to be compromised in important ways in the 1990s. As a result, significant variations have emerged in the degree of political institutionalisation on the continent, which makes it impossible to speak of a common 'African experience'.

However, while countries with more dysfunctional institutional arrangements typically dominate the headlines, their experience should not blind us to the fact that there is strong evidence of institutional strengthening in a number of states – including some of those in which the barriers to democratisation initially appeared to be greatest. For example, term limits have become entrenched in Kenya and Nigeria, two bastions of Big Man politics, while both coup-prone Ghana and conflict-prone Sierra Leone have experienced peaceful transfers of power. These findings raise important questions: under what conditions are we most likely to see the strengthening of formal institutions in Africa? How much variation exists? What kind of theoretical framework can best capture this?

Many different kinds of institutional analysis have been pursued within comparative politics, which makes providing a comprehensive overview here impossible. However, it is worth sketching out how the literature has developed over the years, because doing so highlights how it can be used to illuminate the role of political institutions in Africa. The early analysis of institutions that occurred towards the end of the nineteenth century tended to focus on how organisations such as bureaucracies should be designed (Koelble 1995). Partly as a result, it typically concentrated on the normative role of such bodies and often overlooked issues such as the empirical impact of institutions, how individuals operate within organisational structures and how they evolve over time. A subsequent literature that emerged in the 1950s and 1960s sought to overcome these limitations by studying the 'observable behaviour of men' (Truman 1971) and, where possible, employing quantitative analysis to empirically test rigorous hypotheses. However, this behaviouralist turn was itself critiqued for taking the statements and actions of individuals at face value, and for ignoring the question of why and how people come to believe that some situations benefit them while others do not.

Frustrated with what they saw as the static analysis of old institutionalism and the over-reliance of the behaviouralist school on observable human actions, subsequent generations of social scientists have experimented with a number of different ways of conceptualising and studying formal political structures, which are often referred to by the umbrella term new institutionalism (March and Olsen 1983). For example, rational choice institutionalists such as Kenneth Shepsle (1989) have looked at the ways in which institutions shape the pay-offs available to the individuals that operate within them, and hence change how they behave. Seen in this way, the significance of formal structures lies in their capacity to shape possible outcomes and so incentivise individuals to adopt different courses of action.

By contrast, historical institutionalists have critiqued rational choice theorists for assuming that the individual is always the relevant unit of analysis and ignoring the fact that institutions are historically rooted (Thelen 1999). Seeking a more contextualised approach, scholars such as Theda Skocpol (1995) have emphasised how the behaviour of individuals is shaped not just by rational self-interest but also by previous experience, societal expectations and historical trends. On this account, political processes are 'structured by constitutions and political institutions, state structures, state-interest group relations, policy networks, [and] contingencies of timing' (Immergut 1998: 19). Significantly, although historical institutionalism recognises the importance of tradition, it is also open to the possibility that tradition itself can be re-invented and that historical processes may be interrupted by contingencies and the 'role played by chance' (1998: 19). As a result, while historical institutionalists pay great attention to institutional constraints and legacies, this approach should not be interpreted to imply a kind of historical determinacy (Hay and Wincott 1998).

Africanists have been particularly sympathetic to historical institutionalist approaches, in part because they are often reminded of the ways in which the past shapes the present (Cooper 2002). In recent years, Adrienne LeBas has embraced this kind of framework to explain the development of political parties in Kenya, Zambia and Zimbabwe (LeBas 2013), while Rachel Riedl has argued for 'the significance of past institutional configurations' in 'shaping contemporary multiparty politics' (Chapter 2).

Building on many of the insights of the historical institutionalist school, other strands of new institutionalism look at how, in addition to shaping what is possible and socially acceptable, institutions can frame what is conceivable. Most notably, a more sociological approach to the study of institutions – what Immergut calls 'organisation theory' (1998: 5) – highlights the fact that institutions not only represent physical frameworks within which human beings operate, but are also social constructions made up of informal norms and practices. Thus, 'current accounts of the new institutionalism in organisation theory... stress the importance of symbolic codes and the role of institutions in generating meaning', demonstrating how the concepts of 'roles and hierarchy influence perception and, therefore, behaviour' (1998: 15).

A related school of thought pushes this insight even further, arguing that just as social norms and values shape how institutions function, institutions can also shape outcomes by socialising individuals into certain patterns of behaviour. For scholars such as Mary Douglas, individuals do not act a certain way just because they feel forced or obliged to, but because they have come to believe in and accept a set of norms of behaviour to the extent that to act otherwise would be inconceivable. Put another way,

most established institutions, if challenged, are able to rest their claims to legitimacy on their fit with the universe. A convention is institutionalised when, in reply to the question, "Why do you do it like this?" although the first answer may be framed in terms of mutual convenience, in response to further questioning the final answer refers to the way the planets are fixed in the sky or the way that plants or humans or animals naturally behave (Douglas 1986: 47).

Although there are clear tensions between these different approaches – and some of their protagonists imply that they are incompatible – there are also 'border crossers' who 'have resisted the tendencies toward cordoning these schools off from each other and who borrow liberally (and often fruitfully) where they can' (Thelen 1999: 270). Given this, it is not surprising that the chapters included in this volume demonstrate that all of these approaches have valuable insights to offer into the process of institutional continuity and change in Africa. In other words, there is no 'one size fits all' approach to studying political institutions that is equally effective at explaining every aspect of every organisation. Instead, different questions and different institutions at varying stages of evolution are likely to require different analytical tools. It therefore makes sense to avoid simply choosing one method over another and instead to draw on the framework(s) that are best placed to illuminate a particular issue.

A more rational choice approach, for example, can help us to see how structures shape individuals' decisions and thus how the introduction of new formal institutions can change the way in which presidents, legislators and judges operate – often with unintended consequences. However, it is also important to consider the way in which the evolution of codes of practice and the routinisation of everyday tasks condition the behaviour of individuals over time. Notably, when institutions have developed a distinctive internal culture, and generations of people have passed through them, the emergence of powerful social expectations and norms means that developing a comprehensive analysis of how an organisation operates requires us to engage with historical and sociological approaches. After all, true democratic consolidation occurs not when authoritarian leaders feel trapped into pretending to be democrats by institutional constraints, but when they feel such a deep personal commitment to democracy that they do not even entertain the idea of breaking the rules.

In light of this, it is unsurprising that many of the chapters in this volume document how the performance of formal codified institutions, such as constitutions and electoral commissions, have either been strengthened or undermined by the presence of informal institutions, such as popular norms and patterns of behaviour (for full definitions, see Chapter 1). In some cases, unsupportive norms of personalised and patrimonial politics have weakened the independence and capacity of key democratic institutions such as political parties and legislatures. In others, emerging norms that promote respect for the rules of the game appear to have exerted a binding effect on political leaders, as in the case of the holding of elections, and – in many countries – presidential term limits. In others cases still, norms that are deeply problematic in some ways are also found to have unanticipated side-effects, strengthening formal institutions in other areas.

This means that while it is useful to conceptually distinguish between formal and informal institutions, we need to analyse them simultaneously. As Douglass North has argued (1991), formal institutions get their strength from supportive informal underpinnings and vice versa. It therefore makes little sense to try and understand one without the other. The study of African politics must therefore take seriously both the significance of formal institutions and the complex ways in which formal and informal institutions interact. The fact that some African countries have made impressive progress towards democratic consolidation cannot be explained simply by the victory of the rules of the game over pernicious patrimonialism; the emergence of norms and values that are more conducive to democratic government must also be accounted for. Meeting this challenge requires us to think through new institutionalist approaches to political change, but also to more clearly theorise the relationship between the formal and the informal. Fortunately, some of the foundational work in this area has already been undertaken by Latin Americanists such as Gretchen Helmke and Steven Levitsky (2004), who have been grappling with similar theoretical and empirical challenges for many years.

This chapter begins by setting out some of the main institutionalist approaches in greater detail and demonstrating how they can help to explain important political changes in Africa over the last sixty years. It then proceeds to introduce the typology of informal institutions developed by Helmke and Levitsky, arguing that it is particularly useful for our purposes because it recognises that while informal institutions may compete with their formal counterparts, they may also be complementary, accommodating or substitutive. This reflects one of the central findings of this volume, namely that while democratic practices may be weakened by the presence of norms that contradict them, complementary informal institutions – such as norms of inclusive government or responsive leadership – may actually serve to promote democratic consolidation. The final part of the conclusion makes the case that all four combinations of the informal and formal institutions identified by Helmke and Levitsky are present and significant in Africa. On this basis, I argue for a new research agenda to investigate the conditions under which competing, complementary, accommodating and substitutive informal institutions emerge, and their consequences for the process of democratisation.

As in the introduction to this volume, my aim here is not to argue that formal institutions are becoming more important than their informal counterparts. Such a project would not make sense, because the consolidation of formal rules requires the emergence of supportive informal norms. Rather, I am suggesting that Africanists need to give greater weight to the ways in which contemporary political outcomes are produced through the continual interplay between informal and formal institutions.

# Institutional Approaches to Continuity and Change

How, if institutions are powerful and shape political outcomes, are we to explain why some institutions collapse, or are reformed so that they generate different outcomes? The answer, according to a group of researchers that emerged in the 1980s, was that such processes could be understood through the metaphor of 'punctuated equilibria' (Mahoney 2000). This term was first used in evolutionary biology to explain processes of evolution characterised by long periods of stability in the morphology (form and structure) of organisms followed by relatively rare episodes of rapid change.1 Biologists working within this framework explain accelerated processes of evolutionary change on the basis of environmental shocks that change the conditions that a given organism must overcome in order to survive. For example, adverse weather conditions or the introduction of a new predator may lead to less well-adapted members of the community dying at higher rates, thus making it more likely that advantageous features get passed on to future generations.

It is easy to see why the idea of 'punctuated equilibria' appealed to political and social theorists seeking to explain rare and often unheralded moments of institutional and societal change. Like evolutionary biologists, they were hoping to account for the ways in which apparently stable and entrenched political systems could be jolted on to new pathways of evolution by a revolutionary event. Punctuated equilibria was attractive because it provided a framework for understanding how one could combine path dependency – the idea that past events shape what is possible in the future – with the lived reality that political systems change over time (Romanelli and Tushman 1994). In the contemporary political science literature, such moments of rupture that have the capacity to recast the political landscape are often described as 'critical junctures', which 'close off alternative options and lead to the establishment of institutions that generate self-reinforcing path dependent processes' (Capoccia and Kelemen 2007: 341). Unsurprisingly, theories of punctuated equilibria, or critical junctures, have been particularly popular – although not uncontroversial – within the historical institutionalist school.

Of course, there is also a degree of tension between the application of a critical junctures approach and the idea of path dependency, which is a key element of many historical institutionalist analyses. On the one hand, path-dependent arguments typically posit that processes of institutional evolution are historically constrained. On the other hand, the critical junctures framework suggests that the past may lose its hold over the present to the extent that old pathways lose their purchase, and institutions can be pushed in new directions. This tension raises an obvious question: under what conditions does the past release its grip, and exactly what is the scope for individuals – politicians, activists, citizens – to fashion new futures?

In order to answer these questions, it is important to first recognise that – at least in its more sophisticated form – historical institutionalist applications of the critical junctures framework do not understand path dependency in a way that implies a strict causal relationship between a set of factors and a given outcome. Rather, the idea is that certain choices made today make certain pathways much more or much less likely (Immergut 1998). In other words, this approach deals in probabilities rather than certainties. For example, it is not impossible that an African country with Belgian or French colonial heritage will seek to pursue a more Anglophone political system and culture, but the weight of the inheritance – institutional, linguistic, economic – means that it is very unlikely. The example of Rwanda, which changed the medium of education from French to English in 2008 and officially joined the British Commonwealth in 2009, shows that such an outcome is possible. But the fact that Rwanda is an isolated example, the government's decision was triggered by French complicity in the 1994 genocide (Wallis 2014), and the majority of former British and French colonies continue to have stronger economic and cultural ties to their former metropole demonstrates that when it comes to this aspect of the colonial inheritance continuity is more common than change.

In this sense, the punctuated equilibrium approach is not unlike the 'typological' framework proposed by Alexander George and Andrew Bennett (2005). For George and Bennett, the aim of a typological theory is to categorise cases in terms of their key characteristics in order to explain why certain types of cases tend to experience different trajectories to others. The predictive power of such a theory is limited to the claim that given a certain set of starting positions and constraints some outcomes are more likely than others, and hence should be more common. A good example of such an argument is the idea that the prospects for democratic consolidation in Africa are shaped by the quality and quantity of natural resources that a country possesses. Researchers such as John C. Anyanwu and Andrew E. O. Erhijakpor (2014) have suggested that access to oil reserves enables governments to ignore domestic and international pressure to reform. However, this general rule is not without exceptions: although the vast majority of African petro-states are authoritarian, this is not true of Ghana; and Nigeria, one of the continent's oil giants, recently experienced its first democratic transfer of power. Such counter-examples nicely illustrate one of the main advantages of typological theory, namely that it represents a happy middle ground between in-depth individual case studies, from which it is hard to generalise, and more general explanations that seek to identify strict causal laws but which often struggle to cope with the diverse outcomes that we see in reality.

While this more nuanced understanding of path dependency is particularly useful for analysing institutional continuity and change, it is important to recognise that it is a methodological approach and not a theoretical argument. In other words, simply adopting this kind of analytical framework does not explain what makes a critical juncture possible. We still need to specify the kinds of developments that must coincide to weaken the hold of old pathways and so facilitate institutional change. This is an issue on which the response of historical institutionalists has not always been sufficiently clear. Indeed, social science applications of the punctuated equilibria model have often been critiqued for not paying sufficient attention to some of the main tenets of the evolutionary literature from which the concept is borrowed. As noted above, biological applications of the term usually involve precise arguments that locate explanations of rapid evolutionary change in specific geographical and environmental shifts that change the conditions under which a particular species, or some portion of it, must survive. Explanations of shifts in the way that political institutions work have not always been accompanied by such precise and testable propositions (Krasner 1988).

To date, the literature has identified three main sets of processes or events that are more conducive to facilitating critical junctures. The first relates to 'foundational' moments whereby rules and regulations are established in an area for the first time. This might be the initial establishment of a legal framework or constitution, or the creation of a new political party. Under these conditions, the lack of prior rules and structures that would normally act as a physical, social and mental constraint facilitates innovation. The second set of conditions that have been linked to institutional change are processes of elite 'negotiation' in which a small number of actors are able to gain disproportionate influence over the design of key political institutions. Dankwart Rustow has suggested that this is the case in moments of political transition, when the collapse of previous political institutions necessitates a process of bargaining between different political elites in what he calls the 'decision phase' (1970: 355). Rustow points out that while political leaders do not make decisions under conditions of their own choosing, in the context of secretive negotiations held behind closed doors, they may be able to re-cast the political system in ways that would not normally be possible. Thus, 'a small circle of leaders is likely to play a disproportionate role' (356).

These explanations of institutional change raise a new question: under what circumstances are such elite negotiations most likely to take place? In turn, answering this query brings us to the third main type of explanation commonly found in existing studies: the occurrence of an external shock that destabilises the political system. Such shocks – whether an episode of conflict, economic crisis or a political scandal – have the potential to trigger processes of social or political upheaval by either weakening the hold of existing structures and vested interests, or by generating a new consensus on the need for far-reaching reform. By focussing on the way in which rapid changes in the broader political and economic environment can trigger institutional evolution, such arguments come closest to the way in which punctuated equilibria theories are applied in evolutionary biology.

Examples of critical junctures that are amenable to these kinds of explanations can be found in many of the chapters included in this volume. The most obvious is perhaps the onset of colonial rule – a major external political shock that led to the formation of new legal and institutional frameworks. Of course, the systems of economic management and political organisation that were established during the colonial period were not simply the product of colonial 'invention'. Rather, they resulted from the complex interaction between the policies of the colonial power, the conditions on the ground and the responses of African peoples and elites. However, it is nonetheless clear that these new arrangements would not have been introduced in the absence of colonial intervention, and that their imposition influenced future developments in important ways. As Catherine Boone demonstrates (Chapter 3), the type of land tenure system that was codified into law during the colonial era shaped a number of important political processes. More specifically, Boone shows that whether or not a country introduced a 'neo-customary' land system, in which each 'tribe' was expected to manage its own land under its own rules, or a 'statist' system, in which access to land was centrally controlled, had a profound impact on both the dynamics of state-building and the prospects for political violence. As a result, the past continues to exert a considerable influence on the present through an inherited institutional legacy.

Similarly, in Chapter 4 Leonardo Arriola documents how colonial governance structures shaped the degree of economic centralisation and the way in which post-colonial political elites thought about economic regulation. Taking off from this insight, he argues that there is a clear link between a country's colonial economic inheritance and the extent to which banking sectors became liberalised after independence. In turn, this had important consequences for the ability of politicians to raise election funds. Arriola argues that in Anglophone systems, lower levels of centralisation facilitated greater liberalisation, which made it easier for opposition leaders to secure the resources needed to build meaningful coalitions. By contrast, in Francophone states the centralisation of control over credit has undermined the potential for alliance formation. In both cases, institutional variations stemming from the colonial critical juncture continue to play a role in facilitating – or stymying – political change.

There is considerable evidence that the early 1990s represented another critical juncture, as domestic pressure for reform was galvanised by a series of external shocks that included deteriorating economic terms of trade, the collapse of the Soviet Union and the decision of some Western governments to push for democratisation (Cheeseman 2015). This constellation of factors weakened the hand of authoritarian leaders, creating the opportunity for radical political change that, just a decade earlier, had seemed highly improbable. The subsequent reintroduction of multiparty elections in almost all sub-Saharan African states triggered a number of new processes of considerable importance. Although the quality and quantity of elections has varied markedly across the continent, in many countries the introduction of multiparty politics gave rise to new institutional arrangements that had important institutional and social consequences. For example, Van Ham and Lindberg (Chapter 9) find that repeatedly holding elections promotes democratic consolidation over time, so long as they meet a minimum quality threshold.

The work of Anne Pitcher and Manuel Teodoro (Chapter 7) suggests that in some cases the 1990s also represented a critical juncture for the development of African bureaucracies. More specifically, they argue that the push for neo-liberal reforms, which was in part driven by international financial institutions, led to a greater focus on the independence and efficiency of the civil service. While African leaders could afford to ignore such critiques in the 1970s, by the mid-1980s mounting political challenges and economic difficulties left them increasingly vulnerable to domestic and international pressure. As a result, the next two decades were marked by the introduction of new bureaucratic agencies to govern key processes such as privatisation. In a similar vein to Lindberg and Van Ham, Pitcher and Teodoro find that where such agencies were allowed to operate according to the official rules of the game – i.e. more independently from the government – this lent credibility to the privatisation process and resulted in greater sales and foreign investment.

However, while the critical junctures lens often provides an important framework for understanding institutional change in Africa, it is important to keep in mind that the existence of a critical juncture does not explain how new political dynamics will play out. Most obviously, it is clear that when it comes to both democratisation and privatisation the 1990s saw far more significant change in some countries than others. While some governments held good quality elections, others ran sham polls that did not meet Van Ham and Lindberg's threshold, and so have not contributed to an improvement in civil liberties. Similarly, although privatisation can be shown to have productive economic consequences when it was fully implemented, this did not occur in many countries, and so the process did little to generate new patterns of economic activity. It is therefore not enough to simply identify an external shock; we must also be able to explain the different pathways that such shocks set in motion. Why is it that high quality elections were held in some states while low quality ones were held in others? Why is it that some governments were prepared to establish genuinely independent bureaucratic agencies, while others were not?

Part of the answer to these questions is that the external shocks described in this chapter were not felt equally across all cases (Cheeseman 2015). In Africa, governments with oil reserves were insulated from some of the consequences of economic downturn, while states that enjoyed greater geo-strategic importance were often able to leverage this to withstand international pressure to reform. But this is only part of the story, because the experience of the last twenty years also demonstrates that the impact of elections and new bureaucratic agencies has varied even across states with fairly similar economic and political pre-conditions. To understand why this is the case, we need to go further and look at how a range of other factors – such as the interaction of formal and informal institutions and the strategies employed by political leaders – mediated the outcome of external shocks.

Developing a more rounded explanation of the different kinds of outcomes that follow a critical juncture requires the use of alternative theoretical frameworks that are better placed to explain the micro-dynamics of intricate political processes. As Thelen notes, knowing why an institution was formed or changed tells us a lot about how it is likely to evolve, but it does not on its own explain whether it is likely to prove durable. She suggests two ways to overcome this problem. The first is to better connect the literature on critical junctures, or how institutions are formed, with what she calls the 'feedback literature', which offers tools for understanding 'who, exactly, is invested in particular institutions, and what sustains these institutional dynamic over time' (1999: 400). In turn, Thelen argues that this kind of integrated approach can be further strengthened by working at the intersection of the different schools of institutionalism, thus benefitting from the insights of different approaches (1999: 370).

The rewards of such a catholic approach are demonstrated by the range of explanations of institutional change and continuity contained within this volume. For example, Brian Klaas (Chapter 10) adopts a more rational choice perspective to illuminate the ways in which leaders have responded to changes in the formal rules of the game. According to Klaas, presidents who were determined to protect their position by finding ways to work around new formal rules often responded to the pressure to democratise by identifying new institutional loop-holes, or by using informal strategies to undermine formal reforms. Worryingly, the auxiliary tactics employed by leaders resulted in worse outcomes – in terms of both political violence and respect for the constitution – than had occurred prior to the introduction of multiparty politics. In this way, Klaas' chapter demonstrates the potential for well-intentioned reforms to generate unintended consequences when self-interested leaders decide to retain power at all costs. In such cases, what may appear to be a critical juncture on the surface may actually lead to more continuity than change.

Moreover, while the notion of critical junctures is very helpful for thinking through the ways in which periods of relative continuity can give rise to major political, social and economics shifts, it is less helpful when it comes to explaining more gradual processes of reform. Significantly, not all institutional change takes the form of a political 'big bang'. As Thelen suggests, processes of organisation strengthening and weakening often occur slowly over a long period of time, gradually transforming what counts as 'normal' political practice. Given this, there is a limit to how far the metaphor of punctuated equilibria can take us – and there is a danger that if we focus too heavily on occasional moments of rupture we will overlook less high-profile processes of political change.

These points are well illustrated by Posner and Young's (Chapter 11) research on presidential term limits. In most countries, the reintroduction of multipartyism was accompanied by new rules preventing presidents from serving more than two (occasionally three) terms in office. In some cases, these limits have been respected, but in others presidents have broken or changed the law to remain in State House. In line with the discussion above, there are certain key factors that appear to shape how the introduction of new formal rules affects political change. Most obviously, the more valuable the natural resources available to the government, and the lower the quality of democracy at the time of the transition to multipartyism, the more likely it is that leaders will try to extend their time in power.

However, it is also clear that these kinds of structural factors cannot provide a full explanation of the variation that Posner and Young observe. For example, there are petro-states in which term limits have yet to be broken2 and flawed democracies in which they have never been contested. In Kenya, for example, respect for civil liberties remained low in the 1990s, but President Daniel arap Moi did not seek to publicly challenge term limits when he was due to step down in 2002. Events unfolded somewhat differently in oil-rich Nigeria, where President Olesegun Obasanjo attempted to secure a third term, but the outcome was the same, as he was defeated by a coalition of opposition parties, disgruntled ruling party legislators, civil society actors and international donors. How can we explain why term limits were ultimately upheld in two such unpromising contexts?

While there are certain factors that clearly strengthen the hand of pro-term limit coalitions, such as effective opposition parties, it is also clear that the outcomes witnessed in Kenya and Nigeria were at least in part contingent on factors that are very difficult to model across cases, such as individual personalities. In Nigeria, Obasanjo's willingness to ultimately stand down reflected his own commitment to the transition from military to civilian rule. His more authoritarian predecessors such as Presidents Ibrahim Babangida and Sanni Abacha – who consistently reneged on promises to democratise during their time in power – may not have made the same decision.

The outcomes of these contingent processes are important, because Posner and Young find that in every case where a president has respected term limits, their successor followed suit. By contrast, in those countries where a president secured an additional term in office, a majority of subsequent executives (sixteen out of twenty-six) also pursued an additional term. Of course, we would expect to see a certain degree of consistency over time as successive presidents in the same country are likely to be operating in similar environments, and thus to face similar opportunities and incentives. However, part of the explanation for this finding is also that when formal rules are respected new political norms begin to emerge in favour of rule-following behaviour, which has the potential to constrain the options available to future presidents.

One way to model the setting of a political precedent would be to understand it as a critical juncture in its own right. We could, for example, posit that the decision of the first president to respect term limits (or not) represents a second critical juncture that is just as important to the fate of this formal rule as the first (the initial introduction of term limits). There is some merit to such an approach, but it is also important to recognise that processes of institutional strengthening are rarely as clear-cut as the pattern identified by Posner and Young. Indeed, narratives of organisational evolution are often rather messy, and rarely conform to a model in which the flicking of a switch diverts all institutions on to (or away from) a trajectory of consolidation. Instead, they typically reflect complex and uneven processes that involve two steps forwards, followed by one step back.

Moreover, while a focus on the adherence of leaders to official rules is an essential component of any study of institutionalisation, on its own it may tell us little about the depth of commitment of key players to formal structures. This is significant because true democratic consolidation occurs not when leaders want to break the rules and decide not to for fear of getting caught, but rather when they respect the constitution because they believe in it. In the consolidated democracies of the world, the willingness of presidents not to seek a third term is only partly explained by the political barriers to this course of action; in most cases it also reflects a belief in the value of the rule of law itself. Given this, the evolution of new norms in favour of rule-following is unlikely to be set in stone by the actions of a first mover – in this case, the first president to either oppose or accept term limits. Instead, any leader who refuses to follow suit risks fatally undermining emerging norms and attitudes, even if their actions come twenty years after the introduction of a new constitution.

In order to understand these subtler and more uneven processes, we need to think about how certain ideas and patterns of behaviour take hold, and are challenged. In turn, this requires us to engage with the kinds of 'feedback' loops that Thelen emphasises, and to embrace some of the ideas that have come out of the sociological and anthropological literatures on institutional change. Over the last thirty years, these approaches have provided a number of different ways to think about how institutions can shape what individuals believe and how they behave.

For example, in his seminal text The Art of the State, Christopher Hood argued that different types of organisation – Armies, NGOs, government ministries – are set up in different ways that tend to inculcate specific ways of viewing the world. Hood goes on to suggest that this helps to explain some of their strengths and weaknesses. Take the case of military organisations that prize hierarchy and order, and drill this into their members at every opportunity. The focus on streamlined top-down systems of communication can make military structures highly efficient, but also saddles them with a particular weakness, or 'Achilles' heel'. As Hood elucidates, people who work in military organisations are prone to interpreting organisational limitations as resulting from too little hierarchy rather than too much – even when this is not the case. As a result, militaries tend to respond to evidence of institutional weakness by introducing reforms designed to enhance centralisation, with the result that the knowledge and experience of those working further down the organisation are lost, and innovation becomes less likely. In turn, this exaggerates both the strengths and weaknesses of military bodies, making them prone to certain kinds of failure.

Hood's analysis is important because it reveals the ways in which the structures and cultures of an organisation can influence how its members evaluate success, the things they perceive to be problems and the kinds of solutions that they are likely to pursue. In doing so, his work demonstrates that we need to pay greater attention to the kinds of assumptions and values that institutions can inculcate – to consider how, in the famous words of Mary Douglas, 'institutions think'. In order to meet this challenge, we will need to develop a more systematic understanding of the way in which different kinds of institutions interact, paying close attention to 'the points of informal and formal institutional congruence and divergence' (Riedl, Chapter 2).

# Formal and Informal Institutions in Africa: Competitive or Complementary?

To date, the different relationships that exist between informal and formal institutions have rarely been systematically set out in the African context. In part, this reflects the legacy of the 'institutionless' school. The 'institutionless' narrative, as set out in the introduction to this volume, not only underestimates the significance of formal institutions by giving a dominant role to their informal counterparts, but also obscures the very different relationships between formal and informal institutions that have evolved in Africa. In other words, the tendency of African studies to focus on how clientelism and patronage undermine official checks and balances on the abuse of power creates a misleading impression that informal practices are constantly in conflict with the formal rules of the game. In turn, this has obscured the fact that informal and formal institutions are not always in competition and may in fact reinforce one another.

The possible set of relationships between informal and formal institutions becomes more readily apparent if we turn to the comparative literature on this topic. Most notably, drawing on Latin American experiences of democratic consolidation (and backsliding), Helmke and Levitsky detail a number of informal institutions that strengthen formal processes either by complementing and accommodating effective formal institutions, or by substituting for ineffective formal institutions (2006: 13–15). Their findings serve as an important reminder that institutional consolidation requires the evolution of a set of complementary norms and values that reinforce official rules, thus entrenching them (North 1991: 11). The relationship between the formal and informal spheres is therefore as significant in successful democracies as it is in cases of authoritarian decline – it is just harder to observe.

Based on evidence from Argentina, Brazil, Chile, Honduras and Mexico, Helmke and Levitsky formalise their insights into a typology of the ways in which informal institutions interact with their formal counterparts (Figure 15.1). They begin by separating formal institutions into two sub-categories: effective and ineffective institutions, in terms of whether official rules are routinely enforced. They then categorise the relationship between formal and informal institutions as being either convergent, when the same outcome would be achieved whether one followed formal or informal rules, or divergent, when formal and informal rules produce different outcomes.

| Effectiveness
---|---
Effective formal institution | Ineffective formal institution
Outcome| Convergent| Complementary| Substitutive
Divergent| Accommodating| Competitive

Source: Helmke and Levitsky (2006: 14)

Figure 15.1

A typology of informal institutions

This creates a typology with four possibilities. Where formal institutions are ineffective and informal and formal norms are divergent (bottom right-hand corner), 'Competing informal institutions trump their formal counterparts, generating outcomes that diverge from what is expected from the formal rules' (2006: 15). The standard treatment of neo-patrimonialism in the literature on Africa depicts it as precisely this kind of 'competitive' informal institution. Official rules, whether codified in the constitution or legislation, are effectively undermined by the presence of neo-patrimonial networks that operate on the basis of a very different logic. There are a number of examples of this kind of relationship in the chapters that make up this book. Perhaps most notably, Cooper's analysis of parties (Chapter 8), Collord's discussion of the role of the legislature (Chapter 12) and Medie's exposition of the police (Chapter 7) all highlight formal processes or regulations that are routinely disregarded because they do not fit with established patterns of behaviour. A classic example is the practice of extorting bribes by transport officials across the continent. This is formally prohibited, but continues because of the persistence of informal norms within the institution that bribe-taking is a legitimate way to supplement low salaries, and that such rule-breaking will not be punished.

However, while 'competition' between formal and informal institutions is the most prevalent type of interaction discussed in the literature on Africa, it is only one of four possible outcomes. When formal institutions are ineffective but formal and informal norms pull in the same direction (top right-hand corner), the result is a substitutive informal institution that can deliver 'what formal institutions were designed, but failed, to achieve' (Helmke and Levitsky 2006: 16). An excellent example of this in the African context is the practice of 'zoning' in Nigeria, an informal norm between political elites that power should be rotated between different parts of the country over time. Although it is a fragile informal institution, zoning has played an important role in stabilising the Nigerian political system and thus making possible incremental – if inconsistent – processes of democratic reform, such as the peaceful transfer of power in 2015.

To understand why the emergence of informal norms in this area has been so critical, it is important to recognise that the preponderance of winner-takes-all politics, driven by the lack of checks and balances on the president, has at times threatened to undermine the unity of the Nigerian state. As Frederick Cooper (2002) has argued, the fear of being excluded from state resources, combined with the presence of vast oil wealth, has increased the stakes of political competition, making it more likely that political competition will spill over into political violence. Something like this happened shortly after independence, when the attempted secession of the Eastern Region as the Republic of Biafra led to a civil war that led to the loss of between 600,000 and 2 million lives between 1967–1970. Thereafter, maintaining national unity has been one of the main concerns of both political leaders and ordinary citizens.

In this context, the reintroduction of multiparty politics in 1999 represented a major challenge. Apart from a system of federalism that allows elites at a number of levels to take up a position within the political system (Suberu 2009), and hence gives them a stake in it, the Nigerian constitution lacks the kind of power-sharing provisions that might serve to prevent intense political competition from exacerbating ethnic tensions (Cheeseman 2016). These dangers are particularly acute in Nigeria, where a number of democratic institutions have failed to perform as intended, including the electoral commission and the judiciary. As a result, losing parties and candidates have not always had reason to believe that they will be allowed to compete on a level playing-field in the future (Omotola 2010), and hence to feel that it is in their interests to continue to play by the rules of the game.

The practice of zoning is important precisely because it has integrated an element of power sharing into weak formal structures, and so 'substituted' for their deficiencies. The development of a norm that the presidency should rotate between the north and the south of the country minimises the damage done by fragile countervailing formal institutions by ensuring that patronage opportunities are not monopolised by a particular region (or "zone"), preventing any one group from becoming permanently excluded. At the same time, a similar norm that political parties should divide prominent positions such as the presidential candidate and their running mate between leaders from the different geo-political 'zones' of the country ensures that whichever party wins the presidency features a degree of inclusivity, if only in terms of the highest profile jobs (Awopeju et al. 2012). Some of these informal practices have become formally institutionalised in the constitutions of political parties, but the most important norm concerning the rotation of power between north and south is not codified in the country's constitution. Despite this, it has done as much as any formal institution in Nigeria to persuade rival leaders to keep faith with multiparty politics.

Two other types of relationship between formal and informal institutions are also possible. The first is when effective formal institutions face convergent informal institutions (top left-hand corner). In such cases, informal institutions complement their formal counterparts. As Helmke and Levitsky note, these kinds of informal institutions are often overlooked, but serve 'as the underlying foundation for formal institutions' (2016:14). Such norms are particularly important, because they 'create incentives to comply with formal rules that might otherwise exist merely as pieces of parchment' (2016:14). A good example of this is the gradual evolution of norms in favour of free and fair elections in countries such as Ghana, which have strengthened the hand of the electoral commission and supported a process of gradual democratisation (Lindberg, 2006). As van Ham and Lindberg argue (Chapter 9), once elections reach a certain threshold of quality, repeatedly holding polls fosters a range of formal and informal processes that have contributed to democratic consolidation and hence strengthened electoral institutions. In this way, the process has become self-reinforcing.

The growing norm in favour of presidential term limits in many African countries that was discussed earlier in this chapter represents another example of a complementary informal institution. As with any formal rule, regulations governing presidential term limits are most effective when political actors accept them without question. Of course, formal presidential term limits may survive even if informal institutions are competitive, as is the case when a leader's efforts to secure a third-term are defeated by a coalition of civil society groups and opposition parties. But this leaves open the risk that at some point the formal rule will be overturned. The emergence of supportive informal norms is therefore critical. Seen in this light, Posner and Young's argument that the first president to accept presidential term limits sets a precedent that others tend to follow is particularly significant, because it suggests that an informal institution may be being consolidated before our very eyes. Exactly how and why this is happening requires additional empirical research of the kind that is rarely done because it is difficult and time-consuming, such as elite interviews that are hard to secure and often fail to illuminate the true feelings and beliefs of political leaders. However, only by investing in this kind of fieldwork can we hope to develop a better understanding of when, where and why complementary informal institutions evolve.

The final type of relationship between formal and informal institutions occurs when effective formal institutions meet with divergent informal institutions and both continue to survive despite the apparent tension (bottom left-hand corner of Figure 15.1). In this case, 'informal institutions create incentives to behave in ways that alter the substantive effects of formal rules' but without always directly violating them (Helmke and Levitsky 2006: 15). The possible co-existence of contradictory formal and informal institutions is something that has often been overlooked by the 'institutionless' school, which tends to focus on how 'traditional' forms of authority erode 'modern' states. Partly as a result, the potential for informal and formal rules to accommodate one another has often been downplayed. This is unfortunate, because there are many institutions that blend patrimonial and rational-legal rationalities. Perhaps the most obvious and high profile example of this kind of relationship in the African context is the way in which contemporary democratic constitutions have accommodated forms of traditional leadership.

Elected leaders and traditional leaders are usually selected in very different ways and on the basis of different logics: while chiefs may be appointed on the basis of lineage and custom, presidents and members of parliament are elected – at least in principle – on the basis of merit. Although both structures can be considered to be formal institutions in that they are typically regulated through legislation and derive their authority from their relationship to the state (Boone, Chapter 3), the tension between them has led some scholars to conclude that the informal practices that are ingrained within traditional leadership run counter to the ethos of democratic government. Lungisile Ntsebeza (2005), for example, has argued that the incorporation of traditional leadership in South Africa has compromised democracy, and threatens to make rural residents the 'subjects' of the arbitrary chiefly power instead of the 'citizens' of an accountable state. However, while such tensions exist, it is also clear that in many cases democratic governments and traditional leaders have accommodated one another, and continue to operate side by side despite their divergent rationales. Indeed, the work of Carolyn Logan (2013) suggests that in some countries the existence of traditional leaders has served to legitimate the broader political systems due to the popularity of the institution, and thus could even be seen to play a substitutive role where democracy is weak.

To an extent, Peter VonDoepp's comparison of the role of judiciaries in Malawi and Zambia (Chapter 13) also describes the accommodation of contradictory practices within a particular state arena. In the case of the judiciary, VonDoepp highlights how certain formal rules – such as judicial independence from the executive – were strengthened as a result of the efforts of senior judges, while problematic informal norms – such as the need to pay bribes to receive justice in a timely manner in run of the mill cases – continued to flourish.

To some extent, a similar story is true of most political institutions in new democracies. All of the chapters in this book identify formal structures or rules that have been strengthened while divergent informal norms continue to operate. However, more work is needed to explain why divergent norms become competitive in some cases, and so threaten the process of institutionalisation, while in others they become accommodative, and so more easily managed. In turn, this requires close-range studies of the inner functioning of African states that brings political science and anthropology into conversation. Thankfully, research on the everyday reality of political institutions is currently being pursued by a number of scholars led by J. P. Olivier de Sardan and Tom de Herdt. According to de Herdt and Olivier de Sardan, it is only when we understand the complex 'patchwork' of formal and informal practices that we can make sense of 'the landscape of African governance' and understand why some states perform differently to others (2015: 4–6). In other words, 'neither the dominant (neo-) Weberian account of the ideal-typical well-functioning bureaucracy nor an account in terms of African traditionalism culturalism can grasp the plurality of norms constituting the practices constituting real governance' (12).

Instead, they propose the deployment of a new concept, 'practical norms', which are essentially the kinds of informal institutions described here. Thus, practical norms 'cover the gap between formal rules and practices', and 'account for the numerous and diverse latent regulations which are embedded in civil servants' practices while not complying with official (explicit) norms' (3). This focus on how things actually work, and recognition that institutional 'hybridity' – a position on the spectrum between full formalisation and full informalisation – may not be a transitory phase and instead may turn out to be a permanent condition, is extremely valuable. Most obviously, research conducted with this focus in mind has the potential to reveal new insights into how formal and informal institutions are eroded or reproduced.

So far, the gauntlet thrown down by Olivier de Sardan (2013) and de Herdt and Olivier de Sardan (2015) has been taken up by researchers looking at a number of important processes and institutions, from healthcare in Niger to medical wards in South Africa. However, this work has typically focused on public service bureaucracies and is yet to engage with prominent checks and balances institutions. In order to connect the insights of the 'practical norms' literature to the study of democratisation, it will be important to also apply this approach to core political institutions such as electoral systems, constitutional courts, legislatures and term limits – and to do so in a way that engages with the full range of combinations set out in Helmke and Levitsky's typology. Only when this is done will we be able to fully assess the implications of the kinds of practical norms described by de Herdt and Olivier de Sardan for the broader prospects for democratic consolidation on the continent.

# Conclusion

The chapters included in this volume have all demonstrated the significance of formal political institutions to African politics. Contrary to the 'institutionless' school, which emphasises the weakness of official structures, the research presented in this volume demonstrates how formal institutions matter for political outcomes on the continent. As a result, the neo-patrimonial framework – which has been dominant within African studies for so long (Chapter 1) – is likely to generate a misleading picture of African politics unless it is deployed in a way that fully recognises the capacity of formal institutions to shape informal patrimonial norms and vice versa. This conclusion does not imply that formal institutions always matter, that in all cases they matter more than they used to or that they matter equally across different countries. The picture is clearly far more complicated than that. What it does mean, however, is that there is a need to bring the state back in to the study of African politics as an object of careful empirical research, and that we need to think more deeply about how we theorise episodes of institutional change and continuity.

I have argued that we will be better placed to pursue such a research agenda if we take a flexible approach to the study of political institutions that draws on different schools of institutional analysis. There are many different ways to frame institutional consolidation and decay, and it is important that we pick those that offer the greatest traction for the type of change that we wish to explore. In recent years, it has become fairly common to apply a critical junctures framework within African studies, but at times without due care and attention to key questions such as what factors generate a critical juncture, and how we can explain the new trajectories that such episodes can set in motion. Building a more persuasive and nuanced institutionalist account will require us to revisit these questions. There is also a pressing need to marry explanations that come out of the 'punctuated equilibria' tradition with a greater focus on how we can make sense of more gradual and inconsistent processes of institutional development. I have suggested that doing so will require us to work towards a deeper understanding of the relationship between formal and informal institutions, integrating what are currently two different spheres of scholarly enquiry. This can be achieved by combining the institutionalist approaches common within the literature on comparative politics with some of the core insights of Latin American research on the impact of informal institutions and the new research being conducted in Africa on 'practical norms'.

Bringing these bodies of work together will enable us to build a clearer conceptual framework for understanding whether formal and informal institutions are competing or complementary, and the likely impact of this interaction on the performance of the institution and the democratisation process more generally. One of the less intuitive findings to come out of the application of this framework to the development of political institutions in Africa is that informal institutions that are problematic in one area may support processes of institutional strengthening in another. For example, patron-client ties that facilitate corruption may also underpin stronger horizontal and vertical accountability. This conclusion highlights the need to pay careful attention to the great variety of relationships that exist between the formal and the informal realm on the continent. Efforts to understand political institutions and democratisation in Africa will be dangerously incomplete unless they address the informal foundations of formal structures, and the ways in which the official rules of the game shape informal processes.

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1 The idea can be traced back to the 1950s, but a paper by Niles Eldredge and Stephen Jay Gould (2014), originally published in 1972, is often cited as the first authoritative statement of this idea.

2 Although term limits have formally been respected, the situation is more complicated than this implies in reality, as President Goodluck Jonathan took office midway through the term of his predecessor, President Umaru Yar 'Adua, after the latter's untimely death in office. Jonathan won the subsequent presidential election in 2011, which meant that when he contested for the 2015 election he was effectively seeking to be in office for two and a half terms. However, as the constitution does not cover the issue of whether the leader succeeding a president who dies in office should be counted as having served a term or not, Jonathan's actions did not transgress the formal rules – whether or not they complied with the spirit of them.

# Index

Abacha, Sani,

African National Congress (ANC), , See South Africa: Africa National Congress (ANC)

African Union,

Amnesty International,

Andrianafidisoa, General,

Angola, , ,

Authoritarian Rule, , , , See also One-Party States

Banda, Rupiah, , ,

Barclay, Arthur,

Barkan, Joel, , ,

Bayart, Jean-Francois, , ,

Bedié, Henri Konan, ,

Benin, , , , , , , , , , , , , ,

Kérékou, Mathieu,

Soglo, Nicéphore,

Big Man rule, , , , , , , ,

Botswana, , , ,

Botswana Democratic Party (BDP), ,

Ethnic diversity,

Burkina Faso, , , , , ,

Burkinabè ethnicity,

Burundi, , , , , , ,

Business-State Relationships, ,

Cameroon, , , , , ,

Ahidjo, President Ahmadou,

Bamileke,

Cape Verde, , ,

Carter Center, xii,

Chad, , ,

Chepkwony, Paul, –, ,

Chibesakunda, Lombe, , , , ,

Chieftaincy, ,

Chiluba, Frederick, ,

Christianity, ,

Catholic Church,

Civic Education,

Civil Society, xii, , , , , , , , , , , , , , , , , , , , , ,

Cold War, , , , , ,

Coleman, James Smoot,

Colonial rule, , , , , , , , , –, –, –, , , , ,

Belgian, ,

British, , , , , ,

French, , , , ,

Compaoré, Blaise,

Competitive Authoritarianism, , , , , ,

Congo Brazzaville, , ,

Congo, Democratic Republic of, ,

Constitutional Arrangements, , , ,

Constitutional Democracy,

Corruption, xii, , , , , , , , , , , , , , , , , , , , , , ,

Côte d'Ivoire, , , , , , , , , , , , , , , , , , , , , , , ,

Ethnicity,

Parti Démocratique de Côte d'Ivoire, ,

Rally of the Republicans (RDR),

Coups, ,

Benin,

Burundi,

Central African Republic,

Congo-Brazzaville,

Ghana, ,

Togo,

Critical Junctures, , , , , , ,

Danish International Development Agency (DANIDA), ,

Datasets

'Varieties of Democracy',

Bertelsmann Transformation Index,

Ethnic Power Relations,

Freedom House,

Mo Ibrahim Index,

NELDA, , ,

Polity IV, , , , , ,

Quality of Government,

World Development Indicators,

Decentralisation, xii, , , , , , –, , , , , , , , , , , ,

Democracy, viii, xii, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

'Democratisation-by-Elections', , , , , , , , , , ,

Constitutional Democracy,

Democracy Promotion, , ,

Democratic Consolidation, , , , , , , , , , , , , , ,

Democratic Transitions, , , ,

Internal Party, ,

Judicial Mediation, ,

Legislative Strengthening, , , ,

Political Systems,

Quality of, , , , , , , , ,

Representative Democracy, ,

Third Wave Democratisation, , , , , ,

Third Wave of Democratisation,

Democratic Republic of Congo, , , ,

Direct rule,

Djibouti, , ,

Doctors Without Borders,

dos Santos, Jose Eduardo,

Economic Community of Western Africa,

Economic Decline, ,

Elections,

'Fraudster's Dilemma',

Campaign Funding, , , , , , ,

Competitive Elections, , ,

Electoral 'Zoning', ,

Electoral Commissions, , , , , , , , ,

Electoral Competitiveness,

Electoral Fraud, , , , ,

Electoral Rules, , , , , ,

Electoral System,

Electoral Systems, xii, , ,

Electoral Systems (Impact of), , ,

Electoral-authoritarianism,

Gerrymandering, , , , , , ,

Impact of, , , ,

Quality of, , , , , ,

Elite Capture,

Ethiopia, , , , , , , , ,

Federalism,

People's Revolutionary Democratic Front (EPRDF),

Ethnicity, xii, , , , , , , , ,

'Ethnic mappings',

Cross-Ethnic Coalitions, , ,

Ethnic Designations, ,

Ethnic Fractionalisation, , ,

Ethnic Fractionialisation,

Financial reprisal regimes, , , , , ,

Food and Agriculture Organisation (FAO),

Foreign Aid, , , ,

Gabon, , , , ,

Gambia, ,

Gender, xii, , , , , , , , , , , , , , ,

Women's Movements, , , , , , ,

Ghana, xiii, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Convention People's Party (CPP),

Democratisation,

Electoral Commission, ,

Human Rights Commission,

Local Government,

National Democratic Congress, , , , ,

Supreme Court,

Term Limits,

United Gold Coast Convention (UGCC),

Women and Juvenile Unit,

Gnassingbé, Faure,

Guéï, Robert, , , ,

Hegel, Freidrich,

Helmke and Levitsky Typology, , , , , , , ,

Historical Institutionalism, ,

Houphouët-Boigny, Félix, , ,

Human Rights, , , , , , , , , , , , , , , , ,

Hybrid Regimes, , ,

Indirect rule, , , , , , , , See Colonial rule

Institutionless Approach, , , , , , , , , , , , , , , , , , , , , , , , , , , ,

International Crime Police Organisation (INTERPOL),

International Monetary Fund (IMF), , , ,

International Relations theory,

Islam, , ,

Jonathan, President Goodluck,

Kabila, Joseph,

Kagame, Paul,

Kariuki, Margaret,

Kaunda, Kenneth, , ,

Kenya, xi, xii, xiii, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Alliance Party of Kenya (APK),

Constitution-making, , , , , ,

County Governments Act (CGA),

County Politics,

Devolution, , , , ,

District Focus for Rural Development,

Ethnicity,

Kenya African National Union (KANU), , ,

Kenya Land Alliance,

Kenya Land Alliance (KLA), ,

Kenya National Assembly,

Kenya People's Union (KPU),

members of county assembly (MCAs), , , , , , , ,

Ndungu Commission Report,

Parliaments, , ,

Provincial Administration,

Settlement Schemes, ,

The National Alliance (TNA),

United Republican Party (URP), ,

Ward Development Funds,

Kenyatta, Jomo, ,

Kérékou, Mathieu,

Kibaki, Mwai, , ,

Kikwete, Jakaya, , , , , , ,

Kinana, Abdulrahman,

Kivuti, Lenny, ,

Koroma, Ernest,

Kufuor, John,

Labour Unions, ,

Land tenure regimes, , , ,

Legislative Strengthening,

Legislatures. See Parliaments

Liberia, , ,

Civil War,

Comprehensive Peace Agreement (CPA),

Liberia National Police (LNP),

Liberian Frontier Force (LFF),

Ministry of Gender and Development (MoGD),

Ministry of Justice (MoJ), ,

True Whig Party,

Lowassa, Edward, ,

Mackintosh, John P.,

Madagascar, , , , , , , , , ,

High Constitutional Court,

Magufuli, John Pombe,

Malawi, , , , , , , , , , ,

Mali, , , ,

Mambilima, Irene,

Mamdani, Mahmood., ,

Manifesto Research Group (MRG),

Mauritania, , , ,

Mauritius, ,

Mbarire, Cecily,

Media, xii, xv, , , , , , , , , , , , , , , , , , ,

Mo Ibrahim Index,

Moi, Daniel arap, , , , , ,

Mozambique, xiii, , , , , , , , , , , ,

Mozambique Liberation Front (FRELIMO), , , ,

Mugabe, Robert., , , ,

multiparty politics, vii, , , , , , , , , , , , , , , , , , , , , ,

Muluzi, Bakili,

Mutharika, Peter,

Namibia, , , , , , , , , , , , , , , , ,

CANU Crisis,

Constitution-making,

Rally for Democracy and Progress (RDP), , ,

Shipanga Rebellion,

Spy Drama,

National Democratic Congress (NDC), , , , See Ghana:National Democratic Congress

Nationalism

Independence Parties, , , , , , ,

National Reconciliation,

Nationalist Movements, , ,

Ndegwa, Stephen,

Neocustomary Land Rights, , , , ,

Neocustomary Law,

Neo-patrimonialism, , , , , , , , , , , , , , , , , , , ,

New Institutional Economics (NIE), , , ,

New Patriotic Party (NPP), , , See Ghana:New Patriotic Party

Niger, , , , , ,

Nigeria, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Biafra Civil War,

Bureau of Public Enterprises (BPE),

Civil War,

Coalitional Drift, ,

Constitution-making,

Electoral trends,

Federalism, , ,

National Council on Privatisation (NCP),

Parastatals, –

People's Democratic Party (PDP),

Nkrumah, Kwame, , ,

Nkurunziza, Pierre,

Non-Governmental Organisations,

North, Douglass, , ,

Nujoma, Sam, , ,

Nyerere, Julius,

Obasanjo, Olusegun,

Official Development Assistance (ODA),

Oil, , , ,

Impact on democracy, , , , , ,

Okello, Tito,

One-party states, , , , , , , , , , ,

Senegal, , ,

Tanzania, , ,

Zambia, ,

Ouattara, Alassane, , ,

Parastatals, , , , , , , , , ,

Parliaments, , , , , , , , , , , , ,

Path Dependency, , , , , , , , ,

Pohamba, Hifikepunye, , , , , , , ,

Political Entrepreneurs,

Power-Sharing Agreements, ,

Practical Norms, , ,

Rajaonarivelo, Pierrot, , ,

Rational Choice Approach, , , ,

Ravalomanana, Marc, , , ,

Rawlings, Jerry, ,

Resource Curse,

Ruto, Isaac,

Ruto, William,

Rwanda, , , , , , , , , , , ,

British Commonwealth,

Rwanda National Police,

Settlement Schemes, ,

Sankara, Thomas,

Sassou-Nguesso, Denis,

Sata, Michael, , ,

Senegal, xi, , , , , , , , , , , , , , ,

Marabout,

Parti Démocratique Sénégalais (PDS), , ,

Parti Socialiste (PS), ,

Sese Seko, Mobuto,

Sierra Leone, , ,

Sitta, Samuel, , ,

South Africa, xiii, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Africa National Congress, , , , , , ,

Constitution-making, , ,

Economic Freedom Fighters,

Federalism,

Growth, Employment and Redistribution Act (GEAR),

Parastatals,

Parliament,

South Sudan, , ,

State-Owned Enterprises (SOEs), , , , , , , –,

Sudan, , , , , , , ,

Taft, William Howard, ,

Tandja, Mamadou,

Tanganyika African National Union (TANU), –, See Tanzania:Tanganyika

Tanzania, , , , , ,

Bunge, , , –

CCM,

Chama Cha Mapinduzi (CCM), , , , , , , , , ,

Constitutional Reform,

National Assembly Administration Act (NAAA),

Parliaments, ,

Settlement schemes,

Tanganyika, , , ,

Taxation, , , , , ,

Technical Committee on Privatisation and Commercialisation (TCPC). See Nigeria:Technical Committee on Privatisation and Commercialisation (TCPC)

Term Limits (Presidential), , , , –, , , , ,

Rwanda,

Uganda, ,

Terrorism,

The Art of the State,

The State in Africa,

Togo, , , , , ,

Trade unions, , , , , , ,

Uganda, xii, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Authoritarian rule,

Divestiture and Reform Implementation Committee (DRIC), ,

Legislature,

Museveni, Yoweri, , , , , , , ,

National Resistance Army,

National Resistance Movement (NRM), , , , , ,

Parastatals,

Telecommunications,

Uganda Local Government,

Uganda Women's Parliamentary Association,

United Kingdom,

Department for International Development (DFID),

United Nations (UN), , ,

Commission on Human Rights,

Paris Principles,

United Nations Children's Fund (UNICEF), ,

United Nations Development Programme (UNDP),

United Nations High Commissioner for Refugees, ,

United Nations Mission in Liberia (UNMIL), , ,

United Nations Peacebuilding Support Office,

United Nations Police (UNP),

United Nations Population Fund,

United Nations Radio,

United Nations Women,

United Nations Women (UNW), , ,

Vienna Declaration,

United States, xiii, , , ,

United States Agency for International Development (USAID), , ,

Urbanisation,

Violence

Political Violence, xi, xii, , , , , , ,

Repression, , , ,

Sexual, , , , , , , ,

Sexual Violence, –

Waki Commission,

Wambora, Martin, –, ,

Washington Consensus,

Watchdog Institutions,

Weber, Max, ,

West African Center for Peace Studies, , , , , , , ,

Wilson, Woodrow,

World Bank, , , , , , , , , , , ,

Operations Evaluation Department,

World Governance Indicators, –

Zambia, xiii, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Judicial processes, –

Movement for Multiparty Democracy (MMD), ,

Mwanawasa, Levy,

Parliament,

Political Transitions,

United National Independence Party (UNIP),

Zambia National Commercial Bank,

Zambia Privatisation Agency (ZPA), ,

ZANU-PF. See Zimbabwe:ZANU-PF

Zimbabwe, xiii, , , , , , , , , , , , , , , , , ,

Political Transition,

Zimbabwe African National Union-Patriotic Front (ZANU-PF), ,

Zuma, Jacob,

# Contents

  1. Cover
  2. Half title
  3. Title page
  4. Imprints page
  5. Dedication
  6. Contents
  7. Figures
  8. Tables
  9. Contributors
  10. 1 Introduction
    1. The Rise and Fall of Formal Institutions in African Studies
      1. Independence and After
      2. The Retreat of Democracy
      3. The Emergence of the 'Institutionless' School
      4. The Legacy of the 'Institutionless' School
    2. Reconsidering the Importance of Formal Institutions
      1. The Uses and Abuses of Neo-patrimonialism
      2. The Impact of the Formal on the Informal
      3. Institutional Impacts and Democracy in Africa
    3. Conclusion
    4. Works Cited
  11. Part I Institutional Foundations
    1. 2 Institutional Legacies
      1. The Roots of Institutional Strength in Africa
      2. Congruence and Divergence: Institutional Continuity and Change
      3. Conclusion
      4. Works Cited
    2. 3 Property and Land Institutions
      1. Institutions, Land Institutions and Political Endogeneity
      2. Contemporary Land Institutions: Origins and Variations
      3. Neo-customary Land Institutions
        1. Neo-customary Territorial Jurisdictions
        2. Neo-customary citizenship rules
        3. Neo-customary Authority Rules
        4. Neo-customary Property Rules
      4. The Statist Land Institutions
        1. Statist Authority Rules
        2. Statist Territorial Jurisdictions
        3. Statist Citizenship Rules
        4. Statist Property Rules
      5. Institutional Effects
        1. State-Building
        2. Defining Political Identities and Collectivities
        3. Shaping Forms of Land-Related Conflict
      6. Conclusion
      7. Works Cited
    3. 4 Financial Institutions
      1. Financial Reprisal Regimes
      2. Politicised Financial Development
      3. Financial Liberalisation and Multiparty Competition
      4. Conclusion
      5. Works cited
  12. Part II Law and Order
    1. 5 Constitutions
      1. Best Practices: Constitutions, Diversity and Inclusiveness
        1. The Rule of Law
        2. The Protection of Civil and Political Rights
        3. Celebrating Diversity
        4. Decentralisation
      2. The Rule of Law, Constitutionalism and Governance
        1. Watchdog Institutions and Respecting the Constitution
      3. The Effectiveness and Enforcement of the Rule of Law
      4. Conclusion
      5. Works Cited
    2. 6 The Police
      1. Policing Africa
      2. Police Responses to Rape in Liberia
      3. Combatting Violence against Women
        1. Law and Policies
        2. Institutions
        3. Training
      4. Police Enforcement of the Rape Law
        1. The Importance of the Rape Law and Gender Policies
        2. The Importance of Institutions and Programmes
        3. Training
      5. Conclusion: Explaining Police Reform in Africa
      6. Works Cited
    3. 7 The Bureaucracy
      1. Formally Independent Agencies and Economic Liberalisation
        1. Administrative Capacity
        2. A Guard against Drift
        3. Credible Commitment
        4. Domestic Pressures
      2. Research Design and Case Selection
      3. Authoritarian Context, More Independent Agency: Uganda
      4. Authoritarian Context, Less Independent Agency: Nigeria
      5. Democratic Context, More Independent Agency: Zambia
      6. Democratic Context, Less Agency Independence: South Africa
      7. A Theory of Technocracy in Transitional Democracy
      8. Conclusion
      9. Works Cited
  13. Part III Elections, Parties and Political Competition
    1. 8 Political Parties
      1. African Parties in Comparative Perspective
      2. Namibia: The Politics of Charismatic Authority
      3. Towards Formalisation
      4. Conclusion
      5. Works Cited
    2. 9 Elections
      1. 'Democratisation-by-elections' Revisited?
      2. Elections and Democratisation in Africa 1986–2012
      3. Data and Design
      4. 'Democratisation-by-elections', election quality and institutional reproduction
        1. The Quality of Elections Matters
        2. The Temporal Dimension
      5. Conclusion
      6. Works Cited
    3. 10 Electoral Rules
      1. The Rules of the Game
        1. Shrewd Incumbents, Desperate Incumbents: Bending the Law or Breaking the Law?
        2. Inclusion, Exclusion and Strategic Rigging
        3. Exclusion and Regime Time
      2. The Impact of Exclusion
        1. Côte d'Ivoire: The Allure of 'Ivoirité' and the Destabilising Politics of Exclusion
        2. Madagascar: Playing Games with Electoral Institutions
      3. Conclusion
      4. Works Cited
    4. 11 Term Limits
      1. How Presidents Leave Power
      2. Term Limits
      3. Under What Conditions Do Presidents Attempt to Secure Third Terms?
      4. Conclusion
      5. Works Cited
  14. Part IV Countervailing Institutions
    1. 12 The Legislature
      1. The Return of the Legislature: Strengths and Weaknesses in the Recent Literature
      2. Legislators as 'Linkers': Tanzania and Kenya in Historical Perspective
      3. 'A Bunge with Teeth:' Patronage and Intra-Elite Contestation in Tanzania
      4. Conclusion
      5. Works Cited
    2. 13 The Judiciary
      1. The Relevance of Judiciaries in Africa's Democratic and Hybrid Regimes
      2. Thinking about the Dependent Variable: Judicial Assertiveness, Autonomy and Authority
      3. Thinking Theoretically about Judicial Development and Performance
      4. The Trajectory of the Zambian judiciary: Authority Compromised (and Regained?)
      5. Structure and Agency in the Demise of Zambian Judicial Authority
      6. Conclusion
      7. Works Cited
    3. 14 Decentralisation
      1. Decentralisation in Africa: Impeding Accountability
        1. Theories of Decentralisation and Accountability
      2. The Kenyan Case in Comparative Perspective
        1. Devolution in Kenya
        2. Embu and Kericho Counties
      3. Impeachments: Background and Motives
        1. Elite Capture and the Impeachment Process
        2. Accountability as a Motive for Impeachment
      4. Conclusion
      5. Works Cited
    4. 15 Conclusion
      1. Institutional Approaches to Continuity and Change
      2. Formal and Informal Institutions in Africa: Competitive or Complementary?
      3. Conclusion
      4. Works Cited
  15. Index

  1. Cover
  2. Contents
  3. Index

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  2. ii
  3. iii
  4. iv
  5. v
  6. vi
  7. vii
  8. viii
  9. ix
  10. x
  11. xi
  12. xii
  13. xiii
  14. xiv
  15. xv
  16. xvi
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